Willard's Shop Rite Markets, Inc.

1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, you are notified that: WE WILL NOT discharge any employee because he was responsible or believed to be responsible for employees acting in concert to seek a wage increase or to engage in any other protected concerted activity for their mutual aid or protection. WE WILL NOT reprimand nor threaten employees with job transfers, discharges, or other economic reprisals for having acted in concert to seek a wage increase or for engaging in any other protected concerted activity for their mutual aid or protection. WE WILL NOT interrogate employees to ascertain who was responsible for their conduct in engaging in protected concerted activity for their mutual aid or protection, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)( I) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to engage or refrain from engaging in protected concerted activities for the purpose of their mutual aid or protection. WE WILL offer to Lucius Randall immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his discharge. WALDENSIAN BAKERIES, 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. Willard's Shop Rite Markets, Inc. and Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO. Case No. 7-CA-Pf88. August 22, 1961 SUPPLEMENTAL DECISION AND ORDER On February 23, 1961, Trial Examiner Henry S. Sahm issued his Supplemental Intermediate Report in the above-entitled proceeding,' finding that the Respondent had not engaged in the unfair labor prac- tices alleged in the complaint and recommending that the complaint be dismissed in its entirety as set forth in the copy of the Supplemental Intermediate Report attached hereto. Thereafter, the General Coun- sel filed exceptions to the Supplemental Intermediate Report and a supporting brief, and the Respondent subsequently filed a brief in reply to that of the General Counsel and in support of the Supplemental Intermediate Report. 1 The Trial Examiner's original Intermediate Report recommending dismissal of the complaint for jurisdictional reasons was issued on April 18, 1960. Thereafter, on August 16, 1960, the Board remanded the case to the Trial Examiner for the preparation and issuance of the instant Supplemental Report. See Willard's Shop Rite Markets, Inc., 128 NLRB 710. 132 NLRB No. 101. WILLARD'S SHOP RITE MARKETS, INC. 1147 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 [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Intermediate Report, the exceptions and briefs, and the en- tire record in the case, and finds merit in the exceptions of the General Counsel. Accordingly, we adopt the findings and conclusions of the Trial Examiner only insofar as they are consistent with our decision herein. . The complaint alleged that the Respondent had engaged in conduct violative of Section 8(a) (1) and that the Respondent had discrimina- torily terminated two employees in violation of Section 8 (a) (3). The record establishes the following : The Respondent is a family-owned corporation operating a retail grocery store in Lansing, Michigan. Its president is Louis Willard who also served, during the time material here, as president of the Shop Rite Association, an association composed of 10 independent indi- vidually owned grocery stores. On January 3, 1959, the Union began an organizational campaign among employees of members of the As- sociation, and at a regular meeting of the Association on January 19, 1959, this union activity was discussed by the Association's members. All members argeed to act as a group in dealing with the Union's or- ganizational campaign. A special meeting was called the following day, January 20, at which time the members agreed upon a definite wage policy for their respective employees. On January 23, Louis Willard called his employees individually into his office and informed them of wage increases they were re- ceiving. To one employee-Lorraine Landers, a cashier-Willard stated, "I won't deny that the union has some bearing on this." Wil- lard then asked Landers if she had been approached by the Union. After Landers replied in the negative, Willard stated that some em- ployees had been so approached. On February 3, 1959, Landers signed a union authorization card and arranged for a meeting of the employees favoring the Union on February 4. On February 6, Paul Crowe, the Union's business repre- sentative, accompanied by one Shapiro, a business representative of the Meat Cutters, contacted Louis Willard. They told Willard that they had secured authorization cards from a majority of the employees and requested recognition. This was refused. Shortly thereafter, Wayne Willard, the Respondent's assistant manager and the son of Louis Willard, discussed they Union with Landers. Wayne Willard told Landers that the employees were going to be disappointed "because 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union just isn't coming in, and Dad knows who signed those cards and he will just get rid of them." On February 9, 1959, Landers was meeting with Crowe and Shapiro at a nearby restaurant during the morning coffee break when Louis and Wayne Willard came in. Louis Willard asked, "Is this the union office?" Crowe replied, "Well, at least the one booth is." Later that day, Louis Willard called Landers into his office and told her that she would have to be laid off because Ella Moore, who had greater sen- iority and who was then working on a part-time basis, wanted full- time cashier work. On February 11 the Respondent received notice that a representa- tion petition had been filed with the Board. That day, after working hours, Louis Willard assembled the employees and addressed them. In substance, Louis Willard told these employees that he knew that some of them had been contacted by the Union, that he was not threat- ening them, but that he did not feel that he could do justice to the employees and negotiate with a union. He stated that if the em- ployees wanted a union he would sell the business; that if he had a union shop he would have to go self-service to meet the wages prom- ised by the Union; and that this would mean less jobs. On February 14 Landers was laid off. On this same day, Louis Willard told the part-time cashier, Doreva J. Surette, that she was being laid off because Ella Moore wanted to return to full-time work. Willard also told Surette that he and his wife had never gone through such an undercurrent of events or spying which caused him to lay off Landers and Surette. Later that day, Wayne Willard told Surette that he hated to see her go because she had a•pleasant personality and everyone liked her. When Surette asked why she was being let go, Wayne told her that circumstances led to the belief that Landers was the instigator of the Union in the store, and that the Labor Board would disapprove of laying off Landers without first laying off Surette because she had less seniority than Landers. Surette was laid off that day. In addition to the foregoing, the record shows that around Febru- ary 4, employee Terry Hanks was asked by Wayne Willard if he had been contacted by the Union. Employee Leslie Morrison was simi- larly interrogated by Wayne Willard sometime in February, and at some point prior to April 16, employee Carr Baldwin was asked by Louis Willard if he had been contacted by the Union. At issue is whether or not, as alleged in the complaint, the Re- spondent terminated Landers and Surette in violation of Section 8 (a) (3), whether the Respondent unlawfully interrogated and threatened its employees in violation of Section 8 (a) (1), and whether the Respondent further violated Section 8(a) (1) by granting its em- WILLARD'S SHOP RITE MARKETS, INC. 1149 ployees economic benefits in an effort to dissuade them from joining the Union. As to the layoffs of Landers and Surette, it is the Respondent's con- tention that these were motivated by legitimate business reasons. According to the Respondent, Landers had been hired as a cashier to replace one Dixie Henrys who had been transferred to the Re- spondent's meat department as a wrapper. Prior to Henrys' transfer and Landers' hire, the Respondent's customers had been waited on by the individual butchers. The Respondent then changed to a self- service system whereby customers selected their prewrapped pack- aged meat from a refrigerated display counter. The Respondent asserts that this self-service system proved unpopular with its cus- tomers and a decision was made to return to the personal-service system. Because this decision, according to the Respondent, obvi- ated the need for Henrys' services as a meat wrapper, and because Henrys' seniority entitled her to return to her former job as a cashier, Henrys' return necessitated Landers' layoff. As to Surette, the Re- spondent asserts that this employee had been hired as a part-time cashier to share a cashier's job with Ella Moore, that Moore had previously held this job full time but had retired to half-time work in order to draw social security benefits, that Moore informed the Respondent that she desired to return to full-time work, and that Moore's reemployment on a full-time basis eliminated Surette's part- time job. While the evidence offered by the Respondent in support of its con- tentions stated above would, standing alone, warrant a finding favor- able to the Respondent, we are of the opinion that the record con- sidered as a whole establishes that the job changes were made by the Respondent at this critical time for the purpose of ridding itself of Landers-the employee whom the Respondent believed to be the in- stigator of the Union. As set forth above, the record shows that the Respondent was aware of Landers' active participation on behalf of the Union, and that the Respondent was opposed to having a union in the store. These factors considered with the Respondent's threat to get rid of the employees who signed union cards, the timing of Landers' layoff, and the explanation given Surette by Wayne Willard for her layoff that same day compel a finding that Landers' layoff was discriminatorily motivated. The record similarly establishes that Surette was discriminatorily terminated. Landers had greater seniority than Surette and, as re- vealed by Wayne Willard's statement to Surette, Surette's layoff was considered necessary by the Respondent in order to give an appear- ance of legitimacy to Landers' termination. Her termination, too, was thus unlawful? 2 See Englewood Lumber Company, 130 NLRB 394. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the foregoing reasons, we find, contrary to the Trial Examiner, that Landers and Surette were terminated in violation of Section 8(a) (3) and (1) of the Act. We also find contrary to the Trial Examiner, that by the granting of the wage increases the Respondent violated the Act. The Trial Examiner here reasoned that the Respondent did not learn of the Union's efforts to organize its employees until February 4, and, there- fore, could not have had an unlawful purpose when it announced the increases 2 weeks prior to that date. The Trial Examiner also em- phasized the fact that the Shop Rite Association, which had formu- lated the wage increases, had been considering a wage-increase plan for several months prior to- the plan's adoption on January 20. Firstly, as to the Respondent's knowledge, the record clearly estab- lishes that, by virtue of the Respondent's membership and active par- ticipation in the Association, it was fully aware of what the Union was doing and was proposing to do. As stated above, the Union's activities were discussed at the Association's January 19 meeting and at that time all members agreed to act as a group in dealing with the Union's organizational campaign. One step taken by the Association for the purpose of combating the Union was its formulation of the wage policy which the Respondent placed into effect at its store. The Respondent was at the very least aware that it was just a matter of time before its own employees would be contacted by the Union. Secondly, as to the fact that wage increases had been under con- sideration for sometime, we think it clear that the formulation of the wage plan at this time was prompted solely by the appearance of the Union. Finally, Louis Willard's statement to Landers at the time she was informed of her increase was a tacit admission that the appearance of the Union was responsible for that increase. On the basis of the foregoing, we find that in granting its employees wage increases, the Respondent did so in an attempt to dissuade them from joining the Union, and thereby violated Section 8(a) (1) of the Act. The Trial Examiner found that Louis Willard's speech of February 11 was within the protective limits of Section 8(c) of the Act. We disagree. As stated above, during the course of this speech, Willard stated that he would sell the business if the employees selected a union to represent them. In the context of this case, we find that this state- ment by the principal officer of this family-owned business was a threat to the economic security of the employees and violative of Section 8 (a) (1) of the Act.' We further find, contrary to the Trial Examiner, that the interroga- tions of employees Hanks, Morrison, and Baldwin, occurring as they 8 United States Air Conditioning Corporation, 128 NLRB 117. WILLARD'S SHOP RITE MARKETS, INC. ' 1151 did in the context of other unfair labor practices, were coercive and violative of Section 8(a) (1). We also find that Wayne Willard's statement to Landers that Louis Willard knew who signed union cards and that he would get rid of them to be a threat of economic reprisal and violative of Section 8 (a) (1). THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall require it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent discriminatorily laid off em- ployees Lorraine Landers and Doreva J. Surette. The record shows that Surette was recalled on May 14, 1959, to a part-time cashier's job, a position equivalent to that she held at the time of her lay-off. For this reason, we shall not order her reinstatement. As to Landers, the record shows that she was recalled to work as a part-time cashier oh May 13, 1959. As Landers had been employed previously on a full- time basis, we find that she was not properly reinstated. Accordingly, we shall order that the Respondent offer her reinstatement to her former or a substantially equivalent position. We shall also direct that the Respondent make Landers whole for any loss of pay she may, have suffered because of the discrimination against her by the payment to her of a sum of money equal to that she normally would have earned as wages during the period from the date of her layoff to the date 'of offer of reinstatement, less her net earnings during said period, the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Because of the Trial Examiner's recommendation that the complaint be dis- missed, the period from the date of the original Intermediate Report to the date of the Decision and Order herein will be excluded in com- puting the amount of backpay to which Landers is entitled. As to Surette, we shall order that the Respondent in like manner make her whole for any loss of pay suffered during the period from the date of her discriminatory layoff to the date of her reinstatement. CONCLUSIONS or LAw . 1. Respondent is engaged in and at all times material herein has engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Lorraine Landers and Doreva J. Surette, Respondent has engaged 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By threatening employees with reprisals because they have en- gaged in activities guaranteed under Section 7 of the Act, by interro- gating employees concerning their union affiliations and activity on behalf of the above labor organization, and by granting wage increases in order to dissuade employees from engaging in union activity, Re- spondent has engaged 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. ORDER Upon the entire record in the case, and pursuant to Section 10(c) ,of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Willard's Shop Rite Mar- kets, Inc., 1910 West Saginaw Street, Lansing, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or lawful activities on behalf of Retail Grocery and Food Clerks Local No. 876, Retail Clerks Interna- tional Association, AFL-CIO, or any other labor organization of its employees, by discriminatorily.laying off any of its employees because of their union membership or activities, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening to sell its store if the employees authorize a union to represent them, threatening employees with loss of employment be- cause of their union activities, granting wage increases in order to influence employees at the time of any union organizing campaign, and interrogating employees in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WILLARD'S SHOP RITE MARKETS, INC. 1153 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Lorraine Landers immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. (b) Make whole Lorraine Landers and Doreva J. Surette for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of our Decision herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay due under the terms of this Order. (d) Post at its store at 1910 W. Saginaw Street, Lansing, Michigan, the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's repre- sentative, be posted by it immediately upon receipt thereof, and main- tained for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said 'notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Seventh Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. 4 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership in Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Associa- tion AFL-CIO, or any other labor organization of our employees, by laying off, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named labor organization, 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or any other labor organization, by threatening to sell our store if our employees authorize a union to represent them, threatening employees with loss of employment because of their union activi- ties, granting wage increases or other benefits in order to influence employees at the time of any union organizing campaign, or inter- rogating employees in a manner constituting interference, re- straint, or coercion in violation of Section 8 (a) (1). WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise, of their right to self-organ- ization, to,form labor organizations, to join or assist the above- named labor organization, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage,in other concerted activities 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 member- ship in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Lorraine Landers immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. WE WILL make Lorraine Landers and Doreva J. Surette whole for any loss of earnings they may have suffered by reason of the discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO, 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 Act, as amended. WILLARD's SHOP RITE MARKETS, 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. SUPPLEMENTAL INTERMEDIATE' REPORT STATEMENT OF THE CASE Upon charges filed on February 24, 1959, by Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO, the General Counsel of the National Labor Relations Board , by the Regional Director for the Seventh Region, issued a complaint dated May 28, 1959, against Willard's Shop Rite Markets, Inc., herein called the Respondent, alleging that the Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section WILLARD'S SHOP RITE MARKETS, INC. 1155 8(a)(1) and 8 (a)(3) and Section 2(6) and (7) of the National Labor Relation Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served on the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent violated Section 8 (a) (3) of the Act by terminating the employment of two of its employees because of their union membership and activities and that Re- spondent violated Section 8(a) (1) by interrogating and threatening its employees and granting them economic benefits in an effort to dissuade them from adhering .to the Union. Respondent's answer, filed on May 4, 1959, denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held in Lansing, Michigan, on November 2, 1959, .before Henry S. Salim, the duly designated Trial Examiner. All parties were repre- sented by counsel, and were afforded full opportunity to participate in the hearing, to introduce relevant evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. A brief was filed by Respondent. ,On April 18, 1960, the Intermediate Report issued recommending dismissal of the complaint for jurisdictional reasons. Thereafter, the General Counsel filed excep- tions to the Intermediate Report and a motion to remand the case to the Trial Examiner. On August 16, 1960, the Board found the Respondent to be engaged in commerce within the meaning of the Act and issued an order remanding the proceeding to the Trial Examiner and directing that a Supplemental Intermediate Report be prepared and issued concerning the merits of the complaint, setting forth "findings of facts, conclusions of law, and recommendations with respect to the unfair labor practices alleged in the complaint herein." I Pursuant to said Order and upon the entire record in this case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Willard's Shop Rite Markets, Inc., is a Michigan corporation, with its principal place of business located at 1910 West Saginaw Street, Lansing, Michigan, where it is engaged in the retail sale of meats and groceries. It employs 18 people. Respondent, in the conduct of its retail grocery store, sold during the calendar year of 1958, in excess of $1 million worth of meats and groceries. Dur- ing the same calendar year of 1958, which is representative of all times material hereto, Respondent, in the course and conduct of its business operations, purchased and caused to be transported to its store in Michigan from points located outside the State of Michigan, a substantial amount of meats, meat products, and groceries. The Respondent in its answer admits that it sold in excess of $1 million worth of meats and groceries during the calendar year 1958, but denies that it "purchased and caused to be transported to its store in Michigan from points located outside the State, a substantial amount of meats, meat products and groceries." However, the parties stipulated on the record that the Respondent, in the operation of its business for the fiscal year ending April 30, 1959, had made purchases of approximately $25,000 from points directly outside the State of Michigan. The Board found, there- fore, that the Respondent is engaged in commerce within the meaning of the Act .2 II. THE LABOR ORGANIZATION INVOLVED Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Asso- ciation, AFL-010, is a labor organization within the meaning of Section 2(5) of the Act, admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In January 1959, the Union began an organizational campaign among the Re- spondent's employees and on February 12, 1959, it claimed it represented a majority of Respondent's employees and requested Respondent's president, Louis Willard, to recognize the Union and bargain with it for these employees. Willard replied that 1128 NLRB 710. 2 Willard's Shop Rite Markets, Inc , 128 NLRB 710 614913-62-vol. 132-74 ' 1156 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD inasmuch as he had not been furnished withany evidence that the Union represented a majority of his employees, he would be unable to accord it recognition. Thereupon, the Union filed a representation petition on February 9, 1959 (Respondent receiving notice of same on February 11) and the Board ordered an election to be held on August 16, 1959, to ascertain whether the employees desired to be represented by the Union? In the meantime, the Union filed charges on February 24, 1959, and a complaint was issued on May 28, 1959, alleging Respondent had engaged in unfair labor prac- tices by terminating the employment of Lorraine Landers and Doreva J. Surette, granting economic benefits to its employees in an effort to dissuade them from union activities and interrogating and threatening them. Respondent denies these allega- tions and affirmatively asserts with respect to the employees terminated that this re- sulted from a reduction-in-force necessitated by economic conditions. The charges and complaint gave rise to this proceeding. B. The alleged violations of Section 8(a) (3) Lorraine Landers, a member of the Union, was originally employed by Respondent on November 17, 1958, as a full-time cashier. She was laid off on February 14, 1959, recalled on May 11, 1959, and worked until May 14, 1959, at which time she volun- tarily left Respondent's employ. On February 3, 1959, a union business representative came to Landers' home and requested that she sign a union card which she did although she was then a member of the Retail Clerks Union but had been issued a withdrawal card by the Union .4 The following day a meeting was held by the Union at a local restaurant which was attended by many of Respondent's employees, including Landers. The evidence is clear that Respondent's president, Louis Willard, knew that Landers was a proponent of the Union and in the forefront of its efforts to organize Respondent's 18 employees. When Landers was originally hired as a cashier, she took the place of one, Dixie Henrys, who was transferred to the meat department. The meat department up to the time Landers was hired had been run on a personal-service basis, whereby cus- tomers were waited on by the individual butchers. At the time Landers was hired, and in an effort to reduce operating costs, it was decided to change to a self-service system whereby customers instead of being served personally by the butchers, as had been done heretofore, would select their prewrapped packaged meat from a refrigerated display counter; take it to the cashier and pay for it. The change proved unsuccessful, whereupon the self-service system was discontinued and Dixie Henrys whose function was to wrap the meats in cellophane under the self-service system returned to her former job as cashier when the meat department reverted to the former system of personal service for its meat customers. This necessitated Respond- ent's laying off Landers as Henrys who was senior to Landers in length of employ- ment, returned to her original position as cashier thus supplanting Landers. Doreva J. Surette was hired by Respondent on January 3, 1959, as a part-time cashier when Ella Moore, the full-time cashier, partially retired on January 1, 1959, as she was eligible to do under the social security system. Moore, however, was en- titled to receive social security benefits and also permitted to work part-time for 14 hours a week without forfeiting her social security compensation. Therefore, Moore continued to work 14 hours a week and Surette was hired on a part-time basis to fill in those hours which Moore no longer worked after her partial retirement so that they were dividing a full-time job between them. Sometime in January 1959, Moore requested Respondent to return her to her former job as a full-time cashier as her social security payments were insufficient for her needs, and her health had improved. Thereupon, Moore returned on or about February 14, 1959, to her former job as a full-time cashier and Respondent laid off Surette on February 14, 1959. On May 14, 1959, Surette was recalled to her former position of part-time cashier at which job she is presently employed. The General Counsel acknowledges that the seniority system then in effect in Respondent's grocery store was adhered to but that in order to rid itself of Landers, and to comply with the seniority regulations controlling layoffs, it was necessary to first terminate Surette (who had less seniority than Landers) in order to achieve Landers' discharge. 8 Case No. 7-RC-4025 (General Counsel's Exhibit No. 6). * At one point on direct examination Landers testified she "had been" a member of the Union and at another point she states she is a member of the Union but that she has a withdrawal card. See Local 169, Industrial Division International Brotherhood of Teamsters, etc. (Rheem Manufacturing Company ), 111 NLRB 460, 478-479. WILLARD' S SHOP RITE MARKETS, INC. 1157 C. Conclusions It is uncontroverted that there were lawful economic motives and genuine justifi- cation for Respondent's reassigning Henrys, who was senior to Landers, to her former position of cashier when the self-service meat department experiment proved un- successful resulting in Landers' being laid off. Likewise, when Moore, who had seniority, requested that she be reinstated to her former position of full-time cashier, the Respondent was justified in doing so and laying off Surette. In fact, Landers testified that she told Louis Willard, Respondent's president, that she "felt [Moore] should have her job back." The General Counsel emphasizes that when the timing of Landers' and Surette's terminations on February 14 are considered in relation to the Union' s request on February 12 for recognition, that this prompted Respondent to discharge these two employees. However, the proof adduced does not bear out this charge. On the con- trary, the testimony of Respondent is credited, as it is found to be substantially in accord with the facts that Landers' termination was necessitated by Henrys' seniority entitling her to supplant Landers in her former job as cashier when the self-service meat department project turned out to be a failure. With respect to Surette, it was entirely within the discretion of Respondent to grant Moore's request that she be reinstated to her former position as full-time cashier which resulted in Surette' s services being dispensed with by Respondent. To sustain the General Counsel's contention that Surette first was laid off in order to comply with the seniority regulations and thus effectuate Landers' discharge would require validity to be accorded to inferences contrary to direct testimony.5 The Act does no circumscribe an employer's right to discharge an employee for reasons not forbidden by the Act, even though the employee may be an active union adherent or advocate. The employer can hire and fire at will, so long as his action is not based on union membership or activities or intent to interfere with the purposes of the Act or for concerted activities protected by Section 7 of the Act.6 And where a just ground for the termination appears, it is ordinarily a mere matter of speculation to say that the discharge was because of union membership? It is believed that Respondent terminated Surette for nondiscriminatory reasons and not for the reason ascribed by the General Counsel, namely, to accomplish the discharge of Landers. The evidence establishes that Landers was laid off because of a reduction in force necessitated by the meat department reverting to its former system, and that Surette was laid off because of Moore's requesting reinstatement to her former position as a full-time cashier. In fact, Landers' testimony that Willard, at the time she was terminated, telling her he would be happy to furnish her with a letter of recommendation, tends to invalidate any claim that antiunion reasons on the part of Respondent Willard entered into his motivation. The burden is on the General Counsel to establish affirmatively, by a preponderance of the credible evidence, that the employer has violated the Act, not on the employer to disprove it .8 Unless there is a reasonable basis in the evidence for findings of dis- crimination, the employer need not excuse or justify his action .9 It is not the burden of the employer to show the absence of discrimination, but that of the General Counsel to establish its presence.10 The burden to make out a case of discrimination rests continuously on the General Counsel and does not shift from the General Counsel to the Respondent." It is concluded and found, therefore, that the General Counsel has failed to prove by a fair preponderance of the credible evidence that Respondent discharged Landers and Surette in violation of Section 8 (a) (3) of the Act.12 5 N L.R B. v. Kaye, et al., d/b/a Arrow Press, 272 F. 2d 112 (C.A. 7). 6 N.L R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 982 (C.A. 3). See also N.L.R.B. v. T. A. McGahey, et at, d/b/a Columbus Marble Works, 233 F. 2d 406, 411, 413 (C.A. 5) ; N.L.R.B. v. Standard Coil Products Co., 224 F. 2d 465, 470 (C.A. 1). 7 N L R B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 45. 9 Section 10(e) of the Act. See American Flint Glass Workers Union of North America, et al. (Bartlett Collins Company, Intervenor) v. N.L.R B., 230 F. 2d 212 (C.A.D C.), cert. denied 351 U.S. 988; N.L.R B. v. Cleveland Trust Co, 214 F. 2d 95, 99-100; Indiana Metal Products Corporation v. NL.R.B., 202 F. 2d 613, 616 (C.A. 7). e N.L.R.B. v. Wagner Iron Works, et al., 220 F. 2d 126, 127 (C.A. 7), cert. denied 350 U.S. 981. io New Big Creek Mining Company, 105 NLRB 97, 104. 11 N L R.B. v. Brady Aviation Corporation, 224 F. 2d 23, 25 (C.A. 5). " See N L R B v. Western Bank & Office Supply Company, 283 F. 2d 603 (C.A. 10). 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The alleged violations of Section 8(a) (1) 1. The wage increases Respondent is a member of the Shop Rite Association which is composed of 10 inde- pendent, individually owned grocery stores. On January 20, 1959, this Association held a meeting of its members at which time a minimum wage schedule for the em- ployees of the Association's member stores was established. This resulted in a wage increase for Respondent's employees. However, and this is uncontradicted, Mike Wickenheiser, secretary of the Association, testified that minimum wage scales had been under discussion by the 10 members "for several months" prior to the time final action was taken at the January 20 meeting.13 The General Counsel contends that this wage increase was granted in order to dissuade employees from their ad- herence to and activities on behalf of the Union and thereby to frustrate the Union's organizational campaign. Based upon the entire record, it is concluded and found that the granting of the wage increases on January 20, 1959, was the culmination of an overall wage program which had been under consideration by the Shop Rite Association long before the union organizational campaign began in the early part of January, and was not in- tended to subvert the Union's organizational activities. However, the trier of these facts is aware that the Respondent, as a member of this. Association, did grant wage increases to its employees at a time when the Union was attempting to organize its employees. However, the evidence adduced by the General Counsel with respect to Respondent's knowledge of the Union's activities merely shows that it was not until approximately February 4, 1959, that Respondent learned of the Union's organizational campaign. It is self-evident, therefore, that Respond- ent could not have announced the increase on January 20, 1959, for the purpose of causing the employees to reject a representative for collective bargaining when it did not learn until 2 weeks later that the Union was attempting to organize its employees. Moreover, it is uncontradicted that the Association had been considering wage in- creases "for several months" prior to the time the increase was finalized on January 20, 1959.14 Accordingly, it is found that the Respondent did not violate Section 8(a)(1) by granting wage increases to its employees on January 20, 1959. 2. Respondent's speech to the employees On February 11, 1959, after the Union's representation petition was served one Respondent, its president, Louis Willard, addressed the employees at the store. Willard, who was called as a witness by the General Counsel, testified that he told' the employees: The first thing that I informed them, that anything that was said at this speech or conversation had nothing to do with threats, loss of job, personal thinking or anything of that nature. I was speaking very much personally, that I had built the business for the last ten years and worked many, many hours day and night, and for as small of an organization as we had, that l didn't feel that I could do, justice to my employees and negotiate with a union. If they preferred a union, that I was in a position where I would sell out. And again, I termed the words after these various conversations, that this was not a'threat, it was strictly a: personal feeling, that we had worked with our employees more or less on a family basis rather than on a business basis. . Q. Did you tell them that if they wished to have a union, you had made your decision to sell your business? A. Yes, I did. Q. Did you tell them, the employees at this meeting on February 11, 1959, that if they became a union shop that you would automatically be forced to go- to 100 percent self-service which you knew at that present time your clientele would not stand, and would be in another-would bring in another decrease in business and also, less employees in the department? A. At that time, I did. 13 At another point in his testimony he stated wage Increases had been discussed for a year. 1* See Hudson Hosiery Company, 72 NLRB 1434, 1437, and Americans Freiglativaya Co,, Inc., 124 NLRB 146, which appear to be in conflict with each other. WILLARD'S SHOP RITE MARKETS, INC. 1159 On cross-examination, the testimony continues as follows: Q. (By Mr . CUMMINS. ) Mr. Willard, you made a statement that if you had to pay what the union was promising them, describing the fact that you knew of some wage scale that you were referring to that had been promised to at least some of them, you would have to go self-serve . You have now since been asked a question, if I recollect correctly, as to whether you said if you had a union shop you would have to go self-serve. Am I stating that approximately fairly? Mr. WEHRENBERG: Yes. * * * * * * * The WITNESS : Well, in my own words, I would explain it this way. Hadn't the employees been promised specific wage rates and taking into consideration the type of operation that we have, which is strictly service, that each and every employee has to wait on each and every customer . Now, that is what is being brought out, that if we had to meet this pay scale that was promised in order to negotiate for a vote or signing of cards for votes, that it would be utterly impossible to pay these wages and waiting on each and every customer . Hadn't wage promises been involved , I would have never made that statement. Q. (By Mr. CUMMINS. ) Could I ask you to specifically relate as far as you can, your phraseology and statements with relation to the two subject matters, wage rate and union shop , the three subject matters and this self-serve as near as you can, as to how it was stated and the relationship involved in the state- ment as you have made it? A. Well, in the conversation of the meeting, of course , this wage rate was brought up in explanation to the employees that I didn't believe that anybody bad a right to make a promise as to wage rates without negotiation of a con- tract, and whether I can explain it or not, I don't know, but the meaning of it is, of course, that self-serve meat is much .more mechanized and as we term it, "cold-blooded" than service meats, so if you are going to put a businessman in the same position under self-serve meats as the man in service meats with the same pay scale, then automatically you have to do one of two things , or one of three things; raise prices or go self-service , or a decline in business in either case. I explained it to the employees at the time of the meeting, other than phrasing it, to the best of my knowledge at the present time . I have done the best I could. * * * * * * * Q. As to self-service and the way you phrased it in your statement to the employees, was that discussion primarily related to wage rates , or was it pri- marily related to the union as such or union shop as such in the way you expressed it? I am asking you to give your expression as far as you can. I don't think it's clear. The WITNESS : Well, I think the way the statement came about is, these wage rates that I have been talking about and again, service meat over self-serve and cost of operation of service over self-serve , -is the fact that if we were a union shop, I would be forced to go to self-serve in order to meet the wages that these various employees had been promised , but at a later date , if I might add, which has no bearing on this, that we were involved into self-serve meat with twelve feet against twenty feet of service, and the customer reaction was anything but good, which we eventually were forced to go back to complete service meats. Terry Hanks, who no longer works for Respondent , testified that he was present when Louis Willard spoke to the employees . He testified that Willard told them the following: He stated that he knew that some of us had been contacted by the union. He did state that we had a free choice, no matter what choice, no matter what we thought we could do one way or the other . He stated that he thought we should have our own choice in the union, not to be forced into one, but if we wanted a union, to have the one that we wanted. He also stated that he did not like, did not want to work with a union. He thought it was-I can't say that for a fact , I don't know for sure-he stated that if the union did come in , that he couldn't afford it, that is, he-that's-let's see-his margin of profit was not what it should be, that the meat department . would have to go self-serve in order to cut down the labor. Let's see, he stated that he had invested the money in the organization in his store, that we were not entitled to a percent of the profit and he stated that without the union we would be making more money than we would with the 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union, because of the high pay salary that we would get laid off in the summer months, which we did not before without the union, and we all had a good steady job. He said we might lose out on account of the high salaries. That is all I can recall right now. It is found based upon the above testimony that Louis Willard's speech to the employees did not violate Section 8(a) (1) of the Act. The speech predicts the effect of union activity and acceptance of the Union by the employees upon the economic future of the Respondent and it states the personal attitude of Willard toward the Union. Although its tone is antiunion, the speech does not contain threats of reprisal or promise of benefit . Accordingly, it is found that the speech comes within the free-speech protection of Section 8(c).15 3. Interrogation Terry Hanks, a former employee, testified that on or about February 4, 1959, Wayne Willard, son of Respondent's president, Louis Willard, asked him if h$ was contacted by the Union. Carr Baldwin, an employee, testified that Louis Willard asked him sometime prior to April 16 if the Union had contacted him and he replied in the negative. Leslie Morrison, an employee, testified that sometime in February, Wayne Willard asked him if he had been approached by the Union. Even though it may be contended that the Respondent may have violated the Act by asking the questions delineated above , it is found, in the context of the entire record, that these instances are so isolated that the issuance of a cease-and-desist order is not warranted as the questioning of these employees was not linked with a pattern of other antiunion conduct. Moreover, these instances of interrogation did not interfere with, restrain, or coerce employees in a manner which infringed on guaranteed rights in Section 7 of the Act when, as here, it occurs in a noncoercive context.16 When one considers the rather intimate and friendly relationship that had existed between the employees and employer in this small grocery store, the fact that it would appear that the employees and the owner of the store had un- doubtedly discussed employment problems together, and that a part, at least, of Willard and his son for talking to some of the help was due to his surprise and dis- comfiture upon learning of the Union , it would seem it would be rather captious to hold that, under the circumstances , these ingenuous inquiries require a ruling of an independent violation of Section 8(a) (1) or that any useful purpose would be served by issuing a cease-and-desist order based on them.17 In view of the foregoing conclusions, and upon the entire record , it is found that the evidence warrants no finding that the Respondent committed unfair labor prac- tices within the meaning of Section 8(a)(1) and 8 (a)(3) of the Act, and it will, therefore, be recommended that the complaint be dismissed in its entirety.la ze Edmont Manufacturing Company, 120 NLRB 525 , 528-530 ; The Lux Clock Manu- facturzng Company, Inc , 113 NLRB 1194; Southwester Co., 111 NLRB '805, 806. Is Cf. N.L R.B. v. England Brothers, Inc, 201 F. 2d 395, 397 (C.A. 1). 17 Walmac Company, 106 NLRB 1355, 1357 ; Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 193, and case cited at footnote 2; cf. Mall Tool Company, 112 NLRB 1313, 1314 ; NL.R.B. v. Cousins Associates, Inc., 283 F. 2d 242 ( C.A. 2) ; The Great Atlantic & Pacific Tea Co., Inc., 129 NLRB 757. 15 The conventional "conclusions of law" which are customarily repeated at this point are omitted as they will be found in the text of the Intermediate Report. The Ryan Aeronautical Co.' and South Bay Chapter, Engineers & Architects Association, Petitioner. Case No. 21-RC-6692. August 23, 1961 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Paul J. Driscoll, hearing 1 The name of the Employer appears as amended at the hearing. 132 NLRB No. 125.