Price's Pic-Pac Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1981

256 N.L.R.B. 742 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD742
Price's Pic-Pac Supermarkets, Inc. and Food Store
Employees Union, Local 347, United Food and
Commercial Workers International Union,
AFL-CIO-CLC. Case 9-CA-14633
June 19, 1981
DECISION AND ORDER
On January 5, 1981, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel also filed exceptions and a supporting brief and
Respondent filed a brief in response thereto.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We herein correct an inadvertent error in the Administrative Law
Judge's Decision. In par. 3, sec. IlI,B,I, the finding as to Mark Hurd's
unlawful discharge should refer to Sec. 8(aX3), not Sec. 8(a)(1).
We agree with the Administrative Law Judge that by November 15,
1979, the Union had obtained valid authorization cards from 22 employ-
ees in the alleged, and admitted, appropriate collective-bargaining unit.
We find it unnecessary to pass on the Administrative Law Judge's exclu-
sion from the unit of Sam Gross, Jr., Tammy Justice, Elizabeth Layne,
Danny Troxell, and Deloris Hicks, whom Respondent would include.
Since there is no dispute that there are at least 37 employees in the unit
the inclusion of the 5 employees at issue would not reduce the Union's
support, 22 employees, to less than a majority.
Respondent excepts, inter alia, to the Administrative Law Judge's find-
ing that it violated Sec. 8(a)(3) and (1) by discharging Jewell Cockerham
on November 16, 1979, on the ground, inter alia, that it did not become
aware of Cockerham's union activity until after her discharge. The
record reveals, however, that Cockerham, on November 13 and 15, 1979,
distributed and received authorization cards while at her checkout
counter work station. Since Respondent kept the checkout area under
constant closed-circuit television monitoring, we infer that Respondent
had direct knowledge of Cockerham's union activity prior to her dis-
charge.
2 We herein adopt the Administrative Law Judge's recommendation of
a remedy which would require Respondent to recognize and bargain
with the Union as the representative of its employees in the unit found
appropriate for collective bargaining. NL.R.B. v. Gissel Packing Co.. Inc.,
395 U.S. 575 (1969). In this case, Respondent has engaged in a campaign
of widespread intimidation and coercion of its employees and began this
effort as soon as it learned that the Union was organizing its employees.
Its campaign included, inter alia, the unlawful discharge of three employ-
ees, unlawful interrogation and polling of many employees, numerous
threats of store closure if the Union won, a statement that one employee
was discharged for his union activities, surveillance of a union meeting,
and threats of discharge for employees attending union meetings. It is dif-
ficult to imagine any conduct on the part of an employer which would
more thoroughly cripple an organizing drive or render a Board election
futile. We conclude that the unfair labor practices committed here, in
violation of Sec. 8(a)(3) and (I), were so coercive that a Gissel bargaining
order is the only effective remedy for them.
Chairman Fanning would in this case date the bargaining order pro-
spectively rather than as of November 16, 1979, when Respondent com-
menced its unfair labor practices. See his partial concurrence in Beasley
Energy, Inc.. d/b/a Peaker Run Coal Company, Ohio Division #1, 228
NLRB 93, 97 (1977).
256 NLRB No. 123
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Price's Pic-Pac
Supermarkets, Inc., Prestonsburg, Kentucky, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order. 3
3 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
case was heard before me at Prestonsburg, Kentucky, on
July 22 and 23, 1980. The complaint alleges numerous in-
dependent violations of Section 8(a)(1) of the National
Labor Relations Act, as amended, as well as six dis-
charges in violation of Section 8(a)(3). Respondent
denied these allegations.
Upon the entire record,' including my observation of
the demeanor of the witnesses as they testified, and with
due regard for the able post-trial briefs submitted by the
parties, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Jurisdiction is not in issue. The complaint alleges, Re-
spondent admits, and I find that Respondent meets both
the Board's $500,000 retail standard and its $50,000
direct inflow standard for the assertion of jurisdiction.
II. LABOR ORGANIZATION
The Union, Food Store Employees Union, Local 347,
United Food and Commercial Workers International
Union, AFL-CIO-CLC, is a labor organization.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Context
Union activity commenced among the employees of
Respondent's Prestonsburg, Kentucky, grocery super-
market on November 7, 1979,2 when Union Organizer
Jodie Ward, while in the store as a customer, suggested
to Jewel Cockerham, a cashier, that the employees
needed a union. Thereafter, Cockerham discussed it with
several other employees, including Linda Bishop and
Shirley Ousley, who agreed to a meeting with the Union.
Cockerham arranged with Ward to hold a meeting of
employees on November 12 at the Plantation Motel; 14
By order of August 7, 1980, I rejected Resp. Exhs. 5 and 6, but they
have been erroneously marked as received.
2 All dates are in 1979.
PRICE'S PIC-PAC SUPERMARKETS. INC. 743
employees3 attended that meeting. Ward explained the
benefits of a union, and asked them to sign union authori-
zation cards if they wanted the Union to represent them.
All 14 did so. Respondent contends that eight 4 of these
cards have not been properly authenticated. I do not
agree. The clear preponderance of the evidence estab-
lishes that all 14 were present and that they then and
there signed an attendance roster as well as their individ-
ual cards. One of those whose card is challenged, Teresa
Gibson, testified that she signed both the roster and a
card at that meeting. Any contention that the other
seven were not present and signed is unsupported by
even a modicum of evidence. The cards, on their face,
explicitly authorize the Union to represent the signer,
and I find that all 14 cards signed on November 12 are
valid designations of the Union by those whose signa-
tures appear thereon. Eight more cards were signed on
November 13 and 15.5 Respondent challenges the au-
thenticity of the cards signed by Billy Ray Ousley and
Haskell Collins on the ground the receiver of the cards,
Jewel Cockerham, did not actually see them sign. Both
gave cards to Cockerham. It is true she did not see them
sign, but it is well established that the return of a signed
card by the signatory for delivery to the Union is suffi-
cient to authenticate the card.6 Accordingly, the cards
Ousley and Collins gave to Cockerham are valid designa-
tions.
The complaint alleges, Respondent admits, and I find
that the following employees constitute a unit appropri-
ate for collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time employees em-
ployed by Respondent at its Prestonsburg, Ken-
tucky facility, excluding all office clerical employ-
ees, and all professional employees, guards, the
store manager, the assistant store manager, and all
other supervisors as defined in the Act.
The General Counsel contends there were 37 employ-
ees in the unit on November 16, and that the Union then
represented a majority of these employees. Respondent
would include a total of 42. Respondent concedes, and I
find, that the 22 card signers were members of the unit.
It obviously follows that on November 15 the Union had
been designated by a majority of the employees in the
above unit as their collective-bargaining representative,
even if Respondent's claim of 42 employees in the unit is
accurate.
Respondent contends that, in addition to 35 employ-
ees,7 about whom there is no doubt as to inclusion, Ell
3 Teresa Gibson, Vanessa Music, Shirley Ousley, Linda Bishop. Jewel
Cockerham, Randy Wilcox, Tim Hubbard, Artie Webb, Jr., Dwayne
Newberry, Mark Hurd, Larry Prater, Phillip Meade, Jesse Meade, and
Lorraine Hackworth.
Vanessa Music, Dwayne Newberry, Artie Webb, Jr., Randall
Wilcox, Timothy Hubbard, Lorraine Hackworth, Teresa Gibson, and
Linda Bishop.
I Tim Allen, John A. Davis, Billy Ray Ousley. Karen Ramey, Debbie
Stephens, Suette Spradlin, Haskell Collins, and Sherry Crum
6See, e.g., McEwen Manufacturing Company and Washington Industries.
Inc., 172 NLRB 990, 992 (1968)
7 [Names of 35 employees omitted from publication.]
Arnett, Elizabeth Layne, Danny Troxell, Deloris Hicks,
Tammy Justice, Nancy Crum, and Sam Gross, Jr.,
should also be included. The General Counsel would ex-
clude these 7 as well as David Keel and Norma Ousley,
and contends there are 37 in the unit.
I find that the 35 employees named by Respondent are
indeed in the agreed-upon unit.8 The General Counsel
does not name the 37 he thinks should be in the unit, but
I am convinced from the record and the tenor of his
post-trial brief that he would agree with Respondent that
the 35 named by Respondent are in the unit.
Norma Ousley9 worked 15.25 hours during the week
ending November 3, and appears on no later payroll reg-
ister in evidence. Respondent's corporate secretary-trea-
surer and store manager at Prestonsburg, Phillip Whit-
ten, testified that Norma Ousley worked a day or two as
a new cashier, made a lot of mistakes, and was laid off
indefinitely until such time as she might be called back
and given further training. Whether or not she will ever
return is speculative at best, and I find that the available
evidence does not warrant a conclusion that she had any
reasonable expectancy of future employment after the
week ending November 3. I therefore conclude she was
not a member of the unit at the time of the Union's orga-
nizing campaign or thereafter through the time of the
hearing before me, and should be excluded therefrom.
Neither party seeks to include her.
I credit Phillip Whitten's uncontroverted testimony
that Nancy Crum was a full-time 50-hour-a-week meat-
cutter who cut her finger off at work prior to the onset
of the union campaign, and has thereafter been on work-
men's compensation until such time as she is released to
work by a physician. Although I agree with the General
Counsel that Respondent's position on Crum would be
stronger if buttressed by some documentary evidence, I
do not agree that the absence of her name from payroll
registers is significant. Only those who were paid wages
appear on the registers, and all that can be drawn from
them is that she received no wages, which is consistent
with Respondent's claim that she is on workmen's com-
pensation. The fact that her name does appear on the
payroll timesheet, a different document from the register,
for the week ending November 17, with zero wages
shown, is likewise of little probative value. The General
Counsel developed nothing to rebut Whitten's testimony.
On balance, I conclude that Respondent has the better of
the evidence, and find Crum is a unit employee absent
due to injury with a reasonable expectancy of continued
employment upon her recovery.
Sam Gross, Jr., Tammy Justice, and Elizabeth Layne
work only as they are needed, may refuse to come in to
work when called, and yet will be called later when
available. Deloris Hicks, who compiles the payroll, cre-
dibly testified that neither Layne nor Justice worked at
the store more than three or four times for brief periods
in the year preceding the hearing. Hicks also credibly
s The 22 card signers are among these 35.
Although Norma Ousley and David Keel were not alluded to in Re-
spondent's post-trial brief, they have been put in issue by the General
Counsel's brief, and I believe it appropriate to now resolve their status
insofar as the evidence permits
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Sam Gross, Jr., did no work at the store,
but worked away from the store for Taylor Price.10
Taylor Price testified that he used Gross to clean up the
parking lot, cut grass, work at a warehouse located in a
building alongside Price's home, and do anything that
Price needed done, all in order to help out Gross' father.
The evidence before me, without more, fairly requires a
conclusion that the employment of Gross Jr., Layne, and
Justice was sporadic and casual and established no pat-
tern of regular continuing employment. I therefore find
they should be excluded from the unit.
Ell Arnett has not been shown to be a statutory super-
visor. Whether he be designated "stock manager," "lead
man," "stock leader," or "boss," all of which appella-
tions were applied to him by one witness or another, is
not controlling. His duties and authority are the impor-
tant items. There is no credible substantive evidence that
he possesses any of the authorities enumerated in Section
2(11) of the Act. I credit his testimony that, although he
reported to Whitten that employee Mike Baker had been
coming in late, it was Whitten, not he, who decided to
and did fire Baker.' I Mark Hurd's testimony, in response
to a leading question, is entitled to little weight where he
testified that on occasions, the number of which he
cannot remember, when he "might have to take time off
from the job, leave at a certain time, or perhaps get per-
mission not to go in until a certain time," he would talk
to Bill Ousley or Ell Arnett, and if it was to Arnett he
would get a decision. Considering that the parties agree
that Ousley is in the unit and the evidence at least argu-
ably indicates that Arnett may have ranked below him in
terms of authority, however ephemeral that authority
might be, as well as the lack of any corroborating evi-
dence for Hurd's vague testimony, I am persuaded that
Hurd's testimony is far too gossamer to rely on. All the
evidence warrants is a finding that Arnett is a stock clerk
who is paid more and acts as a leader for newer employ-
ees because of his superior experience, but whose duties
are otherwise substantially identical to those of the other
stock clerks. I conclude that Arnett is a unit employee. 2
Danny Troxell worked during the weeks ending No-
vember 3 and 10. His name appears on the payroll time-
sheet for the week ending November 17, but he did not
work that week or thereafter at Prestonsburg. Troxell is
a college student whose absence from work the last 2
weeks in November is attributed by Phillip Whitten to a
conflict with school-related matters. He started working
at Respondent's Martin, Kentucky, store in December. It
would appear from his school-related absence that his
availability for work was subordinate to school-related
claims on his time. This being the case, it follows that his
part-time work could not properly be classified as "regu-
lar" because it was unpredictable and subject to change
when Troxell's student status required it. The paucity of
10 I do not credit Phillip Whitten's testimony on these employees
where it might appear to contradict Hicks. Hicks was a more believable
witness than Whitten in terms of general demeanor and straightforward-
ness of testimony.
" To the extent that Shirley Ousley's testimony suggests a contrary
conclusion, it is not credited.
12 See Tonnor Brothers Foods, Inc. d/b/a Big T Food Store, 200 NLRB
409, 411-412 (1972), where an employee with duties and authority like
that of Arnett was found to be nonsupervisory.
evidence with regard to Troxell makes it impossible to
say with absolute certainty what his status was, but that
evidence which is before me implies he was primarily a
student and secondarily a casual employee as his school
schedule permitted. Moreover, it is arguable, although
somewhat speculative, that when Troxell left work for
the last time the week of November 17 he had no plan to
return. He did not return to Prestonsburg, but went to
Martin. This suggests, in the absence of other reasonable
explanation, that there was then no work for him at the
Prestonsburg store. This hypothesis derives some inferen-
tial support from the fact that his college is located in
Prestonsburg, and it is logical that he would likely prefer
working near his school rather than another city. For
these reasons, I find Troxell was a casual employee ex-
cluded from the unit.
David Keel was a high school student working after
school and on weekends. His name does not appear on
Respondent's payroll register after November 3. Accord-
ing to Phillip Whitten, Keel claimed he injured his back
and applied for and received workmen's compensation,
but quit his employment sometime in December 1979.
Neither party adduced any further evidence on his
status, and neither seeks to include Keel in the unit. In
the circumstances I see no need to speculate further on
Keel's unit placement which is not determinative of the
Union's majority claim in any event, and I find he is ex-
cluded from the unit.
Deloris Hicks spends most of her time in the store of-
fices which are used by managerial personnel and their
spouses. She is salaried, has no timecard, and is responsi-
ble for computing employees' hours from their time-
cards. It is also her responsibility to make daily bank de-
posits of store receipts. Although she relieves cashiers as
necessary and occasionally helps carry out groceries,
stock shelves, and assists in the produce department,
managerial employees and their spouses give similar as-
sistance as needed. On the evidence, I am persuaded that
her duties and working conditions are sufficiently differ-
ent from those of the regular rank-and-file employees to
warrant a conclusion that she is an office clerical em-
ployee with no substantial community of interest with
unit employees, and she is therefore not included within
the agreed-upon unit.
With the inclusion of Nancy Crum and Ell Arnett the
appropriate unit numbered 37 employees during the
week ending November 17, of whom 22 had executed
valid union authorization cards. I find that the Union at-
tained its majority status on November 15 and then
became and remained the collective-bargaining repre-
sentative of all employees in the unit.
Against this backdrop, we turn to an examination of
Respondent's conduct from November 16 through No-
vember 20.
PRICE'S PIC-PAC SUPERMARKETS, INC. 745
B. The 8(a)(1) and (3) Violations
I. Conduct of Respondent's president, Taylor Price
On November 16, stocker Mark Hurdl3 went into the
store to shop, after he had finished work for the day.
Taylor Price called him into the stockroom and asked if
he was for the Union. Hurd told him "all the way."
Price responded that he would close the doors before he
would see the Union go in, and gave Hurd until the
morrow to reconsider his position on the Union.
At 8 a.m., on November 17, Hurd started to work.
About noon he was called to the stockroom where Price
asked if he had made up his mind. The query obviously
related to Hurd's union feelings. When Hurd said he had,
Price asked what he had decided. Hurd replied again
that he was for the Union all the way. Price, apparently
angered and perhaps surprised, cursed and told Hurd to
hit the clock and leave. Hurd's only comment was,
"Well," whereupon he clocked out.
I find that Respondent, by Taylor Price on November
16, coercively' 4 interrogated Hurd with respect to his
union activities; attempted to get him to change his mind
by ominously giving him overnight to think it over; and
threatened to close the store rather than permit a union
to represent his employees. Each of these three acts,'5
individually as well as collectively, violated Section
8(a)(l) of the Act. On November 17, Taylor Price again
violated Section 8(a)(l) by coercively interrogating
Hurd, and then violated Section 8(a)(1) by discharging
him because he remained staunch in support of the
Union. The conclusion that Hurd was unlawfully dis-
charged is further confirmed by the announcement of
Store Manager Whitten to 20 or 30 employees, on No-
vember 18, that Hurd had been discharged because of his
union activities.
On the evening of November 19, several employees
met with the Union at the home of cashier Jewel Cock-
erham, who had been discharged on November 16. As
Hurd, Phillip Meade, and Jesse Meade left at or about
10:30 p.m., they observed Taylor Price's automobile fol-
lowing them and flashing its lights. Taylor Price was the
driver, and Jeff Buchanan, manager of the Price store at
Martin, Kentucky, was a passenger therein. Frightened,
the Meades and Hurd returned to Cockerham's where
she and they observed Price drive the automobile round
z' I credit Hurd's version because he was the more convincing it-
ness, and note that even Price's version establishes that he was concerned
about the Union, was attempting to find out what it and his employees
were doing together, and was irritated at Hurd because he (Price)
"couldn't get any satisfaction out of him." Price concedes telling Hurd to
go home but claims he told him to go for a day or two because Hurd got
loud. However, in response to his counsel's question, he testified that he
terminated no one other than Hurd for union activity. If i were to credit
Price, I would yet find violations of Sec. 8(aX3) and (1) and I have con-
sidered his version where it does not contradict Hurd.
i4 Coercion is inherent in a situation where the corporate president,
clearly opposed to the Union, subjects a rank-and-file employee to inter-
rogation about his union activity.
1s The coercive comment bgiving Hurd time to think it over was not
specifically alleged, but it is pan and parcel of the entire conversation
alleged to contain violations of Sec. 8(aXI), and the content of the con-
versation was fully litigated.
and round the block until approximately 2:30 a.m. " It is
clear from other evidence related later in this Decision
that Respondent was aware there was going to be a
union meeting at Cockerham's house, and I find that Re-
spondent, by Taylor Price, did engage in unlawful sur-
veillance of its employees' union meetings and activities
by following them and circling their meeting place. I
also conclude that Price's presence at the gas station
when the employees departed Cockerham's home was
planned rather than fortuitous, and was part of a scheme
of surveillance (of the meeting) and then intimidation by
following union adherents. These acts violated Section
8(a)(l) of the Act.
Shirley Ousley credibly testified that, on November
17, Taylor Price told her, while they were alone in the
breakroom, that if the Union came Respondent would
close the store, and if she intended to support the Union
to walk out of the store now. Price's first statement is a
threat of store closure. The second is a threat of dis-
charge."7 Both are clear responses to union activity and
both violate Section 8(a)(l) of the Act.
In addition to the foregoing, Respondent's agent,
Whitten, admits that Taylor Price asked Shirley Ousley
on November 17 what kind of meeting the employees
were talking about. I have found that Price already knew
the employees were engaged in union activity, and his
question of Ousley was interrogation designed to elicit
information on the content of a union meeting, and
therefore violated Section 8(a)(1) of the Act.
2. Conduct of Phillip Whitten
Whitten, respondent's secretary treasurer and store
manager,' claims that he first became aware of employ-
ee meetings on November 16 when Deloris Hicks report-
ed to him that Jewel Cockerham, who had just been dis-
charged, had said her discharge would be discussed at a
"meeting." Whitten first placed the discharge of Cocker-
ham between 5 and 6 p.m., but then quickly amended
that to between 4 and 6 p.m. I find it took place shortly
after 4 p.m. as Cockerham states. Contrary to Whitten's
testimony that he did not know union activity was in-
volved in the "meeting," I find that he did. Respondent
knew its employees were engaged in union activities by 5
or 6 p.m. at the latest when Taylor Price unlawfully in-
terrogated Mark Hurd. Moreover, the fact that Taylor
Price, about 5 or 6 p.m. on November 16, asked Hurd if
he was for the Union is substantial evidence that Price,
and thus Respondent, was aware prior to the interroga-
tion of Hurd that there was union activity among Re-
spondent's employees. I cannot and do not believe that
is These facts are derived from a composite of the complementary
credible testimony of Cockerham, Hurd, and the two Meades. I do not
credit the denials of Taylor Price, noting, inter aolt, that he did not deny
the presence of Buchanan who did not testify.
'' Threat of discharge by Price is not alleged in the complaint, but
Ousley's testimony is credible and uncontroverted. and the matter is
closely related to the subject matter of the complaint Ackerman Manu-
fJcturing Company, 241 NLRB 62 (1979)
i" Whitten did not meet the testimony of employees on some incidents,
and on others was evasive, circumlocutory, and equivocal. He was not as
impressive a witness as his former employees, and I do not credit him in
those instances where his otherwise unsupported testimony contradicts
rather than complements theirs
_.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the store manager, Whitten, was kept in the dark about
union activity known to Respondent. The practically si-
multaneous discharge of Cockerham and the interroga-
tion of Hurd raise a fair inference that Respondent knew
at the time of Cockerham's discharge there was union
activity in the store. A similar inference may fairly be
drawn from the fact that there was considerable union
activity at the store, consisting of setting up the first
meeting of November 12 among employees and solicita-
tion and distribution of union cards on November 13 and
15, within a relatively small unit in what amounts to a
family controlled and run store in a small town. In this
setting it is highly unlikely employee union activity
would go long unnoticed by management.'s Considering
all of the direct and circumstantial evidence on the point,
as well as the fair inferences that may reasonably be
drawn, I conclude that Respondent was aware of union
activity among its employees at the time Cockerham was
discharged, and I further find that in view of Cocker-
ham's outstanding activity and Respondent's diligent and
systematic efforts to ascertain the identity of union ad-
herents it is quite probable that Respondent knew of
Cockerham's activities at the time she was discharged.
Events of November 17
(a) Whitten states that he called employee Teresa
Gibson into his office, on a date of which he is not cer-
tain, and asked her what kind of meeting employees
were talking about. He further testifies that Gibson said
she could not lie to him and admitted employees had
talked to a man about union representation. Gibson,
when called as a witness by Respondent, testified that,
some 2 or 3 days after she signed an authorization card
on November 12, employee Larry Prater bothered her at
work by repeatedly asking her how she would vote. She
immediately reported this to Whitten. She denies that
Whitten had earlier called her into his office and talked
to her about the Union, or that she told him she could
not lie to him and had been to a union meeting. Gibson
concedes she does not remember a lot of things, and her
pretrial affidavit of December 19 contains no reference
to Prater bothering her. Whitten relates that Gibson's
complaint about being bothered by Prater and Shirley
Ousley was delivered on November 17. I am persuaded
that the complaint about Prater was made on November
17, because that was the date Whitten angrily confronted
him on it. 20 That leaves the other conversation Whitten
claims he had with Gibson. I am persuaded that in this
instance Whitten has a memory superior to that of
Gibson, and did indeed question her about the meeting
Cockerham had referred to on November 16. This ques-
tioning took place as part of his questioning of a number
of employees on November 17, and occurred prior to
Gibson's complaint. Whitten's testimony about this first
conversation, viewed in the context of Respondent's No-
1 I do not agree with the General Counsel that some ambiguous testi-
mony by Taylor Price establishes that through a conversation with em-
ployee Hackworth he became aware of Jewel Cockerham's union activity
prior to her discharge. Price clearly testified that this conversation oc-
curred after Cockerham was discharged, and I have no reason to discred-
it him on this point.
10 This confrontation is detailed below.
vember 16 knowledge of union activity, admits interro-
gation into the content of a meeting which Respondent
plainly had reason to believe involved a union. This is in-
terrogation of a type prohibited by Section 8(a)(1) of the
Act, and I do not credit Whitten's various efforts to pass
off his questioning of employees about the upcoming
meeting as lawful curiosity.
(b) Whitten called Larry Prater into his office and
asked him what he knew about the Union. Prater de-
clined to discuss it and returned to work. About 10 min-
utes later, Whitten came to Prater's work area with
Taylor Price and pointed Prater out as "the only boy
that's lied to me." Later, Prater was assigned, through
Ell Arnett, to clean out the milk cooler. He had never
before been assigned to do so on a Saturday. The job
was usually done on Monday morning when there was
not so much milk in the cooler. All the milk had to be
removed for the cleaning and there were about 1,500
gallons in the cooler on that Saturday. Prater told Arnett
the milk would probably spoil by the time the cooler
cleaning was completed. Arnett so advised Dale Tackett,
the assistant store manager and an admitted supervisor.
Tackett said he could not help it because that was the
work they had for Prater to do. Prater, after removing
some of the milk, decided it was a useless task and went
to see Tackett. He told Tackett he was being made to do
it because he would not tell anything about the Union.
Tackett replied that he was told what to do and had to
tell Prater what to do.
Whitten, who had then received the complaint from
Gibson that Prater was bothering her about the Union,
came to Prater while he was talking to Tackett 21 and
told him that if he would not discuss the Union with
Whitten he could not talk to anyone else about it. Whit-
ten then threatened Prater with a beating 22 if he contin-
ued to talk about the Union, and concluded that he
would not fire Prater but he would make him wish he
were fired. Prater replied that he quit, Tackett told him
to hit the clock, and he punched out and left. I do not
credit Whitten's claim that he attempted to deter Prater
from quitting. With respect to Whitten's claim that he
has an unwritten "standing rule" regarding solicitation, I
need only observe that he never explained the rule, the
existence of such a rule is supported by nothing more
than his incredible ipse dixit, and this claim strikes me as
a transparent fiction designed to provide a defense Re-
spondent does not have.
Whitten's initial questioning of Prater about the Union
violated Section 8(a)(l) of the Act. Whitten's pointing
out Prater to Taylor Price as one who lied to him shows
his resentment at Prater's refusal to discuss the Union.
Prater's assignment to clean the cooler is suspicious but
was neither alleged in the complaint nor fully litigated.
Whitten's proscription of any talk by Prater about the
Union unless he talked to Whitten about it was coercive
2 Neither Tackett nor Arnett testified regarding this series of inci-
dents, although called by Respondent as witnesses on other matters.
2Z Whether Whitten threatened to whip Prater from one end of the
stock room to the other, as Whitten claims, or to beat him until his own
mother would not recognize him, as Prater claims, is of no consequence.
A threat of physical beating is a threat of physical beating.
---
PRICE'S PIC-PAC SUPERMARKETS, INC. 747
interference with a legitimate Section 7 right, in the ab-
sence of any valid rule on solicitation, and violated Sec-
tion 8(a)(l), as did Whitten's threat of physical attack if
Prater continued to talk about the Union.
I do not believe that Whitten was provoked as much
by Gibson's complaint, which he did not even bother to
investigate for verity or give Prater a chance to refute,
as he was by resentment at Prater's refusing to inform on
union activities. Whitten's adversion to a solicitation rule
which does not exist, and a claimed loss of money due to
Prater's conversation with Gibson, which loss has not
been shown, are pretexts designed to mask his real
motive which was to forestall union activity. Whitten's
unlawful instruction to Prater to refrain from union ac-
tivity on threat of physical violence, coupled with his
threat to make him wish he were fired, was more than
enough to force Prater to quit. Prater was not required
to choose between the Union and his job,23 nor was he
required to submit passively to the more onerous work-
ing conditions posed by Whitten as a condition of his
continued employment. What Whitten was saying is
crystal clear: "I will make your job miserable because
you're Union." His acts were patently calculated to force
Prater off the job, and that he was successful in forcing
Prater to quit certainly cannot be condoned by treating
Prater as a voluntary quit. Prater was constructively dis-
charged in violation of Section 8(a)(3) and (1) of the Act.
(c) On November 17, Whitten called Jesse Meade to
him and told him that Whitten knew he had signed a
union card, and if the Union got in the store would
close. Whitten continued that if he went to the meeting
on Monday, November 19, he would be fired. The first
statement was sufficient to create an impression of Re-
spondent's surveillance of Jesse Meade's union activities,
and was an implied interrogation as to whether or not he
had signed a union card, both in violation of Section
8(a)(1). The second was an unlawful threat of store clo-
sure if the Union got in. The third is violative of Section
8(a)(1) as a threat of discharge for attending a union
meeting, and this threat was reinforced by repetition on
November 19, as related below.
(d) Whitten talked to Phillip Meade in the parking lot
of the store on November 17, and asked Meade how he
was going to vote on the Union, a clear interrogation
into his union sympathies in violation of Section 8(a)(1).
Whitten continued that if the Union came in the Re-
spondent would lose everything it had, and he and
Meade would be out of a job. This statement has not
been shown to be anything more than a deliberate hy-
pothesis constructed to threaten Phillip Meade with loss
of his job if the Union were successful in organizing Re-
spondent's employees, for the purpose of discouraging
any union sympathies he might have. It is therefore vio-
lative of Section 8(a)(l) of the Act.
(e) Shirley Ousley was called into the office by Whit-
ten. Taylor Price was present throughout much of the
conversation, but denies any knowledge of what was
said. 24 Whitten told Ousley that he knew about the
23 See Ra-Rich Manufacturing Corporaton, 120 NLRB 503. 506 (1958)
"Under the Act, a choice of this character may not validly be imposed
upon employees and is in contravention of the Act"
2 I find this unbelievable.
union meeting, knew she had been there, 25 knew every-
one who was there, and knew she signed a card. Each of
these statements is a violation of Section 8(a)(l) consist-
ing of the creation of an impression of surveillance of a
union meeting, and an implied interrogation as to wheth-
er or not Ousley had signed a union card. Whitten then
continued to violate Section 8(a)(1) of the Act by telling
Ousley the Union would do employees no good, and if it
came in the store would be closed and its contents
moved to Respondent's Martin, Kentucky, store, another
unlawful threat of store closure.
Whitten concedes that Ousley had requested a raise in
the past, which was refused, but denies her testimony
that, after Taylor Price left the room, he offered her the
job as head cashier with a 20-cent-an-hour raise. I credit
Ousley, noting there was no head cashier at the time,
and find that Whitten followed up his threats with an in-
ducement to Ousley designed to sway her from her
union support. This violated Section 8(a)(l) of the Act.
Whitten then again violated Section 8(a)(l) by asking her
how she would vote on the Union.
Events of November 18
On the evening of November 18, Whitten conducted a
meeting of between 20 and 30 store employees. Accord-
ing to Whitten, three or four unnamed employees told
him just before the meeting what benefits the union rep-
resentative had said the Union could get for employees.
This testimony developed during his testimony as an ad-
verse witness, but when recalled as Respondent's witness
he testified that he got his information on what the
Union might demand from a brochure given him by one
of his employees. The employee went unnamed and the
brochure unproduced. This conflict within Whitten's tes-
timony causes me to view either version with caution,
and I think it more probable that Respondent in fact had
no definite idea what the Union would or might demand
in the way of monetary benefits when Whitten met with
the employees on November 18. Nevertheless, Whitten
showed the employees Respondent's financial records,
opined that Respondent could not afford a union, and
stated that Respondent would have a clearance sale if the
Union got in. I agree with the General Counsel that
"clearance sale" was a euphemism for "store closure,"
and find that Respondent constructed a hypothesis of in-
ability to pay on which to base a conclusion of store clo-
sure following on the heels of unionization. I find that by
so doing Respondent made an unwarranted threat of
store clearance predicated on union success and bereft of
objective evidence that union demands would be so ex-
treme as to cause closure. Respondent thereby violated
Section 8(a)(1) of the Act, and further violated Section
8(a)(1) of the Act by pointing to employees individually
and asking them if they were still in for the purpose of
undermining the Union's support,2 6 and polling employ-
ees to ascertain their support of the Union without
proper safeguards. 27 Whitten concedes that he told the
~' I conclude that he was referring to the November 12 meeting.
26 See English Brothers Pattern and Foundry. 253 NLRB 530 (1980).
Strukswt, (Conqtruction Co. Inc.. 165 NLRB 1062, 1063 (1967).
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembled employees that Mark Hurd had been dis-
charged by Taylor Price because of his union activities.
He thus made them aware of what might befall union ad-
herents and impliedly threatened discharge in retaliation
for union activities, thereby violating Section 8(a)(1).
Moreover, his question posed to employees whether they
would not have felt like killing Hurd if they had been in
Taylor Price's position could not help but convey to
them Respondent's deep-seated hostility to the Union,
and coercively inhibit them in the exercise of their Sec-
tion 7 rights in violation of Section 8(a)(l). I do not
agree that Whitten's question was a threat of physical
violence, because I believe it to be a figure of speech, as
he told them it was, designed to coerce by emphasizing
the strength of Respondent's antiunion feelings, rather
than an overt or implied threat of physical injury. I do,
however, find it to be an implied threat of unspecified re-
prisals short of actual violence, and unlawful on that ad-
ditional ground. Moreover, Whitten's admitted question-
ing of employees at this meeting as to whether they were
going to the November 19 meeting violated Section
8(a)(1) of the Act.
The evidence convinces me that Whitten did say at
this meeting that employees would not be fired for at-
tending union meetings, but this is self-serving and not at
all dispositive of the issues of discharge for such attend-
ance raised herein, or of statements by Whitten to the
contrary after the meeting.
Events of November 19
Jesse Meade went to Whitten and asked for the next
day, November 20, off for personal business. Whitten
said that if he did not go to the union meeting he could
have the day off,2 8 but he would be fired if he did go to
the meeting. Whitten likewise told Phillip Meade, on No-
vember 19, that anyone who attended the meeting at
Jewel Cockerham's house that night would be fired.
Whitten also asked Phillip Meade how he was going to
vote. On the same day, Whitten told Shirley Ousley that
he knew about the meeting at Cockerham's house that
evening, and anyone who attended would be fired the
next day. He asked if she was going and got an affirma-
tive answer.
By threatening Ousley and both Meades with dis-
charge for attending a union meeting, Respondent, by its
agent Whitten, violated Section 8(a)(l) of the Act. By
asking Phillip Meade how he was going to vote, and
Ousley whether she was going to the meeting, Whitten
coercively interrogated them in violation of Section
8(a)(1) of the Act.
All three, along with Debbie Stevens and Mark Hurd,
went to the meeting with Cockerham and Union Agent
Ward.
Events of November 20 and Thereafter
Ousley went into the store with Stevens and asked De-
loris Hicks if they still had a job. Hicks told them they
did, and called Whitten on the phone who advised them
they were not fired. They went to work.
2s This inducement to avoid the union meeting is not alleged as a vio-
lation, and has not been fairly litigated.
About 10 a.m., Whitten called Ousley to his office and
asked who was at the meeting and what Ward had said.
By so doing, Whitten again engaged in unlawful interro-
gation into employees' union activities, and thereby vio-
lated Section 8(a)(1). Ousley told him that she and Ste-
vens had gone, and that he would have to fire her be.
cause she would not quit. He responded that he would
not fire her, but she "would have to stick around and
take it." I interpret this latter comment as a threat of un-
specified reprisals because she had gone to the meet-
ing.2 9
Ousley returned to work, but found that the other em-
ployees would neither talk to her nor give her any assist-
ance. Whether the employees had been so instructed by
Respondent, were afraid to get too close to Ousley, or
were merely being uncooperative for other reasons is not
shown by the evidence. However, when Ousley called
Whitten and asked for help from the bagboys, the re-
quested assistance did not materialize. I am persuaded
this failure by Whitten to get her such assistance was
part of what he had told her she would have to "take."
At noon, Ousley left. She then called Whitten and told
him she was going to the doctor. Whitten told her if she
did not have a doctor's slip she should not return to
work.3 0
Ousley's testimony that her husband called Whitten to
report that she had no doctor's slip and was told she was
not to return is uncorroborated hearsay and therefore un-
reliable, but I note that Respondent did not controvert
the assertion that her husband called. In any event,
Ousley did not return to work, but turned in her uniform
to Hicks on November 2131 with the explanation that
Whitten said she was fired if she had no doctor's excuse.
Hicks told her she was not fired, but Ousley repeated
Whitten's statement she would be if she had no excuse.
Hicks repeated she was not fired, told her Whitten had
said she would not be fired if she had no excuse, and of-
fered to get Whitten on the phone. Ousley declined the
offer and repeated Whitten had told her she was fired if
she did not have an excuse. Hicks then asked if she was
quitting. Ousley replied, "I guess I am."
I agree with the General Counsel that Ousley was, by
implication, told by Whitten that her working conditions
would be more difficult, and that she may have been
subjected to more onerous working conditions by Whit-
ten's refusal to provide her with assistance. Even so,
these are not the reasons her employment ended. Whit-
ten's requirement voiced to her that she must have a
doctor's permit before she could return to work is not
shown to have been disparate treatment but, assuming ar-
guendo that it was, Hicks was, as far as Ousley could
possibly ascertain, acting as an apparent agent of Whitten
when she told Ousley she was not fired. When Hicks of-
fered to call Whitten for confirmation, Ousley had no
29 This threat is not specifically alleged in the complaint, but is closely
related to other allegations in the complaint and is therefore found viola-
tive of Sec 8(a)(1) of the Act. Ackerman Manufacturing Company, 241
NLRB 62 (1979).
30 I specifically do not credit Whitten's testimony to the contrary
:' I credit Hicks' account of this conversation. Hicks' testimony on the
matter had the ring (of truth, and the details as she related them appeared
probable.
PRICE'S PIC-PAC SUPERMARKETS, INC. 749
logical reason not to take her up on the offer. Ousley's
experience of November 20 when Whitten did not fire
her, even though he had earlier threatened to, gave her
some reason to believe, in light of Hicks' reassurances,
that his latest threat might also be inoperative. It might
tbe argued that Ousley quit because of more onerous
treatment she had received, and the prospect of receiv-
ing more, but this is not the case. Her separation came
albout because she simply refused to believe Hicks or to
check with Whitten, preferring to adhere to the theory
that Whitten's threat became operative upon her failure
to provide a note from the doctor. That she may have
thought she was fired does not make it so, and Hicks' at-
tempts to dissuade her coupled with an offer to confirm
with Whitten that Ousley was not fired were about all
the Respondent could do in the circumstances, including
Ousley's refusal to talk with Whitten as Hicks suggested.
After Ousley took this strong position, Hicks' questions
as to whether or not she was quitting seem quite natural
and spontaneous without any insidious motive. Recogniz-
ing that Ousley had been subjected to interrogation and
threats, and had been denied assistance by Whitten, I still
cannot find that the General Counsel has shown by a
preponderance of the evidence that she was constructive-
ly discharged. It seems clear that she could have contin-
ued to work if she so desired and that she elected to quit
in the face of Hicks' assurances that she still had a job.
Separation of Jesse and Phillip Meade
Although both Jesse and Phillip Meade were sched-
uled to work on November 20, neither reported to work
that day, but Phillip Meade called Ell Arnett and asked
if he was fired. Arnett asked him what Whitten had said.
Meade repeated Whitten's threat of discharge for attend-
ing the November 19 meeting, and Arnett said, "Well, I
guess you are fired." I have found Arnett is not a statu-
tory supervisor, and his remark was mere speculation
based on Phillip Meade's report of Whitten's statements.
Both Meades were called by Whitten that morning and
requested to report to work. Both told him they were
scared to. The record does not show what frightened
them or whether they told Whitten of the source of their
fear. Whitten told Jesse Meade that he need not worry,
but Jesse Meade never returned to work. Phillip Meade
does not say whether Whitten reassured him, but 1 con-
clude he did because it is obvious he was trying to get
the Meades to come in and work. Moreover, Phillip
Meade told Whitten he would report to work, and this
indicates he likely received some assurances from Whit-
ten. Like Jesse, Phillip never reported to work.
I find that Phillip and Jesse Meade were not construc-
tively discharged, but voluntarily terminated themselves
in spite of Whitten's entreaties. The General Counsel has
not shown that Respondent intended to discharge either
Meade. That Respondent threatened discharge of those
who attended the November 19 meeting did not set up a
self-operating sequence whereby attendance was synony-
mous with discharge, nor did it license employees not to
return to work on a theory they had been discharged.
To so hold would inevitably lead to the untenable con-
clusion that an employee who ceases work of his own
volition after receiving a threat of discharge or other
reprisal thereupon becomes a discriminatee under Section
8(a)(1) or (3) of the Act, or both. Further, Whitten's re-
quest that the Meades come to work dispelled any
theory that they had been discharged, and his assurances
that they had no need to fear to come to work were rea-
sonably calculated to remove any lingering fears that
they would be discharged. Finally, quitting in anticipa-
tion of discharge is not a constructive discharge.3 2 Ac-
cordingly, the complaint allegation that Jesse and Phillip
Meade were unlawfully terminated will be dismissed.
The Discharge of Jewel Cockerham
Jewel Cockerham was called into the office about 4
p.m. on November 16 where she was discharged by
Whitten in Assistant Manager Tackett's presence. The
reason proffered to her, and testified to by Whitten, was
rudeness to customers. According to Whitten, the pre-
cipitating cause was a call from a woman customer,
name unknown, who complained that Cockerham, a
cashier, had shortchanged her, refused to acknowledge
her possible error, and insinuated that the customer was
lying. Whitten first dated this call about a week before
the discharge, then modified his testimony to reflect that
he got the call on the evening of November 15 and
promised the customer he would discharge Cockerham
the following day. Tackett, who testified he initially
heard the customer's complaint and turned the call over
to Whitten, places it 2 or 3 days before the discharge.
Moreover, Tackett, who was present and presumably
heard what Whitten said to the customer, offered no tes-
timony on what Whitten told the customer. I find it
somewhat suspicious that Tackett, although testifying on
what he and the customer said to each other, was not
asked to confirm Whitten's promise to discharge Cocker-
ham. I find it downright unbelievable that Whitten had
received "20-30" complaints about Cockerham's alleged
"hateful" rudeness to customers and yet retained her
without a hint of discipline. Whitten's "20-30" com-
plaints struck me as pure manufacture. Cockerham credi-
bly testified that she had never been talked to about any
customer complaints and recalls no similar problems with
customers." The one time it is certain that rudeness to
customers was mentioned to her was at her discharge,
and the scenario of events preceding her November 16
meeting was not consistent with Respondent's established
procedures for handling customer complaints. This is
shown by Tackett's testimony that complaints about the
other cashiers had been routinely handled by him with
the offending employee. His lame explanation that the
reason he referred the call to Whitten was because it was
a regular customer threatening to cease doing business
with Respondent is not persuasive. Neither he nor Whit-
ten purports to know the customer's name, and neither
relates any convincing evidence that the call was from a
regular customer. Nor do I credit Whitten's claim that
he was advised by customers that Cockerham was the
"hatefulest thing that ever walked." I am persuaded that
this little embellishment was adopted from customer Jake
:' Big G Supermarket. nc, d/h.;a Iwn and Country Family Center,
219 N.RB 1008,I 10 (1975)
: I ri not credit Whitlen',l cimnlrar5 testimony
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vaughn comment to Taylor Price, after Cockerham was
discharged, that she was the "hatefulest" person on one
occasion when he observed her. Whether "hatefulest" is
an appellation commonly used in the area is unknown to
me, but I consider the coincidence just a bit too conven-
ient to be ignored. With respect to Vaughn, called as a
witness by Respondent, it developed at hearing that he in
fact heard nothing of what Cockerham said on the occa-
sion he found her "hateful," even though he earlier testi-
fied her statements were reprehensible. A weak reed
indeed for Respondent to lean on in support of its de-
fense, and the proffer of such evidence is, in this case at
least, indicative of the questionable validity of Respond-
ent's proffered reason for discharging Cockerham. I fur-
ther note that even though Respondent's asserted reason
for discharge was rudeness to customers, Whitten testi-
fied to bad relations between Cockerham and other em-
ployees involving her alleged talebearing and complain-
ing, and Respondent points this out in its post-trial brief.
This attempted "piling-on" of cause in the face of a dec-
laration of different cause casts suspicion on the first as-
serted cause, betrays an unexplained and suspicious de-
parture from that cause, and convinces me that both
causes advanced are the purest of pretexts. I further find
that Whitten's testimony that Price3 4 wanted him to fire
Cockerham because of similar complaints two or three
times is not credible. The otherwise unsupported testimo-
ny of Whitten and Tackett that a complaint was regis-
tered with them does not convince me that a complaint
was indeed made. Assuming arguendo that one was, the
penalty assessed appears to have been as unusual as the
referral of the complaint directly to Whitten. Whitten's
testimony that he talked the matter over with cashiers
and thereby resolved it when other customer complaints
were made contains no hint of discipline of any kind,
much less a discharge. When pressed for evidence of
previous discharges for rudeness, all Respondent could
come up with was the dismissal of an assistant manager
for rudeness to a customer on the store floor. With more
than 35 rank-and-file employees on the work force, it is
highly improbable that none of them was ever com-
plained of by a customer for rudeness, yet there is no
evidence of any discipline or warnings for such conduct.
Finally, when an employer discharges a good employ-
ee35 on the basis of what amounts to an anonymous call,
without further investigation or any corroborating evi-
dence, and without any previous history of either com-
plaints or warnings for such conduct, it suggests that
there is some other underlying reason for the discharge.
The other reason in Cockerham's case was, I find, her
role as the leading union activist among Respondent's
employees. She set up the first meeting, recruited others
to attend, and thereafter continuously solicited employ-
ees to sign union authorization cards. The other unlawful
conduct of Respondent detailed hereinabove, occurring
in a space of a very few days, clearly shows the intensity
of Respondent's hostility to union activity and Respond-
34 He does not specify which Price. Neither Carl nor Taylor Price tes-
tified on this point.
t5 Cockerham credibly testified that both Whitten and Tackett had ex-
pressed great satisfaction with her work several times, and Whitten ac-
knowledged she was a good cashier.
ent's determination to root out and discourage such ac-.
tivity. The discharge of Cockerham almost simultaneous-.
ly with the initial interrogation of Hurd, at a time when
Respondent knew there was union activity afoot among
its employees, has the strong appearance of an opening
move in Respondent's antiunion campaign. The failure of
Respondent's purported reason for discharging Cocker-
ham gives rise, in the overall context of strong hostility
and other unfair labor practices, to a fair inference of dis-
criminatory motive and gives substance to that appear-
ance. 36
On the foregoing, I conclude and find that the General
Counsel has shown by a preponderance of the evidence,
both direct and circumstantial, that Respondent dis-
charged Cockerham as part of its whirlwind campaign to
discourage union activity among its employees. By so
doing, Respondent has violated Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for collective bargaining:
All full-time and regular part-time employees em-
ployed by Respondent at its Prestonsburg, Ken-
tucky facility, excluding all office clerical employ-
ees, and all professional employees, guards, the
store manager, the assistant store manager, and all
other supervisors as defined in the Act.
4. At all times since November 15, 1979, and continu-
ing to date, the Union has been the exclusive representa-
tive of all the employees within said appropriate unit for
purposes of collective bargaining.
5. By discharging Jewel Cockerham, Mark Hurd, and
Larry Prater for the purpose of discouraging employee
union activities, Respondent violated Section 8(a)(3) and
(I) of the Act.
6. By polling employees on November 18, 1979, by in-
dividually asking them if they still wanted the Union,
Respondent interrogated its employees for the purpose of
undermining the Union's support and thereby violated
Section 8(a)(l) of the Act.
7. By coercively interrogating employees about their
union activities and sympathies and those of other em-
ployees, Respondent violated Section 8(a)(l) of the Act.
8. By threatening employees with discharge and other
reprisals because they engaged in union activity, Re-
spondent violated Section 8(a)(1) of the Act.
9. By creating an impression of surveillance of union
meetings and the union activities of its employees, Re-
spondent violated Section 8(a)(1) of the Act.
10. By engaging in surveillance of a union meeting
with its employees in attendance, Respondent violated
Section 8(a)(l) of the Act.
:I Shattuck Denn Mining Corporation (Iron King Branch)v. N'L.R.B..
362 F2d 466. 470 (9th Cir 1966).
PRICE'S PIC-PAC SUPERMARKETS, INC. 751
11. By threatening employees with physical injury if
they engage in union activity, Respondent violated Sec-
tion 8(a)(1) of the Act.
12. By instructing an employee not to talk to other
employees about the Union, Respondent violated Section
8(a)(l) of the Act.
13. By offering an employee a promotion and wage in-
crease in order to induce her to refrain from union activ-
ities, Respondent violated Section 8(a)(l) of the Act.
14. By threatening to close the Prestonsburg, Ken-
tucky, store if employees selected the Union as their col-
lective-bargaining representative, Respondent violated
Section 8(a)(1) of the Act.
15. The unfair labor practices set forth hereinabove are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
16. Respondent has not engaged in any other unfair
labor practices not specifically found herein.
THE REMEDY
My recommended Order will require Respondent to
offer unconditional reinstatement to Jewel Cockerham,
Mark Hurd, and Larry Prater and make them whole for
all wages lost as a result of their unlawful discharge,
such backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950); and Florida Steel Corporation, 231
NLRB 651 (1977).3 7 The adequacy of any offers of rein-
statement or reemployment previously made to these em-
ployees is a matter to be properly resolved in compliance
proceedings.
The General Counsel contends that the issuance of a
bargaining order is warranted because of the scope and
severity of Respondent's unfair labor practices. I agree
with the complaint allegation that Respondent's egre-
gious conduct has precluded the holding of a fair elec-
tion among the employees involved herein, and that a
bargaining order is warranted.3 8 Accordingly, I shall
recommend that a bargaining order issue, effective No-
vember 16, 1979, when Respondent commenced its un-
lawful conduct. 39
I further find that Respondent's violations of the Act
were sufficiently egregious to warrant a broad cease-and-
desist order. 4
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4 1
The Respondent, Price's Pic-Pac Supermarkets, Inc.,
Prestonsburg, Kentucky, its agents, officers, successors,
and assigns, shall:
"7 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962)
38 N.L.R.B. v. Gissel Packing Co.. Inc., 395 U S. 575 (1969).
39 Trading Port, Inc., 219 NLRB 298 (1975).
40 Cf Hickmorrtt Foods, Inc., 242 NlRB 1357 (1979)
41 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions. and recommended Order herein shall, as provided
in Sec. 10248 of the Rules and Regulations, be adopted by the HBoard and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization, by discharging employees or
otherwise discriminating in any manner with respect to
their tenure of employment or any term or condition of
employment.
(b) Coercively interrogating employees concerning
their and other employees' union activities and desires.
(c) Polling employees at group meetings for the pur-
pose of determining their support for the Union without
proper safeguards and for the purpose of undermining
support for the Union.
(d) Threatening employees with discharge and other
reprisals if they engage in union activities.
(e) Threatening to close the Prestonsburg, Kentucky,
store if employees select the Union as their collective-
bargaining representative.
(f) Threatening employees with physical injury if they
engage in union activity.
(g) Engaging in surveillance of union meetings or em-
ployees' union activities.
(h) Giving employees the impression that their union
activities and meetings are under surveillance.
(i) Instructing employees not to discuss the Union with
other employees.
(j) Offering employees promotions and/or wage in-
creases to induce them to refrain from union activities.
(k) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Upon request, recognize and bargain with the
Union as the exclusive representative of all employees in
the unit described below with respect to rates of pay,
wages, hours of employment, and other conditions of
employment, and, if an understanding is reached,
embody such understanding in a written, signed agree-
ment:
All full-time and regular part-time employees em-
ployed by Respondent at its Prestonsburg, Ken-
tucky facility, excluding all office clerical employ-
ees, and all professional employees, guards, the
store manager, the assistant store manager, and all
other supervisors as defined in the Act.
(b) Offer to Jewel Cockerham, Mark Hurd, and Larry
Prater reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Prestonsburg, Kentucky, facility copies
of the attached notice marked "Appendix." 42 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that these notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply with herein.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
42 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Food
Store Employees Union, Local 347, United Food
and Commercial Workers International Union,
AFL-CIO-CLC, or any other labor organization,
by discharging any of our employees or in any
other manner discriminating against them in regard
to their tenure of employment or any term or con-
dition of employment.
WE WILL NOT interrogate our employees con-
cerning their or other employees' union activities or
desires.
WE WILL. NOT threaten our employees with dis-
charge, physical injury, or other reprisals because
they engage in union activities.
WE WILL NOT threaten to close our Prestons-
burg, Kentucky, store if our employees select a
union to represent them.
WE WIILL NOT instruct our employees not to dis-
cuss the Union with other employees.
WE WILL NOT poll employees at group meetings
as to their support for the Union without adequate
safeguards or for the purpose of undermining sup-
port for the Union.
WE WILL NOT engage in surveillance of employ-
ees' union meetings or activities, nor WILL WE say
anything to give you the impression we are engag-
ing in any such surveillance.
WE WILL NOT offer employees promotions or
wage increases as an inducement to refrain from
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WILL, upon request, bargain collectively with
Food Store Employees Union, Local 347, United
Food and Commercial Workers International
Union, AFL-CIO-CLC, as the exclusive bargaining
representative of all the employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment, and other conditions
of employment, and, if an understanding is reached,
embody that understanding in a written, signed
agreement. The bargaining unit is:
All full-time and regular part-time employees em-
ployed by the Employer at its Prestonsburg,
Kentucky facility, excluding all office clerical
employees, and all professional employees,
guards, the store manager, the assistant store
manager, and all other supervisors as defined in
the Act.
WE WILL offer Jewel Cockerham, Mark Hurd,
and Larry Prater immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
and WE WILL make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them, together with interest
computed on any such backpay.
All our employees are free to join Food Store Em-
ployees Union, Local 347, United Food and Commercial
Workers International Union, AFL-CIO-CLC, or any
other labor organization.
PRICE'S PIC-PAC SUPERMARKETS, INC.