Fernandes Super Markets, Inc.

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 6- Respondent filed with the Board a petition raising the issue of representation of its employees which manifested an intention to withdraw from group bargaining. The doctrine of equitable estoppel is universally recognized by the courts. In Casey V. Galli, 94 U.S. 673, 680, the Court stated: Parties must take the consequences of the position they assume . They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent, in its effects and consequences, should be as if it were real, and the law properly so regards it. Had the Union taken the position during the negotiations that Respondent's name should have been included on the May 24 list , it may be assumed that Respondent might have conducted itself differently . The Union's failure to raise the issue during negotiations can be construed only as assent to Respondent 's withdrawal from the multiemployer unit and the doctrine of equitable estoppel applies. On the basis of the facts , the record as a whole , and my observation of the de- meanor of the witnesses, I am convinced that the Union and MADA bargained after May 24 with the understanding that MADA represented only those employers named on the May 24 list and the contract as executed on September 25 was binding only on those employers listed therein . In accord with such mutual understanding it can- not be held that Respondent is a de jure party. to the September 25 contract and its refusal to comply with its terms a violation of Section 8 (a)(5) of the Act. Cf. Indiana Limestone Company, Inc., 136 NLRB 697. 1 shall therefore recommend dismissal of the complaint in its entirety. RECOMMENDATION It is recommended that the complaint be dismissed in its entirety. Fernandes Super Markets, Inc. and Local 1325, Retail Clerks International Association, AFL-CIO. Case No. 1-CA-3601. June 28, 1962 - DECISION AND ORDER On March 20, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. 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. The Board has considered the Inter- mediate Report, the exceptions and briefs, and entire record in the case, and for the reasons set forth below has decided to dismiss the com- plaint in its entirety. Accordingly, the Board adopts the findings 1 Pursuant to the provisions of Section 3(b) of the National Laobr Relations Act, the Board has delegated its powers in connection with this case to a three-member panel ( Members Leedom, Fanning , and Brown). 137 NLRB No. 1.19.. FERNANDES SUPER MARKETS, INC. 955 of the Trial Examiner only insofar as they are consistent with the following : The Trial Examiner found that Respondent violated Section 8(a) (3) and (1) of the Act by discharging Joseph Jesus on July 15, 1961. The Trial Examiner's bases for finding the violation were that Respondent knew or suspected that Jesus was engaging in an effort to organize the employees of the Respondent's New Bedford store, and that it discharged him for these union activities rather than for incompetence, unsatisfactory work, or deliberate disobedience of or- ders. As indicated above, we do not adopt these unfair labor practice findings of the Trial Examiner. The critical facts upon which a finding of Respondent's knowledge of union activity is predicated are not in substantial dispute. Our disagreement with the Trial Examiner stems from the inferences to be drawn from such evidence, and whether they supply the real reason which motivated the discharge. The record establishes, as indicated in the Intermediate Report, a singular lack of union animus. Thus, it is undisputed that at the end of a security meeting on April 17, 1961, when Respondent's president, Joseph E. Fernandes, discovered that the two union organizers were waiting in their parked automobile outside, he had them invited into the store to partake of the refresh- ments with the assembled employees and allowed them to circulate among, and distribute union literature and talk to, the employees in- side rather than stand outside in the inclement weather. He also authorized the posting by the timeclock of an announcement of a union meeting, and instructed his store managers to permit the union organizers the freedom to circulate throughout the store and speak to employees so long as they did not interfere with business. Jesus joined the Union on June 6, 1961, and proceeded to solicit un- ion membership from fellow employees at the store. He also accom- panied Union Organizer Furtado to employees' homes. Both before and after this date he occasionally (according to his testimony "possi- bly 3 or 4 times") conversed with the union organizer in the store, mainly at the lunch counter. This was also true with respect to other employees whom Jesus testified he observed talking to Furtado at the lunch counter on a number of occasions. Such lunch counter conversa- tions were in the open and apparently were so common that even the Respondent's president had occasion to chat with Furtado over a cup of coffee. In the setting in which they occurred, these in-store activities could hardly have escaped the observation or notice of management. That Respondent had knowledge of Jesus' union activities is further sup- ported by the so-called "joke" Store Manager Palardy has picked up 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from employees z However, this knowledge does not, standing alone, establish the illegal nature of Jesus' discharge. Respondent asserts that it discharged Jesus "for failing to properly perform his duties after receiving repeated instructions and warn- ings." Respondent's Vice President Pires, then supervisor of the frozen food, dairy, and produce departments at all stores, who dis- charged Jesus, testified regarding the events leading to the discharge. His testimony indicated that in late November 1960, at the request of "Shorty" Fernandes, produce merchandiser, he talked to Jesus and his immediate supervisor, produce manager at the New Bedford store, Tony Medeiros, to try to create more harmony between the two. By January 6, 1961, as reflected in Pires' written inspection reports, he had come to the conclusion that Jesus needed further training. In February, Pires warned Jesus that, if he could not cooperate with his supervisor and it became necessary to separate them, Jesus would be the one who would have to be transferred or discharged. By late February, after further conferences with the supervisory officials hav- ing contact with the situation involving Jesus, Pires decided that Jesus was not doing the work competently. The first week of March, Jesus was transferred to the main store at Norton where he received thor- ough training and performed very well. Jesus requested, and was transferred back to the New Bedford store on May 22, 1961, as sec- ond man to a new produce manager. Within 3 weeks Pires received from "Shorty" Fernandes reports of friction between Jesus and his new supervisor, Teunnesson, because Jesus would not follow instruc- tions. Pires talked to Jesus about working as a team. On June 22, Teunnesson told Pires he could not work with Jesus because the latter was uncooperative. Pires talked to Jesus again and warned him that if his work did not improve, he would be dismissed. Jesus became indignant and blamed the supervisor. On June 28, Pires called Jesus into the office and repeated the warning, telling him that his work was unsatisfactory, that he was not following orders, and that he was creating friction and consequently low morale in the department. Jesus again blamed his supervisor, and Pires told him to go back to his department and work with his supervisor. On his visit to the store on July 1, Pires noted that Jesus was still creating a problem and decided to confer with other officials to determine what disposition to make of the matter. When he discharged Jesus, on July 15, Pires told him he 3 While a group were at supper at the Silver Range restaurant near the end of June, Palardy made the "joking" comment to Jesus that "they will probably make you shop steward if you do" join the Union Palardy asserts that he picked up this comment from the "joke" among the employees in the store It is reasonable to assume that if he picked this up he would also have picked up information relating to Jesus ' union advocacy among the employees which involved not only speaking to some individual employees on the merits of unionization , but openly commenting to fellow employees on the occasion of the baling machine accident that, if there was a union in the store this never would have happened The Trial Examiner erroneously related this accident to the unloading of heavy produce. FERNANDES SUPER MARKETS, INC. 957 was through at Fernandes. Jesus asked why and Pires told him his work had been unsatisfactory, that he failed to carry out the orders of his supervisor, that he created friction and criticized his supervisor openly, that he had been given training, that they had given up on him, and that he was discharged effective that day. This testimony by Pires is corroborated in substantial part by Jesus' own testimony which establishes that when he was transferred to Norton he was told by Pires that his transfer was because of his out- side activities and because he was not putting out the work expected but "they didn't want to fire" him. Jesus' testimony further discloses that he received close supervision and extensive training at the Norton store ; that he requested and was transferred back to the New Bedford store in May on a trial basis as second man under Teunnesson; that he was later called in by Pires and told that Teunnesson did not believe he was doing his best; and finally, that in late June or during the first week of July, he was called into the office and told by Pires that Teun- nesson seemed to think he was not progressing. Jesus responded by detailing his criticism of Teunnesson's work performance, whereupon Pires told him to "go back and work together with the man." Jesus admitted that Pires also told him that unless the quality of his work improved, he would be discharged, and that when he was discharged Pires told him, "Joe, we're going to have to let you go. Frank (Teunnesson) seems to think you're not doing your best." The Trial Examiner infers an antiunion motive for the discharge, from certain incidents which occurred after the discharge, primarily the supplying to Jesus of a letter of recommendation and as discussed infra, the comment made 2 weeks later by Pires to Jesus relating to unemployment compensation and directed toward his union adherence and activity. The Trial Examiner finds in these incidents certain inconsistencies with the asserted cause for the discharge. On the Monday following his discharge, Respondent's Personnel Director Feuer gave to Jesus the letter of recommendation, set forth in the Intermediate Report, upon Jesus' representation that he might be able to obtain employment at another chain with such a letter. Jesus also obtained from Feuer a commitment that one of the super- visors would not disclaim this recommendation if an inquiry was made.' Instead of using the letter to apply immediately for a posi- 3 Inquiry and discussion concerning the well-being of his children was admittedly a part of the conversation on the occasion when Jesus obtained the recommendation letter Jesus' family problems and responsibilities, which centered around two very small children and several major medical problems involving them, were well known to the various officers and supervisors of Respondent, including personal knowledge thereof by the president who extended a loan, without regard to established company rules therefor, to Jesus on the occasion of a hospitalization of one of the children Respondent asserts that concern for the welfare of Jesus' family influenced its actions not only with respect to the loan but also with respect to his previous transfers and finally with respect to the letter of recommendation. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with the chain mentioned, Jesus appeared that evening with Furtado at the New Bedford store where, according to Jesus' own testimony, Furtado was talking to employees and telling them that Respondent fired Jesus but gave him a recommendation, and where admittedly Jesus himself talked to one employee about joining the Union and said, "Look, I have a recommendation but it's not doing me any good. I'm still out of a job." Reports of this incident, perhaps exaggerated, reached Feuer who asked Jesus to come in and see him. Jesus did so on July 21. Feuer confronted Jesus with the reports of the commotion Jesus created in the store with his letter of recommendation and told Jesus that he had put Feuer "in bad" by such conduct. Jesus denied to Feuer that he "waved" the recommendation around the store, but admitted that he had not yet used it to apply for the position mentioned. This conversation also involved certain additional holiday pay due Jesus and arrangements for Jesus to liquidate his outstanding loan. Later that day Feuer wrote to Jesus the letter of July 21, rather concisely detailing Respondent's arrangements with him. Respondent there- after decided to post a copy of this letter in the New Bedford store, as- sertedly to clear up any question in the minds of those employees as to whether Respondent had treated Jesus fairly. When Respondent reported the discharge to the unemployment compensation commission it gave the reason as deliberate disobedience of the supervisor's orders, and this report prevented Jesus from re- ceiving unemployment compensation' A week or so later, Jesus reported to the commission and was advised that the previously ad- verse ruling of the commission, which had been reconsidered on the basis of the recommendation letter, was sustained. While he was returning from the commission, Jesus saw and followed Pires into the A.B. Lunch. There he complained to Pires that he had been denied his unemployment payments because of this report by Respondent. Pires replied, "Don't come crying to me; go see your buddy, Bob Furtado. You said he is your union man." While this last remark has a clear ring of union animus exist- ing at the time it was uttered, it does not necessarily establish that this was the true predischarge attitude of Respondent. The Trial Ex- 4 Respondent did not give "deliberate disobedience" as the reason for discharge either to Jesus or to the Board. It attempted to reconcile its report to the unemplyoment com- pensation commission with the reason given the Board in the following manner* Jesus did not follow the orders, or work performance instructions, laid out by his supervisor. This was not because of incompetence, for he had received intensive training at the Respondent's mother store and had proved his ability. Therefore, it was a deliberate re- fusal to perform in the manner instructed and consequently a deliberate disobedience of orders. Although this is obviously a rather strained attempt at reconciliation of the differing reasons for discharge given two governmental agencies, we are concerned only with whether these were not the true reasons but were a cover for a real reason which is unlawful. In- consistencies in multiple reasons given for a discharge constitute only a factor in deter- mining motive. FERNANDES SUPER MARKETS, INC. 959 aminer has found in the variation between the reason for discharge reported to the unemployment compensation commission and that given Jesus at the time and asserted in this proceeding an incon- sistency warranting an inference unfavorable to Respondent. This, together with the contradictory implication growing out of a dis- charge for unsatisfactory work performance followed by a letter of recommendation, constituted, in the Trial Examiner's view, proof that Jesus was not discharged for the reason given. Adding to this Re- spondent's predischarge knowledge of the employee's union activity and a postdischarge demonstration of union animus, the Trial Examiner inferred the preexistence of this attitude. This supplied the illegal motivation leading to his conclusion that Jesus was dis- charged, not for his derelictions of duties, but for his union activities. We are not persuaded that a preponderance of all the relevant evi- dence, and the inferences to be drawn therefrom, establishes the exist- ence of such animus on the part of Respondent before the discharge occurred. With an employment history, beginning before the Union appeared upon the scene and one which was continuous and relevant in point of time to the discharge, consisting of reprimands, transfers, special training, several admitted warnings, and finally discharge, all involving his performance of duty, it is difficult to infer that Jesus was, in fact, discharged for union activity, even though with such a record he was given a letter of recommendation. It may well be that Respondent, in giving this letter, was motivated, as it says it was, by concern for his family situation and the welfare of the children involved. Moreover, the use made by Jesus of the recommendation letter after his discharge--conduct which Respondent regarded as having the effect of blemishing its image for fairness and justice with the em- ployees at the New Bedford store-may well have provoked Respond- ent into pursuing the course it did with respect to the unemployment compensation report as well as into posting the July 21 letter. In view of the Respondent's established open-door approach to union organization and the lack of any demonstrated union animus prior to the discharge, we cannot say in these circumstances that the remark by Pires more than 2 weeks thereafter necessarily reflects the attitude held by Respondent before the discharge and supplies the real moti- vation. Accordingly, we cannot accept as warranted the inferences made by the Trial Examiner. In view of the foregoing, we find that Respondent's illegal motiva- tion in his discharge of Jesus has not been established.' We shall, accordingly, dismiss the complaint in its entirety. [The Board dismissed the complaint.] 5 See National Broach and Machine Company, 132 NLRB 1674. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed on October 6, 1961 , by Local 1325, Retail Clerks Inter- national Association , AFL-CIO, hereinafter called the Union or Charging Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel I and the Board, respectively, by the Regional Director for the First Region ( Boston, Massachusetts ), issued his complaint dated November 16, 1961, against Fernandes Super Markets, Inc., herein called the Respondent . The com- plaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and ( 3) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charge, the complaint, and notice of hearing thereon, were duly served upon Respondent and the Union. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at New Bedford , Massachusetts, from December 18 to 21, 1961 , inclusive, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing , were represented by counsel, and were afforded full opportunity to be heard, to produce , to examine and cross -examine witnesses, to introduce evidence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both. Oral argument was waived . Briefs were received from Re- spondent and General Counsel on February 5, 1962. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Fernandes Super Markets, Inc., is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the Common- wealth of Massachusetts. At all times herein mentioned, Respondent has maintained its principal office and place of business at West Main Street, in the town of Norton, county of Bristol, and Commonwealth of Massachusetts, herein called the head- quarters store, and operates various other retail stores in southeastern Massachusetts including one located at New Bedford, Massachusetts, and is now and continuously has been engaged at said retail stores, in the sale and distribution of food, grocery products, and related items. Respondent in the course and conduct of its business causes, and continuously has caused, at all times herein mentioned, large quantities of groceries, foodstuffs, and related products used by it in its businesses to be pur- chased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts. Respondent sells and distributes groceries, food products, and related items, the gross value of which exceeds $500,000 annually. The complaint alleged, the answer admitted, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 1325, Retail Clerks International Association , AFL-CIO, is a labor or- ganization admitting to membership employees of Respondent. IH. THE UNFAIR LABOR PRACTICES A. The facts Respondent opened its store in New Bedford about November 1, 1960. Produce Merchandiser Anthony Pires and New Bedford Store Manager Edward Palardy interviewed and selected the staff of the new store. Joseph Jesus was hired by them at a rate of $1.75 per hour as the second man in the produce department subject, of course, to Respondent's 30-day trial period? The New Bedford produce manager was one Tony Medeiros. 'This term specifically includes the attorney appearing for the General Counsel at the hearing 2 At the New Bedford store, the produce department, as was customary in Respondent's stores, was run by a produce manager and a second man plus whatever part-time help wag FERNANDES SUPER MARKETS, INC. 961 Although acknowledging that the first month of operations of a newly opened store was always a period of many trials and tribulations, Pires testified at the instant hearing that he had "given up" on Jesus "as early as the latter part of November" and prior to the 30-day trial period. Despite this alleged determination by Pires, the employment of Jesus continued thereafter and he became the permanent No. 2 man in the produce department at New Bedford. However, according to Pires, he, Pires, continually received unfavorable reports on Jesus from Palardy, Medeiros, "Shorty" Fernandes, Respondent's assistant merchandiser, and others. Pires himself, as was customary, made weekly visits to the New Bedford store and, after January 1, 1961, filed written reports with Respondent as to the condition of those stores and their departments. On one of Pires' weekly reports on the New Bedford store in January he noted that Jesus needed more training. On his report of his visit to the New Bedford store dated February 25, 1961, Pires for the only time to the date of the hearing rated the produce department as "Excellent." How- ever, the following week about March 2 he transferred Jesus to the headquarters store at Norton, replacing him at New Bedford by an employee named Texeiras.3 It is un- denied that, when informed of the transfer of Jesus, Medeiros was angered by the transfer. Pires explained that he had wanted to discharge Jesus at that time because of the unfavorable reports regarding Jesus which he had received. Respondent's brief describes these reports as follows: It was observed that Jesus was not keeping up the department. The prolonged conversations with customers, salesmen and numerous phone calls continued. . Jesus demonstrated a lack of effort on the Manager's day off (Tuesdays] and a failure to follow orders in throwing out good produce with the bad... . Jesus, although he said he was sorry and stated he would try to do better, con- tinuously blamed the produce manager Medeiros. But Pires consulted Respondent President and General Manager Joseph E. Fernandes who suggested that Jesus be given some training at the Norton store. Fernandes testified that he made this suggestion out of sympathy for the medical prob- lems Jesus was having with his two young daughters. Anyhow the result was that Jesus was transferred to Norton. In March 1961 the Union began a campaign to organize the employees of Re- spondent's stores including the New Bedford store. As a part of this campaign on April 17,4 Business Agent Gilbert Howarth and Bob Furtado whose position as head cashier at the New Bedford store had been terminated by Respondent shortly before under circumstances not disclosed in the present record, planned to pass leaflets to the employees of the store as they left a store security meeting that evening which was being attended by Respondent President Joseph E. Fernandes and Pires among others. Noting the presence of these union organizers outside the meeting on this nasty rainy evening, President Fernandes had them invited into the meeting by Palardy, permitted them to distribute their literature, and offered them the op- portunity to speak to the assembled employees which was declined. Thus there can be no question but that, as Respondent admits, Respondent knew as early as April 17 of the existence of the union organizational campaign as well as the identity of these two union organizers. Jesus remained at Norton as second man in the produce department under the watchful eye of "Guido" Fernandes, produce manager, for a period of about 9 weeks. Jesus' record at Norton was satisfactory to all, being only described as "very satisfactory." In fact "Shortly" Fernandes complimented Jesus on his work by saying that, if he kept up the good work, he might become a store manager. After his second week at Norton Jesus did the ordering for the department. Personnel Manager Feuer thought Jesus to be the type of employee Respondent desired because Jesus was one of the three employees from the Norton store elected to a store organization known as FEMBA (Fernandes Employees Mutual Benefit As- sociation) where Jesus became chairman of the athletic committee and organized a baseball team. needed The produce manager's day off was on Tuesdays The second man was oft on Saturdays 8 Pires himself called attention to the "apparent inconsistency" in having transferred Jesus within a week of having rated the produce department at New Bedford as "Ex- cellent " His explanation of this contradiction was that he was attempting to encourage the produce employees 4 All dates are in the year 1961 except as specifically noted herein 649856-63-vol. 137-62 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After having been at Norton several weeks, Jesus asked Pires if he thought Jesus could transfer back to the New Bedford store. Pires told Jesus that "apparently you are doing very well" and he would think about the transfer. At the hearing Pires ap- peared to have resented the inquiry made by Jesus. On May 1 Respondent hired a man named Frank Teunneson who was said to have been an experienced produce man from a couple of other chains. In May Jesus had one conversation with Howarth and Furtado about the Union at his home in New Bedford. Jesus would only say that he would think about the Union. He did speak to one employee at the Norton store about the Union. There is no evidence that the Respondent knew of either of these events. He also handed a piece of union literature received by him through the mail to one of the Norton supervisors who asked for it. On or about May 22, Burgess, produce merchandiser, and "Shorty" Fernandes, his assistant, transferred Jesus back to New Bedford to be the second man in the produce department there under the managership of newly hired Frank Teunneson with instructions to help Teunneson with the ordering and to show him the opera- tions in the backroom for the reason that Teunneson had been with Respondent only since May 1 and, therefore, did not know Respondent's method of operations According to the testimony of Palardy, Teunneson spoke to him the very first day that Teunneson and Jesus took over the produce department at New Bedford so that Palardy had the two of them in his office and explained to them that Teunneson was the manager of the department, thus apparently countermanding the orders of Burgess and "Shorty" Fernandes.5 On June 6 Jesus signed a card authorizing the Union to bargain on his behalf and began talking to various employees around the New Bedford store about the Union. It is also undenied that on at least one occasion Palardy saw Jesus talking to Organizers Furtado and Howarth during a coffee break period at the snackbar in the store. Palardy's testimony indicated that he had become very conscious of the fact whenever either Furtado or Howarth was in the store and also interested with whom either talked. Apparently this was so throughout the store as even the counter- girl made note of the fact that Jesus had spent at least one break period talking to Furtado at the snackbar. On another occasion in June Respondent had some small 15- or 16-year-old boys unloading heavy produce at the store. Jesus told Teunneson that the boys were not big enough to be handling that much produce. It so happened that one of these boys was, in fact, injured rather seriously. After the accident Jesus remarked to a a number of the employees gathered in the backroom that, if there had been a union in the store, this accident would never have happened. According to the testimony of Pires, about 2 weeks after Jesus had returned to New Bedford, he, Pires, again began receiving reports from Palardy; Teunneson; Burgess, produce buyer-merchandiser; "Shorty" Fernandes, assistant merchandiser; Michael Murphy, supervisor of meat operations; and Joseph Fonseca, supervisor of grocery, regarding Jesus. The substance of these reports, according to Pires, was that: (1) there was friction between Teunneson and Jesus; (2) Jesus received tele- phone calls at the store; (3) Jesus held long conversations with salesmen and cus- tomers; (4) particularly on Tuesdays, Teunneson's day off, Jesus was very slow in his work, sometimes not getting the ice table fixed until 10 or 11 a.m.; (5) Jesus was passing cards around; 6 (6) Jesus was critical of Teunneson's work; and (7) Jesus was not following Teunneson's instructions. These complaints were identical with those Pires had allegedly received regarding Jesus during the November-March pe- riod which caused him to transfer Jesus to Norton. On the other hand Pires admitted that he found nothing to critize about Jesus' work from his own personal observation during his weekly visits at the store. On June 15 the Union planned a meeting of the Fernandes employees at Brockton, Massachusetts. A leaflet advertising this meeting came to the desk of President Fernandes who wrote in long band on the top thereof: "Permission is hereby granted to post this notice on store bulletin boards" over his signature. Fernandes testified as to this that "somebody must have asked permission to post it" but that he could not recall who it was but did not believe that anybody from the Union had so re- quested. The notice was posted at the New Bedford store. E This meeting is not referred to in the affidavit which Palardy gave to a Board field examiner investigating this case. e At the hearing Palardy claimed that these cards referred to "Val-Deb Roofing Com- pany" under which name Jesus repaired roofs Respondent produced an ex-employee wit- ness who had received one such card from Jesus prior to leaving Respondent's employ in March So far as the evidence showed Palardy never saw a card Jesus passed out, if any. FERNANDES SUPER MARKETS, INC. 963 After having taken inventory on or about July 1 , Palardy, Department Managers Al Sharp and Gilbert, and Secondmen Louro and Jesus had dinner together at the Silver Range Restaurant as had become customary after taking such inventory. According to the testimony of Palardy, "somebody" brought up "jokingly" the fact that Furtado had been talking to Jesus and somebody else made the crack that "if the Union got in, Joe [Jesus ] would be the shop steward." Everybody laughed. According to the testimony of Jesus, Palardy was the individual who made this last statement. Although the Trial Examiner is inclined to credit Jesus in this conflict, he does not believe that the conflict need be resolved due to the fact that Palardy admitted that the fact that Jesus would become shop steward if the Union got in had become "a joke" around the store. Despite Palardy's admission that there was talk in the store-though, in Palardy's words, "not excessive talk"-about Jesus becoming the union shop steward , he still testified that he had "no knowledge " that Jesus was assisting the Union. In view of Palardy's consciousness of the presence of Furtado in the store and those with whom he talked , the Trial Examiner cannot credit this denial.? By July 4 Pires had again convinced himself from "reports" received that Jesus should be discharged for exactly the same causes as had led to his transfer to Norton. On or about July 8 he spoke to Joseph E. Fernandes who this time concurred in the decision. On Saturday, July 15, Pires was at the New Bedford store, had Palardy summon Jesus to the store on his off day, and discharged him. During this conversation Jesus inquired if he could collect unemployment compensation and get a letter of recommendation from Respondent. It is uncontradicted that Pires answered both questions in the affirmative and told Jesus to get his letter of recommendation from Personnel Manager Feuer on Monday, July 17. On Monday, July 17 , Jesus went to Norton where he asked Personnel Director Feuer for this letter of recommendation . Earlier that day Pires had conferred with Feuer telling him that Jesus had been discharged but would be in the store that day to see Feuer. Feuer thereupon dictated and signed the following letter of recom- mendation which he gave to Jesus: To Whom It May Concern: JULY 17, 1961. Joseph Jesus worked in the produce department of the Norton and New Bedford stores from November of 1960 until July 1961 . He worked as second man to the produce manager, I knew him personally while he worked in the produce department of the Norton store and found him to be a good worker, cooperative, and well liked by other employees. He was a store representative , elected by the employees of the store. Sincerely, FERNANDES SUPER MARKETS, INC., (S) W. W. Feuer, W. W. FEUER, Personnel Manager. When Jesus suggested to Feuer that "Shorty" Fernandes might disclaim this recom- mendation if inquiry about Jesus was made by another chain , Feuer assured Jesus that he would take care of that . During this same conversation Jesus and Feuer talked over the question of how Jesus was to pay the unpaid balance on a $300 loan which President Fernandes had authorized for Jesus while at the Norton store because of heavy medical bills caused by the illness of Jesus ' two daughters. That evening Jesus and Furtado stopped in at the New Bedford snackbar where they showed this letter of recommendation to some of the employees.8 In other regards also the Trial Examiner found Palardy to be an unreliable witness prone to talk in broad generalizations without giving the factual basis therefor, who rather grossly exaggerated and who was not averse to testifying to "facts" which he himself had not witnessed. 8 In its brief Respondent refers to this event as a "disturbance " Actually there is no evidence in this record other than that found above despite the fact that Palardy was describing in detail the scene on that Monday evening in the store when it developed that all Palardy knew of the matter was what he had heard from his grocery manager, AI Sharp. In fact, the report Palardy had received was in error for the next day Palardy accused Jesus of having referred to him, Palardy, as a "punk " This Jesus denied Re- spondent called neither Sharp nor any other witness to describe the scene This reliance upon "reports " without proof of the fact was characteristic of Respondent's case throughout. 964 DECISIONS OF NATIONAL LABOR RELATIONS LOARD Under date of July 21, 1961, Feuer wrote Jesus the following letter: Mr. JOSEPH JESUS, 457 Brock Avenue, New Bedford, Massachusetts. DEAR JOE: In order to clarify our position regarding the outstanding loan which you have with us we wish to tell you of our decision. When you were transferred to New Bedford the weekly payment on your loan was not deducted from your salary as it should have been. Since this was not entirely your fault we will only deduct the regular weekly payment from your final weeks pay. In all fairness you should have informed the bookkeeper that you had an out- standing loan and the payments were not being deducted from your salary. Seven weeks went by when no deductions were made and you had seven opportunities to report this error. We are sincerely concerned about your personal problem involving the health of your children and do not want to penalize you or them in any way and have therefore made every concession to make this transition easier for you. You will receive 5 days Holiday pay less the usual deduction for your loan on July 27. If you will come in to the New Bedford Store it will be there for you. Also we have given you a letter of recommendation based on your work in the Norton Produce Department which will help you get another position. We are sure that you must agree with us in believing that you are being treated fairly. We hope you re-pay our fair treatment by having the proper attitude towards Fernandes Super Markets, and that you will fulfill your prom- ise to repay your loan. I personally have placed a great deal of confidence in you and believe that you will keep your promise as an honorable man. Mr. Fernandes and all of your co-workers wish to join me in wishing you good luck. Sincerely, FERNANDES SUPER MARKETS, INC., (S) W. W. FEUER, Personnel Director. In order to put Respondent's side of the "story" before the employees at New Bedford, General Manager Joseph E. Fernandes had the above letter posted in the New Bedford store. When Respondent reported this discharge of Jesus to the unemployment compen- sation commission over the signature of Feuer, it gave the reason for the discharge as: "Deliberate disobedience to the orders of the produce manager." 9 This pre- vented Jesus from receiving unemployment compensation. A week or so thereafter Jesus followed Pires into the A.B. Lunch where he complained to Pires that he had been denied his unemployment compensation pay- ments because of this report by Respondent. It is undenied that Pires answered: "Don't come crying to me; go see your buddy Bob Furtado. You said he is your union man." B. Respondent's defense Respondent defended on two grounds: (1) that it did not know that Jesus was active in the Union; and (2) it discharged Jesus because of incompetence. As to the defense of lack of knowledge, despite Palardy's testimony to the con- trary, the Trial Examiner is convinced from the "joke" at the Silver Range Restaurant, the fact that it was also a standing "joke" throughout the store and from Pires' un- denied response to Jesus at the A.B. Lunch that both Palardy and Pires, as well as Respondent, knew or suspected the activities on behalf of the Union by Jesus. As to the second defense Respondent's brief states: On the recommendation of Messrs. Palardy, Shorty Fernandes, and Burgess and on the basis of his own knowledge Mr. Pires decided to discharge Jesus [before July 4]. The following week he cleared the decision with President Fernandes. On July 15, 1961, Mr. Pires discharged Jesus for unsatisfactory work, failure to carry out orders of produce manager and friction caused by unfounded criticism of Teunneson with other employees and with supervisors. The previous page in Respondent's brief particularizes the above items as follows: Things then went "sour." Jesus did not follow the program Teunneson laid out for him on Tuesday, Teunneson's day off, particularly in filling the ice trays. He talked excessively with customers and received many phone calls. 9 The produce manager referred to appears to have been Teunneson. Teunneson did not testify. FERNANDES SUPER MARKETS, INC. 965 On one occasion Jesus talked with a Del Monte salesman about personal matters for 2 or 3 hours. Jesus also threw out good produce with the spoiled produce so he would not have to repackage it. He was critical of Teunneson's per- formance as a produce department manager. Mr. Jesus accused Teunneson of permitting too much spoiled produce to remain on the stands, of not knowing how to order produce, of not keeping the stands clean and of not doing an overall good job. The gross profits of the department did not bear out these statements. ,It is to be noted that the particulars relied upon by Respondent for discharging Jesus in July were almost verbatim with the particulars Respondent relied upon for transferring him to Norton in February. In fact Palardy testified to just one con- versation with a Del Monte salesman which lasted 2 to 3 hours, according to Palardy, yet it is impossible from the transcript to tell whether this conversation occurred in the first period Jesus was at New Bedford or during the second period. Respondent's brief uses it in both periods. As Palardy did not even pretend to hear the conversa- tion, it is a matter of interesting conjecture as to how Respondent knew it was about "personal matters." Furthermore, it is interesting that Palardy, who testified that salesmen were not allowed in the store, permitted this conversation to continue unchecked for 2 or 3 hours and without mentioning it thereafter to Jesus. This would seem to indicate that either Palardy was a poor manager or he exaggerated his testimony. This conversation was the only instance of "excessive talking" with either customers or salesmen about which Palardy even attempted to give details. The charge that Jesus did not follow the orders of Teunneson or Medeiros is unproved because neither Teunneson nor Medeiros was called to testify so the record is devoid of any orders, obeyed or disobeyed. The same thing is true as to the charge of friction between Jesus and either Teunneson or Medeiros. In fact, in the case of Medeiros, the testimony is undisputed that Medeiros was angry when he learned that Jesus was being transferred to Norton which would tend to indicate a lack of friction. The charge that "Jesus also threw out good produce with spoiled produce so he would not have to repackage it" would seem to be refuted successfully by the same logic as used in Respondent's brief to refute Jesus' alleged criticisms of Teunneson, to wit, "The gross profits of the department did not bear out these statements." 10 Certainly if Jesus was throwing away good saleable produce as Palardy claimed, it would show in those same gross profits." As to the charge that Jesus criticized Medeiros and Teunneson, it is true that Palardy, Pires, and Feuer all testified to such criticism. But, the testimony of these same witnesses also shows that the criticism had been solicited by them or by "Shorty" Fernandes. In fact, "Shorty" Fernandes had a truck remove from the New Bedford store some materials which Teunneson had overordered. The evidence to sustain these many charges against Jesus appears to be more froth than substance. The Trial Examiner is not here holding that Jesus was the perfect employee with- out fault but he must call attention to the type of evidence on which Respondent has relied to convince the trier of fact that Jesus was such an incompetent employee as to warrant discharge. Admitting that he had found nothing to criticize about Jesus during his own personal observation, Pires testified that his decision to discharge Jesus for incompe- tence was based only on the "reports" he had received from Burgess, Fonseca, Murphy, "Shorty" Fernandes, Palardy, Medeiros, and Teunneson. Of these seven, only Palardy testified, and his testimony regarding the alleged deficiencies of Jesus, as noted heretofore, were so exaggerated and colored as to cause the trier of fact to wonder' why. The other six were not called to testify and, therefore, did not even purport to try to prove the facts upon which each of them allegedly based his opinion that Jesus was incompetent, opinions upon which Pires claims to have acted. Thus, the Trial Examiner is being asked to find that Respondent was justified in discharging Jesus as an incompetent employee upon (1) the exaggerated and colored testimony of Palardy, and (2) hearsay opinions of incompetence of seven unseen individuals without even an expression of such opinion by them or an attempt by them to prove the facts upon which each based this opinion. As a trier of fact, this the Trial Examiner cannot do. While Respondent in its brief maintains that it discharged Jesus "for his unsatis- factory work," Respondent is on record with the unemployment compensation com- mission as having discharged Jesus for "deliberate disobedience to the orders of the 10 See quote from Respondent's brief above 11 Respondent failed to produce or mention the weekly gross profits of the produce de- partment during the hearing. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produce manager [Teunneson]." This is different from unsatisfactory work or in- competence. Yet, as Teunneson did not testify, as noted heretofore, neither the order nor the disobedience, deliberate or not, was proved. This change of position by Respondent does make it appear as though Respondent was shopping around for some valid reason on which to justify its discharge of Jesus. Why so? Pires' own testimony regarding these "reports," etc., he had received is also suspicious. He was permitted to testify from his own personal diaries and from reports of store conditions he made to the Respondent following his weekly visits to the stores. Pires himself during his testimony pointed to the "apparent incon- sistency" between his own reports and his claims against Jesus, when he pointed out that he had ordered the transfer of Jesus to Norton immediately after having rated the produce department at New Bedford as "Excellent," which incidently was the only "Excellent" report the New Bedford produce department had ever received to the date of the instant hearing. He also became very flustered when, after testifying to certain conversations he had with Jesus on February 25 as indicated by both his personal diary and his personal report, it was pointed out to him that February 25 happened to be a Saturday, Jesus' day off. Pires then became sure that for reasons unknown he had incorrectly dated both his report and his daily diary. Nor must it be forgotten that it is undenied on this record, although Pires testified at length, that it was Pires himself at the very time he was discharging Jesus sup- posedly for incompetence who told Jesus that Personnel Manager Feuer would give him a letter of recommendation on Monday, July 17. Pires was definitely inconsistent Feuer pointed out that he omitted from this letter of recommendation any state- ment that Respondent would rehire Jesus implying thereby that the letter of July 17 was a sort of "second rate recommendation" or worse. This seems almost to com- pound Respondent's error. If Jesus was in fact incompetent, no recommendation should have been forthcoming. If he was not, then he should have been entitled to a bona fide recommendation. Respondent on the other hand would have us believe the exact opposite. Respondent's several changes of position as to the cause of the discharge, its inability or unwillingness to prove the factual basis for the alleged opinions as to the incompetence of Jesus, and its apparent willingness to rely upon unsubstantiated opinion reports as against the admittedly excellent record of Jesus at Norton create more suspicion as to the Respondent's motivation in discharging Jesus than proof of his incompetence, unsatisfactory work, or deliberate disobedience of orders. In fact this is a case where the trier of fact would be justified in drawing an unfavorable inference against the Respondent for its failure to produce Burgess, Fonseca, Murphy, "Shorty" Fernandes, Medeiros, and Teunneson. "Reports" to Pires by these seven do not constitute proof of any dereliction by Jesus. C. Final conclusions We now come to the hardest part of this case. Was Jesus discharged because of his union activities? It is well settled that an employer may discharge an employee for any reason or for no reason at all-so long as he is not discharged for engaging in union activities. The several reasons given by Respondent for the discharge are unsatisfactory but, while that may create suspicion, it does not prove that the discharge was caused by the employee's union activities. Respondent here claims that it had no union animus. It is true that its president, Joseph E. Fernandes, on April 17 had union organizers Howarth and Furtado invited to the Respondent's security meeting, allowed them to distribute union literature, and offered them the opportunity to speak to the assembled employees. It is true also that prior to the union meeting at Brockton, Joseph E. Fernandes also authorized the posting of a union announcement of that meeting in the New Bedford store. This verges on the singular because Fernandes was sure that no request for permission to have that bulletin posted had come from the Union. Fernandes also testified that certain of Respondent's key personnel were on the union mailing list so that Respond- ent was receiving all of the union mailings. In addition Palardy testified that he had been instructed by Fernandes at a Tuesday managers' meeting to permit Furtado and Howarth the freedom of the store so long as they did not interfere with business. Palardy, however, became acutely conscious of the presence of either of these orga- nizers in his store, even as did the countergirl at the snackbar. It is undenied that both Palardy and the countergirl noted a conversation between Jesus and Furtado at the snackbar at the New Bedford store in June. With Palardy, acquaintanceship with Furtado created suspicion . It was also known that in June when the teenager was injured unloading produce, Jesus made the remark to a group FERNANDES SUPER MARKETS, INC. 967 of employees that the injury would not have occurred if there had been a union in the store.12 Then it is undenied that, as Palardy himself testified, it had become a "joke" around the store that if the Union got in, Jesus would be its "shop steward." Thus, even though Respondent may not have known that Jesus was soliciting em- ployees to join the Union at New Bedford, there can be no doubt that Palardy, Re- spondent, and the employees at New Bedford knew that Jesus was in fact active enough in the union organizational campaign to be considered for its shop steward. Oftentimes, as here, "jokes" convey a wealth of information. It is also to be noted that within 3 days after Palardy, at least, heard this "joke" regarding the possibility that Jesus would become shop steward, Pires had determined that Jesus must be discharged. Palardy denied having included mention of any union activity on the part of Jesus in his reports of Jesus' shortcomings to Pires. There is, of course, no direct proof to the contrary. However, the knowledge of Palardy, a supervisor, can be imputed to Respondent. But the fact of the matter is that Pires himself knew or suspected that Jesus was engaged in union activities for it is undenied that he replied to the complaint made by Jesus that Respondent had deprived him of his unemployment compensation by answering: "Don't come crying to me; go see your buddy, Bob Furtado. You said he is your union man." If Pires discharged Jesus on July 15 because of his known or suspected activities on behalf of the Union rather than for incompetence, unsatisfactory work, or de- liberate disobedience of orders, then one of Pires "apparent inconsistencies" is ex- plained, to wit, his agreement on July 15, while discharging Jesus, that Personnel Manager Feuer could, and would, give Jesus a letter of recommendation dated July 17. That explanation also accounts for the fact that Respondent found it necessary on July 21 to post its letter of that date to Jesus on the bulletin board at the New Bedford store and thus tell its side of the "story" to the employees at New Bedford. That further explains why Feuer was able to assure Jesus that "Shorty" Fernandes would not queer the letter of recommendation. No doubt Respondent did not care if Jesus were to assist the Union to organize a rival chain. Accordingly, the Trial Examiner is convinced, and therefore finds, that Respond- ent discharged Joseph Jesus on July 15 because it knew or suspected that Jesus was engaging in an effort to organize the employees of the Respondent's New Bedford store in violation of Section 8(a)(3) and (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. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated in regard to the hire and tenure of employment of Joseph Jesus by discharging him on July 15, 1962, the Trial Examiner will recommend that Respondent offer to him immediate and full reinstatement to his former or 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 by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of his reinstatement plus in- terest thereon at 6 percent but less his net earnings during such period and in ac- cordance with a formula set forth in F. W. Woolworth Company, 90 NLRB 289. As discharging an employee in order to thwart union organizational efforts goes to the very heart of the Act, the Trial Examiner senses an attitude of opposition to the purpose of the Act in general, and hence deems it necessary to order that the Respondent cease and desist from in any manner infringing upon the rights guar- anteed its employees in Seciton 7 of the Act. 12 It is to be noted that the Respondent's brief cites the criticism of Teunneson by Jesus for using "young boys to unload heavy crates" as proof of Jesus' critical attitude toward Teunneson. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Local 1325, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging Joseph Jesus on July 15, 1961, thereby discriminating in regard to his hire and tenure of employment and discouraging union activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Glaziers Glass Workers and Glass Warehouse Workers, Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO and Local Union No. 18, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO and Pittsburgh Plate Glass Com- pany. Case No. 23-CD-51. June 28, 1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by Pittsburgh Plate Glass Company, herein called Pitts- burgh or the Employer, against Glaziers Glass Workers and Glass Warehouse Workers, Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, herein called Local 1778 or the Respondent, alleging that the Respondent coerced employers to change work assignments from one class of employees to another. A duly scheduled hearing was held before Rodney L. Reagan, hearing officer, on February 16, 1962. Local 1778 and the Employer appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues.' The rulings of the' hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs filed by the parties have been considered. Upon the entire record, the Board makes the following findings: 1. The Employer Pittsburgh Plate Glass Company is a glass manufacturer and con- tractor engaged in the sale and installation of glass in the State of Texas. At Houston, Texas, it annually receives products from other i Local Union No. 18, International Hod Carriers , Building and Common Laborers Union of America , AFL-CIO, herein called Local 18, a party in interest , was served with the ,formal papers but did not appear or participate at the hearing. 137 NLRB No. 115.