Woodman's Food Market, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2013

359 N.L.R.B. 1016 (N.L.R.B. 2013)

1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 114
Woodman’s Food Market, Inc. and United Food and
Commercial Workers Union, Local 1473. Case
30–CA–078663
April 30, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On October 5, 2012, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Acting General Counsel filed an answering brief, and the
Respondent filed a reply.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,
1
and conclusions
2
and to adopt the recommended
Order as modified and set forth in full below.
3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 We adopt the judge’s conclusions that the Respondent violated the
Act as alleged because we agree that its employee, Robert Wydeven,
was acting as an agent of the Respondent under Sec. 2(13) of the Act
when he circulated the decertification petition. In so finding, we note
particularly that the Respondent’s policy manual required employees to
go to Wydeven for answers to their work-related questions, and that
testimony established that employees did so. We additionally note that
Wydeven served as a conduit not only for the transfer of information
from management to employees in his department, but also for the
transfer of information about those employees to management. There-
fore, we find that a reasonable employee would conclude that the Re-
spondent had authorized Wydeven to communicate to employees about
their terms and conditions of employment, and that a reasonable em-
ployee would conclude that Wydeven was acting as the Respondent’s
agent when he circulated the decertification petition. See SKC Electric,
Inc., 350 NLRB 857, 862 (2007).
We find it unnecessary to pass on the judge’s findings regarding
Wydeven’s supervisory status under Sec. 2(11) of the Act.
3 We have modified the judge's recommended Order in accordance
with our recent decision in Latino Express, Inc., 359 NLRB 518 (2012).
We have also substituted a new notice to conform to the Order as modi-
fied.
The Respondent excepts to the judge’s conclusion that it violated
Sec. 8(a)(5) by withdrawing recognition from the Union and thereafter
refusing to bargain, but it does not specifically except to the judge’s
recommended affirmative bargaining order. We therefore find it un-
necessary to address whether a specific justification for that remedy is
warranted. See SKC Electric, supra, 350 NLRB at 862 fn. 15; Heritage
Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Scepter v.
NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (stating that in the ab-
sence of a particularized exception, a party has not preserved for appeal
the imposition of an affirmative bargaining order). Neither does the
Respondent except to the judge’s notice-reading order.
ORDER
The National Labor Relations Board orders that the
Respondent, Woodman’s Food Market, Inc., Appleton,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting employees to withdraw their support
from United Food and Commercial Workers Union, Lo-
cal 1473.
(b) Withdrawing recognition from the Union and fail-
ing and refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of unit employ-
ees.
(c) 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
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All employees of present and future stores located in
Outagamie County in the State of Wisconsin, including
all employees in said stores who are actively engaged
in the handling of merchandise, excluding employees
working as stock auditors, 3rd Shift Maintenance and
Store Manager, in the event the Employer establishes a
Pharmacy within the store and to the extent the Em-
ployer retains interest and/or ownership in the Pharma-
cy, the employees thereof shall be covered by the terms
and conditions of this Agreement excluding the Phar-
macists, specialty men and demonstrators employed by
vendors. Also excluded: Assistant Store Manager,
Front End Supervisor, Second and Third Shift In-
Charges, and Department Heads, including the Auto
Center Department Head.

The Respondent contends that the Board lacks a quorum because the
President’s recess appointments are constitutionally invalid. We reject
this argument. We recognize that the United States Court of Appeals
for the District of Columbia Circuit has concluded that the President’s
recess appointments were not valid. See Noel Canning v. NLRB, 705
F.3d 490 (D.C. Cir. 2013). However, as the court itself acknowledged,
its decision is in conflict with at least three other courts of appeals. See
Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied 544
U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S.
v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question remains in
litigation, and until such time as it is ultimately resolved, the Board is
charged to fulfill its responsibilities under the Act. See Belgrove Post
Acute Care Center, 359 NLRB 621, 621 fn. 1 (2013).
WOODMAN’S FOOD MARKET 1017

(b) Promptly notify the Union, in writing, of any
changes in the unit employees’ terms or conditions of
employment that have been implemented since April 10,
2012.
(c) On request by the Union, rescind any changes in
the unit employees’ terms or conditions of employment
that have been implemented since April 10, 2012.
(d) Make the unit employees whole for any loss of
earnings or benefits suffered as a result of any changes in
their terms or conditions of employment since April 10,
2012.
(e) Reimburse unit employees an amount equal to the
difference in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed
had the Respondent not unlawfully changed the unit em-
ployees terms or conditions of employment.
(f) Submit the appropriate documentation to the Social
Security Administration so that when backpay is paid to
unit employees, it will be allocated to the appropriate
periods.
(g) Within 14 days after service by the Region, post at
its Appleton, Wisconsin facility copies of the attached
notice marked “Appendix.”
4
Copies of the notice, on
forms provided by the Regional Director for Region 30,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since April 10, 2012.
(h) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by Vice President Clint Woodman
or Vice President John Adams or, at the Respondent's
option, by a Board agent in the presence of either or both

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
of the foregoing company officials, with translation
available for any non-English-speaking employees.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT solicit employees to withdraw their sup-
port from United Food and Commercial Workers Union,
Local 1473.
WE WILL NOT fail and refuse to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of our employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All employees of present and future stores located in
Outagamie County in the State of Wisconsin, including
all employees in said stores who are actively engaged
in the handling of merchandise, excluding employees
working as stock auditors, 3rd Shift Maintenance and
Store Manager, in the event the Employer establishes a
Pharmacy within the store and to the extent the Em-
ployer retains interest and/or ownership in the Pharma-
cy, the employees thereof shall be covered by the terms
and conditions of this Agreement excluding the Phar-
macists, specialty men and demonstrators employed by
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

vendors. Also excluded: Assistant Store Manager,
Front End Supervisor, Second and Third Shift In-
Charges, and Department Heads, including the Auto
Center Department Head.

WE WILL promptly notify the Union, in writing, of any
changes in the unit employees’ terms or conditions of
employment that we have implemented since April 10,
2012.
WE WILL, on request by the Union, rescind any chang-
es in the unit employees’ terms or conditions of em-
ployment since April 10, 2012.
WE WILL make the unit employees whole for any loss
of earnings or benefits suffered as a result of any changes
in their terms or conditions of employment since April
10, 2012, with interest.
WE WILL reimburse unit employees an amount equal to
the difference in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed
absent the changes to the employees’ terms or conditions
of employment.
WE WILL submit appropriate documentation to the So-
cial Security Administration so that when backpay is
paid to unit employees, it will be allocated to the appro-
priate periods.
WOODMAN’S FOOD MARKET, INC.
Andrew S. Gollin, Esq., for the General Counsel.
Fred B. Grubb, Esq. (Fred B. Grubb & Associates, LLC), for
the Respondent.
John M. Loomis, Esq. (Sweet & Associates, LLC), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. Wood-
man’s Food Market, the Respondent Company in this case,
operates a grocery store and auto center in Appleton, Wiscon-
sin. For at least the last 20 years, the United Food and Com-
mercial Workers Union, Local 1473 has been the exclusive
bargaining representative for the employees at the facility.
However, on April 10, 2012, shortly after the most recent col-
lective-bargaining agreement expired, the Company withdrew
recognition from the Union based on a petition that was circu-
lated by the manager/department head of the auto center
(Wydeven).1
The sole issue in dispute in this proceeding is whether
Wydeven is a supervisor and/or agent of the Company within
the meaning of the Act. If he is, as alleged by the General
Counsel, the Company concedes that both the circulation of the
petition and the withdrawal of recognition were unlawful. See,
e.g., SFO Good-Nite Inn, LLC, 357 NLRB 79 (2011) (employer

1 The Union filed the underlying charge and amended charge on
April 12 and July 19, 2012, respectively, and the General Counsel
issued the complaint on July 26, 2012.
violates Sec. 8(a)(1) and (5) of the Act by soliciting employees
to sign a decertification petition and by thereafter withdrawing
recognition from the union based on the tainted petition).
Following a prehearing conference, the case was tried before
me on August 21, 2012, in Neenah, Wisconsin.2 Thereafter, on
September 18, the General Counsel and the Company filed
posthearing briefs. Having carefully considered the briefs and
the entire record,3 for the reasons set forth below I find that
Wydeven is both a supervisor and an agent of the Company,
and that the Company therefore violated Section 8(a)(1) and (5)
of the Act as alleged.4
FINDINGS OF FACT
As indicated above, the subject facility consists of both a
grocery store and an auto center. The auto center is located
away from and in front of the store, closer to the street. It in-
cludes a gas station, which also sells food and drinks, and a
“lube center” with three attached bays where cars drive in to
have the oil changed, etc. Approximately six to eight employ-
ees work in the auto center, four full time. All are expected to
perform both the lube-center and gas station work. (Tr. 18, 27,
87, 110–112.)
When employees begin working in the auto center, they are
given a 44-page document entitled “Lube Station Policies.” It
contains a detailed description of various lube procedures, in-
cluding guiding vehicles into the bay, releasing the hood, re-
placing the oil filter, checking, filling, and changing oil, check-
ing oil plugs and zerks, checking and filling transmission and
brake fluids and engine coolant, and changing air filters and
wiper blades. (Tr. 107; GC Exh. 21; R. Exh. 19.) However,
there is no evidence of any similar policy manual with respect
to gas station procedures.
Wydeven, the current “auto center manager,” has worked at
the facility for about 10 years, since May 2002. Like the other
auto center employees, he initially started in the grocery store.
He later applied for and was transferred to work as a lube tech-
nician in the auto center. He performed this job for about 5–6
years, until June 19, 2011, when he was promoted to his current
full-time position. (Tr. 16, 39; GC Exh. 20.)
There is apparently no formal job description for the “auto
center manager” position. However, the job posting, which
Wydeven and eight other employees signed to apply for the
position in May and June 2011, stated that “responsibilities will
include directing the workforce and maintaining customer ser-
vice” (GC Exh. 2). In addition, Wydeven’s change-of-status
form stated that he would be “in charge of the auto center” (for
which he would receive premium pay and sales points) (GC
Exh. 3). And his February 2012 periodic evaluation rated him
on such factors as “ability to handle customers/employees,”
“ability to direct workforce,” “ability to control inventory,”
“buying and/or ordering of product,” and “training of backup to

2 Wydeven was the sole witness. In the absence of any objection, p.
103 of the transcript is corrected as follows: L. 24 is correct to read
“Cross Examination Resumed”; and L. 25 is corrected to read “By Mr.
Grubb.”
3 Factual findings are based on the record as a whole, including but
not limited to the transcript pages and exhibits specifically cited.
4 Jurisdiction is undisputed and well established.
WOODMAN’S FOOD MARKET 1019

cover absence.” Frederick, the store manager and his immedi-
ate supervisor, also praised him in the evaluation for being
“very much a Woodman’s backer,” for “mak[ing] his people
accountable,” and for “keep[ing] me informed of what is hap-
pening out there.” (GC Exh. 11; Tr. 17.)
Various other employment records indicate that the auto cen-
ter manager is also considered to be a “department head” (GC
Exhs. 11, 13, 20). Accordingly, like other department heads
(liquor store, meat, produce, dairy, frozen, bakery, and non-
foods) and certain specified managers and supervisors, the auto
center manager is excluded from the bargaining unit. These
exclusions are specifically set forth in an April 2009 letter of
understanding between the Company and the Union, which was
incorporated into the most recent, April 2009–March 2012
collective-bargaining agreement. (Jt. Exh. 1, p. 33; Tr. 120–
121.)
Aside from Wydeven, there is no one else in the auto center
who is “in charge” of the operation. Store Manager Frederick
works from an office in the grocery store, does not know how
to perform lube work, and visits the auto center only once or
twice a week, usually just to report what the gas prices are (Tr.
30–31). Although one of the auto center employees, Keesey,
has been appointed the “fill-in supervisor” to cover for
Wydeven in his absence (for which he receives a small premi-
um), Keesey remains in the bargaining unit and has been spe-
cifically told by Frederick that he is not “second in charge.”
See the April 2009 letter of understanding discussed above (Jt.
Exh. 1, p. 33) (specifically including fill-in supervisors in the
unit); and Frederick’s December 13, 2011 evaluation of Keesey
(GC Exh. 10) (reminding him, among other things, to “[w]ork
together as a team. All are equal in the lube station excluding
Wydeven who is the lube manager. We do not have a second
in charge.”).5
In practice, Wydeven spends most of his time doing the same
work as the lube center employees: changing oil, handling cus-
tomers, and working the cash register (Tr. 27). However, he
also makes sure the employees follow correct procedures and
assists them with questions or problems that arise in doing the
work or dealing with a customer. See Wydeven’s February
2012 evaluation (GC Exh. 11) (quoted above); the “Lube Sta-
tion Policies” manual (GC Exh. 21) (instructing employees to
“see,” “ask,” “inform,” or “notify” the “lube manager or store
manager,” “manager,” or “supervisor” before doing certain
tasks or if they have problems working on any vehicle); and
Wydeven’s testimony (Tr. 37–38) (the employees come to him
with their questions or issues, unless he is not there, in which
case they go to Store Manager Frederick). If the question or
issue relates to performing the work, he will handle it himself.
If it is more complicated, such a customer complaint about the
quality of the work that cannot be easily rectified, he will con-
sult Frederick about how the Company wants to handle it. (Tr.
31–34.)

5 But see the June 15, 2011 job posting for the fill-in position, which
stated that “responsibilities will include directing the workforce and
maintaining customer service on days when the manager and 2nd I/C
are off.” (GC Exh. 4.)
As indicated by his February 2012 evaluation, Wydeven is
also responsible for keeping the auto center properly stocked.
He usually orders the supplies for the lube center (bulk oil,
filters, wipers, plugs, etc.) himself, which he does once every
1–2 weeks. However, Keesey and another employee have also
ordered supplies when he is not there. And another employee
orders supplies for the gas station. (Tr. 31–32, 84–86, 109.)
Wydeven also completes “performance evaluations” of new-
ly assigned employees near the end of their initial probationary
period. (Employees do not receive periodic evaluations after
their probationary period. Tr. 65, 67–68.) He assigns the em-
ployee a rating (exceeds requirements, meets requirements,
needs improvement, or not acceptable) on each of the following
“job factors”: (1) work quality, (2) job knowledge, (3) work
quantity, (4) follows instructions, (5) cooperates with others,
(6) dependability, (7) safety, (8) respect for property, (9) cour-
tesy towards customers, (10) appearance, and (11) attendance
and punctuality. He also completes, in his own handwriting,
the designated sections for “comments,” “strengths,” and “areas
for improvement,” typically to explain why he assigned either
the highest or the lowest rating (e.g., “great customer service,”
or needs improvement in “problem solving,” the “order of do-
ing things in [the] lube center,” or “working the gas station”).
He does so based on his own observations and judgment, alt-
hough he also sometimes considers comments from other em-
ployees.
After completing the above sections, Wydeven takes the
evaluation to Store Manager Frederick. He discusses the eval-
uation with her and recommends whether the employee should
be retained in the auto center or have the probationary period
extended. Frederick, who as indicated above spends very little
time in the auto center, normally follows his recommendation.
However, on one occasion, in November 2011, Frederick de-
clined to do so. Wydeven had reported in his evaluation that
the employee was unable to perform certain tasks in the lube
center. Nevertheless, he recommended retaining the employee
beyond the initial probationary period because of her strong
customer service and ability to perform the gas station work,
where she spent most of her time. Frederick, however, decided
to transfer the employee back to the grocery store because the
auto center employees had to be capable of performing both the
gas station and the lube-center work.
Once Frederick has made her decision (by checking a box on
the evaluation),6 Wydeven typically signs the evaluation on the
line for “Manager or Supervisor’s Signature” and presents the
evaluation to the employee (who then signs it as well). How-
ever, in one of the six probationary evaluations since June
2011, Frederick signed the evaluation and she and Wydeven
jointly presented it to the employee. And in another instance,
both Wydeven and Assistant Store Manager Anderson (who,
like Frederick, is an admitted supervisor) signed the evaluation,
and it is unclear who presented the form to the employee
(Wydeven could not recall). (Tr. 43–54, 69–70, 86–87, 91–92,
109, 112; GC Exhs. 5 [both evaluations], 6, 7, 8, 15.)

6 The three options listed on the form are: “Passing Probation,” “Not
Passing Probation,” or “Extend Probation.”
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Wydeven (who as noted above was the sole witness in the
proceeding) testified repeatedly that Frederick also talks to
other employees about how their coworkers are performing in
the auto center before making her decision. (Tr. 47, 50, 111.)
However, I do not credit this uncorroborated testimony, at least
not to the extent it suggests that Frederick conducts an inde-
pendent investigation. First, it is clear from Frederick’s Febru-
ary 2012 evaluation of Wydeven and the record as a whole that
she relies heavily on him. Second, although Wydeven testified
that he had “seen” Frederick “ask people how they are doing
when she comes out to talk,” he could not recall where she did
so (“outside or inside I don’t really know”) or any particular
employees that she had talked to (Tr. 47, 92). Third, as Freder-
ick performs periodic evaluations of both Wydeven and
Keesey, his “fill-in supervisor,” it is entirely possible that she
talked to employees about one or both of them, rather than
about other employees. (See GC Exhs. 10, 11, and 14.)7
Fourth, the record indicates that the Company has a formal
procedure for obtaining input from other employees in writing
when it wishes to do so. And the procedure appears to be used
relatively infrequently. Indeed, the Company presented only
one example where it was used, in August 2010, well before
Wydeven became the auto center manager. See the three
“Evaluation Work Papers” attached to the probationary evalua-
tion of employee Madison (R. Exh. 2); and (Tr. 98–100).8
Moreover, Wydeven did not impress me as a credible wit-
ness generally. Thus, despite claiming that he did not know
what the hearing was about (Tr. 116, 119), he frequently volun-
teered or modified his testimony to minimize his authority. In
addition to his above-cited testimony, see, e.g., Tr. 28–29 (ini-
tially testifying that Keesey covers for him when he is not
there, but subsequently testifying that he was “unaware” that
Keesey is the official “fill-in supervisor”―even though the job
was likewise posted in June 2011, Wydeven’s evaluation indi-
cates that he trained Keesey to be his backup, and Wydeven
completed, signed, and presented a probationary evaluation to
Keesey within 30 days after he was appointed to the fill-in posi-
tion―and that “pretty much anyone” fills in for him in his ab-
sence). Further, his testimony at times seemed rehearsed, and
he became noticeably nervous when asked about certain sub-
jects, including his discussions with Frederick. Of course, nei-
ther necessarily indicates prevarication. However, after care-
fully considering my initial observations and the entire record, I
am convinced that his testimony in this respect (and other re-
spects discussed below) was neither entirely truthful nor entire-
ly true. See generally 300 Exhibit Services & Events, Inc., 356
NLRB 415, 415 fn. 2 (2010), and cases cited there (uncontra-

7 Although Wydeven performed the initial probationary evaluation
of Keesey (GC Exh. 6), he testified (Tr. 59) that he had no involvement
whatsoever in Keesey’s subsequent December 2011 periodic evaluation
(GC Exh. 10).
8 The “work papers” list five factors (customer service, effort, job
performance, cooperation, and appearance). The three employees
(Wydeven and two other employees) separately rated Madison on each
factor as “poor,” “average,” or “good.” They also then dated and
signed the forms on the line for “Supervisor.” As discussed infra,
Wydeven also signed the final probationary evaluation that was given
to Madison the next day.
dicted testimony need not be accepted as true if it contains im-
probabilities or there are other reasonable grounds for believing
it is false, including the demeanor of the witness). See also
EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir. 1994).
In December 2011, Wydeven also completed and signed, on
the line for “Management Signature,” what appears to be a
“verbal” disciplinary warning or admonishment issued to
Keesey. The notice, which is entitled “Notice of Failure to
Follow Work & Safety Rules,” cited Keesey for:

Failure to follow procedure on oil change. Did not tighten fil-
ter causing leaking on vehicle. You must finish the job you
are on before moving on to the next one.

The notice additionally cited Keesey for “lack of communi-
cation.” (GC Exh. 9; Tr. 55–56, 115–116.)
As with the probationary evaluations, Wydeven minimized
his involvement with this notice, testifying that Frederick told
him to fill it out based on a customer’s complaint she had re-
ceived; that he did not know or recall why he signed the notice;
and that Frederick presented the notice to Keesey. In essence,
Wydeven testified that he was simply Frederick’s scribe. How-
ever, it makes little sense that Frederick would have involved
Wydeven with the notice if he had no significant role in it. It is
also inconsistent with the usual practice. Compare the initial
probationary evaluations, discussed above. Compare also
Frederick’s subsequent periodic evaluation of Keesey, which
she alone completed, signed, and presented to Keesey several
days later (GC Exh. 10; Tr. 56–59). (The record also includes
another periodic evaluation of Keesey 2 months later, which
Wydeven filled out. However, Frederick signed it and the rec-
ord does not reveal who presented it to Keesey. GC Exh. 14;
Tr. 59–61.) And see Frederick’s subsequent February 2012
evaluation of Wydeven, discussed above, which praised him for
“mak[ing] his people accountable” (GC Exh. 11). Further, as
noted above Wydeven was not a credible witness generally, and
his testimony in this respect was not corroborated by Frederick
or Keesey (neither of whom, as indicated above, were called to
testify).
Accordingly, I find that Wydeven likely had a significantly
greater role in the notice than he admitted to at the hearing.
Specifically, it is likely that, at the very least, Wydeven partici-
pated in the investigation of the customer’s complaint, reported
his findings, conclusions, and recommendations to Frederick,
and completed and signed the notice pursuant to his duties and
responsibilities as the auto center manager.
Since becoming the auto center manager, Wydeven has also
attended a meeting where one of his workers (Gosz) was termi-
nated. Gosz had failed to put any oil in a vehicle, causing the
motor to seize up, and also subsequently failed a drug test.9
Frederick and another grocery supervisor attended the meeting
as well.
Again, Wydeven minimized his role in the meeting, testify-
ing that he “asked to attend” because:

9 The foregoing is based solely on Wydeven’s testimony. There is no
documentation in the record about Gosz’ termination or the reasons
therefor.
WOODMAN’S FOOD MARKET 1021

I was really good friends with [Gosz], I actually lived with
him for a couple of years, and I felt really bad for him, with
the situation. We were really good friends and I didn’t want to
see him go, so I kind of wanted to be there as support for him.

However, I do not credit this uncorroborated testimony to the
extent it suggests that Wydeven attended the Gosz termination
meeting solely as a friend. It is inherently unlikely, and I do
not believe on this record, that the Company would have per-
mitted Wydeven to attend Gosz’ termination meeting absent his
role as the auto center manager.10 Although Wydeven testified
that he did not attend a termination meeting for another em-
ployee, Wydeven admitted that it occurred shortly after he be-
came manager and he was not familiar with that employee’s
offense or situation. (Tr. 61–62, 113–114.)
Analysis
As indicated above, the General Counsel contends that
Wydeven is a supervisor and/or agent of the Company within
the meaning of Section 2(11) and (13) of the Act.
1. Whether Wydeven is a supervisor
Under Section 2(11) of the Act,11 an individual is not consid-
ered a supervisor, even if the employer calls him/her one, un-
less the individual possesses, in the interest of the employer, at
least one of the types of authority listed therein. In addition,
the exercise of that authority cannot be merely routine or cleri-
cal, but must require independent judgment. This means that
the authority requires making a judgment, which involves “a
degree of discretion that rises above the ‘routine or clerical’,”
and is not “dictated or controlled by detailed instructions,
whether set forth in company policies or rules, the verbal in-
structions of a higher authority, or in the provisions of a collec-
tive bargaining agreement.” Oakwood Healthcare, Inc., 348
NLRB 686, 687, 693 (2006). Further, the party asserting su-
pervisory status has the burden of proving that these require-
ments are met by a preponderance of the evidence. Id. at 687,
694 (citing NLRB v. Kentucky River Community Care, 532 U.S.
706, 711–712 (2001); and Dean & Deluca New York, Inc., 338
NLRB 1046, 1047 (2003)).
Here, the General Counsel contends that Wydeven possesses
two such types of authority: (1) the authority to effectively
recommend whether employees will be retained in the auto
center following their initial probationary period; and (2) the
authority to responsibly direct the auto center employees. The

10 Wydeven also testified, when asked by Company counsel whether
he had recommended Gosz be terminated, “if it was up to me, he
wouldn’t have been terminated.” (Tr. 88.) However, Wydeven never
directly answered counsel’s question whether he actually made a rec-
ommendation to Frederick.
11 See 29 U.S.C. §152(11) (“The term ‘supervisor’ means any indi-
vidual 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 judg-
ment.”).
General Counsel also contends that Wydeven’s supervisory
status is supported by several secondary indicia.
(1) Authority to effectively recommend
whether to retain probationary employees
The authority to recommend is considered “effective” under
Section 2(11) if the recommendations usually are or would be
followed by the deciding official without conducting an inde-
pendent investigation. See, e.g., DirectTV, 357 NLRB 1747,
1749 (2011), citing Children’s Farm Home, 324 NLRB 61
(1997); and Sheraton Universal Hotel, 350 NLRB 1114, 1115–
1118 (2007). Compare also Pine Manor Nursing Center, 270
NLRB 1008 (1984) (charge nurses effectively recommended
termination or retention of probationary employees where di-
rector of nursing reviewed but did not independently investi-
gate the basis of the recommendation), with Consolidated Ser-
vices, Inc., 321 NLRB 845 (1996) (senior cooks did not effec-
tively recommend promotion of cook-trainees where the facility
manager did not follow their recommendations without con-
ducting an independent investigation).
Here, as discussed above, the credible evidence establishes
that Frederick follows Wydeven’s recommendations whether to
retain probationary employees in the auto center based solely
on his evaluations and without conducting an independent in-
vestigation. Indeed, even in the one instance (out of six) that
Frederick disagreed with Wydeven’s recommendation, and
transferred the employee back to the grocery store, it was based
on Wydeven’s conclusion that the employee was unable to
perform lube work. Accordingly, I find that Wydeven’s author-
ity to recommend is “effective.” See Pine Manor, above. See
also Venture Industries, 327 NLRB 918, 919–920 (1999) (de-
partment and line supervisors effectively recommended selec-
tion of applicants where the department managers followed the
recommendations 80–90 percent of the time).
As for whether Wydeven’s recommendations require “inde-
pendent judgment,” the evidence shows that Wydeven evalu-
ates probationary employees on a number of factors before
making his recommendations. As indicated above, some of
these factors relate to the actual physical work, much of which
(with respect to the lube center) is described in the “Lube Sta-
tion Policies” manual that is provided to every employee.
However, several are more subjective, requiring Wydeven to
evaluate such things as “respect for property,” “cooperat[ion]
with others,” and “courtesy towards customers.”12 Further,
Wydeven testified that, except for ordering supplies, he has
never been given any specific instructions on how to perform
his duties as auto center manager, and that he completes the
probationary evaluations using his own “judgment,” based on
his and others’ observations of the employee, without discuss-
ing them with anyone beforehand. (Tr. 26, 31–32, 80–84.)

12 While the manual addresses this last factor, it simply urges em-
ployees to be “courteous, professional, and friendly with the customer,”
and to “greet them when they exit the vehicle and ask if they have any
questions.” (GC Exh. 21, pp. 7, 43.) It does not otherwise state what
kinds of conduct are or are not considered by the Company to be “cour-
teous,” “professional,” and “friendly.”
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

I find that the foregoing evidence is sufficient to meet the
General Counsel’s burden under Oakwood, above. In arguing
to the contrary, the Company cites two previous probationary
evaluations that Wydeven signed in August and November
2010, well before he became auto center manager. (See R.
Exh. 1) (Beyer evaluation), and (R. Exh. 2) (the Madison eval-
uation previously discussed above). The Company argues that
these two evaluations show that “it is the clerical practice of the
Employer to have unit employees partially fill out and sign
[probationary evaluations] and it has been so practiced since
well before Mr. Wydeven took on his current responsibilities”
(Br. at 13).
However, there are several problems with this argument.
First, Wydeven testified that he was unsure whether he did the
ratings on the Madison evaluation. Moreover, he acknowl-
edged that someone else handwrote the comments on both
evaluations. (The handwriting is obviously different that the
handwriting on the evaluations he has completed since June
2011.) With respect to the November 2010 Beyer evaluation,
Wydeven testified that he “probably” asked “one of the girls”
in the gas station to write the comments for him because he was
“embarrassed” by his “very sloppy” handwriting at the time.
However, he was never asked who specifically wrote the com-
ments on the Madison evaluation. (Tr. 101–102.)
Second, even assuming Wydeven did fill out both evalua-
tions (or had someone else fill them out for him at his direc-
tion), two evaluations are hardly sufficient to establish a “prac-
tice,” clerical or otherwise.13 On the contrary, the fact that the
Company, which has been in business for many years, prof-
fered only two evaluations, both signed around the same time
period in 2010 by the same individual, suggests that the two
evaluations are an aberration rather than the norm.
Third, it is unclear whether the circumstances in 2010 were
the same or similar to those in 2011–2012. Indeed, it is not
even clear whether there was an active, full-time auto center
manager at the time Wydeven signed the 2010 evaluations.
Although the previously described letter of understanding indi-
cates that another individual, Cortazzo, was the manager in
April 2009, and Wydeven testified that he replaced Cortazzo
(Tr. 19), Cortazzo’s name does not appear anywhere on the two
evaluations. In fact, the Madison evaluation indicates that an
entirely different individual, Champeau, presented the evalua-
tion. (Wydeven testified that he presented the Beyer evalua-
tion.) And, despite Cortazzo’s previous service as the auto
center manager in 2009, he was one of several employees who
applied to be the “fill-in supervisor” on June 16, 2011 (GC Exh.
4), before Wydeven was formally appointed the new manager
effective June 19, 2011.

13 To conclude that the 2010 evaluations show a “clerical” practice
of using unit employees to evaluate each other requires an assumption
that Wydeven was not a statutory supervisor in 2010. However, while
Wydeven had not yet been designated the “auto center manager” in
2010, as indicated above supervisory status under 2(11) is not deter-
mined by job title. See also Jochims v. NLRB, 480 F.3d 1161, 1168,
1173 (D.C. Cir. 2007).
The Company never presented any evidence to explain the
foregoing circumstances.14 Wydeven himself testified (Tr. 100)
that he did not know why he signed the 2010 Madison evalua-
tion (he was never asked why he signed the 2010 Beyer evalua-
tion), and Champeau’s position or title was never identified.
Further, the Company never called Frederick to testify, even
though she was present throughout the hearing. (Frederick was
the Company’s designated representative and was therefore
exempt from the sequestration order.) Although the General
Counsel has the burden of proof, the Company introduced the
2010 evaluations, which came from its own personnel rec-
ords.15 Thus, the Company bears the burden of persuading that
the evidence is relevant, material, and significant, i.e., that the
two previous 2010 evaluations signed by Wydeven support an
inference that the 2011–2012 evaluations and other evidence
presented by the General Counsel in support of Wydeven’s
supervisory status during the relevant period are insufficient to
carry the burden of proof.16 The Company has failed to do so.
As presented, the two evaluations are little more than a histori-
cal curiosity.17
(2) Authority to responsibly direct the auto center employees
In order to establish that an individual possesses the authori-
ty to responsibly direct employees, it must be shown that the
individual has the authority to “direct” employees in the interest
of the employer; that the direction is “responsible”; and that it

14 The Company’s posthearing brief states (without citing any record
evidence) that Cortazzo “was demoted by the Employer into a non-
supervisory position” (Br. 2, fn. 3). However, the Company does not
reveal when this occurred (and, again, there is no record evidence when
it occurred). The Company also submitted into evidence a form that
employee Madison signed in July 2010 acknowledging receipt of the
company lube center policy manual, which Wydeven cosigned on the
line for “Training Supervisor” (R. Exh. 19; Tr. 108). However, the
Company never offered any evidence to explain this either.
15 The 2010 evaluations had not previously been disclosed to the
General Counsel. There is no pretrial discovery in Board proceedings
and the General Counsel’s hearing subpoena only required the Compa-
ny to produce personnel records since January 2011, 6 months before
Wydeven became the auto center manager (Tr. 120).
16 This is not a situation, such as in Dean & Deluca, supra, where
there are critical gaps in the General Counsel’s evidence with respect to
the subject 2(11) indicia during the relevant period.
17 As indicated by the General Counsel, the Company’s failure to
call Frederick―who as store manager would likely be disposed to
testify in the Company’s favor (and thus was not “equally available” as
a General Counsel or Union witness)―actually supports the opposite
inference, i.e. an inference that her testimony on this and other factual
issues within her knowledge would not have supported the Company’s
position. See, e.g., International Automated Machines, 285 NLRB
1122, 1123 (1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). See also
Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719
F.2d 1335, 1353 (7th Cir. 1983). But see Advocate South Suburban
Hospital v. NLRB, 468 F.3d 1038, 1049 (7th Cir. 2006) (General Coun-
sel’s failure to call a union organizer to corroborate an employee’s
testimony did not warrant an adverse inference, as the respondent em-
ployer itself could have subpoenaed the union organizer to testify and
the General Counsel did not have a strong incentive to present the
testimony, as it would have been “essentially cumulative and of little
value”). However, I need not rely on such an adverse inference, as I
would reach the same conclusions without it.
WOODMAN’S FOOD MARKET 1023

requires “independent judgment.” Oakwood, 348 NLRB at 687.
See also the Board’s companion decisions in Golden Crest
Healthcare, 348 NLRB 727, 730 (2006); and Croft Metals,
Inc., 348 NLRB 717 (2006).
Here, there is little doubt that Wydeven has the authority to
“direct” employees. As discussed above, the employees are
required by the lube center policy manual to contact Wydeven
or Frederick before doing certain tasks or if they have problems
working on any vehicle. Further, Wydeven testified that the
employees do, in fact, come to him with their questions or is-
sues when he is there, and that Frederick does not even know
how to perform the lube work. Moreover, Wydeven’s February
2012 evaluation specifically rated his ability to handle employ-
ees and direct the workforce and praised him for “mak[ing] his
people accountable.” Considered together, these facts are suf-
ficient to establish the authority to direct. Cf. Golden Crest,
above.
A preponderance of the record evidence also indicates that
Wydeven’s authority to direct employees is “responsible” di-
rection. Direction is “responsible” if the individual directing
the task is accountable for its performance. This means that the
directing individual has the authority to take action, if neces-
sary, to ensure that the task is performed correctly by the em-
ployee, and that there is a real prospect of material consequenc-
es to the directing individual’s terms and conditions of em-
ployment, either positive (e.g., a merit increase or bonus) or
negative (e.g. a demotion or termination), if the task is or is not
performed correctly by the employee. Golden Crest, 348
NLRB at 731 and fn. 13.18
Here, as found above, Wydeven had a significant role in the
disciplinary warning that was issued to Keesey in December
2011 for failing to follow lube procedures and poor communi-
cation. Further, approximately 2 months later, in February
2012, Frederick specifically evaluated Wydeven’s ability to
handle employees and direct the workforce (he was rated
“meets requirements” on both these and all other factors) and
praised him for “mak[ing] his people accountable.”19 And

18 Although Oakwood states that there must be a prospect of adverse
consequences for failing, the Board’s companion decision in Golden
Crest makes clear that a prospect of positive consequences for succeed-
ing is also sufficient to establish accountability. See also Alternate
Concepts, Inc., 358 NLRB 292, 294 fn. 12 (2012). Indeed, this seems
self-evident; if there is a prospect of a merit increase or bonus for suc-
ceeding, it follows that there is a prospect of a merit increase or bonus
being denied for failing.
19 As reflected by the Board’s own definition of “accountable,” this
language indicates that Wydeven possesses the authority to take correc-
tive action (and has actually exercised that authority). It also indicates
that Wydeven’s corrective action had “some force behind it or place[d]
‘some small burden on the employee’” (Rochelle Waste Disposal, LLC
v. NLRB, 673 F.3d 587, 595 (7th Cir. 2012), quoting Loparex LLC v.
NLRB, 591 F.3d 540, 551 (7th Cir. 2009)). Although no specific ex-
amples are discussed, the evaluation was completed by Frederick, an
admitted supervisor of the Company, the party currently opposing
Wydeven’s supervisory status, before the facts relevant to the instant
litigation occurred, when there was no apparent reason for concern
about his status. The evaluation is therefore more reliable evidence of
Wydeven’s authority than post-hoc conclusory testimony offered by the
party alleging supervisory status. Cf. G4S Regulated Security Solu-
approximately 7 weeks thereafter, effective April 8, 2012, the
Company awarded Wydeven his first and only base-rate pay
raise since he became the auto center manager in June 2011
(GC Exh. 20, p. 2).20 While there is no record evidence that the
Company awarded Wydeven the raise solely because of his
performance in directing employees and holding them account-
able, such evidence is not required to establish that his perfor-
mance on that factor may have an affect on his terms and con-
ditions of employment. Ibid.
Finally, a preponderance of the evidence likewise indicates
that Wydeven’s direction of employees requires “independent
judgment.” As discussed above, although the lube center poli-
cy manual provides a detailed description of the various ser-
vices and procedures performed in the lube center, it repeatedly
instructs employees to contact their manager or supervisor be-
fore doing certain tasks or if they have questions or problems.
Further, there is no policy manual whatsoever for the gas sta-
tion. Thus, while many of the tasks in the auto center may be
repetitive and “dictated or controlled by detailed instructions”
(Oakwood, above), many are not. Moreover, as discussed
above, except for ordering supplies in the lube center, Wydeven
has never been given any specific instructions on how to per-
form his duties as auto center manager. Thus, like his proba-
tionary evaluations and recommendations, it is clear that his
direction of employees involves discretion that is beyond “rou-
tine or clerical.”
1. Secondary indicia of supervisory status
As indicated by the General Counsel, the conclusion that
Wydeven is a 2(11) supervisor based on the foregoing factors
(either of which alone is sufficient to establish such status) is
fully consistent with how he has been treated and held out by
the Company. As discussed above, the Company describes
Wydeven as a “manager” and “department head” and he is
excluded from the bargaining unit by agreement along with
other managers and department heads (including Assistant
Store Manager Anderson, an admitted statutory supervisor).
Further, Store Manager Frederick specifically advised unit
employee Keesey in December 2011 that he and the other auto
center employees are not “equal” to Wydeven and that there is
no “second in charge” in the auto center. In addition, Wydeven
has signed and presented probationary evaluations to employ-
ees, also signed a disciplinary warning to an employee, and
attended the termination meeting for another employee. Cf.
Sheraton Universal Hotel, 350 NLRB at 1118 (listing several
similar “secondary indicia” as corroborating evidence of 2(11)

tions, 358 NLRB 1701 (2012) (“rote and conclusory testimony” of
respondent’s project manager in response to leading questions by coun-
sel was insufficient to satisfy respondent’s burden of establishing su-
pervisory status).
20 Although there is no direct evidence that the pay raise was based
on the evaluation, the satisfactory ratings and positive comments in the
evaluation, coupled with the timing of the pay raise (10 months after
starting and just 7 weeks after the evaluation) and the absence of any
prior or subsequent raises, is sufficient circumstantial record evidence
(which the Company never rebutted) to satisfy the General Counsel’s
burden of proof that there is a prospect of positive or negative conse-
quences as a result of the evaluation.
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

supervisory status). See also E & L Transport Co. v. NLRB, 85
F.2d 1258, 1270 (7th Cir. 1996) (“Although not determinative
on their own, where one of the enumerated indicia in Sec. 2(11)
is present, secondary indicia support a finding of statutory su-
pervisor”).
Accordingly, for all the foregoing reasons, I find that
Wydeven is a supervisor within the meaning of Section 2(11),
and that the Company therefore violated the Act as alleged.
2. Whether Wydeven is an agent
As indicated above, the General Counsel additionally or al-
ternatively contends that Wydeven is an agent of the Company
under Section 2(13) of the Act.21 Although there is no evidence
that he was specifically directed or authorized by the Company
to circulate the antiunion petition, the General Counsel asserts
that Wydeven was acting as an agent of the Company under the
doctrine of apparent authority.
As stated in Hausner Hard-Chrome of Kentucky, 326 NLRB
426, 428 (1998):

“Apparent authority results from a manifestation by the prin-
cipal to a third party that creates a reasonable basis for the lat-
ter to believe that the principal had authorized the alleged
agent to perform the acts in question.” Southern Bag Corp.,
315 NLRB 725 (1994), and cases there cited. See also Alli-
ance Rubber Co., 286 NLRB 645, 646 (1987). The test is
whether, under all the circumstances, employees “would rea-
sonably believe that the employee in question [the alleged
agent] was reflecting company policy and speaking and acting
for management.” Waterbed World, 286 NLRB 425, 426–427
(1987). Under Board precedent, an employer may have an
employee’s statements attributed to it if the employee is “held
out as a conduit for transmitting information [from manage-
ment] to other employees.” Debber Electric, 313 NLRB
1094, 1095 fn. 6 (1994).

As with supervisory status, the burden is on the party asserting
the agency relationship with respect to specific conduct to
prove it. Pan-Oston Co., 336 NLRB 305 (2001).
Here, as discussed above, the Company holds out Wydeven
as a member of management and utilizes him as a “conduit” for
transmitting information to employees about whether they will
be retained following their probationary period. Moreover, as
Wydeven is excluded from the bargaining unit along with other
managers and department heads, it cannot be concluded that the
unit employees would likely view his antiunion actions as taken
in furtherance of his own or their interests, rather than the
Company’s interests. Cf. Comau, Inc., 358 NLRB 593 (2012)
(reaching the opposite conclusion where the individuals who
circulated the disaffection petition were included in the unit and
had previously served as union officials). Although there is no

21 See 29 U.S.C. §. 152(13) (“In determining whether any person is
acting as an ‘agent’ of another person so as to make such other person
responsible for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall not be
controlling.”).
record evidence that Wydeven’s statements or actions were
consistent with the Company’s statements or actions, this is not
dispositive. Pan-Oston, 336 NLRB at 306.
Accordingly, I find that the General Counsel has adequately
established that Wydeven was an agent of the Company when
he circulated the petition, and that the Company therefore vio-
lated the Act on this basis as well.
CONCLUSIONS OF LAW
1. By soliciting employees, through its supervisor and agent
Wydeven, to withdraw their support for the Union in March
and April 2012, the Company has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. By withdrawing recognition from the Union on April 10,
2012, and thereafter refusing to bargain with the Union as the
exclusive collective-bargaining representative of the unit em-
ployees, the Company has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
To remedy the foregoing violations, the complaint requests
that the Company be ordered to recognize and, on request, bar-
gain with the Union over the unit employees’ terms and condi-
tions of employment; to promptly notify the Union of any
changes in the unit employees’ terms and conditions of em-
ployment that have been implemented since April 10, 2012; to
rescind, at the Union’s request, such changes; and to make the
unit employees whole for any loss of earnings or benefits suf-
fered as a result of the changes, with interest compounded dai-
ly. In addition, the complaint requests that the Company be
ordered to read the remedial notice to employees during work-
ing time. The Company has not contested the appropriateness
of any of these requested remedies and they are supported by
Board precedent. See Specialty Hospital of Washington-
Hadley, LLC, 357 NLRB 814 (2011); and Vincent/Metro
Trucking, LLC, 355 NLRB 289 (2010). The remedies are
therefore granted.22
The complaint also requests that the Company be ordered to
reimburse employees for any excess Federal and State income
taxes they may owe from receiving lump-sum backpay, and to
submit appropriate documentation to the Social Security Ad-
ministration so that their backpay will be allocated to the proper
periods. However, the appropriateness of such remedies is
currently being considered by the Board. See Latino Express,
Inc., 358 NLRB 823 (2012). These additional remedies are
therefore denied.
[Recommended Order omitted from publication.]

22 One of the two management officials who notified the employees
on April 12, 2012, that the Company had withdrawn recognition from
the Union based on the petition will be ordered to read the remedial
notice to the employees. See Jt. Exh. 3 (also notifying employees that
the Company would be granting them a wage increase that it had previ-
ously proposed during contract negotiations with the Union).