J. Weingarten, Inc.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Ninth Region, shall, after being signed by a representative of Respondent Em- ployer, be posted by it immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the date of receipt of this Intermediate Report, and Recommended Order, what steps it has taken to comply herewith .3 Paragraph 5 of the complaint should be dismissed. '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 the Respondent Employer has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Dairy, Bakery and Food Workers Local 379, Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization of our employees, or in any other manner dis- criminate in regard to their hire or tenure of employment or any term or con- dition of their employment. WE WILL offer to Harvey A. Fillingane immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. ALLEN MILK COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. J. Weingarten, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 16-CA-1671. Febricary 27, 1963 DECISION AND ORDER On November 7, 1962, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has engaged in certain unfair labor practices, but that these did not -warrant remedial action, that the Respondent had not engaged in other unfair labor practices as alleged in the complaint, 141 NLRB No. 4. J. WEINGARTEN, INC. 23 and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Gen- eral Counsel filed exceptions to the Intermediate Report and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the ex- ceptions and brief, and hereby adopts the Trial Examiner's findings and conclusions only insofar as they are consistent with this Decision and Order. The Trial Examiner found, and the Respondent does not take ex- ception, that the Respondent violated Section 8(a) (1) of the Act by Hewitt's interrogation of Snelling in March 1962; Hewitt's threats to Craig on May 23 of "trouble," harder work, and possible discharge because of her union activities; and Thomas' statement to Snelling in August that Respondent had to "fight back with everything" against the Union. In agreement with the General Counsel's contentions, we find that Respondent further violated Section 8 (a) (1) by Hewitt's statement to Snelling on June 4. As set forth in more detail in the Intermediate Report, on this occasion when Snelling sought to take her 15-minute work break at 5 :45 p.m., Hewitt directed her to return to her checkout stand and told her she could take her break at 6:15 p.m. Hewitt followed his instructions to Snelling with, "Now, how do you like being a union steward." It appears that the checker force had been reduced by one employee that day and management had instituted the policy of requiring checkers to get permission for their breaks, at least during this store's busy periods. While, as the Trial Examiner found, the rule requiring permission may have been a reasonable measure to insure efficient service and operation of the store, we think that Hewitt, by coupling his direction to Snelling with the reference to the Union, made it clear that Snelling was being denied a work break at that particular time because of her union adherence. This, we find, also constituted an interference with the employees' exercise of the rights guaranteed in Section 7 of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent set forth above, occurring in con- nection with the operations of Respondent as set forth in section I of the Intermediate Report, has close, intimate, and substantial relation 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing to free flow of commerce. THE REMEDY As noted above, the Trial Examiner recommended that the com- plaint be dismissed in its entirety. We disagree. We do not consider the unfair labor practices so isolated as not to warrant the issuance of an order against the Respondent. In order to remedy the violations found, we shall direct the Respondent to cease and desist therefrom and post an appropriate notice to its employees. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. J. Weingarten, Inc., is engaged in commerce within the meaning of the Act. 2. Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Craig with "trouble," harder work, and possible discharge for union adherence, delaying Snelling's work break because of her union adherence, threatening to "fight back with everything" against the Union, and interrogating Snelling about her union senti- ments in a manner constituting interference, restraint, and coercion, the Respondent has violated Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the Respondent, J. Weingarten, Inc., of Tyler, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Threatening its employees with "trouble," harder work, and possible discharge for Union adherence, delaying employees' work breaks because of their union adherence, threatening to "fight back with everything" against the Union, and interrogating its employees about their union sentiments in a manner constituting interference, restraint, and coercion, in violation of Section 8(a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Retail, J. WEINGARTEN, INC. 25 Wholesale and Department Store Union, AFL-CIO, 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 and protection, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its store in Tyler, Texas, copies of the attached notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representatives, be posted by the Re- spondent immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with "trouble," harder work, and possible discharge for union adherence, delay em- ployees' work breaks because of their union adherence, threaten to "fight back with everything" against the Union, nor interrogate them about their union sentiments in a manner constituting inter- ference, restraint, and coercion. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail, Wholesale and Department Store Union, AFL-CIO, 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 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other mutual aid or protection, and to refrain from any or all such activities. J. WEINGARTEN, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No. Edison 5-4211, Extension 731, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE The issues in this case are whether or not J. Weingarten, Inc., herein called Respondent, ( 1) discharged an employee at its Tyler, Texas, store for union activity, and (2 ) discriminated against employees in that store in various ways, interrogated them about their affiliation with Retail, Wholesale and Department Store Union, AFL-CIO herein called the Union , threatened them with reprisals , and placed them under surveillance, all because of their union activities, in violation of Section 8(a) (3) and ( 1) of the National Labor Relations Act, as amended, 61 Stat . 136, etc., herein called the Act. The issues arise on a complaint issued July 20, 1962, by the General Counsel of the National Labor Relations Board,' and Respondent's answer which admitted jurisdiction but denied the commission of any unfair labor practices. A hearing was held on the issues before Trial Examiner Eugene F. Frey at Tyler, Texas, on August 28 through 31, 1962 , in which all parties were represented and participated fully through counsel or other representative . I granted General Counsel's motion to dismiss the complaint insofar as it charged that Respondent illegally required employees to work overtime without pay , and requested employees to assist in creating defects in work of other employees in order to create pretexts for their discharges . Decision was reserved on Respondent's motions to dismiss the remainder of the complaint on the merits; the motions are disposed of by the findings of fact and conclusions made in this report . All parties waived oral argument, but written briefs have been filed with the Trial Examiner by General Counsel and Respondent. 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. RESPONDENT'S BUSINESS Respondent is a Texas corporation with its principal office and place of business in Houston, Texas, where it is engaged in the business of retail sale of food and food products, in the course of which business it maintains and operates retail food stores and warehouses in the States of Texas, Louisiana, and Arkansas, including a facility known as store No. 38 in Tyler , Texas, which is the only store involved in this case . In the year ending April 1 , 1962, Respondent in the course of its business sold at its stores in Texas food and related products valued over $50,000, of which products valued over $50,000 were brought by it into Texas directly from other States , and were caused to be transported by it in foreign commerce directly from foreign countries. Respondent admits, and I find on these facts , that it is and 1 The complaint Is based on a charge and amended charge filed by the Union on June 6 and 15, 1962, respectively. J. WEINGARTEN, INC. 27 has been 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 activity of the Union The Union began a campaign in November 1961 to organize employees at the Tyler store. At the outset, Edna Craig, a clerk in the tobacco department, and a few other employees signed union cards. In or about January 1962 the campaign became more energetic, with an organizing committee consisting of Craig, Ruth Snelling, Nancy Palmer, Horace L. Pierce, Linda Smith, and Sue Booth openly and actively assisting in solicitation of employees, holding weekly meetings for them, etc. At the outset, the union representative, James Q. Stewart, Jr., also acted as agent of Local 540, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, in signing up meat department employees for that labor organization, and in February 1962, that union filed a petition with the Board for certification as bargaining agent of the meat department employees. Upon a consent-election agreement signed by the parties in that case, the Board conducted an election on February 27, 1962, among these employees, which was won by Local 540. That organization was duly certified as the bargaining agent and engaged in collective bargaining with Respondent, which culminated in a signed contract in April 1962. In March 1962 the Union filed a petition with the Board in Case No. 16-RC-3117 (not published in NLRB volumes), seeking certification as bargaining agent for a unit of all employees in the Tyler store, except those in the meat department. After a hearing on April 4, 1962, the Board on July 12 issued its Decision and Direction of Election. A Board-conducted election was held on August 10, 1962, which the Union lost. B. Respondent's reaction to the campaign During the events described herein, Charles Alexander was manager of the Tyler store, and Otto D. Hewitt, Jr., was manager of the grocery department and acted as assistant store manager in the absence of Alexander. It is admitted, and I find, that both are supervisors within the meaning of the Act. The record shows that Alexander and Hewitt became aware of the Union's campaign about February 1962, knew Stewart was connected with it, and that employees Craig, Snelling, Booth, and others on the employee committee were active union adherents. 1. Interrogation On the issue of interrogation, the record shows that: Once in March 1962, Hewitt asked Snelling if she thought the Union would be a good thing, and she replied she was for it 100 percent. Once in February, Hewitt stopped beside grocery checker Linda Smith, whice she was working in a grocery aisle, and asked if she was "for the Union." She said she knew nothing about it. He replied that it sounded "like a good thing" to him. She gathered from this that he favored a union. Smith had told other employees openly that she and another employee, Nancy Palmer, were going to become Wafs in the U.S. Air Force, and once in April, Hewitt stopped beside both while working and said he had heard that they were joining the Air Force, and asked if they would be stewardesses in an airplane. Smith replied that this was the first she had heard of it, but would not mind it.2 On several occasions in April, Hewitt asked Craig, while passing her checkout stand, "How did the meet- ing go?" and "When is the big deal coming off?" but went on without waiting for a reply. Craig testified she did not understand what he was referring to in either ques- tion, but that she had attended a union meeting the night before. While there is evidence management had been told about some union meetings by employees, there 2 Smith, an active union adherent, testified that Hewitt asked on this occasion if she and Palmer would be "stewardesses for the Union." Hewitt denied this , and testified as I have found above Palmer did not testify In support of Smith, but employee Thomas McGowan testified without contradiction that Smith had told him she and Palmer were joining the Air Force. I conclude that Respondent has adduced sufficient credible evi- dence to support Hewitt's version and overcome Smith's unsupported testimony. I there- fore credit Hewitt 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no clear proof that Hewitt knew about that meeting. However, he admitted he may have asked these questions, explaining credibly that Manager Alexander held early morning meetings for store employees several times a month (there were two of them in April), which Hewitt never attended because on such days Alexander would leave the store early, leaving Hewitt to stay late and close the store, and that Hewitt learned about such meetings only by questioning employees in various de- partments the next day. On the above facts, I find that only Hewitt's interrogation of Snelling in March was of the type calculated to be coercive. His query of Smith in February was a casual remark in a context indicating it was not coercive, and his later remarks to Smith and Craig did not appear to refer to any union activities. However, Snelling admitted that, when employee Roger Ferguson made remarks to her in February indicating he did not like the outcome of the meat department election, Hewitt told Snelling, "Don't let Mr. Ferguson blow any smoke up your ass," which Snelling interpreted to indicate that Hewitt was advising her not to let Ferguson's antiunion sentiment influence her. Hence, Hewitt's isolated interroga- tion of Snelling later is not conduct which warrants remedial action, unless shown to be part of a pattern of union animus and conduct by Respondent 2. Alleged discriminatory enforcement of work rules a. Changes in "break" practices At its Tyler store, Respondent gives employees two 15-minute rest periods, or "breaks," daily, one in the morning and one in the afternoon. Craig, who was the sole clerk in the tobacco department for the past 2 years, testified that prior to April 1962 when she says the union activity reached its peak, employees had been permitted to take their regular as well as necessary restroom "breaks" any time they desired, without any check on their time of leaving or return, and without the necessity of procuring a relief worker to take their place or specific permission of management beforehand, but that this practice changed in April, in that Craig was allowed to take breaks only with specific permission of her supervisor, Miles, or Hewitt or Alex- ander, after a relief worker took her place, that at times Miles denied her an after- noon break where she did not take it early in the afternoon, but instead told her to go home 15 minutes early, and that Miles would check her "break" time on her watch. Snelling, a checker in the grocery department, testified to the same effect. However, any inference of discrimination against Craig which might be drawn from her testimony is negated by her own admissions that: Her privilege of taking breaks at will without getting a relief was stopped at least 18 months before the hearing, long before the Union began its campaign. Prior to that time the tobacco counter was a separate department and she was its manager with authority to ask grocery clerks to relieve her for breaks, but since the tobacco counter was merged into the larger nonfood department supervised by Miles, Craig has been the only clerk at the tobacco counter, hence could not leave it unattended during a "break," without having management get her a part-time relief worker. It is clear from credible testimony of Alexander, Miles, and Craig that this was necessary at the tobacco counter, to make sure it was s.:• left unattended at any time, and the same practice has been followed in the bakery department for the same reason. Miles and Alexander also testified credibly that since the merger, whenever Craig desired a regular or restroom break, either Alexander or Miles would upon request relieve her, or get another worker to do so, and that Craig never objected to the practice. As for the alleged denial of afternoon breaks, Craig admitted that this usually occurred on days when she came to work early, from 7.30 a in to 4 p.m., and took her lunch hour between 1 and 2 p in. Miles testified credibly that this often occurred on Thursdays when Miles had to work in the store stockroom supervising the unloading and placement of new merchandise for the nonfood department until late in the afternoon, so that Craig often worked through her usual break time and Miles would compensate by allowing her to go home 15 minutes early, and that Craig never complained about this practice. These circumstances clearly demonstrate that the restrictions upon "break" practices, as applied to Craig and other lone workers, were imposed only by considerations of store efficiency and long before the union campaign started. I find this was not a violation of the Act, insofar as it was continued during the campaign. Craig also testified that since November 1961, she was denied her prior privilege of taking additional shopping or coffee breaks whenever her husband came into the store, but the same restriction was not placed on two employees in the nonfood de- partment who were not union adherents. Her testimony on this point is not per- suasive. She was vague as to when this practice started, at one point stating Novem- J. WEINGARTEN, INC. 29 ber 1961, at another April 1962. While she says Miles at times specifically denied her the right to take a shopping break when her husband came in, she admits she had never asked Miles for such permission in recent months. Miles denies that she ever rejected such a request, and testified she often suggested Craig take a break when her husband came in. Craig admitted the only time she was denied a shopping break during the campaign was one night, just before closing time, when Craig asked employee Meyers of the nonfoods department if she would relieve Craig for that purpose, and Meyers refused. Craig admits she did not ask Miles or any man- agement official for permission, and it is inferable from testimony of Miles and Alexander that they would readily have relieved her themselves if she had asked them to. There is no proof that Meyers' refusal to cooperate on this occasion was insti- gated by management, hence Respondent cannot be held responsible for her refusal to aid Craig for some reason not disclosed by the record. Craig also admitted that she knew of no other employees (union or nonunion) who had requested and were denied shopping breaks. Finally, Craig's whole testimony on this point is effectively controverted by the admissions of Union Agent Stewart that during the past 11 months or so, he "would know when Mrs. Craig had her break, she would meet me at the coffee counter, we have had coffee together," which indicates that right up to the end of her employment, she still was allowed to take breaks regularly enough so that she could meet Stewart, and not at the mere whim of management. On all the pertinent facts, I am not convinced that General Counsel has sustained the requi- site burden of proving that Respondent discriminated against Craig in this regard. Although Snelling's testimony supported Craig's story generally on the change in the "break" practice, her first experience with it was on Monday, June 4, 1962, when her workday ran until 7 p.m. During the afternoon, she had not been told by Hewitt when to take her break, so when she finished checking out a customer about 5:45 p.m., she closed her stand, put up the "closed" sign, and started for the restroom, without notifying Hewitt or requesting a relief. When he saw her leaving, he came over from the coffee bar, asked where she was going, and when she said she was taking her "break" and needed to go downstairs, he said he would decide when she could take it, and told her to go at 6:15 p.m. Without reply or protest, she went back into her stand, and about 10 minutes later, as she was checking out the next customer who came to her, Hewitt returned and repeated that she could take her break at 6:15 p.m. She did not answer, so he came closer, pounded on her counter, repeated the remark, and, smiling, said, "This will give me time to take care of my little operation." She said she had heard him the first time. He then said, "Now, how do you like being a union steward?" She took her break at 6:15 p.m. When Hewitt gave her the order to wait, there were three other checkers on duty. I find these facts on Snelling's credible testimony, which is not contradicted by Hewitt, except for his denial of pounding on the stand, and the remark about the "union steward." While these facts prima facie afford some basis for inference of an unwarranted and discriminatory change of a work rule against a known union adherent, other facts weigh against the inference. Snelling admits this was the first time she ever asked Hewitt for a restroom break, as such, as she had always gone to that room during her regular 15-minute break. Credible testimony of Alexander and Hewitt noted above persuades me that if she had made it clear to Hewitt that she urgently required a trip to the restroom, then he would not have prevented it. Snelling could not recall if the store was busy that afternoon, but the record shows that the store, and the checkers in particular, were usually busy around 5 p.m. every afternoon. In addition, Snelling admitted that under prior practice the checkers "took turns" in taking their breaks, from which it can be inferred that they did so in order not to leave the check stands unattended. The record shows that, starting June 4, the checker force had been reduced by one employee, who was transferred to the drug counter, new work schedules and hours for all employees had been put into effect by top management, and Hewitt and Alexander instituted the policy of requiring checkers to get permission for their "breaks," and that management re- quired a relief worker for any checker taking a break during the busy hours. Hewitt also testified without contradiction that on two other occasions after June 4, he noticed Snelling leaving her stand without permission at a busy time, asked where she was going, and then suggested that she postpone her "break" until a line of customers at her stand had been checked out, and that Snelling did not ask for a restroom break on these occasions. Finally, Snelling admitted that the alleged restriction on her "break" practice was not applied to other checkers, at least two of whom were union adherents (Linda Smith and Sue Booth). It is also noteworthy that Craig said nothing about this alleged discrimination in her earlier affidavits to the Board. Considering all these facts and circumstances, I am convinced that the requirement of specific permission for "breaks" during busy periods, as applied to 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grocery checkers, while an apparent form of closer supervision of checkers' opera- tions than in the past, supports the inference that it was a reasonable control measure to insure efficient service and operation of the store, particularly in busy periods, far more than the inference that it was a discriminatory restriction on union adherents; and the fact that Hewitt applied it to Snelling when she tried on several occasions to revert to the old practice of taking "breaks" at will is as consistent with the former inference as with the latter. Standing by itself, Hewitt's single remark to Snelling at the time of the first order specifying her break, about her feeling about being a "union steward," is rather equivocal and not substantial evidence of union animus, for there is no proof that Snelling at that time held an office or position of leader- ship in the Union, other than as a member of the store organizing committee. However, Snelling also testified that: Before April she was allowed to relieve about 3 hours a day in the bakery and lobby department, which she considered a pleasant change from the monotony of grocery checking, but that starting in June, she was no longer permitted to do relief work. On August 11, 1962, the day after the Union lost the election, Snelling had an angry argument with Hewitt during which she slapped his face for "talking short" and making a sarcastic remark to her, and shortly after she told Alexander in the presence of Clifford Thomas, a company official from Houston, Texas, that she was quitting Thomas asked her why, and she complained that the relief work had been taken from her without explanation. Alexander and Thomas persuaded her to remain at work, Thomas explaining the change in her relief assignments by saying "you are using every weapon to get a union" and "fight the company," and "we have to fight back with everything," and that "back there [in the bakery department at the rear of the storel you could talk to produce workers and bakery girls, so we had to put you where you could be watched." 3 Since Alexander did not deny this discussion, and Thomas did not testify at all, I find that Thomas made the remarks as stated by Snelling. His remarks tend to color the "union steward" remark of Hewitt to Snelling, and also afford support for the inference that the change in the "break" and relief procedure, as applied to Snelling, may have been motivated by a desire to retaliate for her known union activities. However, the inference is weakened as to the relief work by Snelling's admission that she never complained about the change in the relief practice, or asked for a transfer from her "monotonous" checker duties, and that the only real change thereafter was that Alexander allowed checkers on duty at the same time to rotate the relief work in the bakery department by agreement among themselves, and he still continued to send Snelling there on Saturdays and on other unspecified days of the week. This would indicate that he was spreading a desirable relief stint among all the checkers, rather than continuing to favor Snelling in that respect, as in the past, but was still not depriving her entirely of that work. While withdrawal of this favored treatment might be considered a form of discrimination in the light of Thomas' later explanation to her, I also recognize that the change in practice occurred at the same time as the changes in hours, work schedules, and "break" practices found above which appear to have an economic basis. On all the pertinent evidence, I am constrained to conclude that the record is insufficient to support a finding that Respondent discriminated against Snelling in respect of the relief work. On all of the above facts and circumstances, I conclude that General Counsel has not proven by the requisite preponderance of substantial proof that Respondent discriminated against union adherents in the application and supervision of its "break" policy or relief practice. b. The use of sack boys Respondent employs sack boys, also known as "carryout boys," who help checkers by sacking merchandise at their check stands and carrying the sacks to customers' cars. Sack boys are not assigned to any particular checker, but help all of them, normally going to any check stand where sacks are ready for carryout, or where a large order is being checked out Snelling testified that while sack boys formerly followed this procedure, the practice changed sometime in April to the extent that the boys were ordered to help nonunion checkers more than her and other union adherents, and that on occasion Hewit directed boys to leave Snelling's stand to work for other checkers. This testimony is not impressive for several reasons. Snelling was very vague as to the time of the change, placing it variously in April, May, and June. She could recall only one specific instance. stating that once in June, Hewitt took sack boy Jack Downs from her counter while she was checking out a large order and assigned him to help a nonunion checker, and that a customer 3 Snelling finally quit her lob on August 22 J. WEINGARTEN, INC. 31 waiting in line at Snelling's stand complained to management about it. However, the customer (a Mr. Epperson) did not testify and Downs did not support her story, for he denied that management ever told him not to help Snelling or any other checker, or pulled him away from one checker, while sacking for her, to help another. On cross-examination, Snelling could not recall any specific occasion when Hewitt withdrew a boy from her stand, admitting it merely "seemed" that the boys helped other checkers more than her. Nor was she sure about Hewitt's alleged order to Downs in her own case. On the other hand, credible testimony of Marguerite Johnson, Alexander, Hewitt, and Downs establishes that: In June management lost several sack boys, which put more work on the remaining boys and the checkers. In consequence the managers watched the boys more closely to make sure they were available at busy periods, and Hewitt often watched the boys working at the stands at such times, frequently directing them by voice or hand motion to various stands to take out parcels ready to go. The checkers themselves often called for the boys when products were sacked; however, sack boys normally finished sacking an order at one stand before going to another. It is also significant that there is no proof that Snelling ever complained to management about this particular alleged dis- crimination against her. Only one other prounion checker, Sue Booth, testified in support of Snelling, stating only that on one occasion in July or August, after Hewitt had told her to check a large order (she normally handled "express" orders of six items or less), sack boy Bowen started to sack the order for her, then left her and sacked for checker Winkles, so that Booth had to finish the order, and that Bowen returned and told her later Hewitt had sent him to Winkles' stand. However, this testimony is not substantial, for Bowen did not testify in support of Booth on this point, and Booth herself did not hear or see the alleged order by Hewitt, nor did she know whether or not Winkles' order was smaller than hers, but she admits that Bowen carried out the order from Winkles' stand while Booth finished sacking the one at her stand, which shows Winkles' was ready for carryout before Booth's order was checked out. Considering all of this testimony, I am unable to find substantial proof to support the conclusion that Respondent discriminated against any checkers in the assign- ment of sack boys. c. The "scrubbing" incidents Craig testified that her normal house-cleaning practice was limited to dusting her tobacco counter and stock, and that the store porters usually scrubbed down the store walls, counters, and other equipment, but that on May 30, Miles ordered her to scrub her own department with a bucket of water and sponge. I find no discrimination in this, for Craig did not complain about it to anyone, and Miles testified credibly that for about 10 days in this period all employees in the nonfood department were engaged in a normal annual spring house-cleaning program, in which they had to scrub and dust their respective counters and equipment, and that Craig only had to clean about 20 square feet of area in her department, while employees in the home service center and drug department had to clean far larger areas. Snelling testified that normally the store porters and sack boys cleaned off the checkout stands, but that once in April Hewitt had a porter bring her and checker Smith sponges and a cleaner and ordered them to clean off their stands (although Snelling's stand was already clean) while Hewitt and two antiunion checkers stood nearby and watched. This testimony was obviously intended to create an impres- sion of deliberate discriminatory humiliation and degradation of a union adherent, but it loses all signficance in light of Snelling's admissions that: it was part of the checkers' duties to keep their stands clear of dirt from produce, spilled liquids, etc., with sponges provided for that purpose. If a checker lacked a sponge, as often happened, Hewitt would have a porter or another checker procure a sponge for her. Hewitt would often tell a checker to clean off the stand if he thought it was soiled. On the occasion Snelling mentioned, she was lacking a sponge, and although Hewitt may have told her to sponge down the counter when she got it, even though it may not have been noticeably dirty, I do not think this was such a departure from normal practice as to denote discrimination against her, particularly since she could not state whether other check stands were in need of cleaning or whether other checkers also lacked sponges. Even giving full weight to her testimony on the sub- ject, I would still consider the incident an isolated and trivial matter which falls short of discriminatory conduct requiring remedial action under the Act. 3. Alleged surveillance Craig and Snelling testified that, beginning in March or April, Hewitt began to "stare" at them for periods from 2 to 6 minutes at a time while they were working, 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "stared" in like fashion at other checkers and grocery department workers who were union adherents, but did not so treat other antiunion workers. Craig say that: This practice began after she had been summoned to a private talk with Alexander early in April at which he criticized her general "attitude" and work performance, that after this Alexander, Hewitt, and Miles began "watching me constantly," and "kept me under almost constant surveillance." Hewitt stared at her from various points in the store while she worked and when she was returning from breaks. He also on occasion leaned over her counter while she was bending down to arrange stock on shelves, and said "Oh, there you are," or "You are there, aren't you?" This testimony loses persuasive force, however, in several aspects. Craig is vague about the frequency of the "staring": she puts it variously as "quite often," "everyday practically," "one or two times," and could not state on cross-examination whether it started before or after the union campaign began. As to the counter incidents, she could recall on cross-examination only once that Hewitt leaned over the counter to look for her, but she does not say that he made any enlightening comments, much less criticism, other than the quoted remarks, which would indicate only that he was satisfied she was actually behind the counter. He admitted that he did this during his rounds of the store in Alexander's absence, whenever he did not see her behind the counter. As she was the only clerk on duty there, and it was store policy never to leave that counter unattended, his concern on seeing the counter apparently unattended is but natural, and his action and remarks on one such occasion appear only to be normal managerial concern with store operations and fall far short of surveillance for antiunion reasons. There is no proof that on such occasions Craig was talking to the union agent or other union workers. Craig also admits that "it seemed" Hewitt would stare noticeably at her only when Alexander was out of the store, but this is explained by the preponderant credible testimony of witnesses of both sides, showing that Hewitt was in full charge of the store whenever Alexander was absent, on which occasions he would make a complete circuit of all departments, observing and checking the stock and work of all employees, asking managers about the condition of their stock and sufficiency of help, and other problems. His rounds usually started at the back of the store and ended at the tobacco counter in the lobby. It is also significant that Craig could not describe the "staring" by any terms which would enable the trier of the fact to determine whether it was hostile, malig- nant, or reasonably calculated to be intimidating by outward appearance, and it is significant that Craig made no complaint about it to Hewitt or Alexander. Nor did she say it affected her work; at most, she said, "I did not care for him watching me." In view of the fact that Craig and Hewitt did not care for each other and had had "personality clashes," as she admits, it is a reasonable inference that she was in- ordinately sensitive to Hewitt's normal movements from reasons of personal animosity, and in her own mind expanded his normal movements and op- erations into hostile actions directed against her. Craig also tried to build his "staring" into a discriminatory practice by testifying that he did not similarly treat Martha Davidson and Mildred Meyers, other nonfood employees who were appar- ently antiunion, but this testimony is not persuasive because Craig admits, on cross- examination, that she was not in a position to observe his actions toward them, for they worked at some distance from her in locations she could not see, and she admits "I never did see him watching them." Although she says he also "stared" at checkers Snelling and Smith, she also admits she did not pay attention to whether he watched other employees besides herself, and could not tell, when watching him, whether he was "staring" at or merely observing other employees while at work or on their breaks. I am satisfied from all this testimony, particularly Craig's own vague and contradictory statements, that she was never under surveillance such as would be coercive under the Act, but was merely observed in her work by Hewitt in the normal course of his duties 4 Snelling's testimony on "staring" is equally insubstantial. While the record shows that Hewitt often came down a grocery aisle and watched her and other checkers for 41 find no coercive conduct in Miles' cigarette break in the lobby while Craig and Stewart were having coffee once at the nearby refreshment bar, or in Hewitt' s single casual observance of Craig and Horace L. Pierce, another union adherent, while they procured stock in the basement storeroom , or other isolated instances where management officials may have seen Craig in the company of Stewart in the store. The record shows that employees and supervisors regularly took their breaks and occasionally smoked -cigarettes at or near the coffee bar, and Craig admits she often smoked cigarettes for a moment outside the tobacco counter. When Hewitt saw Craig and Pierce, he merely glanced casually at them and passed on without comment. J. WEINGARTEN, INC. 33 several minutes while they arranged stock or did other chores in the grocery depart- ment, and did not speak to Snelling while "staring" at her, she never complained to him or Alexander about it. There is no proof that at such times she or other checkers were engaged in discussions with other union adherents which might have prompted him to watch her closely. Hewitt's normal duties required constant supervision of the grocery department, including checking stock and observing work of checkers and other employees while stocking the aisles, and often helping them in that work. He took care of a particular grocery aisle personally, and he constantly talked to all his employees, including Snelling, about their work. I conclude that the proof does not indicate any unusual or overly close supervision of union adherents which might support an inference of surveillance; at most, it shows Hewitt watched his grocery employees at work, both nearby and from afar, in the normal course of his duties and, when he was in charge of the store, rather closely observed work in all depart- ments. Craig also says Hewitt from June onward always clocked her on her regular breaks, by looking at his wristwatch or the store clock, while she was at the coffee bar "to be sure I did not stay over my 15 minutes." Aside from the fact that this would appear to be a normal supervisory function, her testimony on this lacks credibility in the light of Hewitt's uncontradicted testimony that he broke his left arm in March, and it was in a cast for 6 or 7 weeks during which period he could not have worn a wristwatch on his left wrist (its normal location), and that he had not used a wristwatch for over 4 years. In addition, Snelling said nothing about his "staring" practice in any of her three sworn statements given to the Board in June, when she admits her memory was much better than at the hearing. Snelling's testimony that she did not see Hewitt "stare" in like fashion at Johnson and Lambert, antiunion checkers, also loses significance in light of her admission that Johnson never worked in the grocery aisles, and Snelling could not observe Hewitt whenever he walked down an aisle to observe or help Lambert in her work, as he often did. I find that General Counsel has not sustained the ultimate burden of proving by a preponderance of credible proof that Respondent engaged in surveillance of em- ployees in violation of the Act. C. The alleged termination of Edna Craig Edna Craig was one of the first employees at the Tyler store when it opened in November 1956, and worked there steadily until May 30, 1962. Within a year after hiring, she was promoted to lobby manager and in 1959 became manager of the then tobacco department. About mid-1960 she became the clerk at the tobacco counter (but without decrease in pay) on its merger into the nonfood department.5 Except as hereafter noted, Craig's work performance had been satisfactory, and she had received several awards during quota competitions in the store as well as several automatic wage raises given to all employees. I have found above that in the early months of 1962, Respondents was well aware of the prounion activities of Craig and other employees. As the sole clerk at the tobacco counter, it was Craig's duty to wait on all customers and also never to leave the counter unattended without securing permission from Miles, Alexander, or Hewitt so that one of them or another employee could take over in her absence. However, she was also permitted at will to take occasional short breaks immediately outside the counter to smoke a cigarette when customers were not waiting for service. On Monday, April 2, 1962, Alexander called Craig to the basement office for a discussion of her work, in the presence of Supervisor Miles. He told her that something seemed to be bothering her because her work was suffering, and asked her what was troubling her. She denied that anything was bothering her and asked if he had any complaints from customers He and Miles -admitted there were none. She then asked why she was called in. He said her "attitude was not good," that she had complained about assignment to night work, and that on the previous Saturday she had neglected her counter by talking outside it to another employee while customers stood there waiting for service. He said she was not doing the kind of job of which she was capable, and that she needed to do better. Craig asked him to speak "plainly" to her, that if he was going to discharge her, he would have to do so, because she would not quit. He replied that he did not want to discharge her, just wanted her to go back to her lob, change her attitude, and be a better employee. During this hour-long discussion, there was no mention of the Union or her union activities. At one point, Craig said she "did not like the way things were," without explaining what this meant, and complained that Alexander had 5 The nonfood department was created by merger of the home service department, drug counter, and tobacco counter, under the overall supervision of Phyllis Miles 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "changed" and was not "talking" as much as he did before-6 General Counsel cites this conference in his brief by mtimatmg, but not directly charging, that it was part of a pattern of preparing a pretext for the discharge of Craig. I cannot agree. Credible testimony of Craig, Miles, and Alexander establishes that: When Respond- ent reduced employees' man-hours and rearranged their work schedules in November 1961 for business reasons, Craig was shifted from straight day shift to a partial night schedule of 10 a.m. to 7 p.m., 2 days a week. She complained vigorously to Alexander about it, threatening to quit, and he had to talk to her twice before he could persuade her to stay. On various occasions in the past, Craig had complained to Alexander that she had too much work to do, and could not finish her chores because she often had to do work left undone by the night clerk the evening before. She often gave him this excuse when he asked her to clean up or perform other necessary tasks at her counter. On occasions in the past, Alexander and Miles had been compelled to remind Craig to get behind her counter to wait on customers. On Saturday, March 31, 1962, Alexander's wife had called his attention to the fact that Craig was talking to another employees outside her counter while customers were waiting for service, and when Craig noticed Alexander motioning her back to her counter, she quickly returned to it. When Alexander mentioned this incident at the Monday conference, Craig argued that she served the customers, and he admitted she had, but said they may have been waiting for some time. It was Respondent's normal practice to discuss an employee's work performance in the presence of her supervisor. On these facts, it is clear and I find that Alexander's talk with Craig was no more than a normal conference with an employee about deficiencies in her attitude and work which had been noticeable for some time past. On May 23, 1962, about 3:30 p in, Assistant Manager Hewitt was walking toward the front of the store, when a checker called for a sack boy. When none appeared, he started to take the sack outside, and saw sack boy Roy Bowen sitting outside the store talking with Craig, who was drinking coffee on her regular break. When Bowen came in, Hewitt told him he had had his break, that packages had to be carried, and said "Let's go." Hewitt then carried a package out himself, and on his return noticed Bowen talking with Craig at the coffee bar. Hewitt walked over to Craig and asked if Bowen had been telling her about Hewitt "eating him out." Craig replied that Bowen was the best sack boy they had. Hewitt agreed that he was very good help, and then said to Craig, "Why is it that every time I get onto some of my help they come running to you?" She said she did not know. He then told her, "If you don't stop calling that little union guy every time something happens, you are going to find yourself in trouble; I may not able to fire you but I will work hell out of you, and that would be a good way to get run out of here." Craig replied that she did not need him to watch her "like a watchdog" all the time, that "when I need a bodyguard to tell me what to do, I'll let you know." Both Craig and H..witt became quite angry during this argument.? About 2:30 p.m. on May 30, 1962, a customer named "Weigman" called at the tobacco counter to inquire about films he had left for development. Craig could not find them, so she went to the bottle booth to telephone the processing studio in an effort to trace them. While she was talking on the telephone, some customers came to the tobacco counter, and another employee, Earl Shadduck, went behind the counter to wait on them. They asked the price of some merchandise, which he could not answer, so he called out to Craig for the information, also motioning to get her attention. At that moment Hewitt came to the front of the store, on one of his rounds in the absence of Alexander (who was on his day off), heard Shadduck's inquiry, and noticed the customers waiting. He waved his hands to get Craig's attention, pointed to her counter, said that Shadduck wanted her, that customers were waiting for serv- ice, and it "would not take her but a minute." She replied loudly that she was busy, already waiting on a customer. Hewitt told Shadduck the price of the merchandise, then turned to Craig and said he wanted to see her in the office. She repeated, "I told you, I am waiting on a customer." He said, "All right," that he wanted to see her, and walked off to rearrange some stock on a table. Just then Weigman came up, and Craig asked him to take the telephone and talk to the studio, which he did. She then went to Hewitt and told him that if he was going to talk to her about her 6 These facts are based on credited and mutually corroborative testimony of Craig, Alexander, and Miles. Testimony of any of these witnesses at variance therewith Is not credited. 7 I find this incident on credited testimony of Craig and Hewitt, which is corroborated in substantial parts by that of Bowen and Winfield T Morris , a customer who happened to be nearby during the argument. Testimony of Craig and Hewitt in conflict with the findings is not credited. J. WEINGARTEN, INC. 35 working conditions, she wanted a witness, and she walked over to Snelling at her check stand and asked her to come with her as a witness. Snelling started out of her stand where she was checking out a customer, but Hewitt waved her back into it, saying angrily that "the union is not running the store while I am in charge." Snelling stayed in her stand. Hewitt told Craig that if she wanted a witness, he would get Miles for her, and he called Miles to the office over the store loudspeaker system. At the office door, Craig asked Hewitt, "Why don't you hit me?" He replied that he never hit anyone and did not intend to. Miles came up at this point and at Hewitt's •invitation walked into the office and sat down. Hewitt asked Craig to do likewise, but she refused, saying, "You cannot treat me like a two-year old." He asked her again to sit down, and she refused, and stood across the office from him. Hewitt said he wanted to talk to her about her loud talk, and about her question about beating and whipping her. Craig replied, "You don't have the guts to lay a hand on me," that if she were a man she would "whip your butt." He said she probably would. He then asked her, angrily, why she wanted a witness, saying Snelling was busy and "besides, we do not have a steward in the store," and that Miles was the logical witness for her. Craig asked what he meant by the "steward" remark, but he did not explain. Hewitt then pointed toward the outside of the store and told Craig to go home and return to talk to Alexander. Craig asked if he was discharging her, and he said no, he was just sending her home for the afternoon. Craig turned to Miles and asked her if she wanted Craig to go. Miles said yes. Craig asked her if she could see Alexander in the morning. Miles asked Hewitt when Alexander would come in, and when he said about 6:30 a.m., Miles told Craig to come in at 8 a.m. Craig then gathered her belongings and left the store about 3 p.m.8 During the argument between Hewitt and Craig, Martha Davidson, a clerk at the drug counter and "second girl" (or assistant to the supervisor) in the nonfood department, took over the tobacco counter when she saw Craig in the office and that counter unattended. After Craig left Hewitt told Miles she would be short a worker the rest of the day, and said he would call in a part-time checker earlier than usual. He did so, and that checker came in shortly, and worked at the tobacco counter the rest of the day, Davidson returning to her regular department. Hewitt reported the occurrence to Alexander on the telephone that afternoon, at which time Miles also reported to him the arrangements made to handle Craig's job the rest of the day. Craig came to the store at 8 a.m. on the 31st, bringing her husband and Snelling with her as witnesses at the suggestion of the Union. When they came in, they ordered coffee, and Craig walked up to Alexander who was having coffee at the coffee bar with employee Roger Ferguson and a coffee salesman. Craig said to Alexander that she "guessed" he knew that Hewitt had fired her the previous after- noon. Alexander replied, "No, I did not know that, that is not the way I heard it." Craig said, "Well, he did," that she thought Hewitt would have called him, and that she had come in to "pick up my money." Alexander replied that Hewitt did not discharge her, just sent her home. Craig then said that, if he would just give her her money, she would "get out of here and look for taller timbers." Alexander told Craig to finish her coffee and then come to the office. She did so, and went into the office, while her husband and Snelling stood outside the office a short distance from its door. Alexander admitted to Craig that he knew about the incident, and said that Hewitt had sent her home and told her to see Alexander the next day. She argued that she had been discharged, and he disagreed. He also said, "You know, when I am not here, Hewitt is in full charge," and that from the story he had heard, she had acted "very badly" the day before. Craig said she did not care to discuss it, that "in that case, I can pick up my check" and "get out of here." Alexander said if that was the way she felt about it, he would get her money. He went to the 'These facts are based on a synthesis of credible testimony of Craig, Snelling, Hewitt, and Miles. Craig testified that Hewitt loudly ordered her to "get your ass across that parking lot, and if you come back you are to talk to Mr Alexander," and that she con- sidered this a discharge, as she told Snelling on her way out I do not credit her version of the order, in light of the specific denials of Hewitt and Miles that he used the crude physical reference Craig cited. Nor does Snelling's testimony that she overheard Hewitt repeat the order in that same crude wording while recounting the incident to several em- ployees later that afternoon, persuade me that he used those words, for both he and three of the employees in that talk denied he used these words. In any event, the exact wording of his order to leave the store is not important, in the light of the other remarks of Craig and Miles following the order to leave, and other facts about Hewitt's authority noted hereafter. 708-00'6-64-vol. 141-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD courtesy booth in the lobby, had two pay vouchers prepared , plus a voucher for withdrawal of her money from the store credit union , and gave them to her. Craig noticed that the vouchers covered only her pay for that week and vacation pay, and asked him about severance pay. Alexander replied that he had no authority to pay that. She argued that he knew she would not quit without giving 2 weeks' notice, and felt she should not get discharged without 2 weeks' severance pay. He replied that he would have to call the Houston headquarters about that, and would let her know.9 Craig left the store that day without having cashed the vouchers , because Alexan- der forgot to sigh them . When she came in on Saturday , he signed them and she cashed them. When she asked about severance pay, he told her that "under the cir- 'cumstances" she was not entitled to it. She asked what he meant by "circumstances," but he did not explain . Craig has never been offered reinstatement or reemployment in the store, because Respondent takes the position that she voluntarily quit her em- ployment on May 31. Concluding Findings as to Craig Hewitt's remarks to Craig on May 23, warning her that she would be "in trouble," would get extra work and might get "run out" of the store, if she did not stop calling the union representative, were clearly coercive threats of reprisal , including possible discharge , for her union activity which violated Section 8 (a)(1) of the Act, and ,indicated Hewitt's resentment of her union activity. In light of that conduct, his angry countermand of Craig's attempt to get Snelling to leave her work on the 30th to act as a witness in the interview with Hewitt, and Hewitt's comment that the union was not "running the store" while he was in charge , and there was no union steward in the store , on its face shows clearly that his union ammus toward Craig still continued. There is no contention that Craig had a protected right to call another union adherent from the work to act as witness for Craig , or that, in denying Craig permission to do this, Hewitt was violating the Act . As the record shows that Snelling was waiting on a customer at the time, and only one other checker was on duty, I think Hewitt had a right to insist that Snelling continue her regular work during working hours, especially where Hewitt asked Craig's supervisor to be present during the interview as a witness , in accordance with normal store practice. How- ever, the record shows that before and during the interview , Craig was angry and excited and made loud remarks which clearly showed her personal animosity toward Hewitt to an extent that, although Hewitt tried to talk to her about her conduct at the bottle booth, he became goaded into angry remarks and gestures, and finally ordered her to go home and return the next day to see Alexander. I credit his testimony that he sent her home because she was "hot," and I am convinced that he was, too, and acted thus to prevent an already tense situation from growing worse. General Counsel argues that Hewitt seized upon Craig's presence at the telephone as the pretext for a discriminatory discharge in pursuance of his threat of the 23d. I do not think that the record supports that inference . The sequence of events clearly shows that when Hewitt first appeared at the bottle booth , Craig's presence there (without any customer with her at the moment ), Shadduck's motions and remarks to her, and the presence of customers at her counter indicated to him that she was needed at her counter , hence his motions and requests to her to return to it. He apparently did not know that she was telephoning for the benefit of a customer until after she had loudly and abruptly told him twice that she was engaged in servicing a customer. On learning this, he merely asked her to go to the office. From his later remarks to her there , I am satisfied that he was not calling her to task for neglecting her counter, but for her loud and apparently rude conduct toward him, and her attempt to take another employee from her work without permission. This naturally angered him, and his resentment of her conduct did not lessen when she continued to goad him with angry and rebellious remarks on the way to and in the office. I am satisfied that he sent her home temporarily because of her conduct toward him, not her absence from her counter. That he could do no more than take this limited disciplinary action toward her is also shown by credible testimony of Alexander, Hewitt, Robert Sheffield, and Wayne McFerrin , from which I find that Hewitt had no authority to hire or fire employees , but could at most effectively rec- ommend their discharge to Alexander , and that his personal affirmative disciplinary 9 The events of May 31 are based on a synthesis of credible and mutually corroborative testimony of Craig, Alexander, Ferguson , and Roy Hall , as corroborated in part by that of Snelling Testimony of Craig and Snelling at variance therewith is not credited. Snelling only beard snatches of the conversation. Craig's husband did not testify J. WEINGARTEN, INC. 37 authority was limited to sending employees home for the rest of the day with instruc- tions to report thereafter to Alexander for final disposition of their cases This limitation on his authority was also noted by Hewitt during his coercive criticism of Craig on May 23. Craig even questioned his right to send her home by refusing to leave until she got Miles' advice to leave and instruction about when she would see Alexander 10 In addition, she admits she did ask Hewitt for her final paycheck, but waited until she saw Alexander the next morning, which is an indication she did not consider herself fired on the 30th. In these circumstances, I find that Hewitt did not discharge her on the 30th, but only sent her home as a disciplinary measure (and possi- bly to let her cool off), and that she was still an employee when she reported to Alex- ander on the 31st in accordance with Hewitt's and Miles' instructions. On the 31st, Alexander disputed her claim that she had been discharged, but supported Hewitt's dis- ciplinary action by reminding her that Hewitt had been in full charge in his absence and that she had acted "very badly." It is significant that Craig at this point did not try to justify her conduct of the 30th or ask to continue work, but refused to discuss the matter and asked for her pay, which Alexander promptly procured for her. This clearly indicates that she was quitting her job voluntarily, and her prior request at the coffee bar for her pay, with an expression of a desire to "get out of here and seek taller timbers," shows she had already made up her mind to quit. Her interview with Alexander was amicable, in sharp contrast to her argument with Hewitt the day before, and Alexander said nothing about her union activities or made any other comments which would indicate that she was being or had been discharged for union activity." In light of Craig's recent work performance which was less than satisfactory and had led to the April 2 conference in which Alexander admonished her to do better, and Hewitt's prior coercive remarks to her, I have no doubt that management was glad to have this prominent and active union adherent out of the store, and did nothing at this point (contrary to Alexander's prior efforts to per- suade her to stay) to prevent her from quitting after her conduct toward Hewitt on the 30th which led to their angry altercation and his disciplinary action . However, this inaction does not amount to a discharge.12 While there are some facts in the record which raise a strong suspicion that Re- spondent was ready and willing to discharge Craig on any pretext, I am persuaded by all of the pertinent facts and circumstances noted above that Respondent has sustained the burden of going forward with cogent proof that Craig voluntarily quit her job after receiving temporary discipline occasioned by her attempt to take another employee from her work and her angry altercation with Hewitt over that conduct, and that General Counsel has failed to sustain the ultimate burden of proving by a preponderance of credible evidence that Respondent discharged Craig in violation of the Act.13 I shall therefore grant Respondent's motion to dismiss the complaint insofar as it charges a discriminatory discharge of Craig, and shall recommend that the Board enter an order accordingly. The above findings and conclusions leave only three instances of conduct by Respondent which were either coercive in character or indicative of union animus: "This conclusion is not affected by the facts shown in the record, that once in past years, Hewitt laid off an employee during an economic layoff because of her differences with her immediate supervisor who had recommended her for release This occurred while Alexander was on vacation and Hewitt was in full charge of the store , but even in that case, Hewitt told the employee to return to see Alexander when he returned to work, and she did talk to him later about her status and reinstatement 11 General Counsel does not contend that Craig was compelled to quit or constructively discharged. ii The record shows that, as soon as Craig left on the 31st , Respondent had Davidson ready to take her place, although Thursday was Davidson's normal day off. However, this does not indicate that Respondent had already discharged Craig on the 30th and arranged for her replacement, because credible testimony of Davidson, Miles, Alexander, and Horace L. Pierce shows that: Miles and Davidson had arranged the previous Tuesday for Davidson to come in specially on Thursday to take care of incoming drug shipments and arrange for a special toy sale for the next weekend . Davidson had often relieved at the tobacco counter and knew how to handle it , hence, with Craig gone on Thursday, Miles had Davidson work temporarily at the tobacco counter until 10 a in., and then rotated herself and other employees at that location the rest of the day, and on Friday A permanent replacement at the tobacco counter was not procured until Monday 11 See Coats & Clark, Inc. ( Clarkdale Plant ), 113 NLRB 237, 238 ; Pinellas Paving Company, Inc, 132 NLRB 1023, 1031, 1033 ; and compare 0. E. Szekely and Associates, Inc, 118 NLRB 1125, 1137. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hewitt's isolated interrogation of Snelling in March, his angry threats to Craig on May 23, of "trouble," harder work, and possible discharge because of her union activities, and Thomas' explanation to Snelling in August that Respondent had to "fight back with everything" against the Union. Considering that the Meat Cutters organization earlier waged a successful campaign in the store through the same agent who represented the Union here, won an election, and Respondent promptly and apparently amicably bargained and signed a contract with the Meat Cutters at the very time that the campaign of the Union was reaching its "peak" according to Craig and Snelling, I do not consider these three rather widely separated incidents as sub- stantial evidence of a definite union animus or pattern of antiunion conduct warranting remedial action. I shall therefore recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices, as alleged in the complaint herein, within the meaning of Section 8(a) (3) and (1) of the Act, to an extent which warrants remedial action under the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, I recommend that the complaint be dismissed in its entirety. Building and Construction Trades Council of the Metropolitan District ; John E. Deady, its Agent ; Excavating and Building Material Chauffeurs, Warehousemen and Helpers, Local Union 379, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Win- wake, Inc. Building and Construction Trades Council of the Metropolitan District and its Agent, John E. Deady and Winwake, Inc. Cases Nos. 1-CC-293 and 1-CP-31. February 28, 1963 DECISION AND ORDER On January 10, 1962, Trial Examiner Owsley' Vose issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in unfair labor practices in violation of Section 8(b) (4) (i) and (ii) (B) of the Act and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. He recommended dismissal of the 8(b) (7) (C) allegations of the complaint. There- after, the Respondent Council and the Charging Party filed excep- tions to the Intermediate Report and supporting briefs. The Gen- eral Counsel and Local 379 did not file any exceptions. 141 NLRB No. 2.