The Kroger Co.

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise discriminate against employees be- cause of membership in or activities in behalf of WAREHOUSE EMPLOYEES UNION #322, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the following named employees immediate and full re- instatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as a result of the discrim- ination against them : William Bullock Boyd Hambright BLUE PLATE FOODS, INC., Employer. Dated ---------------------------------- By ----------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. THE KROGER COMPANY and LOCAL 1583, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL. Case No. 3L-CA-171. February 5, 1953 Decision and Order On August 29, 1952, Trial Examiner Charles L. Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in certain other unfair labor practices al- leged in the complaint, and recommended dismissal of those allega- tions. Thereafter, the Respondent filed exceptions only to the Trial Examiner's recommendation that the Respondent post notices at its Malvern, Arkansas, store. The Respondent also filed a brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Houston and Murdock]. 102 NLRB No. 101. THE KROGER COMPANY 1065 rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner? Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Kroger Company, Malvern, Arkansas, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Discouraging membership in Local 1583, Retail Clerks Inter- national Association, AFL, or in any other labor organization, by discriminating in any manner against any of the employees at the Respondent's Malvern, Arkansas, store in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating or questioning employees at Respondent's Mal- vern, Arkansas, store concerning their interest in, or reasons for de- siring, a union, or their union activities, connections, or sympathies; threatening said employees, or any of them, with demotion, transfer, or impairment of job security in the event they support or assist in the formation of a union in said store; or promising them economic bene- fits on the condition that they refrain from union membership or activity. (c) In any other manner interfering with, restraining, or coercing employees at Respondent's Malvern, Arkansas, store in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 1583, Retail Clerks International Association, AFL, or any other labor organization, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Jack Sutton immediate and full reinstatement to his former position as head produce clerk at Respondent's Malvern, 'Contrary to the exceptions of the Respondent , the Board finds that it will effectuate the policies of the Act for the Respondent to post the notices described in the Order. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arkansas, store or to a substantially equivalent position without prejudice to his seniority or other rights or privileges, as set forth in the section of the Intermediate Report entitled "The Remedy." (b) Make whole the said Jack Sutton, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay that he may have suffered as a result of Respondent's discrimination against him. (c) Upon request make available to the Board or its agents, for examination and copying, all payroll and other records necessary to determine the amount of back pay due under the terms of this Order. (d) Post in conspicuous places at Respondent's store in Malvern, Arkansas, including all places where notices to employees are custom- arily posted, copies of the notice attached to the Intermediate Report as an appendix 3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after having been duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained for at least sixty (60) consecu- tive days thereafter. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifteenth Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the allegation of the complaint that the Respondent violated Section 8 (a) (1) of the Act by representing to its "female employees that under a union contract they would be re- quired to take a half-day off" be, and it hereby is, dismissed. O This notice, however, shall be, and it hereby is , amended by striking therefrom the words "The recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed and served by Local 1583 , Retail Clerks International Association, AFL, herein called the Union , the General Counsel of the National Labor Relations Board ,' by the Regional Director for the Fifteenth Region (New Orleans, Louisiana ), issued a complaint against The Kroger Company, herein called Respondent , and at times referred to as the Company, alleging that Respondent had engaged and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat . 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served upon the appropriate parties. "The term "General Counsel " includes the attorney representing the General Counsel at the hearing . The National Labor Relations Board is referred to herein as the Board. THE KROGER COMPANY 1067 With respect to the unfair labor practices , the complaint alleged , in sub- stance, that Respondent (1) on or about January 22, 1951, discriminatorily "demoted" Jack Sutton "and thereafter failed or refused to reinstate him to his former ... position"; and (2 ) "from on or about August 1, 1950, and con- tinuing to date" interrogated its employees "concerning their reason for de- siring a union," promised them "benefits , immediately preceding a Board conducted election , in an effort to defeat the organizational activities of the Union," advised "female employees that under a union contract they would be required to take a half day off," and threatened "employee Jack Sutton with possible transfer because of his union activity ." Respondent's answer denies that it committed unfair labor practices as alleged in the complaint. Pursuant to notice a hearing was held at Malvern , Arkansas, before me, Charles L. Ferguson , the undersigned Trial Examiner , duly designated by the Chief Trial Examiner to conduct same.` All parties appeared, and were repre- sented, at said hearing and were afforded full opportunity to be heard, to pro- duce, examine, and cross-examine witnesses , to introduce evidence relevant to the issues, to argue orally upon the record at the conclusion of the evidence, and to file briefs and proposed findings of fact and conclusions of law. All parties waived oral argument. The General Counsel and Respondent have filed briefs and same have been examined and considered. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The following facts about the nature and extent of Respondent's business were either stipulated or shown by Respondent's evidence. Respondent, an Ohio corporation, operates "a chain of more than 2000 retail stores located in approximately 20 States" of the United States, "and is engaged in the dis- tribution of groceries , meats, and sundries in said States through said stores." At the time of the hearing Respondent was operating 62 retail stores in the State of Arkansas . The store involved in this proceeding is located at Malvern, Arkansas. The foregoing facts were approximately the same at all times herein pertinent or material. During the 12 months next preceding the hearing Re- spondent "purchased, transferred and delivered to its warehouse at Little Rock, Arkansas, for distribution to its Arkansas stores, supplies valued in excess of $1,000,000, of which in excess of 50 percent was purchased outside the State of Arkansas and shipped" into that State from other States. I find that Re- spondent is, and at all times herein material was, engaged in commerce within the meaning of the Act' II. THE ORGANIZATION INVOLVED Local 1583, Retail Clerks International Association , AFL, is a labor or- ganization, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The Kroger operational system and the Arkansas branch The Arkansas "branch" of The Kroger Company has 5 districts and a total of 62 retail stores in the State of Arkansas. The branch manager "is the head 2 The Board has repeatedly held that The Kroger Company "is engaged in commerce within the meaning of the National Labor Relations Act." 83 NLRB 343 (RC ) ; 85 NLRB 6 (RC) ; 88 NLRB 194 (RC ) ; 88 NLRB 243 ( RC) ; 93 NLRB 274 (RC) ; 95 NLRB 1513 (UA). 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Kroger organization" exercising supervision over the district managers and the operations generally in the area included within the branch. A district manager reports and is responsible to the branch manager. He has "complete supervision" of the retail stores in his district. Apparently the district man- ager hires, discharges, transfers, promotes, or demotes store managers and cleri- cal personnel in the stores in his district and the local store manager reports and makes recommendations to the district manager concerning such matters ; however, the decision as to hiring, promotion, or disciplining of the clerical per- sonnel is the responsibility of the district manager. To both the rank-and-file clerk and the local store manager the district manager is the Kroger Company. The local store manager supervises the day-to-day operation of the store. There are 10 retail stores in the district in which the Malvern, Arkansas, store, here involved, is located. At all times to which the evidence herein relates W. C. Smashey was the Arkansas branch manager, E. L. Jorden, the district manager of the district which included the Malvern store, and Charles Raymond Hillis, manager of the Malvern store. B. The Malvern store Including part-time employees there was apparently an aggregate at the most, or at any one time, of 10 employees in the Malvern store, of which num- ber 8 were found eligible to vote in the representation election, hereinafter referred to, which was consented to and agreed upon by the Company and the Union. The unit agreed upon was composed of "all employees of the Malvern store including part-time employees" but excluding meat department employees, the store manager, and supervisors. The Malvern store bad a store manager (Hillis), a "head meat cutter," and a "produce clerk," with all other employees classified merely as "clerks." The store manager was the sole supervisory position in the store. 0. The issue As the General Counsel states, the "primary issue" to be determined is whether the demotion by Respondent Company of the employee Jack Sutton, "on or about January 22, 1951," and its refusal since that time to reinstate him to his former position, was motivated by his union activities and therefore discrimina- tory within the meaning of Section 8 (a) (3) of the Act. D. Jack Sutton-the alleged discrimimatee 1. Sutton first employed at Benton store-transferred to Malvern store-pro- moted to head produce clerk Sutton was 22 years of age at the time of the hearing and had been married 2 years. His home was originally at Benton, Arkansas, where, in September 1946 at the age of 17 or 18 years, he first went to work for the Company at its Benton store. He worked continuously for approximately 3 years at that store until sometime in October 1949 when, at his own request, Jorden, the district man- ager in whose district both stores were located, transferred him to the Malvern store. Sutton was working as "produce clerk" at the Benton store and Jorden was familiar with his work there and "knew his abilities." Respondent's evi- dence is to the effect that Sutton's work at Benton, and as produce clerk there, was satisfactory and that when Jorden transferred Sutton to Malvern he as- signed him to that same position at that store. After he had worked approxi- mately 3 months as produce clerk at the Malvern store Jordan promoted Sutton to the position of "head produce clerk," which carried with it an increase in THE KROGER COMPANY 1069 wages and added responsibility. Thereafter, except for 6 weeks' duty as a relief manager, Sutton served continuously as head produce clerk at the Malvern store until January 22, 1951, when Jorden admittedly demoted him to the position of clerk or stock clerk in that store. 2. Sutton serves as relief manager at Malvern Feeling that he had done a good job at both the Benton and Malvern stores, as admittedly was the case, and looking forward to eventually becoming a store manager, Sutton asked Jorden for an opportunity to try out in that capacity. In that connection he told Jorden he believed "he could run a store." Jorden said that he was constantly on the lookout for employees "capable of store management." Hillis took his 1950 vacation of 2 weeks in July. In selecting a relief manager to put in charge of the store during Hillis' absence on vacation Jorden inquired of Hillis concerning Sutton's capabilities for that job. Hillis advised Jorden that Sutton was "capable" of handling the job and Jorden designated Sutton to serve as the relief manager. After his service as relief manager, during Hillis' 2 weeks' vacation, Sutton, upon Hillis' return, resumed his job as head produce clerk. About the first of August, Jorden called Sutton by telephone and told him that he (Jorden) "would like to have" him go to the Texarkana, Arkansas, store as relief manager during the 2 weeks' vacation in August of the regular manager at that store, which assignment Sutton gladly accepted as it afforded an opportunity for further experience in store management and also meant an increase in earnings as while acting as relief manager he received the same salary the manager he was relieving was paid. 3. Sutton's work highly satisfactory to this point To this point when Sutton left Malvern to take over the Texarkana store as relief manager his work during the whole of the preceding approximately 4 years that he had been continuously employed by the Respondent had been most satisfactory and it is not subjected, anywhere in the evidence, to any criticism at all. All references in the evidence to his work to this time are highly com- mendatory, and both Hillis and Jorden had naught but praise for Sutton and his work at the Malvern store. Hillis said of Sutton's work at the Malvern store prior to this time, that "he had a lot of initiative," "he was a very good em- ployee . . . we gave him a promotion in his department and selected him as relief manager," "he was one of our better employees," that as head produce clerk "he did a beautiful job," "took care of the produce department" in a "ca- pable" manner and "I had very little work to do" in that department, and that as relief manager, during the time Hillis was on vacation, "he did a better than average job," a "very good job," and "we thought a lot of him." Jorden, speaking of Sutton's work as head produce clerk at Malvern, prior to his de- parture for Texarkana, said : "He had a lot of enthusiasm," "did a very good job," and "I was impressed with his ability and very happy over it." 4. Sutton serves as relief manager at the Texarkana and El Dorado stores Later dates specifically fixed by the evidence indicate that it was on Monday, August 7, that Sutton commenced his 2-week term as relief manager at the Texarkana store. The Texarkana store was "quite a bit larger" than the Mal- vern store. Sutton found the store in bad condition in that the regular manager had gone on vacation leaving "the back room full of stock," which in the normal operation should have been moved from the stockroom onto the store shelves, and had also left 3% pages of price changes which he should have made the previous 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week. The testimony that such condition existed there when Sutton took over the management job is uncontradicted. In making price changes all items affected must be removed from the shelves and placed back after the price markings are changed. Price changes at the Malvern store usually ran not to exceed 11/2 pages and required "a little over a day" to complete. Sutton did not recall just how long it took to complete the price changes which the regular manager at Texarkana had left undone but estimated that it required about 21/2 days. Moreover, during the time Sutton was there other price changes came in as it was during the time "all the price changes were being made." Jorden visited the store "the latter part of the first week." At that time he learned that "the regular manager had gone off without making the price changes" and he "observed the condition of the back room," which was yet pretty much as the regular manager had left it. Jorden told Sutton that the "regular manager should not have left the store in that kind of shape," and "to get" the back room "cleared out." Jorden said he thought the price changes had been completed at the time of the visit but is "not sure" that was the case. Sutton did succeed in getting the stock which the regular manager had left in the stockroom moved out and onto the store shelves, but in the meantime other stock was received not all of which was moved onto the store shelves before the end of Sutton's 2-week assignment there so that when he left the condition of the storeroom "was just about the same" as he found it when he took over. Sutton said that because of the inter- ference with the normal store operation caused by the price changes and the failure to get all the stock received while he was there moved out of the store- room he felt that he didn't do a good job at the Texarkana store. However, near the close of the 2 weeks as relief manager at Texarkana, Sutton received a letter from Jorden directing him to report the following Sunday morning at El Dorado, Arkansas, to take over that store as relief manager during the 2 weeks' vacation of the regular manager. Jorden does not recall, and Sutton does not state, how many times Jorden visited the El Dorado store while Sutton was acting as relief manager there; however, he made at least one visit. Sut- ton said that the only comment Jorden made to him about the El Dorado store, which Jorden said was "strictly constructive criticism," was that empty stock boxes were stacked in one corner of the storeroom whereas the boxes should have been torn down and tied up. Jorden said that at that time he commented on the "slowness in working the stock out of the back room into the shelves," but Sutton stated that he had no recollection of Jorden having made that criti- cism and that in fact at El Dorado the merchandise was moved "in a normal fashion from the stockroom up to the shelves." It is uncontradicted that Jorden did ask Sutton how he "was making out there" ordering, that Sutton said he "was overstocked on one or two items," and that Jorden said he "could probably find one or two" (items) that Sutton "was understocked on." In this connec- tion Jorden told Sutton that he had "over ordered" on some items while he was relief manager at Texarkana, that is, had ordered "more than the store needed for the period between orders," the only item specified being coffee. Sutton affirms that be left the El Dorado store in good condition and while he was dis- satisfied with the job he had done at Texarkana, he felt that, on the whole, he did a fairly good job at El Dorado. I accord little if any weight to the testimony of Respondent's witness Maples concerning the condition of the El Dorado store at the time Sutton checked out as relief manager. Maples, the husband of the lady who was at the time the regular manager of that store, had at the time of the hearing worked for the Company 4% years mostly as a relief manager and was then in training to be- THE KROGER COMPANY 1071 come a "super store" manager. From my distinct observation of this witness at the hearing and my analysis of his testimony since, it was at the hearing, and is now, my opinion that his testimony was somewhat biased and too much inclined to overstatement and generalities to be fully credited. He gave the opinion that when his wife returned from her vacation and took over the store from Sutton the store was overstocked. His statement that while he had known of regular managers in other stores who at times got overstocked he had never known of any regular Kroger manager doing so seems rather inconsistent with realities. This is illustrated by the admission of Hillis, himself an ex- perienced and regular Kroger manager, that he had at times found himself overstocked and at other times understocked. Asked about his own experience in that respect, Maples resorted to the statement that he "wouldn't say" that, as a Kroger store manager, he himself had never overstocked. 5. Sutton returns to Malvern store-resumes job as head produce clerk-union organizational activities commence at Malvern store With the close of 4 weeks as a relief manager Sutton immediately returned to the Malvern store and resumed his job there as head produce clerk the week commencing Monday, September 4. During Sutton's term of 2 weeks as relief manager at the Malvern store in July and his absence for the period of 4 weeks as relief manager at Texarkana and El Dorado, Thomas Lee Floyd, one of the clerks at the Malvern store, of whom more presently, was in charge of the pro- duce department there. Jorden testified that he had had only 2 union stores in his district, Texarkana and Benton, and, while it is not so flatly stated, I deduce from various refer- ences appearing in the evidence that when the Texarkana store was in opera- tion there were 11 stores in that district; however, the Texarkana store was discontinued because of the expiration of the lease and the inability to get an- other suitable location. Union considerations in nowise entered into the de- cision to discontinue that store. It is not clear, nor is it of importance, just when the Texarkana store was discontinued but it is my impression, from the subsequent events and many references to the Benton store alone as a union store, that it was discontinued shortly after Sutton's term as relief manager there. Corresponding very closely in point of time with Sutton's resumption of his duties as head produce clerk at the Malvern store, union organizational activi- ties got underway at that store with Sutton in the role of the principal union advocate. During September and the first 2 weeks in October Sutton, in sup- port of the union effort to organize the store, talked to his fellow employees about the Union, told them he "thought we should have a union," "asked them to join the Union," and "to vote for the Union." In discussing the benefits of a union with the employees Sutton made certain comparisons between the union store at Benton and the Malvern store in reference to the time annual wage ad- justments were made and received and the weekly half days off, about which lat- ter subject there was a considerable misunderstanding among some of the female employees as to what Sutton said about the matter. It was reported to Jorden that Sutton had told the female employees that the "girls at Benton got their (weekly) half day off yet were paid for it." During this period the em- ployees discussed the Union as they went about their work, but Sutton said "this did not in any manner interfere" with their work. Hillis stated that it was reported to him that there were "employee gatherings" and "union talk" in furtherance of the Union at times when he was absent from the store, and 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Sutton "called or took the lead" in these "conferences" or "gatherings" of the employees. Hillis "relayed that information" to Jorden. Sutton denied that he called any conferences in the store. Hillis admittedly told a field examiner for the Board that "The union talk and gatherings of employees when I was out did not start until Jack (Sutton) came back from Texarkana and El Dorado. I believe Jack kept it fomented, but I don't know that he started it." E. Agreement for representation election On September 18 Sutton was elected union steward. On September 21 the Union filed a representation petition, Case No. 32-RC-277, whereupon, although the date is not given in the evidence,' the Union and the Company entered into an agreement for a consent election, which election was set for October 14. F. About a week before date set for the election Jorden visits the store and confers individually with employees about the Union-events of that day About a week before October 14, the date for which the election was set, the exact date is nowhere fixed,' Jorden came to the store and had individual con- ferences with some of the employees' in which, in each instance, some reference was made to or discussion had concerning the Union, the approaching election, or the reports which had come to Jorden as to what had been said to the em- ployees by Sutton in a comparison of the unorganized Malvern store and the unionized Benton store. Upon arrival at the store on that day Jorden talked to Hillis "for a few min- utes" in the store. They then went outside and sat in Jorden's automobile. "A little later" they returned to the store. Hillis then went over to where employee Robert Lee Walters was working and told Walters that he (Hillis) "had been talking to Mr. Jorden and that he (Jorden) was torn up about the Union" but that "they didn't think they need to talk with" him (Walters) "because" he "was very agreeable about everything" and would use his "own judgment" and "vote the way" he "thought was right." Walters replied that he "would think it (the Union) over and study about it and vote the way" he "felt was right." When Hillis went over to talk to Walters, Jorden went to Mrs. Enoyce Allman, a checker, and told her he wanted to talk with her. They then went outside the store and sat in Jorden's automobile.' Mrs. Allman's testimony about this con- versation is brief and vague, and Jorden's testimony about it adds but little. However, enough appears to demonstrate that Jorden's invitation to Mrs. Allman to go out to the car with him and the conversation which there occurred, con- suming something like 30 minutes, related not at all to Allman's work but instead entirely to various phases of the union matter. All Mrs. Allman was able to affirmatively recall about this conversation is: "He (Jorden) first asked me if 6 Respondent's brief states that the consent agreement was entered into "within a few days" after the filing of the representation petition. ' In view of the evidence as to the time, it apparently was not less, and perhaps a few days more, than a week before October 14, that is, it may well have been October 5, 6, or 7, or a few days earlier. 6 There are some indications in the evidence that on this occasion Jorden talked individually with employees other than those who testified or who are specifically mentioned in that connection. 6 There was nothing unusual about going to Jorden's automobile for talks. It was customary at this store for Jorden, when desiring to talk without interruption with the store manager or any employee or employees for the two or sometimes more persons to go with Jorden outside the store to his automobile parked under trees back of the store, or on the store parking lot, or on the street in front of the store , or to go to some nearby soft drink place. The explanation for this practice, made in detail , was in brief that there is no place in this store where privacy and freedom from interruption can be had. THE KROGER COMPANY 1073 we were interested in getting the Union. I told him yes, if it would help working conditions and salaries. He said he was for everything that would help our salaries and working conditions ; that was his job, to see that everything was for our benefit." On the other hand she could not recall that Jorden mentioned "union stores in any way," or that he made any comparisons between union and nonunion stores "in the matter of wages or other matters," but certainly some discussion occurred concerning the arguments which the advocates of the Union, particularly Sutton, had been advancing concerning the benefits of a union, the principal one being that the annual wage adjustments or increases were received at the union stores much in advance of the nonunion stores, as she did recall that Jorden "said he thought that we would (in the future) get our wage increase through following the union raises." She remembered hearing the matter of employees being required to take a half day off "if the Union came in discussed" but could not say whether "it was him or the employees . . . it could have been some of the employees. I don't remember him (Jorden) telling me that." Mrs. Allman said this was the first and only time Jorden ever talked with her about a union. Jorden's recitation of this conversation was equally brief but somewhat differ- ent. He did not say why he sought Mrs. Allman out and asked her to leave her work for a conference with him in the car but clearly it had to do solely with the union activities in the store. About the conversation, Jorden said merely : "In my discussion with Mrs. Allman she was asking me some questions about the Union, most of which I did not know. . . . I remember explaining to her that according to our union contract in Benton that the female employees would be required to take a half day off." Thus the only part of the conversation with Mrs. Allman in the car which Jorden relates concerned the half day off required by the union contract at the Benton store which Mrs. Allman could not definitely recall was mentioned by Jorden. At the conclusion of their conversation in the Jorden automobile, Jorden and Allman returned to the store and Jorden then went to where Sutton was working and told Sutton that he (Jorden) "would like to talk to" him "a few minutes out in the car." They went outside and sat in Jorden's automobile during the en- suing conversation. Largely quoting from his testimony, Sutton's version of this conversation was : Jorden "commenced the conversation with `Well, I under- stand you all want to get a Union,'" and he (Sutton) answered "'Yes, sir, we do'"; "he (Jorden) told me that he was disappointed in me because of the part J had played in getting the Union" and "the manner in which he spoke" was such that "I took it he thought I was the one who started the Union and I asked him if he did and he said he thought I was." Sutton further testified that on the subject of the Union Jorden "told me we would get the same benefits with or without the Union," "that we wouldn't have the friendly relationship that we had had or feel free to go to the manager with our troubles, and the time off, that we would have to go to the Union rather than the store manager," and "that if we got a union we would have to punch a clock." The expression of disappointment in Sutton because of his activities in behalf of the Union and the remarks about "getting a union," which Sutton attributed to Jorden, were not specifically denied by Jorden nor, as I view Jorden's testi- mony, as a whole, by any generalized denial found therein. Jorden said, "I brought the (union) matter up," that he knew "a union election was coming up and mentioned it" to Sutton, and his own testimony indicates that in this con- versation Jorden not only discussed Sutton's connection with the Union and the effect of a union on working conditions in the store, but also that he inquired of Sutton as to why the employees wanted a union and what complaints prompted 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their interest in getting a union. I fully credit and accept Sutton's foregoing testimony about this conversation. While Jorden's talks with the other employees on that day related to the election, the Union, and the correction of what he deemed erroneous information which he understood they had received about the effect of a union contract, attributed in part at least to Sutton, he made no reference in his conversation with other employees to their work. However, in this conversation with Sut- ton, Jorden told Sutton that he had received complaints concerning Sutton's work since his return to the Malvern store from his service as relief manager at the Texarkana and El Dorado stores, but about all that Jorden said about this was that he went "into these complaints in detail." Sutton said that in this con- versation Jorden "told me my attitude wasn't right toward my work," "that I v as loafing on the job," and "had called conferences" of the employees in the store. These purported conferences, which Sutton denied he had called or that such in fact occurred, of which there is no proof, were supposedly in connection with and a part of the union activity which Jorden and Hillis attributed to Sutton. Sutton did say that the employees discussed the Union among them- selves as they went about their work. Also, according to Sutton, in this con- versation for the first time since his return to Malvern from relief duty his work in that capacity was mentioned, Jorden saying "that when I was relief manager in those two stores, I made a mess of both of them." Sutton further stated, concerning this conversation, that Jorden "told me the Kroger Company was not required to keep anyone at a certain place and that they could transfer or de- mote" an employee, and "that they wasn't required to make anyone head produce clerk or to keep him there." Respondent sharply questioned the truthfulness of Sutton's testimony about this last statement concerning transfer or demotion, which he attributed to Jorden. In view of all the circumstances bearing on the matter, my observation of the witnesses, and the other testimony later set out regarding this statement, I am constrained to accept and credit Sutton's testi- mony that Jorden did, in the course of that conversation, make such statement. Other than that Jorden commenced the conversation with a reference, which was in fact an inquiry, about the Union and an expression of his disappointment in Sutton for the part he had taken in getting the Union, the continuity of the matters discussed or referred to does not appear, nor does it appear how and where the reference to Sutton's work, Jorden's statements about the effect of getting a union in the store, his inquiry about what conditions gave rise to the complaints underlying the union movement, and his reminder to Sutton that the Company could transfer or demote and was not required to keep anyone as head produce clerk, which position Sutton held, were interwoven, but all were parts of and linked together in the same conversation which had its inception, and was in purpose a part of, Jorden's investigation concerning the interest and action of the employees "in getting a union" in the store. Jorden said, "It was reported to me that Mr. Sutton had made the remark at the Malvern store that the girls in Benton (a union store) got their half day off, yet were paid for it." I think it a fair inference that in the conversation with Jorden that day in his car, Mrs. Allman told Jorden that Sutton had made such a statement to her as later in the same day , after Jorden had talked to Sutton in the car, he asked Mrs. Allman to "accompany" him "to the back room" where Sutton was working at the time, "because," as Jorden testified "it seemed that she was the one Mr. Sutton had made this remark to, and I wanted that cleared up . . . and we confronted Jack with it, and he said yes they did tell them that the Benton girls were being paid for their half days off, and I told him that he was in error and should have the facts before he made statements like that, THE KROGER COMPANY 1075 and I said that 'to show you that I am not trying to tell you something untrue I will be happy to mail you a payroll from the Benton store,' which I did. I mailed a payroll down there, which would bear out the fact that they were not paid their half day off." Mrs. Allman's testimony is silent about this incident. About this confrontation, the conversation and the issues discussed, Sutton said first that he "had previously explained to Mrs. Allman and the other employees" that under the union contract at the Benton store the employees of that store got the holiday off plus their regular half day off during weeks hav- ing holidays as contrasted with the Malvern store where although the em- ployees were given the holiday off they were not allowed the regular half day off during a week having a holiday, and that he had not told his fellow employees that the Benton store gave its employees the regular half day a week off with pay. Coming, in his testimony, to the occasion when Jorden accompanied by i\lrs. Allman approached him in the back room, Sutton said that Jorden com- menced the conversation by asking him what he "had told Mrs. Allman about half days off for female employees" at the Benton store, that he told Jorden his understanding "from the Benton store" was that during weeks having holidays the Benton employees "got their half day off plus the holiday," and that "Mrs. Allman understood me to say' that they got their half day off and still got to work full time." e Whatever the discussion was about the half day off, Sutton and Jorden are in agreement in that, as Sutton put it, Jorden "told me that he would appreciate if I would get my information right before passing it on to the others." Sutton said that one complaint of the employees of the Malvern store was that they did not get the annual wage increases "at the same time the union stores" did but received the increases "usually two or three months later," and that, at that time and in the course of that conversation, he and Jorden discussed "when we were due a raise" as "the Benton store had already gotten their raise," that he asked Jorden "if it would always be like that and he told me 'No, from here on you will get them at the same time.'" Concededly what the Malvern em- ployees thought to be a delay in the annual wage increase or adjustment was discussed by Jorden that day with Sutton and other employees. About noon that day Jorden "asked to speak" with employee Marcille Stiles, a dairy clerk and checker. Stiles could remember but little of the conver- sation, and in his testimony Jorden made only a slight reference to this talk with Stiles. Quoting her language and putting excerpts together, Stiles said : I don't remember what he did start out with. I believe he said we was going to hold an election for the Union. . . . I told him yes, sir, that was right . . . he figured out on a piece of pasteboard somehow where if the Union came in and even if I got a raise I wouldn't gain anything by it .. . because we would have to take a half day off and would lose time . . . I didn't understand him then, and I still don't understand it. . . . He said that we had been a little late getting our benefits, the same as the union stores, but it was due to something ; I don't know what it was ; but he said we would get them sooner from now on. 7 Apparently meaning that Mrs . Allman then stated that she had so understood the previous statements he had made to her and other Malvern employees about the half day off. 9 Various references in the evidence indicate that an Arkansas statute prohibited the female employees working more than 48 hours in a week and more than 8 hours in any 1 day so that if they took a half day off a week it could not be made up by working more than 8 hours another day or on other days. The male employees, at the Malvern store, worked 51 hours a week with a half day off. 1076 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD At one point in his testimony, referring to his talks on this day with the employees, Jorden stated that he "told them to vote the way they wanted to," asked "that all of them vote, regardless of how they voted, because they had asked for the election," and that he "explained to" Allman and Stiles ° "that under a union contract they would have to take a half day off." Sometime during that day Thomas Lee Floyd, who had handled the produce department during the 6 weeks Sutton had served as a relief manager and whom Jorden later made produce clerk in Sutton's stead when Sutton was demoted, hailed Jorden, as he was passing the place where Floyd was working, and "asked to talk to him." The following is a consolidation of Floyd's testimony, about their conversation, quoting his language: We went to the back room, and I told Mr. Jorden that I was sorry that all this was coming up,10 that I had changed my mind about the Union, and I told him that I wasn't interested in the Union any more, and that I didn't want the Union. . . . I told him the reason we had talked about forming the Union was because of the raise. We had maybe two or three months when we didn't get a raise and had been told that some of the other Kroger stores had gotten the raise." I told him that was the reason why we started talking about the Union, but now I had changed my mind, and I didn't want the Union. Jorden's testimony does not refer to this conversation and Floyd's testimony about the incident is devoted almost wholly to what he told Jorden with only this specific reference to anything Jorden said to him on that occasion, that is, that Jorden told him that "when the union stores received increased wages the nonunion stores received them automatically." Floyd further stated : "Mr. Jorden told us that we could vote . . . either way we wanted, and if we wanted it (the Union), it didn't make any difference to him because he wouldn't tell us to vote for or against the Union." It may be that Floyd meant that Jordeu made that statement to him in the course of this conversation although the wording seems to indicate that Floyd was saying that Jorden made the state- ment to the employees generally. After Jorden's departure the employees discussed among themselves what Jorden had told them separately about the employees of that store getting "the same benefits with or without a union," and "decided they would like to talk the union matter over with Hillis," whereupon Sutton told Hillis that the employees "would like to talk to him." A meeting was held with Hillis, in the store after closing time, at which all the regularly employed clerical force included in the agreed unit were present except Marcille Stiles. The uncon- tradicted testimony was that at this meeting "everyone talked" ; "we told Mr. Hillis what Mr. Jorden had told us about our wage increases and about working conditions" ; "Mrs. Allman explained to him (Hillis) what Mr. Jorden had told her about the female help having (to take) a half day off if they got a Union" ; there was discussion "about the wage increase coming through at the same time that the union stores" received a wage increase "also working conditions, and our half day off" in weeks having a holiday, and "we decided" and told him (Hillis) that "if Mr. Jorden kept his promise about us getting our wages at ° This is the only reference in Jorden's testimony to his conversation with Stiles. 10 It is quite evident from the context and the surrounding circumstances that the reference was to the union activity in the store and the approaching union election. 11 The stores that had already gotten the annual increase or wage adjustment were two union stores, Benton and Pine Bluff, by the negotiation of new contracts providing for an increased wage effective as of, and retroactive to, the date of the expiration of the former contracts, Benton, July 3, and Pine Bluff, August 21. THE KROGER COMPANY 1077 the same time the union stores did and working conditions being the same we didn't see any use of getting the union." Sutton testified that Hillis "told us that Mr. Jorden . . . was a man of his word and he was sure he would do what he said," that "it did not make any difference" to him (Hillis) "whether you do or not" get the Union "but since Mr. Jorden felt the way he did, he would rather we didn't for Mr. Jorden's sake." This statement which Sutton attributed to Hillis was in substance corroborated by Floyd and was not spe- cifically referred to or denied by Hillis, or any of the other participants, and Sutton's testimony in that respect is credited. Hillis' recollection of this meet- ing is covered by this excerpt from his testimony : I believe they told me that Mr. Jorden had told someone that he would try to get comparable working conditions," and they told me if he would do that they were willing to call off the union proposals, and the thing I remem- ber stating to them was that I knew Jorden would do what he said he would do, that I certainly couldn't promise anything, but I would help the best I could to get comparable conditions. G. The union secretary endeavors to stem union defection Apparently information of this trend away from the Union resulting from Jorden's talks with the employees came to the officials of the Union and Edward L. Scholle, secretary of the Union,n came to Malvern and talked with the employees whereby interest in the Union was revived, on the part of at least some of the employees. Interrogated on cross-examination about the decision of the employees, announced at the meeting with Hillis, that "if Mr. Jorden kept his word on these things" they would abandon the Union, the following questions were asked Sutton and answers given : Q. You made up your minds that you didn't want a union? A. Yes, sir. Q. And you so explained to Mr. Hillis? A. Yes, sir. Q. What caused you thereafter to change your minds about wanting the Union? A. Well Mr. Scholle, the union secretary came down to us about the Union. He talked to us about the Union, and explained how it would be. H. The representation election on October 14-friction develops among some of the employees over the Union Eight employees were eligible to vote in the consent representation election on October 14. Six votes were cast, 3 being for the Union and 3 against. Sutton served as the union observer. Following the election Sutton "reported to Mr. Scholle the Company's actions . . . about the union activities," where- upon Scholle timely filed objections to the election, based on the information given him by Sutton, alleging improper conduct on the part of the Company 12 Meaning comparable with the working c^nditions existing in union stores. 13 It is noted that Scholle, who as secretary of the Union signed and filed the charges herein, formerly had been employed in one of the Little Rock Kroger stores "in charge of produce," apparently as head produce clerk, and had been demoted for "bad operation." The matter was submitted to arbitration in accordance with the union contract covering the Company's Little Rock stores. The arbitration board required that Scholle be rein- stated and paid the difference in wages. Scholle's demotion was not related to any union activities or considerations. 250983-vol 102-53 e9 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting the results of the election. The evidence does not disclose the detail content of the objections. The election and the controversy about a union in the store, which both preceded and followed, seems to have provoked ill feeling and friction among some of the employees, which continued until and after, and became more general about the time of, the second election hereinafter mentioned. An example of this is found in the testimony of Floyd, who, as has been noted, at first favored the Union but "changed" his "mind," and sought out Jorden to advise him of that fact and that he "didn't want the union any more," and who got Sutton's job as head produce clerk when Sutton was demoted. It is clear that the ill feeling between Floyd and Sutton grew out of the union issue. Sutton knew that Floyd had turned against the Union, and Floyd stated that, after the October 14 election, "there was friction" between him and Sutton, they "didn't get along too well," and they did not "talk to each other as much as before." 1. The letterwriting incident Hillis, the store manager, took Thursday afternoon of each week as his "half day off." On a Thursday in the "latter part of October" or "around November" before leaving the store for his regular afternoon off Hillis directed Sutton to prepackage potatoes that afternoon for the next day's business. During that afternoon Sutton went to the manager's office, which is near the front of the store, and spent 25 or 30 minutes there writing 2 personal letters after which he went outside the store to mail the letters and was gone about 5 minutes. In all he used from 30 to 35 minutes in writing and dispatching these personal letters. He was entitled to a "break" of 15 minutes during the afternoon and the letterwriting was done at and during the time scheduled for his break but, as noted, consumed from 15 to 20 minutes additional time. Sutton did not that afternoon prepackage a sufficient quantity of potatoes for the following day but did complete the job the next morning. An employee or employees reported Sutton's letterwriting in the manager's office to Hillis the morning after it occurred, but Hillis could not remember who told him about it that morning. Hillis did not say anything to Sutton about the letter- writing that morning when he (Hillis) found that the prepackaging of potatoes had not been completed. It seems quite clear that Hillis did not then attach importance to the letterwriting incident as, although he had been informed and knew about it at the time he spoke to Sutton about the prepackaging, he did not then mention the letterwriting incident to Sutton nor did he thereafter bring up that subject with Sutton nor report it to Jorden. In fact Hillis said that when "they'4 told me about Mr. Sutton writing letters in my office during my absence the previous afternoon, it didn't make much of an impression on me," and as a further indication of how little attention Hillis gave the matter is his statement that when a report concerning the conduct of an employee came to him it was his policy to "talk it over with the individual" ; however, in this instance he did not mention the letterwriting incident to Sutton. J. Visit of Sutton, accompanied by Walters, to the home of Hillis The evidence leaves the date, and even the approximate time, uncertain, and the best inference I can draw is that it was unquestionably after the letter- 19 It does not appear who among the employees first reported the incident to Hillis. Mrs. Allman said she told Hillis about it but she said that her report was not made "at the time" the incident occurred "but later." THE KROGER COMPANY 1079 writing incident and sometime about mid-November " that Sutton and Walters, who by request accompanied Sutton , called on Hillis at his home one night about 8 or 8: 30 p. m. Apparently Sutton was worried and had been brooding about Jorden's ac- cusation that he (Sutton) had been "loafing on the job." " I have mentioned that there was some ill feeling among the employees arising out of the union agitation and the election , and, in addition to Jorden's accusation about his work, Sutton had heard that "some things were being told on him " relating principally to the letterwriting incident. Hillis had never mentioned that matter to him but Sutton had heard that some fellow employee or employees had informed Hillis about it, as was the case , and he believed an exaggerated report had been made. He resolved to call on Hillis at his home and endeavor to "straighten out" the, as he believed, erroneous accusations Jorden had previously made about his work , and also "explain " and "apologize" to Hillis for "taking too much time off" from his work writing letters that afternoon in the office during Hillis' absence from the store. In view of the sharp issue of credibility involved I closely observed Walters' demeanor as a witness. At the hearing I had the distinct impression that he was a credible witness, and now after a study and analysis of all the testimony bearing upon the matters relating to this call upon Hillis , which the testimony of Walters and that of Sutton put in issue, I am constrained to accept and credit Walters' testimony about that event. In that connection I discover no motive of self-interest or other motive of such a nature and none is suggested which would likely move Walters to wilfully shade, color , or fabricate testi- mony to the prejudice of Respondent by whom he had been employed for 2i2 years, and was then employed with the expectation of continuing in that em- ployment, or to give such testimony in contradiction of that of Hillis with whom "The scant references found in the evidence which might seem to indicate something about the time when the letterwriting incident and Sutton's visit to the Hillis home occurred , and when it was that Jorden learned of the letterwriting and took Sutton to task about it, are vague , indefinite, and confusing. Admittedly all these events did occur I am satisfied that momentarily Sutton 's memory was at fault , and he was confused when at one point he said that in the conversation in Jorden 's car about a week before the October 14 election , the day Jorden was conducting his union investigation at the store, Jorden referred to the letterwriting and that the call which he and Walters made on Hillis, when according to all the parties present the letterwriting incident was, among other things, discussed, was "dust before" that election , as in almost the same breath he placed the letterwriting incident as having occurred "around November, I believe" or "the latter part of October," and later said that the conversation with Jorden in which Jorden took him to task about the letterwriting was early in January 1951. Hillis was equally confusing when he seemed to say that the letterwriting incident occurred November 7, 8, or 9 and then said it was during that period Walters and Sutton came to his home when the evidence suggests that some time, at least more than any period of 2 or 3 days, elapsed between the 2 events . Walters said merely that the visit that he and Sutton made to the Hillis home was after the October 14 election . Jorden said that he did not learn about the letterwriting incident until "quite sometime after" the October 14 election. He did not fix the time that be discussed it with Sutton other than to say that it was between the conversation with Sutton about a week before that election and Sutton's demotion the following January 22 . Hillis, who was present , thought that Jorden's con- versation with Sutton about the letterwriting occurred "possibly a week or maybe two weeks" after Sutton and Walters "came to my house," and as has been noted , Sutton placed it as having occurred early in January 1951. However, from all this as well as the circum- stances surrounding the events involved and the content of the various conversations it is my deduction that these events and the various conversations occurred at the approximate times and in the chronological order in which I have noted them "This accusation had been made by Jorden during his talk with Sutton in the Jorden car on the day a week or more before the October 14 election when Jorden was making his investigation. Sutton said that was the first time such an accusation had ever been made against him. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admittedly a cordial friendship and good relationship had at all times and then existed. I cannot subscribe to a belief that he would, or did, falsely concoct the testimony he gave or conspire with another or others to do so or that any compelling motive existed to induce him to do that . The circumstances indi- cate that Walters' interest in the Union was not such as to warrant even a suspicion that it may have spawned such a motive . For the time being I put aside the testimony of both Sutton and Hillis about this visit to the Hillis home and note what Walters said about it , which, as I have stated, I credit. Walters testified that on that evening Sutton came to the Walters home and that Sutton "was very much torn up" about "some things that were being told on him." Walters told Sutton that he "didn't know anything about it. " Sutton asked Walters "to go over to Mr. Hillis' house with him" as "he wanted to talk to Mr. Hillis and straighten it up." Walters said that "as a friend" he went with Sutton to call on Hillis . The conversation at the Hillis home, be- tween Sutton and Hillis, was "mostly about the letterwriting ." Sutton told Hillis that "he was sorry he wrote the letters up in the office, and that he guessed he had done wrong and promised not to do it again ." After Sutton had gone into the matters he came to discuss or "straighten out" Hillis , speak- ing directly to Sutton, said : I don't have anything against your work , I think you are doing a swell job . . . but between you and me, and if it goes any further I will deny it, Mr. Jorden has it in for you because he thinks you started the Union. Sutton's testimony about the visit to Hillis was much the same. He said one purpose in going to see Hillis on this occasion was "to explain " and "apologize" for writing the letters "the time he was gone from the store" ; that he also "mentioned the things" Jorden had said in the conversation in the Jorden car a week or more before the October 14 election about "loafing on the job and calling conferences," and asked Hillis "what he thought about" his work and that Hillis said : "I don't have anything against your work . It is all right as far as I am concerned." Sutton said that "then he ( Hillis ) told me that he didn't even know about some of the things that Mr . Jorden had told me about at all, and he said `Between me and you, Mr. Jorden had it in for you because he thinks you are the one that started the union , and if this goes any farther, I will deny it.' " Sutton said that they then talked about the store operation generally and that somewhere in the conversation Hillis remarked that "the only objection he had to my work was that Thursday afternoon that he had assigned me some work to do, and I hadn 't gotten it done," the reference being to the letterwriting incident. About this visit of Sutton to his house Hillis testified that when Sutton "came in he said he wanted to talk to me about some things that he had heard was being said about him and wanted to know who told me these things. He was sorry that he had written the letter in my office and said he would like to get things straightened out about that. . . . After he admitted to me that he had written the letter, I think I told Jack we could forget about the letterwriting if he would go on and do his job as I knew he could do it. I told him he had not been doing his job as he once did it and I was going to expect him to do better. He said that he would." Hillis further said that, on that occasion, be "did not have any discussion" (with Sutton) concerning Mr. Jorden and did not tell Sutton that Jorden "has it in for you on account of union activities" or anything to that effect or in substance. As heretofore stated, I accept and credit the version of this conversation given by Walters and Sutton. THE KROGER COMPANY 1081 K. Jorden learns of, and talks to Sutton about, the letterwriting "Quite sometime" after Sutton's visit to the Hillis home, the nearest consistent approximation being early in January 1951,14 someone, presumably an employee, told Jorden about Sutton writing letters in the manager's office "while the man- ager was on his half day off." Jorden said his informant told him that the "letterwriting and the trip down to the post office consumed quite a part of the afternoon . . . took up most of the afternoon." After interrogating "two or three employees about it," Jorden "questioned Mr. Hillis" and found that Hillis "happened to know about it," although he had not mentioned the incident to Jorden. Whereupon Jorden summoned Sutton to a conference in Jorden's auto- mobile with Hillis present. Jorden said that on this occasion his remarks were "centered around the letterwriting," and that Sutton "admitted writing the let- ters," and that "he was wrong" in doing so. Jorden, without specifying, said that in connection with his remarks to Sutton, on this occasion, about the letter- writing and trip to the post office, he "again pointed out his (Sutton's) faults to him." About this conversation Hillis said: "Someone had told Mr. Jorden about the letterwriting incident. It wasn't me"; that Jorden asked him (Hillis) about it and after he told Jorden what he knew about the incident Jorden said he "wanted to know from Jack the truth" about the letterwriting ; that they "took Jack out in the car" where he and Jorden "detailed to Sutton the faults" they "thought existed in his work," and in that connection Jorden "mentioned the letterwriting incident." Sutton's testimony about this conversation will be set out in connection with the subject matter next dealt with. L. Field examiners of the Board begin an investigation of the October 14 elec- tion-take statements from the Malvern employees On the night of December 4, Sutton brought a Mr. Cienke, a field examiner of the Board, to the home of Walters, introduced Cienke to Walters, and told Wal- ters that Cienke "wanted to talk to him." At that time Cienke took a written statement from Walters. Sutton was not present during the taking of the state- ment. On or near the same date a field examiner for the Board, doubtless the same Mr. Cienke, took a statement from Sutton. On January 3, 1951, a field examiner appeared at the Malvern store and interviewed and took written state- ments from the other employees. On that occasion the field examiner took Wal- ters and Sutton separately to his automobile and interrogated them but did not take a further written statement from either. M. Jorden quizzes Sutton about his statement to the field examiner and the letterwriting incident A few days after the January 3 call of the field examiner at the Malvern store, Jorden came to the store and told Sutton he wanted to talk with him and as usual they went to Jorden's car. The following is a condensation of Sutton's testimony about the ensuing conversation. Jorden commenced the conversation by inquiring if Sutton "had made any statements or spoken to anyone in the store concerning" his (Jordan's) remark to Sutton, in their previous conversation, "about transferring and demoting" and Sutton replied that he "had discussed it" 14 Jorden said that he learned of the letterwriting incident and talked to Sutton about it sometime between his talk with Sutton about a week before the election of October 14 and Sutton's demotion in January 1951, and Sutton said that conversation occurred the early part of January 1951. See footnote 15, supra. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but did not say with whom he had discussed it. Jorden then asked him if he (Sutton) "had made a statement" to a field examiner and whether he "had a copy of it." Sutton told Jorden he had given the field examiner a statement but "did not have a copy" of it, but that he had read the field examiner's copy before he signed it. Jorden said he had a copy of his own statement, which he had given that morning to a field examiner, and he "read me a part of what he had put in the statement." Jorden "asked me if I put in my statement about the conversa- tion we had about transferring and demoting," to which he (Sutton) replied that he "did not remember for sure" as he "felt that it was none of his (Jorden's) concern." Jorden referring "to that statement about the transferring and de- moting" said that "misunderstanding could get one in serious trouble," and although he (Sutton) "didn't know just what" Jorden meant by that he thought it meant get him in trouble.18 Jorden did not "point out any specific faults about" his work but asserted that "I didn't have my mind on the job" and that it was then that Jorden said that "someone (but did not say who) had notified him that I had written letters on Company time, so I told him yes, sir, that I did." In that connection Jorden said, "Don't many people stay with the Company after they write letters on the Company's time." In concluding the conversation Jor- den "told me I wasn't loyal to the Company or I wouldn't have tried to get the Union in like I did or done like I had about the Union" and, in that connection, again asserted that he (Sutton) "had called conferences" in the store, and that was the only "manner" in which Jorden could be said "at this time" to have "criticized" his work. The parties participating in this conversation, Jorden, Hillis, and Sutton, refer to only one conversation in which Jorden took up the letterwriting in- cident with Sutton, and it follows that the foregoing conversation, which Sutton said occurred in January 1951 shortly after the visit of the field examiner to the store on January 3, is the same conversation to which the testimony of Jorden and Hillis, supra, relates, and as appears by reverting to their testimony about this conversation they are in agreement with Sutton that Jorden brought up the letterwriting incident. I credit Sutton's testimony that Jorden had prior to that, on the occasion, and before Hillis joined the conference, interrogated him about and commented on his (Sutton's) statement to the field examiner, and also had suggested that a misunderstanding of Jorden's previous remark to him about "transferring and demoting" could cause trouble, although from the way Hillis stated the matter it might be, although not necessarily, inferred that he claimed to have been present throughout the entire conversation. That Hillis recalled that, at that time, Jorden discussed the letterwriting and also said some- thing about Sutton's work, but neither affirmed nor denied Sutton's testimony that Jorden, in that conversation, quizzed Sutton concerning his statement to the field examiner, lends some support to Sutton's testimony that Hillis was not present during that part of the conversation. During the part of the conversa- tion relating to the letterwriting episode and matters other than the Sutton and Jorden statements to the field examiner apparently all three were present, and although Sutton testified before Hillis was called by Respondent, as a wit- ness, Hillis did not either affirm or deny Sutton's testimony about Jorden's accusation that "in getting the union in" the store "like" he "did" and doing "like" he "had about the union" he had been disloyal to the Company. Nor did "Sutton said Hillis was not present at the beginning of the conversation nor when Jorden inquired whether he ( Sutton ) had discussed with anyone what Jorden had previ- ously said to him about "transferring and demoting," or while Jorden was inquiring about and discussing the statement Sutton had given to the field examiner , but that Hillis joined them prior to and was present during that part of the conversation which related to the letterwriting and the inference is the remainder of the conversation. THE KROGER COMPANY 1083 Jorden specifically deny Sutton's testimony in that respect although his gen- eralized denial that he at any time ever interrogated any of the employees, or said anything to any of them, about union membership, or how they in- tended to, or should, vote in the election, or about their personal connection with, support of, or interest in the Union, would perhaps embrace a denial that, on this occasion, he made these accusations which Sutton attributed to him. However, in view of the foregoing, and my own observation of Sutton as a witness, I am constrained to credit his testimony that Jorden did in this conversation make the remarks about the statements to the field examiner, a misunderstanding of "transferring and demoting" causing trouble, and Sut- ton's union activities constituting disloyalty to the Company, substantially as related by Sutton. N. Jorden quizzes Walters about Board field examiner On January 5 Walters was working at Arkadelphia, Arkansas, where be had been assigned temporarily by Jorden to assist in the work of "getting a new store there ready to open," when a field examiner for the Board came into the store.19 Walters, however, did not see the field examiner. After the field ex- aminer left the store, Jorden went to where Walters was working "putting up stock" and asked him if the field examiner who came in the store was the same one who had been at Malvern and had taken a statement from him (Walters) there. Walters told Jorden that he did not know as he had not seen the field examiner who had come in the Arkadelphia store, whereupon, as Walters put it, Jorden said, "there was one (field examiner) that had contacted me in Mal- vern, and I told him yes," and Jorden then asked him if he gave a statement to him. 0. Sutton is demoted To this point the course of events has moved into January 1951. During the entire time since the early part of September 1950, when the union efforts to organize the store first commenced, the union issue had been in ferment resulting, particularly after the October 14 election , in some friction or ill feeling among the employees . This controversy was intensified by the challenge to the validity of the election made by the Union and the consequent investigation of the election carried on by the field examiners for the Board which was still in prog- ress. Throughout Sutton was looked upon by the employees generally, and by Jorden and Hillis , as the leader and principal exponent of the Union. Further by this time Jorden and Hillis, no doubt, looked upon Sutton as being not only the instigator of the Board's investigation but also the chief employee adviser in that connection , as apparently he was. This was the situation when on January 22 Jorden demoted Sutton from head produce clerk to a stock or ordinary clerk, with a corresponding reduction in wages, and elevated or pro- moted Floyd from the position of a clerk to that of head produce clerk with the increase in wages which attended that position. There is but little difference, in the main, in the testimony of Sutton, Jorden, and Hillis about what occurred when Sutton was demoted on January 22. However, Jorden and Hillis attributed a certain admission to Sutton which Sutton denied making. Sutton's version of the event and the circumstances immediately preceding follows. When Sutton reported for work that morning 19 There is no explanation of why the field examiner came to the Arkadelphia store on that day. Whether there was another or other employees of the Malvern store other than Walters working there that day with whom he sought an interview does not appear. It is unimportant why as the fact is the field examiner did come into the store. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hillis told him that Jorden "would like Mr. Floyd to put up the (produce) rack" that morning as he wanted Floyd "to learn more about produce." Sutton yielded the job of putting up the produce rack to Floyd, and busied himself by assisting Walters in "trimming produce in the back room." 2D After they had finished the trimming, Sutton went up to the produce department and started to work, and "noticed Floyd was still there." Since Hillis had told him only that Floyd was "to put up the rack" he asked Floyd "what Mr. Hillis had told him about working in the department after he had gotten it up." Floyd said Hillis had told him that he was to work there "all day, that day" and that Sutton would work in stock. Hillis was out of the store at that time, but upon his return Sutton asked him what he (Hillis) wanted him (Sutton) to do. Hillis said "he would like for" Sutton "to work in stock." About "an hour or so after that" Hillis, who had been talking outside with Jorden, who, in the meantime, had arrived at the store, "came back in and told" Sutton that Jorden "wanted to talk to" him "out in the car." He and Hillis went out and sat in the car with Jorden who told him he wanted to talk to him about his work. Jorden said his "work had been off" and "it hadn't been right," that his work "had been better in the last week, but it was too late," and that he (Jorden) "was taking" him "off produce and putting" him "somewhere else" Sutton asked Jorden what he wanted him to do and Jorden said that was up to Hillis, who told Sutton that he "could work all over the store, stock and checking." He (Sutton) asked Hillis if Floyd was to "take" his "place" and Hillis said "Yes, T. L. (Floyd) is going to work produce." He then asked Jorden about taking a produce refresher course at the Company's training school. Jorden said that such was not necessary as he (Jorden) "didn't have anything against the way" Sutton "put up the rack." At that Sutton said he would like to get "the new table display ideas," and Jorden replied that he "didn't have anything against" his "table display," whereupon Sutton asked "what" then "was wrong," and Jorden said that he "did not have" his "heart in the work." Jorden was not specific about what he said to Sutton in this conversation, but claimed to recall very specifically what Sutton said to him. He said that as a result of continued complaints by Hillis about the quality of Sutton's work since his return from duty as relief manager the previous September, he decided to change Sutton "from head produce clerk to stock clerk." When asked if, on this occasion, he explained to Sutton "why" he was "taking that action," Jorden said : Yes, I went into detail as to why. As I had several times before, I pointed these things out. I did go into it thoroughly with him, and explained to him that he could make a come back if he so desired. I couldn't get him to say anything. He wouldn't talk to me, and I said : `Surely you have some remark to make,' and he said : 'How long will it take to get my job back.' I told him it depended on him, and then insisted that he express himself and then is when he said : 'I realize I haven't done my job, and probably had it coming to me.' He didn't say but two sentences while we were in the car. The foregoing is the sum of Jorden's testimony about this conversation. Hillis gave a somewhat fuller and a bit more explicit account of what he claims was said. The following is a verbatim report of Hillis' testimony in that respect: 20 As head produce clerk Sutton did not ordinarily trim produce in the early morning preparation of produce ; that was done by other employees. THE KROGER COMPANY 1085 Mr. Jorden started to talking to Jack, after we got in the car, and he said 'Jack we have given you every opportunity that we know how. We have borne with your neglect in your produce department since your coming back to us off of relief duty, and it has been reported to me numerous times by the manager , Mr. Hillis that you are not performing your duties as you once did. We are going to relieve you of your duties as head produce clerk, and demote you to the grade of grocery clerk. Q. Did Mr. Sutton have any comment to make? A. He had none for sometime. I think the first thing that Jack said was, 'Well, what do you want me to do'? Q. What else did he say? A. And Mr. Jorden said that would be left up to the store manager. Q. What else did Mr. Sutton say? A. He said, 'What kind of work will that be,' and I said, 'Well, I suppose it will be any kind of general stock work where you are needed.' Q. Did Mr. Jorden ask Mr. Sutton whether he had anything to say? A. He did, and Jack remarked to him, 'How long will it take me to get my job back as head produce clerk'? To this point though repeatedly asked what Sutton said on that occasion, Hillis had not mentioned the admission attributed to Sutton by Jorden, that is, that he had not "done" his "job" and "probably" had the demotion "coming" to him. Whereupon Respondent's counsel next inquired: Q. Did Mr. Sutton protest that he had been performing his duties? A. He admitted that he had not performed his duties as he knew how ; that he had been letting down on his job. I shall not undertake to measure to what extent, if any, Hillis' seeming re- luctance to attribute to Sutton the purported admission may have been due to the fact that approximately 4 months prior to the hearing he admittedly told a field examiner for the Board, and signed a written statement setting out, "I was present when Jorden advised Jack that he was being demoted. I do not recall Jack admitting he had not been doing his job right." However, the admitted statement to the field examiner casts such doubt on this portion of Hillis' testi- mony at the hearing that I am unable to accord it any weight as tending to support Jorden's claim that Sutton made such admission. I too take into con- sideration Sutton's categorical denial that he made such an admission on that occasion, or at any other time, which is consistent with his affirmative testi- mony, to which he firmly adhered throughout, that he performed his duties as head produce clerk in the same manner during the period following his return from relief duty that he had prior to that time, and admittedly his work on that job prior to September 1950 had been most satisfactory. The only deviation Sutton admitted was the letterwriting incident which Hillis considered of such slight consequence that he did not even report it to Jorden. I do not, therefore, credit the testimony about the admission. P. Election of October 14, 1950, set aside and new election ordered On January 29, 1951, 1 week after Sutton's demotion, the Regional Director issued his report on the objections lodged by the Union to the conduct of the Company alleged to have affected the results of the election of October 14, 1950. This report sustained the objections, set aside the results of the election, and directed that a new election be conducted under the terms of the agreement for a consent election. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Election of February 17, 1951 Pursuant to notice duly given a new or second election was held on February 17, 1951. Eight votes were cast, 4 being for and 3 against the Union with 1 ballot challenged by the Union. In due course the challenged ballot was counted. It was against the Union. Sutton again served as the union observer. R. Jordon addresses a meeting of the employees The second election was held on Saturday, February 17. On the following Monday Jorden appeared at the store and "requested" the employees to "come back and meet" with him in the back room. Hillis explained that it was at his request that Jorden called the meeting In this connection Hillis stated : It had come to my attention by employees that so and so was mad at so and so . . . it was causing a lot of conflagration in the store and I called Mr. Jorden to come to the store to help me . . . straighten this situation out. It is clear that the friction among the employees resulted from the controversy about the Union. The meeting was held during business hours. All of the employees 2' at the time present in the store, six in number, attended the meeting. Hillis remained alone "up in front doing the checking and taking care of the trade." At that time no ruling had been made on the challenged ballot Walters said, about this meeting, "there was a little confusion about the way the union went on, and hard feeling on the part of both sides, those against the union, and those for the union" ; "Mr. Jorden was trying to straighten them out" ; he said "it was all foolishness" and "I want you all to be friendly and forget all of that stuff . . . I want you to forget everything about the Union." Sutton said that on this occasion Jorden told the employees that "he wanted us all to get along, forgive and forget, and let what was past be past, and be friends," and that "he didn't care if they opened that challenged ballot or not." Jorden said that he talked to the employees "for their own benefit and explained how foolish it was to feel hard at each other about the way they might have voted" ; that the purpose of the meeting was "to remove any friction that might have existed" among the employees, and "I think it opened their eyes to the way they had been acting"; that at the conclusion of his remarks "I ask for comments, and three or four of them said `I feel alright if everybody else does,' and `I am not mad at anybody, if they are not mad at me."' Hillis said that "after the meeting was over . . . all of the employees spoke to me about harmony except Jack Sutton." S. Jorden talks it ith Walters After the second election, and sometime in March, Jorden came to where Walters was working in the back room of the store and told Walters that he would "like to talk" to him "a few minutes in the car," adding "Mr. Maples said he thinks I ought to talk to you "2 In the car Jorden said, "Bob, I would like to talk to you about a few things, not against the union or any organizing; I don't care what church you belong to or what organization, but it is a matter of your work, and Mr. Maples thinks you have let down a little on your work." Walters told Jorden, "I might have let down just a little, I don't know," where- upon Jorden said, "Well, I just wanted to talk to you about it, and I think you are letting a stool pigeon mislead you from your work." ii Reference is to all employees included in the unit agreed upon who were at the time present in the store r' Maples "was relief manager at the time until they could get another manager." This was after Hillis had resigned as manager in March in order to enter business for himself. THE KROGER COMPANY 1087 T. Why, Respondent says, Sutton was demoted Respondent denies that Sutton's well-known and continuing union activities had anything whatsoever to do with Jorden's decision to reduce or demote him from the position of head produce clerk to that of a stock or general clerk, and avers that such action was due solely to a complete degeneration in Sutton's work and performance of his duties as head produce clerk which occurred, and had its beginning, after his return in September 1950 from his service as relief manager at Texarkana and El Dorado. This explanation of the demotion rests principally on the testimony of Hillis and Jorden. The only other testimony to the effect that Sutton's work deteriorated, at and after that time, was that of the employee Floyd who succeeded Sutton as head produce clerk. Hillis testified that during the very first week after Sutton 's return from relief work at the Texarkana and El Dorado stores , the week of September 4 to 9 inclusive, he noticed "failures" on the part of Sutton to properly perform his duties as head produce clerk ; however, he said he did not speak to Sutton about the deterioration in his work until "the end of the second week, possibly on Friday or Saturday" of that week, September 15 or 16, at which time he tried "to find out from him" what "might be affecting his work." The following is a condensation of Hillis ' testimony about this sudden, strange, and unexplained change and degeneration in Sutton 's work as head produce clerk which allegedly occurred after his return from his tour as relief manager. Hillis "noticed . . . a big difference in Jack after his return from relief." There was a "lack of interest in his work" on the part of Sutton evi- denced by "his lackadaisical ways of fixing his produce, of trimming his prod- uce, or repairing his produce, or keeping it in excellent shape," as he had formerly done. He "neglected his prepackaged merchandise . . . and it was noticeable after his return that a lot of produce was being kept on racks that was not fresh." "It was the custom to water produce which isn't packaged at periodical intervals to keep it fresh . On occasions he (Sutton ) missed the hour that we sprinkled the produce , and I would have to remind him that it hadn't been watered." "After his return Mr. Sutton did not order in the proper way" so that "we were overstocked on produce that we didn't need, and lacked prod- uce that we didn't have, and it was then I began assisting him in the ordering of produce." Hillis did not recall any overstocking or understocking by Sut- ton before September . It was "afterwards" that the overstocking and under- stocking for the first time became "noticeable." "Before Jack relieved the store managers you didn't have to tell Jack Sutton what to do. He did his produce in such a way that anyone would have been proud of it, and when he came back, he had to be reminded of things that he wasn't doing right." While Sutton himself did not trim and prepare the produce at the beginning of the day, that being done "in the early morning hours" by "all the employees in the grocery department," Hillis "began to notice," after Sutton 's return from relief duty, that "more time was taken in preparation of the produce in the early morning hours," and he attributed that to Sutton 's "lack of planning in the establishing of ways to get things done better," although so far as appears that job was done after Sutton's return in the same manner which before had been satisfactory and by the same group of employees who had formerly done it satisfactorily. "Quite often ( after September 1950 ) we would have to catch his scales, as he was in the back room, or some place, that he would not be able to wait on the customers . . . the back room is where we trim our produce and where we keep our extra stock." The paramount deficiency which Hillis said was "most noticeable" in Sutton's work after his return from relief duty and particularly 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in that period subsequent to mid-September, by which time Sutton's union activity in the store was conspicuously underway and well known, was a "lack of interest" which "caused him to perform a poor operation." Hillis said this changed attitude and conduct on the part of Sutton which so suddenly developed after his return from relief duty continued unabated "so long as I was manager of the store." The following summarizes Hillis' testimony about his purportedly fruitless efforts to restore Sutton to his former high state of efficiency as head produce clerk which admittedly had existed prior to September. After Sutton's return from relief work he talked to him "about the way he was performing his duties . . . possibly 10 or 12 times" and "cautioned" Sutton "repeatedly." "We had several talks, Jack and I, about the care of his produce, about his lack of interest, about his neglect in certain duties that lie was performing .. . about order guides not being kept up, about lack of interest in his ordering and in planning or promoting in his department." In September after this change in Sutton's work and attitude appeared, Hillis "discussed it with him (Sutton) frequently," "daily" spoke to Sutton "about some neglect," and had "to remind" Sutton "every day" to do "something." While, as has been pre- viously noted, the first time after this purported change in Sutton's work be- came apparent that Hillis spoke to him about it was about September 15 or 16, Hillis said that "each week thereafter I had to talk to Sutton about his work," and that during the period subsequent to mid-September he "complained" to Jorden about the way Sutton was doing his work, that he and Jorden "talked about Jack's performance each time he (Jorden) visited the store," and that Jorden "insisted that I work with him (Sutton) and bring him back as he once was." Jorden said Hillis complained "one time" to him about Sutton's work "pos- sibly around 10 days after he was back" (from the relief tour at Texarkana and El Dorado), then said "that might have been quite awhile after he came back, I don't remember just how long it was. . . . I didn't place too much importance on it (the purported complaint) but I did discuss it with Jack momentarily one day . . . and during that conversation I offered him a little encouragement in the fact that he might be a little let down because he had done a poor job 28 and I wanted to boost him up a bit." Jorden said that at that time he asked Hillis "to help train (Sutton) on his weak points shown while on the relief tour." Jorden did not say what this complaint was but he twice said that he did not attach much importance to it, and further stated that he spoke only "momentarily" with Sutton about it. Sutton, on the other hand, said that the first time, after his return from the relief tour, that Jorden made any mention to him about his work was in the conversation in Jorden's automobile about a week or more before the first election, which, it will be re- called, was the day Jorden was making an investigation of the union activity in the store. Jorden is far from positive as to when this momentary reference to some unimportant complaint by Hillis took place. The "quite awhile after" Sutton's return from relief duty may well have been as Sutton said the time a week or more before the October 14 election when Jorden was making his investigation. Jorden did say that was the first time after Sutton's return, in September, from the relief work, that he talked "seriously" with Sutton about his work as, he said, "by that time it had been established, more or less, that there was something wrong with the boy. He was letting down on his work. He didn't seem to be interested in his department." Jorden said that 21 Jorden here refers to Sutton 's work as relief manager at Texarkana and El Dorado. THE KROGER COMPANY 1089 after that date, a week or more before the October 14 election, Hillis spoke to him "on several occasions about Mr. Sutton's work," and that "on each visit, or most every visit" he made to the store he and Hillis "discussed Jack and how he was coming along in his work, whether he was making any improve- ment, and Mr. Hillis was urged to suggest and help him in any way he could to bring him out of his slump," but that despite his recommendations to Hillis to that end Hillis' "complaints continued on up until the time" Sutton was "replaced." As stated, the only other witness who gave any testimony tending to support the claim advanced by Hillis and Jorden that after Sutton's return, in September, from his service as relief manager there was a complete degeneration in his work as head produce clerk was the employee Floyd. However, it must be taken into consideration in evaluating Floyd's testimony that he had been placed in temporary charge of the produce department during the 6 weeks Sutton was acting as a relief manager, that on the occasion a week or thereabout before the October 14 election, when Jorden was at the store investigating the union matter, Floyd had sought out Jorden and informed him that whereas he (Floyd) had formerly favored the Union he had changed his mind and was then against the Union, that thereafter ill will and friction developed between Floyd and Sutton over the union issue, the election, and Floyd's change of position, that in November Jorden sent Floyd to a produce training course the Company conducted at Little Rock, that in January following, a few weeks before the second election, Jorden demoted Sutton and promoted Floyd to the position of head produce clerk in Sutton's stead, which carried with it an increase in wages, and that admittedly if Sutton were reinstated to his former position Floyd would lose that job and possibly be reduced to his former job as a mere clerk. In view of Floyd's interest as above outlined and the analysis of his testimony on this phase of the case which follows I accord but little, if any, weight or value to Floyd's testimony as supporting Respondent's claim of a marked deterioration in Sutton's work after mid-September. Asked about the difference he observed in Sutton's work after his return from his tour of duty as a relief manager, Floyd using practically the same language in which Hillis and Jordan define the purportedly sudden and very noticeable deterioration in Sutton's work, said that Sutton "seemed not to have as much interest as he did before he was relief manager," and that Sutton "neglected" his duties as head produce clerk, and did not take care of the prod- uce department "as well after his relief job as he did before." Asked to specify the basis for these opinions Floyd said: (1) There was a "weighing station in the produce department," and it was the duty of the head produce clerk to weigh the customers' purchases, that Sutton "spent considerable time in the back room," and that at such times he and other clerks would have to do the weighing; (2) "I believe it would take us longer in the morning to get our produce department in shape"; and (3) before Sutton took the relief job he maintained "an attractive looking produce display" but "after he came back I don't think he did as well as he had done before" ; further, and in the same connection, he did not "set up a produce rack as good as we used to." I consider the things specified in order. The weighing of customers' purchases by other clerks when Sutton was in the back room was one of the specifications listed by Hillis. Neither Hillis nor Floyd undertook to say that on these occasions when Sutton was in the back room that Sutton was merely idling or loafing there. After the trimming and preparation of the produce by all the employees the first thing each day was completed any further trimming and packaging necessary during the day as well as replenishment of the racks and produce 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD displays was done by Sutton which work took him to the back room, where all the trimming was done and supplies and stock were kept. That was the same situation that had existed during the period prior to September that Sutton had been in charge of produce against which no criticism of this kind or any kind at all is leveled. Both before and after September when his duties took him to the back room in connection with preparing and replenishing his sales supply it was understood and was the practice for other clerks to attend to any weighing that might become necessary during such absences from the produce sales department. There is not a scintilla of evidence to indicate that after September his trips to the hack room were for other than proper purposes in connection with the replacement, repair, and supply of the produce racks and displays and if the vague references made by Hillis and Floyd were intended to imply otherwise, I do not consider same of any probative value. The second specification has already been touched up in connection with Hillis' reference to the same effect. It certainly is not explained so as to convey any understanding to me how this morning work apparently done by the same people in the same way after mid-September as before was in fact in any way differ- ently performed after that time. That the third specification about Sutton's failure after this purported but unaccountable change in September to main- tain "an attractive looking display" and to properly "set up" the produce rack is without substance, and is but an illustration of the groping to find something to support the generalized accusations made against Sutton's work after that time, is demonstrated by Jorden's own statement to Sutton at the time he demoted Sutton, that he (Jorden) did not "have anything against the way" Sutton "put up the rack" or "against" Sutton's "table displays." I have not overlooked Mrs. Allman's testimony but it is so equivocal that I am unable to accord it any weight. After giving answers in line with the wording of questions by Respondent' s counsel that after "relief-managering" Sutton "seemed to lose interest" and "did not exactly have the same hustle that he had before," she said, "I couldn't say what his actions were because I have quite a few other jobs to take care of myself." I was impressed at the time by my observation of the witness and her manner, and retain that impression after reading the transcript of her testimony, that Mrs. Allman had not observed any concrete acts or conduct on the part of Sutton which formed a basis for, or warranted, the opinions she ventured, and that she did not in fact have even a considered opinion about the matter, nor do I think she was particularly qualified to render the opinions she found herself expressing. None of the other employees who testified had noticed any change or difference in Sutton after his return from duty as a relief manager. U. What Sutton said about the allegation that his work deteriorated Sutton said that Hillis never at any time prior to the time he was demoted, "reprimanded" or "complained to" him "about the way" he was doing his work as produce clerk, and head produce clerk, in which positions he served at the Malvern store for approximately 15 months, 3 months merely as produce clerk and approximately 12 months as head produce clerk. His work as produce clerk at the Benton store before he transferred in October 1949 to the Malvern store was well known to the district manager. Jorden, but no criticism by Jorden of his work during that period is to be found in the record. Hillis does not mention any dereliction of any kind on Sutton's part, nor recall any criticism of, or complaint about, Sutton's work that he ever had or made prior to mid- September 1950. Indeed, it must be taken as an admitted fact in this case that prior to mid-September 1950, a date corresponding so closely in point THE KROGER COMPANY 1091 of time with the beginning of Sutton' s union activities as to constitute a potent circumstance, his work in the produce department had been most satis- factory. As has been noted, for Sutton's work as a produce clerk and head produce clerk prior to that date Jorden and Hillis had only commendation and praise. Sutton asserted with positiveness, and credited testimony other than his own tends to corroborate him, that after his return to his regular job of head produce clerk, following his absence as a relief manager, "his work was just like it had always been" ; he did things "like" he. "had done them before" ; he "was trying as hard as" he "had at first" ; he "kept" his "produce stand up," "watered the stock," 2' and maintained "an attractive display" ; ' and there was no deterioration in the quality of his work from what it had been prior to the date line which the Respondent draws. Sutton freely admitted that throughout his entire service in the produce depart- ment at the Malvern store both Hillis and Jorden had made "small suggestions" to him about his work and for the improvement of his department just as they "pointed out things to other employees, and made suggestions" to them "concern- ing their work," and that "it has always been like that," no more so after his return from the relief-manager tour than before. Further, that the only com- ments Hillis had ever, at any time, either before or after his "tour" as relief manager, made to him about his work as produce clerk were merely suggestions. Asked as to the nature of these suggestions, he said, "just about my displays, and prepacks, things like that " Asked to give examples, he said, there were times when Hillis "would be walking through or be back there" in the produce department, and "maybe he would see some prepack that had something bad in it . . . he would tell me to break it open and get the bad stuff out," and at times "maybe he (Hillis) would suggest a different way to fix a display on the the potato rack, to make it look better." V. Analysis of the evidence concerning Sutton's work after he returned from service as a relief manager, and finding as to reason for his demotion The more I have analyzed, tested, and compared the testimony, the more I am convinced that Hillis and Jorden, in an effort to support their generalizations, when called upon to do so, that coincidently and simultaneously with his union activities Sutton lost interest in his work and ceased to perform his duties as head produce clerk in the highly efficient manner in which they admit he had always prior to that time done so, have seized upon the not unusual and ordinary little things which commonly occurred throughout, before as well as after, and which had been no more, at any time, than the subject of a suggestion, and have retroactively magnified them into a pattern of neglect on the part of Sutton and failure to properly do his work in that period marked by his union activities which commenced in the first part of September 1950 and continued thereafter, the last mention in the evidence being to a time after his demotion. The testimony of Hillis that beginning about mid-September and continuously thereafter he talked and complained to Sutton about the great change or "de- ficiency" in his work, which had developed so suddenly, and "cautioned" him "possibly 10 or 12" times that after that time he mentioned "some neglect" to Sutton "daily," and was continuously during that period complaining to Jorden about Sutton's work, must be greatly discounted, if not wholly disregarded, in view of the fact, which I have found, that when Sutton and Walters called at his u Sutton said that Hillis never at any time "had to tell" him "to water or wet down the produce," as he "had a schedule on that" which he followed 25 Jorden told Sutton that he had no complaint against him on that. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home sometime in November , or it may well have been later, Hillis told Sutton, in Walters' presence, that he did not "have anything against" his work and thought he was "doing a swell job," that his work was "all right," and that he did not know anything about "the things" Jorden had said to Sutton about his work on the occasion that Jorden talked to Sutton a week or more before the October 14 election when Jorden was talking individually with the employees about the union movement. Further despite Hillis' claim that he was continu- ously complaining to Jorden about Sutton 's deficiencies and conduct he did not report to Jorden the letterwviting incident, about which there was so much testimony and of which Jorden made so much when he finally learned about it through other employees . That was the only misconduct on the part of Sutton that was indisputably established. Hillis learned about that the next morning after it occurred , but did not either talk to Sutton about it, until Sutton himself brought up the subject on his visit to the Hillis home, or report it to Jorden, whom he was supposedly keeping currently informed about Sutton 's allegedly strange deviation in conduct which purportedly had been going on, as Hillis and Jorden claim, since about mid-September. There is considerable testimony about Sutton 's service as relief manager at Texarkana and El Dorado wholly out of proportion with any contribution that period makes to this case. Jorden was asked if Sutton 's work as relief manager at those stores back in August had anything to do with his demotion the following January 22 . He answered : "Not too much . . . it (the de- motion ) was not based upon that alone, but his entire attitude , and the job he was doing over a period of months." Although Jorden's statement seems to imply that Sutton's work at Texarkana and El Dorado may have played some part in his decision to demote Sutton from head produce clerk to a general clerk, the whole tenor and effect of Respondent's evidence is to the contrary and plainly indicates that Respondent 's claim was in fact that such decision was based upon, and limited to, Sutton 's purported derelictions in the performance of his duties as head produce clerk from and after his return from that tour of duty as relief manager. Apparently Respondent recognizes that the claim it makes that an almost complete reversal of form and character on the part of this employee, whose work over a period of 4 years had been highly efficient and most satis- factory, suddenly occurred shortly after his return to his job as head produce clerk following the 4-week absence as relief manager , corresponding in point of time with the beginning of his union activities , is mystifying indeed, and theorizes , as a possible explanation , that conscious of having failed in his work as relief manager Sutton became despondent and discouraged , lost interest in his work as head produce clerk , and quit trying . This seems pretty farfetched and insubstantial when it is remembered that Sutton had been signally success- ful as a relief manager at the Malvern store with which he was familiar ; that while, because of the handicaps he had encountered there, Sutton had felt that he had not done as good a job at Texarkana as he thought he could have done under more favorable circumstances , nevertheless instead of selecting some em- ployee of the El Dorado store to act as relief manager there , or sending some- one else to do so, Jorden , knowing Sutton's work at Texarkana , sent him on to El Dorado as relief manager ; that such criticisms of Sutton's work at those stores, as Jorden at the time made were, as Jorden said, wholly "constructive," and in the nature of suggestions , calculated to assist Sutton in his effort to learn managerial work ; that Sutton himself, instead of being discouraged , felt that on the whole he had done a fairly good job at those stores , and had no feeling of having failed in those assignments . Moreover, the first time Sutton ever heard anything to that effect , or that any charge of that kind was leveled against THE KROGER COMPANY 1093 him, was on that day a week or more before the October 14 election, after he had been back from El Dorado about a month, when Jorden in the course of the conversation with Sutton during his (Jorden's) investigation of the union mat- ter, asserted that as relief manager at the Texarkana and El Dorado stores Sutton had "made a mess of both of them." Further it is significant that, although Hillis and Jorden claim that Hillis constantly and continuously reported and complained to Jorden about the de- terioration in Sutton's work from about 10 days after Sutton's return to his job as head produce clerk, and that they discussed it every time thereafter that Jor- den came to the store, Jorden mentioned Sutton's work but two times in the entire period from the time he resumed his job as head produce clerk, on Sep- tember 4, to January 22, when he was demoted ; first, the day a week or there- about before the October 14 election, and second, early in January following, about 2 weeks or less before the date of the demotion. The primary topic of conversation in both instances, and the occasion of each, was the Union and Sutton's union activities, and Jorden's references, in the course of these con- versations, to Sutton's attitude about his work, loafing on his job, not having his heart in his work, and the like, were so closely linked and interwoven with his accusations that Sutton had started the Union, and kept it going in the store, had been disloyal to the Company, and brought disappointment upon Jorden by getting a union in the store and doing like he had about it, as to in- dicate that according to Jorden's viewpoint the purported loss of interest by Sutton in his work 26 and his continuing union activities were synonymous, and that Jorden's real complaint and grievance against Sutton, which led to his demotion, was not an inexplicable degeneration in his work as head produce clerk, but his union activities and his continued persistency therein. The credited evidence relating to Sutton's work both before and after Septem- ber 4, when he resumed his job as head produce clerk at Malvern, considered as a whole, indicates, in my opinion, that there was not, in fact, any serious or marked deterioration in his work after that date, which, but for the intervention of the union controversy and his part therein, would have caused Jorden to re- move him from his position as head produce clerk, and consequently that a deterioration in his work after his return from his service as relief manager could not have been, and was not, the real reason for Sutton's demotion. Rather, the facts and circumstances leading up to and existing at the time of the demo- tion, as I have found them to be, were such as to compel a finding that the demo- tion was in the nature of an act of reprisal for Sutton's union activities carried out with the purpose of, by such action against the persistent leader of the union movement, discouraging and coercing such of the other employees who were still inclined to support the Union from further continuing to do so. I think that which immediately preceded Sutton's demotion tends to support the views I have just stated. Hillis said that on Sunday before the demotion was made the next day, Monday, he went from Malvern to the home of Jorden in Hot Springs, Arkansas, "for the specific purpose of talking to Mr. Jorden about replacing Mr. Sutton," at which time he told Jorden "that we had worked with Jack Sutton probably long enough, that we needed a replacement in our produce department." Later Hillis said that on this Sunday visit to the Jorden home "I was recommending to Mr. Jorden that he use his own initiative about replacing the man." In his testimony about this trip Hillis did not mention any recent occurrence of any kind, or any contemporaneous misconduct on the part 20 Both Hillis and Jorden said that the paramount factor marking the alleged deteriora- tion in Sutton's work was a loss or lack of interest in his work as head produce clerk after his return to that job on September 4. 250983-vol 102-53-70 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Sutton connected with or affecting his work, which impelled him to make this impliedly emergency Sunday trip to Jorden's home solely to discuss Sutton. Jorden said that "quite a few store managers visit my house" on Sundays. Thus there seemed to be nothing unusual. in itself about Hillis going to the Jorden home on Sunday. Jorden recalled but little of what he and Hillis talked about on that occasion but said he did "remember him (Hillis) talking about Jack Sutton, but he didn't run in and start talking about it" and "I couldn't say that was the sole purpose of that trip." About all that Jorden could remember Hillis saying concerning Sutton was that "he (Hillis) used the term demoralization" in reference to Sutton, and said that Sutton was "demoralizing his organization." Jorden went to the Malvern store the next day, Monday, January 22, on his routine visit there, and after a consultation with Hillis outside in Jorden's automobile, summoned Sutton to the car and there announced to him that he was being demoted. What occurred, and was said, at that time is set out, supra. The wholly unexplained immediate reason or necessity, so far as anything con- cerning Sutton's work was concerned, for a special trip by Hillis on Sunday to the Jorden home, leaves me dubious that such was the real and sole purpose of that trip as Hillis said was the case. I am inclined to think that more likely the trip had to do with the affairs and business of the Malvern store generally, and a report or discussion thereof, as did the frequent like Sunday visits of Hillis and other store managers in Jorden's district. I doubt not that such dis- cussion included the status of the union controversy and the resultant friction among the employees, which was still in progress, and Sutton's part therein and responsibility therefor, and that perhaps a decision to take some immediate action against Sutton was there made. However, I am persuaded that such deci- sion was not based on any degeneration in Sutton's work, which it is now claimed had abruptly occurred the previous mid-September and continued unabated to that time, but rather upon what Hillis and Jorden deemed a "demoralization" of the store personnel concomitant with the union activity, which had been in progress since the early part of the previous September, and was still going on, with an investigation of the election then being made by the Board, with the probability that a second election would be ordered, the responsibility for all of which Jorden certainly, if not in fact both Jorden and Hillis, attributed very largely to Sutton. That Jorden and Hillis concluded that the disciplinary action decided upon and taken Z' against Sutton, the recognized leader of the union movement, accompanied, as it was, by a reward to Floyd, who had turned against and become an outspoken opponent of the Union, might well serve to put a quietus on the further progress of the Union appears, under the facts and circum- stances outlined, a reasonable inference. Further supporting the conclusion I have arrived at, that Sutton was demoted because of his union activities, the credited evidence demonstrates that Jorden harbored an animus against the Union which permeated his course of action in opposition to a union in the store and his entire attitude toward Sutton in the period following the beginning of Sutton's union activities, for Jorden not only believed that Sutton started the Union but also that he was the animating spirit in keeping it alive despite Jorden's known opposition. Some of the circum- stances appearing in the evidence which reflect such a feeling on Jorden's part follow. "It is interesting to note that Hillis served for approximately 10 years as a Kroger store manager , but worked for the Company "longer than that." He was manager of the Malvern store for 3 years. In Hillis' 10 years of experience as a Kroger store manager. Sutton was the only employee in a store at which he was manager against whom the dis- trict manager ever took disciplinary action. No other employee was ever discharged, demoted, or reduced in salary, in a store at which he was the manager. THE KROGER COMPANY 1095 Jorden's purpose in coming to the store and individually interviewing the employees about the Union a week or more before the election on October 14 was clearly to dissuade them from pursuing their plan "to get a union." Jorden's personal feeling about a union in the store was conveyed to the em- ployees that day, on at least two occasions, by Hillis ; first, shortly after Jorden's arrival, and immediately following a consultation with him, Hillis went to Walters and told Walters that lie (Hillis) "had been talking to Mr. Jorden," and that Jorden "was torn up about the union" ; second, after Jorden had completed the individual interviews, and the talk with Sutton in the presence of Mrs. Allman, at which times he made representations to the employees that it would be to their advantage not to have a union, buttressed by assurances that they would get the same benefits without a union that the employees in union stores enjoyed, most of the employees were moved to abandon the Union, conditioned, however, upon Jorden redeeming his promises so made, and informed Hillis to that effect, whereupon Hillis told the assembled employees that while it did not make any difference to him (Hillis) whether or riot they got a union, since Jorden "felt the way he did" about a union in the store "he (Hillis) would rather . . . for Mr. Jorden's sake" they "did not." Hillis again reflected Jorden's very strong union animus when he told Sutton in Walters' presence that Jorden had it in for him (Sutton) because he thought Sutton started the Union. Jorden plainly manifested this animus when he told Sutton, in effect, that in starting the Union, trying to get a union in the store, and doing like he had about the Union, he had been disloyal to the Company and ungrateful toward him personally. Obviously Jorden referred to Sutton as "a stool pigeon" when, as late as March 1951, he warned Walters, a known friend of Sutton, that he (Jorden) thought Walters "was letting a stool pigeon mislead" him "from his work." While in that conversation Jorden disclaimed any interest in Walters' union sympathies or membership, the very fact he did so when purportedly he merely wished to talk to Walters about his work gave direction and meaning to his reference to a "stool pigeon." Sutton not only had been, and continued to be, the leader and principal advocate of the Union, but had reported to the Union the alleged improper conduct of the Com- pany in connection with the October 14 election, and thereafter had promoted, and to some extent at least had assisted the field examiners in, the investiga- tion of that election. Certainly by the reference to a "stool pigeon" Jorden did not mean Hillis, or Allman, or Stiles, and most certainly not Floyd. Until the time Sutton took the stand he did on a union it seems quite evident that he rated high in Jorden's estimation and that Jorden had him in mind for a job as a store manager at some future time, but when Jorden found that Sutton was the leader in the union movement here at the Malvern store he was greatly disappointed and displeased, which feeling about Sutton was aug- mented by Sutton's persistency in behalf of the Union even after he was apprised of Jorden's attitude toward, and opposition to, the Union. W. Conclusions about Sutton's demotion The findings made and conclusions arrived at, as I have gone along, necessarily impel the ultimate finding, which I make, that the allegation of the complaint that, in violation of Section 8 (a) (3) of the Act, "Respondent demoted Sutton because of his membership in and activities on behalf of the Union," has been established by the preponderance of the credible evidence, and the more reason- able inferences therefrom. Likewise, I find that Respondent's action in de- moting Sutton, as aforesaid, was calculated to, and did , interfere with , restrain, and coerce the employees in the exercise of the rights guaranteed in Section 7 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, and, therefore, also constituted a violation of Section 8 (a) (1) of the Act. X. The alleged 8 ( a) (1) violations The complaint alleges specific violations of Section 8 (a) (1) of the Act as follows: (1) "Interrogating employees concerning their reason for desiring a union" ; (2) "Promising employees benefits, immediately preceding a Board conducted election, in an effort to defeat the organizational activities of the Union" ; (3) "Advising female employees that under a union contract they would be required to take a half-day off" ; and (4) "Threatening employee Jack Sutton with possible transfer because of his union activity." Jorden said that in answer to questions by Mrs. Allman about the half day off in union stores, he "explained to her that according to the union contract in Benton the female employees would be required to take a half day off" if they got a union in the store, and that he told both Allman and Stiles "that under a union contract they would have to take a half day off." There is nothing in the evidence indicating that the foregoing statements or representations were not correct. Merely advising these employees as to the provisions of the union contract in effect at the Benton store, in reference to a half day off about which apparently there was some sort of misunderstanding among the employees, could hardly be said, in and of itself, to be coercive and as constituting a vio- lation of Section 8 (a) (1). I am unable to understand the importance attached to the statement as the employees at the Malvern store took or had a weekly half day off anyway, although it is true that it does not appear whether or not they were required to take it. Nor do I perceive how the statement, in this respect, about the Benton contract, even in the context in which it was made, can be considered as likely coercive in its effect, or to be in the nature of a threat, or intimation, that the employees would lose a privilege or benefit they then enjoyed in the event they got a union in the store. The evidence does not, in my opinion, sustain the allegation of the complaint that such statement was violative of Section 8 (a) (1) of the Act. Turning to the remaining specifications supra, numbered 1, 2, and 4, the evi- dence shows that the things alleged occurred. In his individual interviews with the employees, in the course of his Investigation of the union movement about a week or more before the October 14 election, Jorden did interrogate them as to whether they were interested in getting a union 2 and what complaint or com- plaints prompted that interest which query was in effect, as alleged, what was their reason or reasons for wanting and trying to get a union in the store. There seems no doubt that after hearing their complaints Jorden attempted to meet them by correction of such as he deemed founded upon erroneous advice purportedly given the employees by Sutton that at the union store at Benton the employees got the half day off each week with pay,* and the other com- plaints advanced, with one exception, by generalized assurances to the effect that 18 Allman said he commenced the conversation with her by asking "if we were interested in getting a union." In the other instances the approach , while in the form of a state- ment such as "I understand that you" or "you all want to get a union" or that "you want an election for the Union," was so spoken as to be in effect a question and was so under- stood and taken by the employees who in each instance answered in the affirmative. sa As is above set out, Sutton said that he did not so advise the employees and that all he said about half days off at Benton was that under the union contract at the Benton store the employees got the weekly half day off during weeks having holidays , which fell on a workday, in addition to the holiday, while at Malvern the employees were not allowed the half day off in such weeks. However, Mrs. Allman for one apparently re- ported to Jorden that Sutton had made the representation concerning the half day off with pay at the Benton store as here noted. THE KROGER COMPANY 1097 thereafter they would receive the same benefits enjoyed by the employees at union stores , and that they did not need a union to obtain same. However, Jorden did make at least one specific promise in response to the paramount complaint, one that was mentioned by each of the employees with whom he talked on that day, a week or more before the October 14 election, that the employees at the Malvern nonunion store did not receive an increase in wages until long after the increases went into effect at union stores. It seems that the employees in the nonunion stores eventually received the same wages provided for by the union contract for union stores ; however, the union wage scale did not automatically go into effect in the nonunion stores at the same time it did in the union store first negotiating an increase. Annually classifica- tions were reviewed and wage adjustments made in the nonunion stores, but not at a fixed time each year, sometimes it would be a few weeks more or less than a year. As I understand, when the adjustment covering nonunion stores was made the same wage scale, if any, which had in the meantime been set up by a union contract for a union store was put in effect in the nonunion stores but same was not retroactive to the time it had gone into effect in the union store. The new wage rate, carrying an increase, was put in effect in the nonunion stores, which included the Malvern store, on October 11, 1950, more than a year having elapsed since the wage adjustment for nonunion stores made in the previous year. The increased wage scale had gone into effect at the union store at Benton as of the previous July 3. Thus, Jorden's assertion to Floyd that "when the union stores received increased wages the nonunion stores received them automatically" was not literally correct. The practice seemed to be to put the annual wage adjustment into effect at all nonunion stores in the branch at the same time. Thus when the 1950 wage increase was put in effect at Malvern it was at the same time put into effect at 44 other nonunion stores in the Arkansas branch. How Jorden expected to do it is not explained but in his talks with the employees on the occasion a week or more before the October 14 election he met their complaint that they did not receive pay increases until long after such increases had gone into effect at the union stores with the specific promise that thereafter the employees of the Malvern store would get wage increases "at the same time the union stores did." It was in reliance principally upon that prom- ise by Jorden "about the wage increase (thenceforth) coming through at the same time" that union stores received a wage increase, which promise they related to Hillis, that the employees decided, in the meeting with Hillis after closing time that day, that there would be no "use of getting the union" if Jorden kept that promise to them and his further general promises that thereafter they would have working conditions "comparable" with those in union stores. Jorden did not specifically deny the testimony that he made these promises nor did Hillis dispute that in the after-closing-hour meeting with him the employees told him, as the testimony is they did, that Jorden had made such promises to them. As to the allegation, numbered 4, supra, that Sutton was threatened "with possible transfer because of his union activity," it has been established, by evi- dence which I have credited, that in the course of one of his conversations with Sutton on that day a week or more before the October 14 election, when Jorden expressed his disappointment and displeasure because of Sutton's union activi- ties and related same to a purported loss of interest by Sutton in his work, he interposed a reminder to Sutton that the Company was not required to make or keep anyone as head produce clerk or at a certain place, and could at any time transfer or demote an employee. Afterward, in January 1951, following visits to Malvern by field examiners for the Board in the course of the investigation of the October 14 election, Jorden interrogated Sutton as to whether he had told 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the field examiners about Jorden's statement to him concerning "transferring and demoting" and warned Sutton against misunderstanding that remark, and, in that connection, that such "misunderstanding could get one in serious trouble." Y. Conclusions as to alleged specific violations of Section 8 (a) (1) The threat of reprisal for his union activities, implied in Jorden's remark to Sutton, that the Company was not required to make or keep anyone as a head produce clerk, which position Sutton held, and could at any time transfer or demote an employee, the conversation of which such statement was a part and the circumstances attending it considered, was coercive within the meaning, and a violation, of Section 8 (a) (1) of the Act. Jorden's interrogations of the employees concerning their interest in, intention regarding, and reasons for desiring, the Union have been set out. The promises that Jorden, who was to these employees the Company speaking, made to the effect that thereafter, even without a union, the employees would enjoy working conditions "comparable" to those granted employees working under a union con- tract, and specifically that thereafter they would receive any pay increases provided for by the union contract at the same time such increases became effective in union stores, which had not been the case theretofore and was the principal complaint prompting their interest in the formation of a union, con- stituted promises of benefits, in the nature of economic concessions, designed to convince the employees that they could achieve the same results without a union as with one. Gastonia Weaving Company, 97 NLRB 770. Even if it be said that Jorden did not expressly, and in that exact language, condition such promises upon the abandonment of the Union by the employees, as they ap- parently understood them to be, nonetheless the purpose and natural effect of Jorden's promises, made at the time they were, and under the circumstances shown, was to induce a belief on the part of the employees that they did not need a union to obtain the benefits sought, and to deter them from voting for the Union in the already scheduled election. Queen City Valves, Inc., 93 NLRB 1576, 196 F. 2d 500 (C. A. 6). The events of the day a week or more before the October 14 election evidence that Jorden, on that occasion, was bent upon convincing the employees that it was to their interest to abandon the Union, and to that end after interrogating them individually as to whether they were interested in getting a union in the store, and their reasons for wanting a union, he promised them, in effect, that thereafter they would enjoy the same benefits without a union that they thought to obtain through a union. By his conduct on that occasion Jorden invaded the rights of the employees, which the Act seeks to protect, to form a labor organiza- tion, and to engage in concerted activities for collective bargaining or other mutual aid or protection with "full freedom from employer intermeddling, in- trusion, or even knowledge." Standard-Coosa-Thatcher Company, 85 NLRB 1358, and cases there cited. It follows that the interrogation of the employees, and the promises made to them, by Jorden, as above set out, violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE KROGER COMPANY V. THE REMEDY 1099 Having found that, at its Malvern, Arkansas, store, Respondent has engaged, and is engaging, in certain unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has also been found that Respondent has discriminated in regard to the hire and tenure of employment of Jack Sutton, therefore, it will be recommended that, in order to effectuate the purposes and policies of the Act, Respondent offer the said Jack Sutton immediate and full reinstatement to his former posi- tion, as head produce clerk at its Malvern, Arkansas, store, or a substantially equivalent position," without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his demotion to the date of Respondent's offer of reinstatement, less his net earnings during that period.' Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and Octo- ber. Loss of pay shall be determined by deducting from the sum equal to that which the said Jack Sutton would normally have earned, as head produce clerk, for each such quarter, or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter ffi It will also be recommended that Respondent, upon reasonable request, make available to the Board and its agents, for examination and copying, all payroll and other records pertinent to an analysis and determination of the amounts due as back pay. Since Respondent, largely by and through its district manager and agent Jorden, has restrained, coerced, and interfered with its employees, at its Malvern, Arkansas, store, in the exercise of their rights under the Act, and has com- mitted an act of discrimination with regard to the hire and tenure of employment of one of its said employees, and, since the attitude of opposition of Respondent's said agent to the purposes and policies of the Act, as disclosed by the evidence and said unlawful conduct, is such as to indicate the likelihood of similar and other unfair labor practices being directed against said employees in the event they should again seek to exercise their rights under the Act, the remedy applied should be coextensive with such threat. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, prevent a recurrence of unfair labor practices, minimize industrial strife, which burdens and obstructs commerce, and more fully effectuate the policies of the Act, I shall recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : a0 "Former position wherever possible , but if such position is no longer in existence then to a substantially equivalent position." The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 31 Term "net earnings" defined ; Crossett Lumber Company, 8 NLRB 440 , 497-8, and Republic Steel Corporation v. N. L. R. B , 311 U. S. 7. 32 F. W. Woolworth Company, 90 NLRB 289. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The operations of the Respondent constitute and affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 1583, Retail Clerks International Association, AFL, is a labor or- ganization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Jack Sutton, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees at its Malvern, Arkansas, store in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The allegation of the complaint that Jorden's representation to "female employees that under a union contract they would be required to take a half day off" violated Section 8 (a) (1) of the Act should be dismissed. [Recommendations omitted from publication in this volume.] Appendix NOTICE TO ALL EMPLOYEES OF THE KROGER COMPANY'S MALVERN ARKANSAS STORE Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees at our Malvern, Arkansas, store that : WE WILL NOT discourage membership in Local 1583, RETAIL CLERKS INTER- NATIONAL ASSOCIATION, AFL, or in any other labor organization, by discrim- inating in any manner against our employees in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT interrogate or question our employees concerning their in- terest in, or reasons for desiring, a union, or their union activities, connec- tions, or sympathies. WE WILL NOT threaten our employees with demotion, transfer, impairment of job security, or other reprisals because they join, support, or assist in the formation of, the above-named union, or any other labor organization. WE WILL NOT promise or offer our employees economic benefits upon the condition that they refrain from union membership or activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Jack Sutton immediate and full reinstatement to his former position as head produce clerk, or a substantially equivalent posi- tion, without prejudice to any seniority or other rights and privileges pre- viously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. BISHOP, McCORMICK & BISHOP 1101 All our employees are free to become or remain , or to refrain from becoming or remaining members in good standing of the above -named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Rela- tions Act. THE KROGER COMPANY, Employer. By ---------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BISHOP, MCCORIMZICK & BISHOP AND AUTOMOBILE TRADE SERVICES, INC., A DIVISION CF BISHOP, MCCORMICK & BISHOP and AMALGAMATED LOCAL UNION 259, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Case No. O-CA-290. February 5,1953 Decision and Order On September 18, 1952, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Respondents' request for oral argument is hereby denied as the record, exceptions, and brief adequately present the issues and positions of the parties. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following exceptions, additions, and modifications : ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Murdock and Peterson]. 2 The Trial Examiner justified , in part, the assertion of jurisdiction In this case on the ground that the Respondents are "an integral part of a multistate enterprise ." By that statement the Trial Examiner intended to indicate, as the Board has stated in Baxter Bros., 91 NLRB 1480, that, as a franchised automobile dealer, the Respondents function "as an essential element in a Nation-wide system devoted to the manufacture and distribution of automobiles." 102 NLRB No. 105.