The Grand Food Market

THE GRAND FOOD MARKET 73 complied for purposes of this proceeding by the pension fund ad- ministrator. However, adoption of an eligibility date approximately 6 months preceding a direction of election ml,dit disenfranchise newly hired regular employees, as NN ell as regular part-time workers. On the other hand, we are aware that there are difficulties entailed in securing current employee lists which would be required if we were to utilize our normal eligibility date. Therefore, we adopt a more recent date than proposed by the parties but one earlier than we would ordinarily specify, and direct that all regular employees employed during the calendar week eliding August 31, 1962, shall be eligible to vote.8 As the eligibility of part-time employees is dependent on the period of time worked over a 3-month period, we find that such em- ployees shall be eligible to vote if employed for the requisite length of time during the 3 months preceding August 31, 1962. [Text of Direction of Election omitted from publication.] s As we gather from the record that the regular employees constitute a relatively stable group with minimal variations, the parties to the proceeding may, if they desire and the Regional Director concurs, utilize the March 31, 1962, list subject to its being brought up to date as of August 31, 1962. This would entail the addition of the names of those employees who after March 31, 1962, obtained seniority status or worked 15 days during the prescribed 3-month period and the deletion of the names of those workers who have, between March 31 and the date of the election, quit or been discharged for cause Daniel Crean and Joseph Messore d/b/a The Grand Food Market and Retail Store Employees Union Local 444, Retail Clerks International Association, AFL-CIO. Ca'e No. 13-CA-4459. October 15, 1962 DECISION AND ORDER On April 4, 1962, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 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 Interme- diate Report, the exceptions, the briefs, and the entire record in the Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Rodgers , Fanning, and Brown]. 139 NLRB No. 16. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner, with the following modifications. The General Counsel excepts to the Trial Examiner's failure to recommend that the Respondents be required to pay interest on the backpay to be awarded to Barbara Bahringer. We find merit in this exception. Accordingly, the backpay obligations of the Respondents shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing ct; Heating Co., 138 NLRB 716.3 ORDER The Board adopts the Recommended Order of the Trial Examiner with the changes indicated below 4 i The Trial Examiner found several statements made by the Respondents to various in- dividual employees to be predictions of economic consequences and within the protection of Section 8(c) of the Act. Absent exceptions thereto, we adopt pro forma the Trial Examiner's findings that these statements are not violative of Section 8(a) (1) of the Act. I For the reasons set forth in his dissent in the Isis Plumbing t Heating Co , case, Member Rodgers would not grant interest on the backpay awarded in this case 4 The following paragraph is inserted as section 2(b) of the Order Offer Barbara Bahringer immediate and full reinstatement to her former or a sub- st•tntially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay, plus interest at the rate of 6 percent, she may have suffered by reason of the Respondents' dis- crimination against her The following paragraph is substituted for the last paragraph in the notice attached to the Intermediate Report as Appendix. \s WILT, offer Barbara Bahringer immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay, plus interest, suffered by reason of the discrimination against her The penultimate paragraph in the notice shall be changed to read, This notice must ienmin for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material INTERMEDIATE REPORT STATEMENT OF THE CASE The issues in this case are whether Respondents Daniel Crean and Joseph Messore, doing business as The Grand Food Market , during an organizing campaign con- ducted by Retail Store Employees Union Local 444, Retail Clerks International Association, AFL-CIO ( herein called the Union ), among their employees , inter- rogated employees, threatened them with reprisals for union activities , promised them wage increases to dissuade them from union activities, reduced hours of work of one employee and then discharged her and another , and refused to hire an appli- cant for employment, all in violation of Section 8(a)(3) and ( 1) of the National Labor Relations Act, as amended, 28 U S.C. Sec. 151, at seq. (herein called the Act), and (2) unlawfully refused to bargain with the Union as the statutory representa- tive of their employees in an appropriate bargaining unit , in violation of Section 8(a)(5) of the Act These issues arise on a complaint issued November 14, 1961,1 by the General Counsel of the National Labor Relations Board through the Board's Regional Director for the Thirteenth Region, and Respondents' answer which denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on the issues before Trial Examiner Eugene F. Frey at Milwaukee , Wisconsin, between December 11 and 15, 1961 , in which all parties participated through counsel and were afforded full opportunity to be heard, i The complaint issued after Board investigation of an original and amended charges filed by the Union on and after October 2, 1961 THE GRAND FOOD MARKET 75 to examine and cross-examine witnesses, to present pertinent evidence, to make oral argument, and to file briefs. Briefs filed by General Counsel and Respondents have been carefully considered by the Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF' RESPONDENTS Respondents own and operate a retail food store business in Milwaukee, Wis- consin, as copartners under the trade name of the "Grand Food Market." In the calendar year 1960 they did a gross volume of business in excess of $500,000, and received goods and products valued in excess of $50,000 directly from points outside the State of Wisconsin. Respondents admit, and I find on these facts, that they are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The union campaign, and request for recognition Between August 14 and September 20, 1961, 16 employees in the grocery and produce departments signed authorization cards designating the Union as their bar- gaining representative. On September 20, 1961, the Union formally requested that Respondents bargain with it as majority representative of their employees in a unit composed of all regular full-time and part-time employees who handle, display, or sell merchandise at their store, excluding the proprietors, wives and children of proprietors, meat department employees, watchmen, and supervisors as defined in the Act. Respondents received the demand on September 22 and the same day replied that they had no basis for believing that the Union had majority status in the stated unit, suggesting that it seek certification as provided by law, and refusing to meet for bargaining until such certification. On September 25, 1961, the Union filed a petition with the Board in Case No 13-RC-8127 (not published in NLRB volumes), requesting such certification under the usual procedure provided in the Act. B. Respondents' reaction to the union campaign 1. The alleged discrimination against Susan M. Moser The complaint alleges that Respondents discriminatorily refused to hire Moser on or about August 7, 1961, because employees joined or assisted the Union or engaged in other protected concerted activities, in violation of Section 8(a)(3) and (1) of the Act. Moser applied for work at the store on August 4, 1961, in response to an advertisement Respondents put in the newspaper for checkers. Crean inter- viewed her He asked what experience she had, and she replied that she had worked at Kohl's Food Market in Milwaukee. Crean asked if she had experience with a cash return register, and she said she had at Kohl's. Crean asked her what her starting rate was at Kohl's She replied she had been getting $1 34 an hour but not working many hours. Crean said that he could not afford to pay that kind of wages, and asked if she did not think that Kohl's would be a better place to work than with Respondents. Moser replied that she had not been getting enough hours of work there. Crean asked her if Kohl's had a union. She said it did. Crean asked her if that union had done anything about getting more hours of work for her. She said it had not and that she intended to get out of it. Crean then said, "Go ahead, tend to your personal affairs, get it over with, come back, and I will talk to you again." Moser left the store, went to the office of the Union herein, and discovered that her membership had lapsed for lack of payment of dues. She re- turned to the store that afternoon and told Crean that she had to pay money to withdraw from the Union. He laughed about it, saying that she had to pay money to get in and now she had to pay money to get out Crean ,then hired her as a grocery checker in the grocery department She reported for work on August 7, 1961, and has worked ever since as a part-time grocery employee The record shows the first union card was signed by an employee on August 14, but there is no proof that the union campaign started earlier, or that Respondents knew on August 4 or 7 that it was impending. Hence, the circumstances of Moser's hiring cannot be called a discrimination against her to prevent her from joining the Union during its later 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign, nor can I conclude that Crean's conduct on August 4 was part of Re- spondents' aggressive antiunion campaign, which started on the 24th. However, it is clear from the facts that when Crean learned that Moser had worked in a unionized store at a higher wage and that she intended to withdraw from that union, he with- held action on her application until she could complete that withdrawal, and hired her only after she told him she was out of the Union. I conclude that (1) Crean's interrogation of her about her union status in a prior employment was an unwarranted inquiry into a matter which concerned her exercise of rights guaranteed by the Act, and violated Section 8(a)(1) of the Act, and (2) Respondents made her withdrawal from a labor organization 2 a condition of her employment with them, which was an interference with a prospective employee in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(a) (1), and also a form of discrimination which tended to discourage membership in a labor organization, in violation of Section 8(a) (3) of the Act.3 2. Interrogation, alleged threats, and antiunion comments Respondents learned about the union activity about August 24 when Thomas D'Amato, a part-time produce clerk, approached Messore and told 'him that two union men approached him about the Union and that he sent them away. He then asked Messore how he felt about the Union. Messore replied that he did not like it because the Union would hurt him, it would close his doors, and if he found anyone who had signed a union card, he would talk to him. Messore asked D'Amato if he had signed a union card. D'Amato denied that he had. Respondents admit that from that date onward they questioned other employees about whether they had signed union cards, attended union meetings, how they felt about the Union, and what other employees attended union meetings . In some of these discussions, at the request of employees for their opinions, Respondents expressed the views that: Unions were no good for the store; they did not like this Union which was a "bunch of racketeers and crooks," it would take money from the pockets of Respondents and the employees and put it in their own pockets; if it organized the store, the Union would come in and tell Respondents how to run the store so that Respondents could not operate they way they had in the past, it would be like a dictatorship; with a union, seniority would operate against the efficient worker, and Respondents could not hire or fire employees, give them raises, or ask them to work longer hours, without first getting permission from the Union; and if the Union organized the store, it would hurt Respondents, some employees' hours might have to be cut, and they might end up having to close their doors, that the Union would force them to close. The record also shows that, in discussions with employees about the cam- paign, Respondents continually stressed their financial situation, including the fact that they always had to watch their payroll, because the vital ratio of payroll to gross income was very high, and had to be reduced, whenever sales volume dropped, in order to make a profit. Since Respondents' store was an old-type service or- ganization, where employees waited on customers, in contrast with the more modern self-service supermarkets, it is clear that Respondents' large labor payroll was a very significant factor in their operations and had to be controlled closely. In the light of these circumstances, I find that remarks of the type found above, and similar statements noted hereafter, were legitimate expressions of opinion protected by Section 8(c) of the Act However, they also show that Respondents were openly averse to union organization of their store. Based upon these and other admissions of Respondents, and other credible testi- mony of witnesses of the General Counsel, I find that Respondents have engaged in the following conduct, which I find in violation of the Act for the reasons and to the extent noted in each instance: 1. Messore's query of D'Amato on August 24 about signing d union card was calculated to be coercive, even though occurring in a talk which D'Amato began and in which he volunteered information about the Union However, Messore's state- ment that the Union might hurt him and would close his doors was a legitimate prediction of possible economic consequences of unionization of the store, of the type noted above. 2. On August 24, 1961, the day after she signed a union card, Coreene Belt, a prod- uce clerk, had a talk with Messore about the Union. Messore asked her if the union- men had approached her and asked her to sign a paper. She replied that they had. 2 It is not clear from the record whether the union at Kohl's was the Union herein, but that is immaterial 8 Phelps Dodge Corp v. N L R.B., 313 U.S. 177, 185-187 ; T.I.L. Sportswear Corporation, 131 NLRB 176. THE GRAND FOOD MARKET 77 He asked if she signed it, and she admitted that she had. He commented, "I'm not surprised." She said she signed it to see what the Union had to offer. Messore sug- gested that "maybe" she should have gotten advice from him as to whether she should sign a card or not. Messore asked if she knew what she signed, and she said, "Yes," she signed to get an election. Messore then said, "Of all the workers, I was most worried about you, and it looks like I was God-damn right, wasn't I? The first rea- son you give me I'll get rid of you." When he said this, Belt offered to leave the store at once, but Messore said, "No, I don't want you to do that, go back to work," and she did.4 Messore approached Belt a few minutes later and said, "You doing this behind my back is like putting a knife in my back. I am very hurt, as I was proud of you and Bob Soderstrom (another produce clerk)." Belt asked what Messore had against the Union. He replied that he did not care much for unions, that a unionman had approached him once, and Messore had thrown him out. After stating some of the consequences of union organization outlined above, Messore said he had heard there would be a meeting of the employees with the unionman. Belt admitted that. Messore asked if she planed to attend. She said she did not know, wanted to think it over. He asked if she would give him her answer later, and she replied "Maybe tomorrow." 5 On August 25, Messore approached Belt, and asked her if she had "thought it over." She said, "Yes," that she would go to the meeting to see what it was all about. He replied, "All right, that is up to you," and commented that "maybe an election would be good for the store, though nothing would come of it." In the light of Respondents' open hostility to a union expressed to her and many other employees, I find that Messore's interrogation of Belt three times in 2 days about her union activities and sentiments, and his abrupt threat to get rid of her at the "first" reason she gave him, in the context of his open resentment of her union activity, were clearly coercive remarks in violation of Section 8(a) (1) of the Act. 3. Glen Weise, a grocery clerk who signed a union card on August 23, was asked by Crean on August 25 if the unionmen had come to his home. Weise said they had. Crean asked him if he signed the union card, and Weise admitted that he had. On a date shortly after a union meeting of September 12, Respondent Crean asked D'Amato for the names of employees who had attended a previous union meeting. D'Amato gave him the names. Crean asked,if Weise had attended, and D'Amato said no. Crean said he knew that Weise had signed the union card and "he is one of those who will be on his way out, if I can find a way." D'Amato replied that he thought employees were protected by the Taft-Hartley law against this. Crean said he knew this was true, but "there is more than one way to skin a cat." I find Respondents violated Section 8(a)(1) of the Act by (1) Crean's interrogation of Weise and D'Amato about union activities, and (2) Crean's clear threat to D'Amato that he would find some pretext for discharging Weise, a known union adherent .6 4. On August 24, Messore asked produce clerk Robert E. Soderstrom if the unionmen had come to his home. Soderstrom replied that they had. Messore asked him if he signed .the union card. Soderstrom admitted he had. A short time later, Messore asked Soderstrom why he signed the card, and the latter replied that it was because of the long hours he worked (60 hours a week at the time), which he thought could be eliminated by the Union. Messore asked him why he did not come to Messore first and asked him. Soderstrom repeated that he would like to work fewer hours. Messore commented that when Soderstrom began work, he had agreed to work 60 hours a week. Soderstrom admitted that, saying he needed the job and would have taken any hours at the time. Messore then said Soderstrom could work fewer hours, if he desired. Soderstrom admitted that, but said he would have to take a cut in pay. Messore suggested he take the pay cut, and that "we would work something out." However, Messore said Soderstrom was "nuts" if he thought he could get a 40-hour week at the store or a union wage, explaining that Respondents had to keep wages under a certain percentage of the 'Messore admitted most of this talk, denying only that he threatened to get rid of Belt. Belt testified that Respondent Crean was present during the discussion Messore did not deny this, and Crean did not testify about the conversation. 6 As to this talk, Messore denied only the portion about putting a knife in his back, and that he was proud of her and Soderstrom , and the query about attending the union meet- ing. I do not credit these denials. 0 Crean admitted most of the talk as stated above, and in the light of Respondents' widespread interrogation of employees, and open hostility to the Union, I do not credit Crean 's denial of any threats regarding employees , or his story that the "skin a cat" remark related to a purported discussion between him and some unidentified union organizers in the store . The fact that Weise was still working for Respondents at the bearing does lessen the coercive effect of such a threat on any employee who heard it. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store's gross income. Messore also called the Union a "bunch of racketeers" and said if Soderstrom wanted a 40-hour a week job, 'he should go elsewhere to look for one. He also said that "this might end up in a possibility" that Respondent might have to close the store. I find Messore's extensive interrogation of Soderstrom about his union activities violated Section 8(a)(1) of the Act. I do not consider his other equivocal remarks sufficient to amount to either an offer of benefit, or threat of reprisal, which would be calculated to dissuade the employee from further union activity; the remarks about closing the store were clearly predictions of possible consequences of union organization of the store, in its possible impact upon Respondents' ability to continue business profitably 5 Produce clerk Barbara Bahringer signed a union card on August 22. On August 24, Messore asked if she signed a union card. She said she had. Messore asked if her parents were present when she signed, and she said they were. He asked if she knew what she signed, and she replied that she knew the Union would represent her, but that she had not joined. I find that Messore's interrogation of Bahringer was coercive and in violation of the Act. 6. Jo Ann Hallberg, a grocery checker, signed a union card on August 22. On or about August 25, Crean entered the office while she and another employee were working there He asked Hallberg if the Union had approached her. She admitted that it had. He asked if she signed a union card She replied that she had. Crean then remarked, "These guys are raising hell all over town, and I wonder where they are getting the names." In the quoted remark, Crean was referring to the Union, and Hallberg understood it that way. About a week later, while Crean was discussing the Union with male employees at the back of the store, Hallberg joined the group, commented that it was about time Crean was giving his views about the Union, because the Union had been calling on employees, holding meetings for them, and up to that moment she had not heard a word from Respondents and did not know what to think. She asked Crean what he thought about the Union He then made some of the critical, antiunion but legitimate remarks about the purposes and pos- sible consequences of union organization of the store which I have found above, including the fact that the Union would try to run the business and push the payroll percentages way up and "overboard." He also said that if the Union got into the store, he would "crack down" on .the employees, they would have to work every minute, and he would have to cut their hours. In the same talk he asked Hallberg if she was "for" the Union. She said she was. He asked why, and she replied with the question, "How long will I have to be here before I get a raise?" He answered that he would like to pay her $2 an hour but that he could not afford it, that he could not afford to pay union wages because Respondents were "down at the bottom of the well," and that the percentage of wages they were paying was "way overboard as it was " He also made other remarks indicating his view that the Union would be the only ones to profit by organization of the store, and were out to get his money. Crean's interrogation of Hallberg about her union activities and sympathies was coercive and violated the Act, but I find nothing unlawful in his other remarks, which were in effect expressions of Respondents' present tight financial condition and economic predictions that it might get worse if the Union forced up wage scales and compelled Respondents to cut hours 'and require more efficient work from employees in order to maintain profitability? 7. On August 24, Crean asked grocery clerk Donald Levine if the union men had come to see him. Levine said they had not. Levine in fact signed a card at his home later that day. In the latter part of August, Messore asked Josephine Crivello, 'a produce clerk, if she had signed a union card. She said she had not. She actually signed one on September 20, 1961. On September 9, Messore asked Mary K. Jacobs. a produce clerk, if she had heard about the "union business in the store " She said she had He told her, "I don't worry about it, I got them beat." On September 16, Jacobs came to Messore and told him the union organizers had approached her. He asked if she had signed a union card. She said, "No." He asked her, "How do they know that Carol 8 is coming back to work?" Jacobs Crean's first interrogation of Hallberg in the office is not rendered innocuous by the fact, as he testified, that his remarks to the two girls was designed to advise them in an oblique way that he felt the Union might be getting personal information about employees from Respondents' confidential records which were available to the two employees, and his desire to let them know such information could not be released Crean admits he did not give this explanation of his remarks to the girls 87ie referred to Carol Schuld a part-time produce clerk who had worked for Respond- ent in the past, and was scheduled to return to work on September 19. THE GRAND FOOD MARKET 79 replied that she did not know. Messore asked if "they" knew what school Carol attended. Jacobs said that ",they" did., •Messore commented that someone "must be telling the Union." Jacobs signed a union card September 14. Carol Schuld signed a union card on September 19. The next day Messore asked Schuld if the unionman had come to see her. She said he had. He asked if she was forced to sign a card. She said, "No." He repeated the same question and got the same answer. Then he asked her what she intended to do of it came to a vote; her answer does not appear. A week or so later, Messore asked Schuld if any workers had spoken to her about the Union, and she said, "No." I find that Re- spondents' interrogation of the four employees in the terms above was coercive and violated the Act. 8. On Sunday, August 27, Crean had a talk in the meat department with Lawrence Baker, a butcher, and Patricia Watzka, a grocery clerk who worked in the delicatessen department on Sundays. Baker started the discussion by saying he understood some employees had signed up with the Union, and that he felt he would be out of a job if the Union organized the store, because he had been expelled from another union for nonpayment of dues. He also asked Crean his opinion about the Union, and Crean expressed some of the disparaging but legitimate comments about it found ;above, and also that the employees had a right to sign up with it if they desired. Crean then asked Watzka if she signed a union card, and she said she had. Although the conversation was completely friendly, was started by Baker, and most of Crean's comments were permissible free speech, I find that his query of Watkza was not a casual remark but, in the light of Respondents' wide- spread unlawful interrogation of employees, a deliberate attempt to learn Watzka's union sentiments and activities, and therefore violated the Act. 9. Several days after grocery clerk Susan M. Moser signed a union card on August 23, Crean asked her whether she had been approached by the Union and signed a card. She admitted she had been approached and had promised to sign a card. Crean commented that he thought she "had enough of the union at Kohl's." Moser agreed. Crean then commented that the Union was "promising the moon," but that if the Union got into the store, some employees' hours would have to be cut, that Moser would probably be working 23 hours "with the pay increase," but "it would all end up the same, take-home pay would be the same." I find the interrogation of Moser unlawful, but Crean's other remarks appear to be legitimate predictions of the possible consequences of unionization of the store of the type found above. 10. On September 19, grocery clerk Katherine R. Tate heard about a union meeting scheduled for that night. When she came to work that afternoon, she asked Crean about a new work schedule which would fit in with her schooling. Crean replied with the remark that she knew there was a union meeting that night. She admitted she knew. He asked if he was going to it. She replied that her parents had told her not to discuss it with anyone or state her feelings about it, and that they did not want her to go. Crean then asked if she knew which way she intended to vote. She declined to say, saying she did not know too much about it. Crean said, "What you vote for depends an awful lot on what your hours are from now on " He then stated some complaints about the Union's tactics, and said, "I do not particularly want anyone in my employ that is for the Union." He also said, "If you would like to have good hours, I would advise you to think about the Union." Tate then asked about her new schedule, and he agreed that she could work the hours she requested. I find that (1) Crean's inter- rogation of Tate about her union sentiments was coercive, and (2) his other remarks about good hours depending on the way she voted, in their context amounted to a thinly veiled threat that her continued receipt of a desirable work schedule and continued employment depended upon a vote against the Union, all of which re- marks violated Section 8 (a) (1) of the Act. 11. On September 20, D'Amato volunteered to Messore the information that he had attended a union meeting the night before. Messore asked him how many employees attended, and who they were, and D'Amato told him, just five, giving him names of produce clerks who attended, and saying, "You have got it made." This interrogation of D'Amato also violated the Act. 12 Early in October, Crean had a talk with Glen Weise in which he remarked that Weise's aunt had said that Weise was "for the Union." Crean then asked how many hours Weise had worked previously at another market (which was unionized). Weise said 12 to 15 hours a week. At the time, Weise was working 60 hours a week for Respondents. Crean reminded him of this, and said that if the Union came into the store, his hours would be cut and Respondents would have to "cut 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the help someplace." I find nothing coercive in these remarks, but consider them a persuasive but legitimate comparison of Weise's present hours with those in a prior union employment, and prediction of possible economic consequences of unionization of the store, like those Respondents made to many other employees 3. Alleged promises and grants of wage raises 1. Coreene Belt was hired by Respondents in May 1961. On several unidentified dates thereafter, she asked Messore for a raise, but the record does not show whether she received any in response to her early requests. When Messore unlawfully interrogated and threatened her in late August as found above, she was getting $1 an hour. In the first week in September she again asked Messore for a raise. He denied it, and she went back to work. A few minutes later, he came to her and said, "If you are so for the Union, why don't you ask the Union for a raise? He then said, "Coreene, I don't know what I am going to do about you, going against me behind my back." He then said he might give her a raise, but he was putting her on probation for the next few days to see whether he felt she deserved it, and that if she showed improvement in her work, he would give her a 15 cent an hour raise as of that day. In the same discussion he asked Belt what the workers thought of the Union, and she replied that some were for it, some against it.9 Messore's interrogation of Belt was violative of the Act, and his remark about her "going behind my back" in the light of his similar prior remarks to her shows again that he harbored resentment toward her because of her union activity. However, his remarks about the raise were apparently based solely upon Respondents' proven policy of giving raises only on merit, not on length of service or any other mechani- cal criterion, and the record clearly shows, as will more fully appear in my dis- cussion of Belt's quitting, that she had long been an unsatisfactory employee in many respects.'° Hence, I find nothing violative of the Act in his making a raise conditional on improvement in her work. , 2. I have found above that by unlawful interrogation of Patricia Watzka on August 27, Crean learned that she had signed a union card. On Saturday, Sep- tember 2, the busiest day of the week in the store, Crean learned that Watzka had been away from her work station for almost a half-hour, although the normal coffee break was 10 minutes. Crean found her in the basement talking to other workers about the Union He asked her if she had been talking to them about the Union in the store, and when she admitted it, he angrily reprimanded her for overstaying her coffee break, and flatly prohibited a repetition by ordering her not to do any union organizing on Respondents' time or property, but to "do it outside." Regard- ing her discussion with the others, he said, "I understand you are pretty het up about the Union." She said she was, and asked him what he thought about the Union " He asked if she had received Respondents' letter.ii She said she received it. Crean then expressed some of the hostile but legitimate opinions about the Union found above. He asked Watzka why she wanted the Union, and she complained that another employee (Katherine Leu) was getting more money than she for the same work, and that Watzka had been on the payroll longer, so that Respondents were unfair to her in that respect. Crean denied this, saying that Leu was getting the same as Watzka but deserved her pay more than Watzka because Leu did her work properly and there were no errors in her cash register, and she was not continually absent with illness. Watzka denied that she was continually ill or that she made mistakes on her register. On Sunday, September 3, Watzka talked with Crean about her work schedule. She had previously asked him for a change in hours, and he was agreeable. On this occasion, he asked her if her new schedule was straightened out. She said that it was, and they discused it in detail , and he agreed to her suggestions. Crean then told her that he was giving her a 5-cent raise, from $1.20 to $1.25 an hour, and that when "all this union business blows over" she would get more. Watzka received the raise in her paycheck for the workweek ending September 9. I find these facts on credited testimony of Watzka and Com- e These findings are based on credible testimony of Belt and Messore "Belt also testified that Messore said he would give her the raise "as of next Friday but you will not actually receive it until the union business is over" Messore categori- cally denied this statement I credit his denial, despite his proven resentment of her union activities , in the light of Respondents' wage policy and her long unsatisfactory service noted above n Respondents sent it to workers on August 31 , explaining emplovees ' rights to join or not join the Union , discussing the financial consequences of joining or not joining, and giving their opinion about what a union could or could not do regarding the operation of the business . I find nothing violative of the Act in this letter. THE GRAND FOOD MARKET 81 pant records. Crean does not explain the circumstances of the 5-cent raise, but only denied that he made any offer of more money over and above the $1.25 an hour, claiming that he has never offered female help more than $1.25, which was top rate for such help in the store. I do not credit this denial in the light of Respondents' other unfair labor practices and union animus found herein.12 In view of the fact that Crean had in effect denied a complaint by Watzka on September 2 about her pay, which could be construed as an indirect request for a raise, on the ground that her performance did not warrant it, the abrupt reversal of position with a grant of a wage increase the next day to an apparently unsatisfactory employee, without further explanation from Respondents, leads me to conclude that it was given only in an attempt to dissuade a known union adherent from further assisting or continuing her affiliation with the Union. I must therefore conclude that the grant of the raise, and promise of another when "the union business blows over," were acts well calculated to interfere with and restrain an employee in the exercise of rights guaranteed by Section 7 of the Act, and thus violated Section 8(a) (1) of the Act. His additional interrogation of her likewise violated the Act. General Counsel also claims that Respondents' prohibition of the right of Watzka and other employees to organize on company property was violative of Section 8(a)(1). While Watzka's talk about the Union on company time could legally be prohibited, extension of the prohibition generally to use of company property on nonwork time was clearly illegal, since there is no proof that special circumstances made such a broad prohibition necessary. I find that in the circumstances Respond- ents' promulgation and enforcement of a rule prohibiting lawful concerted activities by employees on company premises on their own time was an interference with em- ployees' protected rights and violated Section 8 (a) (1) of the Act.13 3 Mary K. Jacobs, who had been unlawfully interrogated about her union ac- tivities as found above, was a college student who had formerly worked full-time during the summer of 1960 for Respondents, and part-time during the ensuing school year; she returned to work late in August 1961, working until mid-October On an occasion between September 16 and 22, Messore asked her if she intended to continue working at the store after returning to school. She said she had not planned on it, as she intended to work for the school board while at college Messore said he would like her to stay with Respondents as a grocery checker. She said she did not know whether she wanted that job. He said she would have to work Sundays as a checker, and she replied she did not like that, but would be willing to work Friday night and Saturday. Messore asked her how much she was earning, and she said $1.25 an hour. He then said that if her other job did not work out, he would arrange to have her paid $1.35 an hour if she would learn to be a checker. Jacobs testified that Messore said he would pay her that amount "because I want you here at the union vote because I know you will be on my side," and also that he did not like the way some workers were acting, and "I'll tell you one thing, Barbara is the next to go." Messore categorically denied the quoted statements. Jacobs got the 10-cent raise several weeks later. Messore testified that he offered it because she was a good worker with a nice personality, and he wanted to keep her, but would train her as a checker because she apparently had an allergy to vegetables which made it difficult for her to work regularly in the 12 Respondents urge strongly that Watzka 's story is incredible because she first denied, then admitted , organizing on company time and property, and was a well-rehearsed wit- ness. While she says at one point she did not do any "organizing" on September 2, she admitted she later "contacted" another employee in the store , despite Crean' s warning This discrepancy is not significant : since the record does not show the details of the group discussion in which Crean found Watzka it is not clear whether she was merely taking part in a general discussion of the Union such as many employees had among them- selves and at times with Respondents , or whether she had started the discussion or was actively soliciting recruits for the Union. I cannot find that Watzka was a coached and "rehearsed" witness, telling a completely fabricated story, merely because she had gone over coming testimony twice with counsel for the General Counsel, as to which she ad- mitted "Twice he told me it-He told me the questions he was going to ask and I an- swered them." This indicates no more than careful preparation for trial by General Counsel by interview of the witness ; it does not indicate that he put words in her mouth, or caused her to memorize what he wanted her to say. Nor does her failure to remember all details of her talks with Crean, a common fault of witnesses , brand her as a complete fabricator. 1 The Bendix Corporation, Research Laboratories Division, 131 NLRB 599 . While this conduct was not specifically alleged as an unfair labor practice in the complaint, the issue was litigated at the hearing, and is therefore a proper subject of a finding. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produce department. I credit Jacob's version of the contested statements, because (1) the record shows that she continued to work in produce until she quit volun- tarily in mid-October; Messore apparently made no attempt to train her as a checker after she got the raise; (2) Messore had reason to believe from prior interrogation of her that she was antiunion, and admitted that on September 20 and 21 he had reached that conclusion in going over the list of employees with Crean and counsel to count the number of prounion and antiunion votes among the employees; and (3) in the light of Respondents' other unfair labor practices and active attempts by regal and unlawful means to sway employees against the Union, I conclude it is more likely than not that he offered the raise to Jacobs to prevent her from changing what he believed to be her antiunion sentiment, and at the same time warned her of the impending termination of Barbara (obviously Bahringer. there is no proof of another "Barbara" in the store), which in its context was clearly calculated to lead Jacobs to believe that Bahringer, whom Respondents knew was an active union adherent, would be terminated for her union activities. I find that Respondents' offer and grant of a raise to Jacobs and the remarks about termination of Bahrmger were coercive and violated Section 8(a)(1) of the Act 4. On a Saturday afternoon in late September or early October, Jacobs had a friendly talk with Messore, in which she said she was beginning to wonder about the Union, hearing different things, so that she was confused about it. Messore asked what good it could do her, saying he was the one who paid the wages, asking what the Union "could do about 19" and how they could force him to pay her more. He disparaged the Union as "crooks and racketeers" trying to take her money. He said that if he was forced to pay higher wages, he would have to close the store, and Jacobs would be out a job. He also suggested that she "keep her nose clean." Although Messore had previously used unlawful tactics to per- suade her to remain antiunion, I consider this last suggestion, stated in friendly fashion, falls short of a coercive warning that she not change her mind, since there is no context of clearly stated or implied warning of a reprisal if she became pro- union; I do not view Messore's remarks in this talk as a threat of reprisal, but merely legitimate arguments about the power of the Union to affect wages, and a prediction of possible economic consequences if the Union organized the store and forced wages up. 4. The alleged discrimination against Bahringer Barbara Bahringer, a high school student, was hired by Respondents early in July 1961 as a produce clerk She signed a union card on August 22 and was active in the union campaign, attending several union meetings and soliciting em- ployees in the store. On August 24, Messore learned of her union affiliation by unlawful interrogation of her. About a week later, Messore asked Bahringer if she knew about a union meeting scheduled for that evening. She said she did. Later that day Messore asked her what her pay rate was She told him 85 cents an hour. He said he did not realize he had been paying her so little, and that he would give her $1.15 an hour, adding "you be a good girl and don't attend the meeting." She got the raise effective September 5 Messore's query about the meeting was an unlawful interrogation which violated the Act. I also find that his sudden offer and immediate grant of 'a large pay raise was a palpable offer and grant of benefit designed to dissuade her from further union activity, in violation of Section 8(a)(1) of the Act, for these reasons: (I) Bahrmger testified credibly that she had never sought or received a raise from Respondents before, because her starting rate of 89 cents an hour was the same as she had received in an earlier job, and she was satisfied with it, hence I am satisfied that Messore initiated the talk about pay, and that she did not ask for it, as he testified. (2) The amount of the raise, about 35 percent of her starting rate, was unusual, far greater than Re- spondents' usual merit raises, which depended as to amount partly on the state of their business and partly on whether the employee was still within or had completed the probationary period. A 30-cent raise contrasts sharply with the conditional raise of 15 cents offered earlier to Belt, the 5-cent raise given to Watzka, and the 10 cents offered to Jacobs; and Respondents do not explain why they suddenly decided to jump the pay of Bahringer, a comparatively new employee, to a figure very close to that being paid to other employees of much longer service; there is no proof that she was told that she was, or was in fact, a person of superior per- formance who merited such a large raise. (3) The coercive grant of a benefit was consistent with Respondents' similar illegal attempts to wean Watzka away from the Union and maintain Jacob's apparent antiunion sentiment. THE GRAND FOOD MARKET 83 Notwithstanding the raise, Bahringer continued active in the union campaign, and attended union meetings on or about September 12 and 19. Respondents learned this from produce clerk D'Amato. I have found above that when Messore tried in the week before September 22 to induce Jacobs with a pay raise to remain at work and help him defeat the Union, he expressed resentment at the way some employees were acting, and said "Barbara is the next to go." Messore admitted that when reviewing the payroll on September 20, Respondents concluded Bahringer was for the Union. As the summer of 1961 drew to an end, Bahringer asked Messore several times whether she could work at night when school resumed. In one of these talks, Messore said he would try to arrange it. On September 22 Bahringer again asked him whether she could continue to work after school. Messore replied that he did not think he would need her any more and was going to lay her off for a while. She asked if she could see him about reemployment in ^a few weeks, and he said she could. Saturday, September 23, was Bahringer's last day of work. She re- turned in about 2 weeks to ask about returning to work, and Messore said he could not use her. Bahringer has never been recalled to work since. During her employ- ment her work had been satisfactory in the main. Bahringer's known activity in the union campaign, Respondents' attempt to dissuade her from such activity by an unlawful offer and grant of a wage raise, Messore's open resentment of her continued activity thereafter which prompted him to tell another worker that Bahringer was the "next to go," the fact that she had been a satisfactory employee, her sudden layoff on September 22 (after Messore had earlier said he would try to keep her on), the very day that Respondents received the union demand for recognition, in the light of Respondents' other unfair labor prac- tices and patent union animus, are all factors presenting a strong prima facie case of discriminatory layoff which required Respondents to come forward with cogent evidence of an economic layoff to rebut it. Respondents claim that Bahringer was only a temporary summer employee, who was released when business dropped off in the fall. Messore testified that he hired Bahringer to fill in during the busy summer season while a permanent employee, Mildred Hagberg, was on a long leave of absence. When sales volume dropped off in September and October, he discovered he could not afford to have both a girl and a man work every night of the week, and decided to have a man work alone on slow nights (like Monday), so he hired a man, Thomas Hughes, to take Bahringer's place at night. As this was on a trial basis, he agreed, when Bahringer was laid off, to talk to -her in a few weeks about reemployment; and on her return he told her he could not use her, because he had discovered the new arrangement was working out satisfactorily. The record shows that Respondents' business has seasonal fluctuations; produce department volume is high during the spring and summer and drops off in September and October, while grocery sales slacken in the summer, pick up in September and run high through .the winter; July is the busiest month in the store. Since Respondents watch closely their wage-to-sales volume ratio, they hire and lay off employees and vary their hours according to the seasonal fluctuations. In July and August, Bahringer had been working part-time, 2 nights a week from 4 to 9 p.m., all day Saturday, and 2 Sundays a month from 10 a.m. to 2 p.m. Early in September, when the store was short of help, she worked every night in the week for 3 weeks, but she knew that was only a temporary condition. During Bahringer's employment, Respondents had one male employee, Theodore G. Pettelman, working part-time at night, to do the heavy hauling of produce to the display counters, and help Bahringer package and display produce. Volume in the produce department began to drop off in September, Mildred Hagberg returned to work in the week of September 4-9, and, in addition, Messore on September 19 rehired Carol Schuld, who had worked for Respondents from October 1960 to June 1961, and had reapplied for work in August. Schuld worked substantially the same hours and did the same work as Bahringer. As Schuld was an experienced worker, Messore testified that he felt she was the better worker, and kept her in preference to Bahringer. When he rehired Schuld, Messore also hired Hughes, who worked every night in the week doing the same work as Pettelman. Messore testified that Hughes replaced Bahringer. Thus, during the busy summer season, Respondents had two female employees and at least one male clerk in the produce department, working nightly, except on slow nights such as Monday and Tuesday, when one man worked alone. The temporary shortage of help in the first three weeks of September, which required Bahringer to work every night, was alleviated by the hiring of Schuld and Hughes in the week ending September 23. Since that time, on Wesdnesday, Thurs- day, and Friday nights, the busy nights, one or two male employees work with Schuld; on Friday, a busier night, Fred Rathcamp, an older, experienced worker, 672010-63--vol. 139-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also helps them; on slow nights, such as Saturday, only one male clerk works with Schuld. These facts show that Respondents have been working their night crew in accordance with business demands and volume. In the face of these facts, Messore's choice of Bahringer for layoff, while retaining Schuld, does not appear discrimina- tory, because Schuld, as a former employee, was obviously the more experienced worker. The weight of this factor is diminished, however, by the circumstances that Messore had evinced a determination to get rid of. Bahringer, whom Respondents knew was a union adherent, while Respondents felt on September 20, as they testi- fied, that Schuld was an antiunion vote: Messore's interrogation of her that very day showed that she had been approached by the Union, but her answers indicated she had not signed a card (although she actually signed the day she was hired). Hence, it is a legitimate inference, in the light of Respondents' other unfair labor practices and their union animus, that they really preferred and kept Schuld, as much because they believed she would be a sure vote against the Union as that she was the more experienced or better worker. I must also take into consideration the fact that Respondents, in discussion with Belt and D'Amato as found above, had indicated their disposition to get rid of known union adherents by use of pretexts. Considering all the facts and circumstances pro and con, I am constrained to con- clude that Respondents have not sustained the burden of going forward with proof sufficient to overcome the strong prima facie case made by General Counsel, and I therefore conclude and find on the entire record that Respondents laid off Bahringer on September 23, 1961, because of her union activity, cloaking that reason by the pretext of an economic layoff, and thereby tending to discourage membership in a labor organization in violation of Section 8(a) (3) and (1) of the Act. 5. The alleged discrimination against Belt The complaint alleges that Respondents on September 14 reduced Belt's hours of work, and on the 15th terminated her, because of her union activity. General Counsel contends that Belt was forced to quit on the 15th, and was thus construc- tively discharged, by Respondents' campaign of unwarranted criticism of her, which began after they learned of her union adherence, caused her to work under "terrible strain" and "unbearable tension," and culminated in the abrupt cut in her hours, which was the final act causing her to quit. I have found that as soon as Messoie discovered Belt's union affiliation on August 24 he showed resentment, reproached her about it, and threatened to get rid of her the first chance he got. When Belt attended union meetings in late August and mid-September, Respondents quickly learned about it from her and interrogation of D'Amato. In light of these facts, Messore's overall treatment of her requires careful scrutiny. Belt testified that before August 24 she often had daily conversations with Messore in a casual friendly, joking vein, but after "this union business started," such dis- cussions stopped, he criticized her constantly about little things, she could not seem to please him. "there just was not any more nice talking, there were no compliments at all," and that she was working under a "type of strain", the change of attitude developed after Messore made her "assistant supervisor," for he constantly criticized her work although she was "new at the job " This is vague, general, conclusionary, and self-serving testimony which does not impress me as probative of anything but a subjective state of mind, which might or might not have been caused by actions of Respondents. However, General Counsel relies mainly on two incidents as proof of vindictive and "unbearable" treatment: (1) Credible testimony of Belt and Hall- berg establishes that on September 13 these employees ate lunch together in the basement, following which they came back to the selling floor and punched in their timecards 3 to 5 minutes late. As they did so, Alice Messore, wife of Respondent, was at the clock examining cards. and after the two punched in, she examined Belt's card, told her that she was late, that she was the only one who did it regularly, and that if she kept it up, her pay would be docked. Mrs. Messore said nothing to Hallberg about being late. Hallberg also testified without contradiction that she and other employees often return a few minutes late from lunch, but she had never been criticized for it. She admitted, however, that it was wrong to punch in late, that she had not done it "too often," only "several times." She added that shortly after this incident, Respondents put a timeclock in -the basement 14 (2) The record shows that the next day, September 14, Belt asked Messore for permission to leave 5 minutes early. He denied it, saying, "I should give you 5 minutes off 14 Credible testimony of Belt Hallberg, and Messore shows that Respondents had a stole rule requiring employees to return promptly from rest periods and lunch hours, to renort for work on time, and to punch timeclocks in and out promptly at the appointed times without omission. THE GRAND FOOD MARKET 85 when you came in late?" Belt also testified that: Messore then said, "I know what I am going to do, I am cutting your hours until you act better or improve yourself." When be told her this, Belt decided she could no longer stand the strain and "could not afford" to stay with her hours cut. On September 15, she decided not to come to work, but failed to telephone in that she would be absent. Later in the day, she changed her mind, and came in, as she knew it was a busy day and Messore would be short of help. When she came in late, she explained this to Messore, who re- marked that his wife reported that she was late, and warned her not to let it happen again. He also commented that he was surprised that she came in at all, after what he had told her the night before. In the afternoon, she told Messore she was quitting because she could not afford to stay there any longer, with the cut in hours, and would have to find another job. Messore merely replied, "Fine." On its face, the reprimand of Belt on the 13th for being late, while ignoring Hall- berg's similar offense, and the fact that Respondents apparently did not strictly enforce the rule about tardiness and prompt punching of timeclocks, affords some support for an inference that Respondents were watching Belt closely for any viola- tion of rules in an effort to find grounds for discharge. The fact that Messore that same evening denied Belt 5 minutes time off (which Belt says he had never done before) because of her rule violation that day, and then abruptly announced a cut in her hours, is consistent with that inference. On the other hand, there is also substantial evidence showing that Belt had long been deficient in her work and lax in compliance with store rules, that she was often warned about it, but had not improved as an employee. I find from credible testimony of Messore and admissions of Belt that: From the outset of her employ- ment, Belt had to be admonished often by Messore to carry out her normal duties, and to wait on customers, rather than to stand idle in the department; she often failed to report promptly for work; at times she came in quite late without prior notice, and would apologize for it-this made it difficult for Messore to rearrange his employees in order properly to cover the department; she was the only employee who at times punched the timeclock on entering the store, then changed into work clothes, and started work late, instead of changing first and then punching the clock ,as she went to her workplace; and on at least one occasion, she punched in late on returning from lunch and fell asleep in the restroom, where Mrs Messore found her 10 minutes later and bawled her out for it, and Belt apologized to Messore and offered to work 10 minutes overtime, but he did not insist on it. Her next-to-last violation of the late rule was the occasion on September 13 found above, Messore testified credibly that on this occasion he reprimanded her for it and told her that if she ever did it again, she should not come back to work, and that he was quite angry with her when she came in so late the very day she quit, without prior warn- ing, and commented that he was surprised she came in at all after his reprimand of the day before. On Monday, September 11, Belt openly criticized a regular customer about the damage to a melon which the customer had tested with her finger and found rotten. This upset and embarrassed the customer to the extent that she reported the incident to management, as a result of which Messore felt compelled to caution all the produce employees about the necessity for courteous treatment of customers and the avoidance of criticism of customers; Messore did not give Belt a direct personal reprimand on this occasion only at the request of the customer, who knew and had identified Belt by name. In the same period, Messore got a report that Belt on one occasion had refused to 'give a customer a bag to carry produce, although it was store policy to make sure that customers always received this service. 15 I am convinced by these facts that Belt was far from a satisfactory employee, and apparently had not improved her performance despite repeated admonitions and warnings, and that when in her last week of employment she was rude to a customer, violated the company rule against lateness, but at the same time asked for a favor in the form of early release from work, and on her final day of work came in very late without prior notice, Messore became, as he said, "fed up with it," upbraided her sharply on the 14th for her shortcomings, ex- pressed surprise on the 15th when she came in very late to work, and then said nothing more than "fine" when she told him she was quitting. I am convinced that Messore's change from a friendly, casual attitude toward her to one of con- stant criticism and irritation was caused more by her shortcomings (which became more frequent toward the end of her employment) than by his knowledge of her union adherence, although I think the current union campaign probably colored 15 On the melon and bag incidents , I credit testimony of Messore , Josephine Crivello, and Norma Stickler, and do not credit Belt 's denials of the incidents in view of her own admission that Messore had reason to criticize her for some of her actions 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his manner toward many employees to some extent, because he impressed me as a person of rather emotional temperament who was inclined to speak sharply when irritated or under tension ; and Belt admits that everyone else, as well as Messore, was under tension in this period. In sum, I am convinced that the "strain" and tension under which Belt labored during the last few weeks of her employment was brought on as much by her own shortcomings and lack of improvement as by the tense atmosphere created by the union campaign. That campaign, Belt's known union adherence, and Respondents' resentment of it, and even their apparent in- clination to be rid of her, did not give Belt any special rights to ignore rules and practices, or make her immune from criticism and discipline for her shortcomings, nor did it prevent Respondents from criticizing and correcting, even sharply and constantly, when she failed to respond to admonitions. Respondents had a clear right to take all reasonable steps to maintain discipline and efficient operation in their store in the midst of a union campaign.16 All these circumstances, which con- cluded with the four serious instances of Belt's poor performance shortly before she quit, were bound to make Belt stand out as an unsatisfactory employee in the eyes of Respondents, and this alone makes their disparate treatment of Belt and Hallberg on the 14th lose discriminatory significance; on that date, Alice Messore undoubtedly knew about Belt's recent shortcomings, and was prompt to reprimand and warn her when she discovered another rule violation in her very presence; in contrast, there is no proof that Hallberg, also a known union adherent, had an un- satisfactory work record in any respect. I think this instance shows no more than that, as between two union adherents, Respondents were interested only in .disciplining the one whose performance was continually below par and who was a chronic rule violator, not the one whose work gave them no cause for concern. This brings me to the alleged cut in hours, which Belt says was the final and main indignity which caused her to quit. Belt testified on direct and cross-examina- tion that Messore's bare announcement of the cut came abruptly in a 5-minute dis- cussion between them just before she quit work on the 14th; she does not state that Messore gave her the details of the new schedule, but in other testimony ex- plains that the new schedule was about 44 hours, the daily hours being from noon to 6 p.m., Monday, Tuesday, and Wednesday, from noon to 9 p.m. Thursday and Friday, and Saturday from 9 a.m..to 6 p.m., and that this involved a cut of 9 hours from her prior weekly schedule, which she says had been from 9 a.m. to 6 p.m., 6 days a week, Tuesday through Sunday, an average of 48 hours a week. While Belt says on direct examination that on the 15th she explained to Messore that the hours cut was the reason for her quitting, on cross-examination she states the con- versation as follows: Q. Well, what words did you use? A. To the nearest of my exact words, I came over to him, and I said, "Joe, I didn't come in-I was late this morning, yes. And I was not going to come in this morning, but I realize that Bob was going to be alone tonight and Friday nights are busy, so I am going to work for you tonight, but after to- night, I will no longer be with the Grand." This is what I told Mr. Messore. Messore categorically denied that he announced any cut of hours on the 14th, or that she mentioned the cut on the 15th when she said she was quitting. From Belt's timecards for the weeks from mid-August to her quitting date, introduced in evidence by Respondents and credible testimony of Respondents, I find that: Dur- ing July, she worked her usual 5-day week (Tuesday through Saturday), 8 or 9 hours a day, averaging between 41 and 45 hours a week (except the week ending July 8, when she worked 53 hours, including Monday and Sunday, but excluding the July 4 holiday).17 During August Belt worked the same general schedule, which included only one Sunday stint of 4 hours (August 20). During July and August, Belt had in part filled in for Mildred Hagberg, a regular employee on vacation. As Hagberg was due to return right after Labor Day (September 4), Messore dis- covered that he would not need three girls on day shift, hence he asked Belt on August 24 if she minded working nights, and she said she would work any hours he wanted. In the week ending September 2, Messore changed her hours, so that she was due to work from noon to 6 or 9 p.m. on Tuesday, Wednesday or Thurs- le Stuart F. Cooper Co , 136 NLRB 142 11 Respondents' workweek begins Friday morning and ends the nest Thursday night. 'The employees are paid on Saturday for the week ending the previous Thursday. New timecards are put into the clock Friday morning, and the employees' first punches on them .are for the Friday hours. THE GRAND FOOD MARKET 87 day, from 8 a.m. to 6 p.m., Friday and Saturday, and varying hours on alternate Sundays; the partial shift to nightwork 3 days a week was due to in part Hagberg's return, in part to a reduction m .sales volume, and the fact that the store was short of help some nights. However, the new schedule was on a trial basis, as Belt there- after alternated between partial nightwork and a full-day shift. Thus in the weeks ending September 9 and 16, she was on full-day shift, working 39 and 44 hours re- spectively, with only one Sunday stint of 4 hours; but she put in about 52 hours in the week ending September 2, including 4 night hours Monday (August 28) and 8 hours on Sunday, August 27, because that was a very busy week in which all employees were compelled to work long hours. These figures clearly show that even on her new trial schedule Belt's average hours were never more than 45 in a normal week. When confronted with these facts, Belt changed her story on re- buttal, claiming the alleged cut of September 14 would be only 6 hours instead of 9, and admitting the alleged new schedule would not include work on Mondays (her regular day off); she outlined the new schedule as Tuesday and Wednesday from noon to 6 p.m., Thursday and Friday from noon to 9 p.m., Saturday from 9 to 6 p.m., and Sunday hours varying "as it always has been," explaining she would work 2 Sundays a month, a full 8 hours the first, 4 hours the second, and have the next 2 Sundays off. The deliberate change in her sworn testimony, as well as her original vagueness about the extent and details of the cut, throws serious doubt upon the accuracy of her version of the events of the 14th. The fact that she waited until rebuttal to place in Messore's mouth the exact details of the new schedule (as corrected by her), which was a significant omission from her prior testimony, further impugns her credibility. Moreover, although she insists she told Messore she could not afford to work the shorter hours and would have to find a job elsewhere, she admits she had previously told other employees she intended to enroll in "the House of Good Shepherd" to study to become a nun, which raises the question whether she would be allowed to engage in worldly work while a student in that religious order: and although she says she told other workers she intended to get a job in a restaurant, she admits she has not been employed since she quit, which raises a question as to the real reason for her quitting, and throws serious doubt on her professed need for another job,18 and that portion of her alleged talk with Messore on the 15th. In view of these significant discrepancies in her story, I do not credit her testimony of the alleged cut in hours, but credit Messore's denials which jibe with her "exact" version of the talk given in cross- examination and quoted above. I see no sinister significance in Messore's simple reply, "Fine"; he admits he knew she intended to quit from reports of other workers to whom she had spoken during the day; and in view of her unsatisfactory perform- ance, I am sure Messore was glad to see her go without further ado. Furthermore, even if I credited Belt's version of their talk on the 14th, the reason which Messore gave for cutting her hours, "until you act better or improve yourself," is more indicative of a discipline for past unsatisfactory performance than a discriminatory retaliation for union adherence, particularly since she had been guilty of improper conduct toward customers twice in the past week or 10 days, and had been noticeably late in reporting for work twice in the last 3 days. General Counsel belittles the importance of Belt's poor record by arguing that Respondents were never really concerned about her tardiness and attitude toward customers, because Messore thought enough of her to make her "assistant super- visor" in the produce department in the absence of Hagberg. Belt testified that: Shortly after Hagberg went on leave, Messore told Belt .to take over Hagberg's duties. and to assign the other women clerks to various duties, to see that they packaged and displayed produce properly, and to make sure that they kept busy. At the same time he asked her to make out a Sunday work schedule for her- self and the other girls, and, after she did so. he told the other girls in Belt's presence that "Corky is the boss, she is in charge," at the same time patting her on the back. Messore admitted he told her to prepare the work schedule, and that when the employees appeared satisfied with it, he patted her on the back and, with a smile, told the other girls "Corky is the most." He denies that he made her a supervisor or put her in charge of other workers. Belt admits that she had no supervisory powers, and the parties stipulated that she was not a supervisor. She admits there never was a position of "assistant supervisor" in the store, and that she "assumed" that she was being put into that position because of the work schedule assignment, what Messore told the other girls, and the fact that both Hagberg and Fred Rath- camp had directed her in her work, and other workers had told her they were super- visors. She also admitted that she could assign other girls to certain work on orders 11 She did not testify to any later attempts to get employment. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Messore, and could change their hours on prior permission from him, but she still did the same work as the other employees. I am convinced by all these facts that, while Messore once gave Belt the assignment of working out a Sunday schedule for the girls in the department, and complimented her for it in the presence of other workers, he did not in fact give her the apparent status or authority of a supervisor, and that she magnified the single schedule assignment in her own mind into a supervisory status, out of all proprtion to the actual fact. At most, assign- ment of a simple clerical chore to her at a time presumably early in her employ- ment (she was hired in May) is only some evidence that at that time Messore considered her competent to do that job, and he naturally complimented her when she did it satisfactorily; but this amiable treatment on one occasion is far from proof that Respondents considered her such an outstanding and reliable worker that Messore chose to put her in charge of all female employees in the department, especially when she had been working only a short time. Considering all of the facts and circumstances and arguments pro and con, while there is grave suspicion that Respondents may have forced her to quit, I am con- vinced that Respondents have adduced cogent proof to show that Belt's hours were not in fact cut the day before she quit, and the combination of Respondents' proof and Belt's admissions show that she had long been an unsatisfactory employee and had been subjected to normal criticism and corrective action which may have made her last months of employment unpleasant, and that she quit for this reason which was due to her own conduct. Hence, I must conclude that Respondents have sustained the burden of adducing proof sufficient to show that Belt's quitting was brought on in the main by her own poor performance as an employee, and that General Counsel has failed to sustain the ultimate burden of proving that she was compelled to quit by Respondents' unbearable and vindictive treatment of her moti- vated by her union activity, or by any discriminatory cut in her hours. I therefore grant Respondents' motion to dismiss the complaint insofar as it charges an unlawful reduction of hours of work, or discharge, of Belt. 6. The refusal to bargain The Union sent its written demand for recognition and bargaining on September 20, but I consider it effective on receipt by Respondents on the 22d. Respondents' reply of the 22d questioned the Union's majority status and refused to bargain with it until certified as bargaining agent under the Act. By the 22d, 16 employees in the grocery and produce departments had designated the Union as their majority repre- sentatives For purposes of majority determination, this figure must be reduced to 15: Belt is excluded, as she was no longer an employee after September 15.19 The Union in its bargaining demand, and the complaint, describes the appropriate unit as "all regular full-time and part-time employees of Respondents employed at their Milwaukee store, exclusive of all those with a proprietary interest, wives and children of owners, all meat department employees, watchmen, and all supervisors as defined in the Act." Respondents claim this is not an appropriate unit only because it excludes four butchers in the meat department.20 The store has grocery, produce, and meat departments. Butchers in the meat department are on salary, three earning $130 a week, the head butcher $150 per week. They only cut meat and do no work in the grocery or produce departments. While employees in the latter departments are for the most part on an hourly rate of pay, on the demand date three of them were on salary 21 All of the store rules and practices apply to employees in all departments, except that the salaried butchers do not punch timeclocks. All store benefits such as vacations apply to all employees. In the 2 years that the store has been open no labor organization has sought to represent the butchers or meat department as a separate unit Under these circumstances, I conclude and find that the appropriate unit should include the four meatcutters 22 I find that all regular full-time and part-time employees of Respondents employed at their Milwaukee store, excluding all those with a proprietary interest, wives and 19 Respondents do not dispute that Susan R Moser and Mary K. Jacobs were employees on the 22d and should be included in the unit. 29 The parties agree that Daniel Crean, Jr., son of Respondent Crean, and the wives of both Respondents should be excluded 21 Fred Rathcamp at $150, Soderstrom $90, and D'Amato $75 per week 22 There is no proof that the head cutter has supervisory authority. Schaej7ers Prospect IGA Store, 124 NLRB 1433; Mrs Homer E. Ash and Bill H B Williams, a Copartnership doing business as Ash Market and Gasoline, 130 NLRB 641, 642 THE GRAND FOOD MARKET 89 children of owners, watchmen, and all supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. Respondents would include Fred Rathcamp in the unit, while General Counsel would exclude him as a supervisor. Rathcamp works in the produce department, is one of the oldest employees in the store, and knows all phases of the business well. He is paid $150, a weekly salary, far more than other salaried and nonsalaried employees in the produce and grocery departments. He has no power to hire, fire, or discipline employees, and does produce work like other employees under the supervision of Messore. Because of his experience , he relays Messore's daily orders about display and 'handling of produce to other employees and sees that the orders are carried out. He also helps to break in new employees in their duties. While lacking specific hiring and firing authority, Respondents admit that in matters in- volving hiring, firing, and discipline, they would respect his judgment and recom- mendations as against those of employees of lesser experience. When Respondents are out of the store, one of their wives is usually in charge of operations, but when all four are absent, Rathcamp is in charge. This situation occurs regularly every Tuesday night, at which time Rathcamp is responsible for closing up the store, making sure that lights are out, registers cleaned out, safe locked, and doors locked. Presumably this may involve giving orders to those employees who handle the registers in all departments. Employees in the produce department take orders from Rathcamp and regard him as their supervisor. I conclude and find that Rathcamp is a supervisor within the meaning of Section 2(2) of the Act and should be excluded from the unit. Leaving out Belt and Rathcamp but including the four butchers, it appears that on September 22,there were 29 employees in the appropriate unit (15 in the grocery department, 10 in produce, and 4 butchers). With 15 of them signed up, the Union thus had a majority of employees in the appropriate unit on the date of the Union's bargaining demand 23 Since the inclusion of the butchers in the unit did not affect the Union's majority status, I must conclude that the variance between the unit claimed by the Union and that found herein is not so substantial as to vitiate the bargaining demand or excuse Respondents from their duty to bargain. Furthermore, since Respondents' denial of the bargaining request on September 22 did not clearly question the composition and scope of the proposed unit, but merely the Union's majority in it, and they did not raise the unit question until their answer herein, it appears that this defense came too late to warrant a conclusion that it is raised in good faith. United Butchers Abattoir, Inc., 123 NLRB 946, 957; The Hamilton Plastic Molding Company, 135 NLRB 371. Respondents also argue that, on the basis of information volunteered by several employees (D'Amato, Belt, Watzka, Jacobs, etc ), they had reached a good-faith doubt on September 20 that the Union had majority status. I reject this contention, because the widespread, long continued, and unlawful interrogation of employees by Respondents, coupled with their other unfair labor practices found above, convince me that as soon as they learned of the union campaign on August 24, they embarked on a counteroffensive to dissuade employees from adhering to the Union; as they did this in large part by unlawful means, the conclusion is im- pelled that they were motivated, not by a bona fide doubt of the Union's majority status, but by a desire to prevent it by any means from achieving that status. While not engaged in a campaign to "gain time to undermine" an existing and known union majority status, they were using unlawful means to prevent the Union from gaining that status. Although the Union apparently achieved majority representa- tion despite Respondents' unlawful countermoves, it is not open to Respondents now =3I cannot remove Pettelman and Crivello from the majority of 15, as Respondents sug- gest, merely on the speculation that they might change their minds in the voting booth and vote against the Union, on the basis of what Pettelman may have said to Respondents, and the circumstance that Crivello may have signed her union card under some persuasion. The record does not show that these employees in fact withdrew their cards or repudiated the Union up to the time of the hearing, hence I must consider their signed authorization cards as continuing evidence of their union adherence , at least on the crucial date of demand For the same reason, the fact of Respondents' continual large turnover of employees is of no moment, for it is mere speculation to say that any or all new employees, as well as those present on September 22, would or would not vote for the Union in a later election. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to claim that they could have had a good-faith doubt about its status at any time during the campaign, when they engaged in a wide variety of unlawful acts of the type well calculated to prevent the Union from acquiring that position. In addi- tion, at least one of their unlawful acts, the discriminatory layoff of Bahringer, occurred after they had received notice of the Union's claim and request for recog- nition. In light of all Respondents' conduct, I must conclude that Respondents at no time had 'a good-faith doubt of the Union's majority status. See Laabs, Inc., 128 NLRB 374,24 and Al Tatti, Incorporated, 136 NLRB 167. I find that on September 22, 1961, and at all times thereafter, Respondents have failed and refused to bargain with the Union as the exclusive bargaining repre- sentative of their employees in the appropriate unit aforesaid, in violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondents set forth 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 thereof. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices in viola- tion of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. Having found that Respondents discriminated in regard to the tenure of employ- merit of Barbara Bahringer, I will recommend that Respondents offer her immediate and full reinstatement to her former or a substantially equivalent position without prejudice to her seniority and other rights and privileges of employment previously enjoyed, discharging if necessary any other employee hired by Respondents to re- place her, and make her whole for any loss of earnings she may have suffered as a result of Respondents' discrimination against her, by the payment to her of a sum of money equal to that which she would have earned as wages from the date of her discriminatory layoff to a date occurring 5 days after the date Respondents offer her proper reinstatement, less her net earnings in said period , to be computed on a quarterly basis according to the formula prescribed in F. W. Woolworth Company, 90 NLRB 289. No backpay will be recommended for Susan M. Moser who, though hired under discriminatory conditions, was actually accepted as an employee on the day that she applied. Respondents should be required to make available to the Board or its agents, upon request, such payroll and other records as may be neces- sary to enable a computation of the amount of backpay to be paid under the above recommendations. As Respondents have failed and refused to bargain in good faith with the Union as the exclusive representative of their employees in the appropriate bargaining unit found above, I shall recommend that they bargain collectively, upon request, wtih the Union as such representative and, if an understanding is reached, embody such understanding in a signed agreement. In view of the extent and variety of unfair labor practices committed by Respond- ents, I shall recommend that a broad cease-and-desist order issue against them.- Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All regular full-time and part-time employees at Respondents' Milwaukee, Wisconsin, store, excluding all those with a proprietary interest, wives and children of owners, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 211 have carefully considered other corollary arguments on this point advanced by Respondents in their brief , and on the basis of all the facts in the case and the findings made above, find them without merit THE GRAND FOOD MARKET 91 3. On September 22, 1961, the Union was, and at all times thereafter has been, the exclusive representative of all employees in such unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with said Union, by discouraging member- ship in a labor organization by discriminating in regard to hire and tenure of em- ployment of employees and applicants for employment, and by interfering with, restraining, and coercing employees and applicants for employment in the exercise of their rights under Section 7 of the Act to the extent found above, Respondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8'(a)(1), (3), and '(5) and Section 2(6) and (7) of the Act. 5. Respondents have not reduced the workhours or discharged Coreene Belt in violation of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondents, Daniel Crean and Joseph Messore d/b/a The Grand Food Market, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Retail Store Employees Union Local 444, Retail Clerks International Association, AFL-CIO, as the exclusive representa- tive of all employees of Respondents in the appropriate unit aforesaid (b) Discouraging membership in said Local 444, or in any other labor organiza- tion of their employees, by refusing to hire applicants for employment, or laying off or refusing to reinstate any of their employees, or in any other manner discriminat- ing in regard to their hire or tenure of employment or any term or condition of employment, because of their union activities or affiliation. (c) Interrogating employees and applicants for employment about their union affiliation, activities, or sympathies, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1). (d) Threatening employees with discharge because of their union activities, or offering, promising, or granting them wage increases in order to induce them to refrain from union activities. (e) Promulgating and enforcing a rule prohibiting union activity on company premises on employees' own time. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with said local 444 as the exclusive repre- sentative of all employees in the aforesaid unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Barbara Bahringer immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole in the manner set forth in "The Remedy" section of this report. (c) Preserve and, upon request, make available to the Board or its agents, all payroll and other records, as set forth in "The Remedy" section of this report. (d) Post at its place of business in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix." 25 Copies of said notice, to be furnished by the Re- gional Director for the Thirteenth Region, shall, after being duly signed by Respond- ents' representative, be posted by them immediately upon receipt thereof, and be maintained by them for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall 'be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. zs In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify said Regional Director, in writing, within 20 days from receipt of this Intermediate Report, what steps Respondents have taken to comply herewith.26 It is also recommended that the complaint be dismissed insofar as it alleges the unlawful reduction in workhours and discharge of Coreene Belt. 20 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read. "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain, upon request, with Retail Store Employees Union Local 444, Retail Clerks International Association, AFL-CIO, as the exclusive repre- sentative of all employees in the bargaining unit described below in respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody it in ^a signed agreement. The bargaining unit is: All regular full-time and part-time employees in our Milwaukee, Wisconsin, store, excluding all those with a proprietary interest, wives and children of owners, watchmen, and all supervisors as defined in the Act. WE WILL NOT discourage membership in the above-mentioned Local 444, or ,any other labor organization of our employees, by refusing to hire applicants for employment, laying off or refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire or tenure of employ- ment or any term or condition of employment, because of their union affilia- tion or activities. WE WILL NOT interrogate employees and applicants for employment about their union affiliation, activities, or sympathies in ^a manner constituting inter- ference, restraint, or coercion in violation of Section 8(a)(1) of the Act, threaten employees with discharge because of their union activities, or offer, promise, or grant them wage increases in order to induce them to refrain from union activities, or promulgate or enforce a rule prohibiting union activity on company premises on employees' own time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above- named Local 444, or any other labor organization, to bargain collectively through representatives 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 the provisos of Section 8(a)(3) of the Act. WE WILL offer Barbara Bahringer immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her. All of our employees are free to become, remain, or refrain from becoming or remaining members of Retail Store Employees Union Local 444, Retail Clerks Inter- national Association, AFL-CIO, or any other labor organization. DANIEL CREAN AND JOSEPH MESSORE D/B/A THE GRAND FOOD MARKET, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from its date, and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central 6-9660, if they have any question concerning this notice or compliance with its provisions.