Country Lane Food Store

COUNTRY LANE FOOD STORE 683 own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities. WE WILL NOT in any manner interfere with the right of our employees to make a free choice in any election ordered by the National Labor Relations Board. All of our employees are free to become , remain, or to refrain from becoming or remaining, members of Oil, Chemical & Atomic Workers International Umon, AFL-CIO, or any other labor organization. LLOYD A. FRY ROOFING CO., INC., AND VOLNEY FELT MILLS, A DIVISION THEREOF, 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, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, 27101, Telephone No. 724-8356, if they have any question concerning this notice or compliance with its provisions. Tinley Park Dairy Co., d/b/a Country Lane Food Store and Local 1504, Retail Clerks International Association, AFL- CIO. Case No. 13-CA-4930. May 17, 1963 DECISION AND ORDER On January 29, 1963, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of these allegations of the complaint. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 [Chairman McCulloch and Members Leedom 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 In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent with this Decision and Order.1 'We hereby correct the apparently Inadvertent error in the Intermediate Report, sec- tion III, A, 3(b), which refers to certain Incidents as having occurred on April 15 and 19 when these dates, as shown by the record, should have been August 15 and 18 142 NLRB No. 80. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Respondent, Tinley Park Dairy Co., d/b/a Country Lane Food Store, Tinley Park, Illinois, contends that, because of a change in its operations, it no longer meets the Board's nonretail jurisdic- tional standard, on which the Trial Examiner relied in asserting jurisdiction, and that it does not meet any of the Board's other juris- dictional standards. The Trial Examiner found that the Dairy Com- pany is engaged in the processing, sale, and distribution of milk at wholesale and retail, and that the Food Store, a branch or division of the Dairy Company, is engaged in the retail sale of milk and other food products. He further found that the Respondent's business is a combined retail and nonretail operation constituting a single, inte- grated enterprise; that during the period from September 1, 1961, through February 1962, it purchased milk directly from Wisconsin in excess of $50,000; and that this constituted direct inflow which met the Board's jurisdictional standard for nonretail operations. The Respondent contends that, prior to the commission of any of the al- leged unfair labor practices, it had permanently ceased purchasing milk which originates outside the State of Illinois, except for pur- chases made from the Borden Company, which totaled only $56,000 for the period from February 1961 until July 1962; and that, there- fore, there is no direct inflow, and the current indirect inflow is in- sufficient to satisfy the Board's nonretail standard. The Board, how- ever, asserts jurisdiction over an integrated enterprise engaged, as here, in both retail and nonretail operations, if the enterprise meets either the Board's retail or nonretail jurisdictional standard 2 Here, the record shows that, in the calendar year 1961, the Respondent's gross business income was approximately $622,000; and there is no evidence or contention that there has been any change in the Respond- ent's gross volume. As the Respondent's gross volume of business, therefore, exceeds $500,000 annually, it falls within the Board's re- tail jurisdictional standard? Accordingly, even if the Board's non- retail standard is no longer satisfied, we nevertheless find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Trial Examiner found, and we agree, that the Respondent interrogated, threatened, and coerced its employees, in violation of Section 8 (a) (1) of the Act, and discriminatorily discharged Lois Bruce for union activities, in violation of Section 8(a) (3) and (1) of the Act. The Trial Examiner further found, and we agree, that Violet Kenny was discharged for union activities in violation of Section 8 (a) (3) a Wash Well No. 2, Inc, et at., 139 NLRB 417, and cases cited therein. 3 Carolina Supplies and Cement Co , 122 NLRB 88. Respondent 's purchases from Borden establish the Board 's legal jurisdiction . N L R.B. v. Reliance Fuel Oil Corporation, 371 U.S. 224. COUNTRY LANE FOOD STORE 685 and (1) of the Act. The Respondent contended that Kenny was a supervisor; but the Trial Examiner found that Kenny had generally performed the same functions as other salesgirls, that she taught new salesgirls their routine duties because she was a more experienced and able employee, that she received a higher salary than other sales- girls because of her experience and ability, but that she did not possess any supervisory authority within the meaning of the Act. The Trial Examiner nevertheless declined to recommend immediate reinstate- ment and backpay for Kenny, but recommended only that she be given preferential hiring status, on the grounds that no replacement had been hired for Kenny at the time of the hearing, that her "pay and responsibilities were distinguishable from that of the other sales- girls," and that he "would not recommend that Respondent discharge a salesgirl to provide employment for Kenny." The General Counsel and the Charging Union have excepted to this failure to recommend reinstatement and backpay, and we find merit in their exceptions. Kenny was discharged unlawfully because of her leadership in union activity, and none of the reasons advanced by the Trial Examiner, in our opinion, warrant withholding the Board's customary remedial order of reinstatement and backpay until a vacancy occurs. Moreover, as the Trial Examiner found in regard to Kenny's discharge, "Respondent's allegations that the discharge was motivated by economic necessity does not withstand scrutiny." Consequently, there is no warrant in the record for the Trial Ex- aminer's assumption concerning the effect of Kenny's reinstatement. Under all the circumstances, therefore, we shall provide our usual remedy of reinstatement and backpay for Kenny. 3. The refusal to bargain (a) The appropriate unit We find, in agreement with the Trial Examiner, that the following employees of the Respondent constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act : All full-time and part-time employees at its Tinley Park, Illinois, retail store, excluding all professional employees, guards, and super- visors within the meaning of the Act. (b) The Union's representation of a majority On May 8, 1962, four of the six employees in the above-described unit met at Kenny's home with representatives of the Union and signed cards designating the Union as their representative. On the follow- ing day, Betty Villa, one of these employees, told her husband that she regretted signing the card. On May 10, Villa also told the Re- spondent's store manager, Subs, about the meeting at Kenny's house, 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that she had signed a union card. Villa also testified that she prepared separate handwritten letters of resignation from the Union, which were typewritten by the Respondent, and, after being signed by Villa and one other employee, were sent to the Union on August 3. The Trial Examiner found that Villa's "action in notifying Suhs of her signing with the Union, together with her announced decision to her husband to stay out of the Union, constituted a revocation of her designation" which dissipated the Union's majority. The Gen- eral Counsel and the Charging Union maintain that Villa's conduct did not constitute a revocation. We agree. What Villa told her husband was not then communicated to the Union and thus did not, apart from any other consideration, constitute a revocation.4 And as Villa did not tell Suhs that she regretted having signed a card, but told him only that she had signed one, there is nothing in this aspect of her conduct that warrants the Trial Examiner's conclusion as to revocation. In addition, Villa chose to do nothing further about the matter until August 3, when, with the Respondent's assistance, and subsequent to the Respondent's unfair labor practices found above, she sent a letter of resignation to the Union. We find, therefore, that Villa did not purport to revoke her designation of the Union until August 3, when she sent her letter of resignation to the Union. We find further that, in view of the unfair labor practices which had been engaged in by the Respondent prior to that date, the August 3 resignations did not impair the Union's majority status.5 Accord- ingly, we find that on May 8, 1962, and at all times thereafter, the Union represented a majority of the Respondent's employees in an appropriate unit. (c) Refusal to bargain The Union, in a letter dated May 11, 1962, requested recognition as the bargaining representative of the Respondent's store employees, and stated that it was ready and willing to prove to the Respondent, through any impartial source, that it represented a majority of the Respondent's employees. On the following day, the store manager, Suhs, notified the Union by telephone that the Respondent would not recognize the Union. No reason was given. At the hearing the Respondent contended that it had refused recognition because the Union did not, in fact, represent a majority of employees in an ap- propriate unit. As set forth above, however, the Union did, on the date of the Re- spondent's refusal to recognize it, represent a majority of the ap- propriate unit. Furthermore, doubt is cast upon the validity of the Respondent's claimed belief, asserted for the first time at the hearing, that the Union lacked majority status, by the Respondent's failure 4Idaho Egg Producers, 111 NLRB 93, 106-107 ( discussion regarding Panter). 5 Franks Bros. Company v. NLRB , 321 U.S. 702. COUNTRY LANE FOOD STORE 687 to advise the Union of this belief at the time recognition was denied, or to indicate a willingness to have the question resolved through an impartial source, as the Union suggested in its letter requesting recog- nition. Finally, any contention by the Respondent of a good-faith doubt of the Union's majority is refuted by the Respondent's entire course of conduct. The record shows, in this connection, that the Respondent, from the time it first learned that the Union was organiz- ing its employees, resorted to conduct calculated to undermine the status of the Union, and to interfere with the rights of its employees to select a representative of their own choosing. The Respondent, during this period, discriminatorily discharged Kenny and Bruce, interrogated employees about their union sympathies, granted wage increases to discourage union activity, and threatened to discharge all the employees if the Union were successful. Accordingly, we find, on the entire record, that the Respondent refused to recognize the Union, not because it doubted its representa- tive status, but because it was seeking to forestall collective bargain- ing with the Union which represented a majority in an appropriate unit in violation of its obligation under the Act.' We therefore find that the Respondent, on and after May 11, 1962, refused to bargain in good faith with the Union as the representative of its employees in an appropriate unit, in violation of Section 8(a) (5) and (1) of the Act, and we shall enter our customary order to remedy this violation. On the basis of the foregoing and the entire record, the Board re- jects the Trial Examiner's conclusions of law number 6, renumbers his conclusions of law number 5 as number 8, and makes the following additional- CONCLUSIONS OF LAw 5. All full-time and part-time employees of the Respondent at its Tinley Park, Illinois, store, excluding all professional em- ployees, guards, and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 6. At all times since May 8, 1962, Local 1504, Retail Clerks International Association, AFL-CIO, has been the exclusive rep- resentative of all the employees in the aforesaid unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 7. By refusing on May 11, 1962, and thereafter, to bargain col- lectively with the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. Joy Silk Mills, Inc. v. N.L.IL .B., 185 F. 2d 732 , cert. denied, 341 U.S. 914. Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications:' 1. Renumber provision 1 (c) as 1 (d) and make the following addition : (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, with Local 1504, Retail Clerks Interna- tional Association, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit : All full-time and part-time employees at its Tinley Park, Illi- nois, retail store, excluding all professional employees, guards, and supervisors within the meaning of the Act. 2. Amend paragraph numbered 2(a) to include the name of Violet Kenny preceding that of Lois Bruce. 3. Delete provision 2(b) and add the following: 2 (b) Upon request, bargain collectively with Local 1504, Retail Clerks International Association, AFL-CIO, as the exclusive representative of the Respondent's employees in the unit found appropriate with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. 'The notice is hereby amended as follows: (1) Amend the fifth indented paragraph thereof to include the name of Violet Kenny preceding that of Lois Bruce. (2) Delete the last indented paragraph thereof, and add the following WE WILL, upon request, bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with Local 1504, Retail Clerks International Association, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described below, and, if an understanding is reached, embody such understanding in a signed agreement The appropriate unit is: All full-time and part-time employees at our Tinley Park, Illinois, retail store, excluding all professional employees, guards, and supervisors within the meaning of the Act. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed June 7 , 1962,1 by Local 1504, Retail Clerks International Association, AFL-CIO, herein called the Retail Clerks or the Union, the General Counsel issued a complaint and amended complaint against Tinley Park Dairy Co., d/b/a Country Lane Food Store, herein called Tinley or the Respondent , alleging that Respondent by its agents and supervisors interrogated its employees concern- ing their union membership , threatened its employees with dismissal for engaging in union activity, and promised its employees benefits for refraining from engaging in union activity , in violation of Section 8(a)(1) of the Act; that it discharged two employees because they engaged in union activity, in violation of Section 8(a) (3) and (1) of the Act; that it refused to bargain in good faith with the Union, the designated collective-bargaining agent of the employees in a unit appropriate for the purposes of collective bargaining, in violation of Section 8(a)(5) of the Act- 1 Unless otherwise noted all dates are 1962. COUNTRY LANE FOOD STORE 689 The answer denied Respondent was engaged in a business affecting commerce within the meaning of the Act and denied the commission of any unfair labor practices. This proceeding, with the General Counsel, the Respondent and the Union repre- sented, was heard before Trial Examiner John F. Funke in Chicago, Illinois, on October 9 and 10. Briefs were received from the General Counsel and the Respondent on Decem- ber 6.2 Upon the entire record in this case and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Tinley Park Dairy Co. is a Delaware corporation maintaining its principal place of business at Tinley Park, Illinois, where it has been engaged in the processing, sale, and distribution of milk, both wholesale and retail, since 1926. The entire operations of Tinley are located in a single building at Tinley Park. About 4 years ago Tinley opened a retail store for the sale of milk and other products 3 on its premises and it is this store, known as Country Lane Food Store, herein called Country, which is the operation involved in this proceeding. Country is not a separate corporation but a branch or division of Tinley and is under the manage- ment of Tinley's officers and supervisors. Jurisdiction will, therefore be determined by the operations of Tinley since it is the impact of the employer's total operations rather than the operations involved in the immediate proceeding which resolve that issue .4 Apart from Country's sales, which are entirely retail, Tinley's sales of milk are approximately one-third wholesale so Tinley is governed by the Board's wholesale standards.5 Respondent's purchases of milk are separated into purchases of raw milk, purchased from the Pure Milk Association, herein called PMA, and of proc- essed milk, already bottled or in cartons, from The Borden Company. During the period from September 1, 1961, through February 1962, Tinley received pur- chases of milk from PMA directly from Albion, Wisconsin, in a value of $99,170. Since March 5 Tinley has made its purchases from PMA's receiving station at Kankakee, Illinois. It is unnecessary, however, to determine the origin of the milk purchased from Kankakee since the dollar volume of the milk purchased directly from Albion within a year of the filing of the charges is sufficient to meet the Board's jurisdictional standards 6 I therefore find Respondent is engaged in commerce within the meaning of the Act? H. THE LABOR ORGANIZATION INVOLVED The Retail Clerks is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts 1. Background Seven persons were employed at Country on May 8. Delia Kee was day super- visor, Violet Kenny was night supervisor, and Mary Bounds, Lois Bruce, Jackie 'On October 31 the General Counsel moved to make certain corrections in the record and to withdraw General Counsel's Exhibit No 11. There being no objection both motions are granted Exhibit No. 11 Is withdrawn and the transcript is corrected as follows. Page 9, line 4, "$275,090" is corrected to "$207,590" ; page 9, line 4, "$451,156" is corrected to "$415,156" ; page 40, line 20, "$500" is corrected to "$600" ; page 71, line 4, "status" is corrected to "Saturdays" ; "Delia Key" is corrected to "Delia Kee" wherever it appears in the transcript. Other products Include groceries and canned goods, beer and soft drinks, frozen foods and fresh vegetables, and meats, bakery products, etc. The sales of milk, all of which Is obtained from Tinley, average approximately 45 percent of the total sales of Country (General Counsel's Exhibits Nos. 14, 15, and 16.) The T. H. Rogers Lumber Company, 117 NLRB 1732. e Id. e Siemons Mailing Service, 122 NLRB 81. 7N.L.R.B. v. Reliance Fuel Corporation, 371 U.S. 224. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray, Phyllis Lewis, and Betty Villa were salesgirls .8 James Wichterman was a part-time employee whose status within the unit is disputed, Respondent claiming he was an employee of Country and the General Counsel alleging he was employed by Tinley. The girls performed the usual services of clerks in a small retail store, waiting on customers, marking prices, operating the cash register, etc. Their duties are familiar to everyone who has shopped outside a supermarket. At about 10 p in. on May 8 four of the girls met with Mr. Nicholson and Mr. Edwards, representatives of the Retail Clerks, at the home of Violet Kenny. The others were Lois Bruce, Mary Bounds, and Betty Villa. The next morning, May 9, Betty Villa informed Edwin C. Subs, referred to by all the witnesses as Sonny,9 of the meeting. 2. Violations of Section 8(a)(1) a. The testimony of Mary Bounds Mary Bounds testified that when she reported for work on May 10 (the day after Betty Villa had informed Sonny Subs of the union meeting at Kenny's home on May 8), Sonny Subs told her they wanted to see her in the office. She went to the office where Edwin F. Subs told her they had received information through the "drug store" that there had been a union meeting and asked if she had attended. She lied and denied attending. Subs told her he knew they had all attended and that the husbands had also attended.1e Subs also asked her why they wanted a union and told her Tinley did not want a union and that before they would have a union they would let the girls go and operate the store with the family. Subs told her that since Kenny had been let go he would be able to give the girls a 10-cent increase. About I week later Sonny Subs called her on the telephone and said he had just received a letter from the Union and that he knew the meeting had been held. Sonny again asked her if she had attended and she again denied it. This interroga- tion was repeated at intervals, according to Bounds. Later Bounds and Betty Villa admitted to Delia Kee that they had attended the meeting. (Villa is the employee who informed of the meeting.) I credit this testimony of Bounds, none of which is substantially denied. b. The testimony of Lois Bruce Lois Bruce was employed by Country as a salesgirl on the night shift from Febru- ary 13 or 14 to August 22. She attended the meeting at Violet Kenny's house on May 8 and before she reported for work on May 10 she visited Kenny and learned that Kenny had been fired that morning. Shortly after she reported to work she was told she was wanted in the office. Edwin Subs, Sonny Subs, and George Freed were present. Edwin Subs, Sr., told her he had heard of the meeting at Kenny's house and Bruce denied being present and denied that her husband had been present. There was further discussion of the Union and then Subs told her, "You go along with us. We are giving you girls a 100 raise." When she left Subs repeated his admonition to "go along with us." On further examination Bruce testified that Edwin Subs, Sr , told her that if the Union did get in all of the girls would go and he would bring his relatives in to work. The next week Bruce received a 10-cent increase.ii On or about June 20, Delia Kee asked Bruce about her attendance at a union meeting and Bruce again denied attending. It appears from Bruce's testimony that she thought Kee was referring to a meeting on the previous night but she later learned that Kee was referring to the May 8 meeting, the only meeting held. After Kee told her that she knew she was lying because Bounds and Villa had told her that she (Bruce) had attended, Bruce admitted attending. Bruce testified that on August 3 she was putting up stock when Sonny Subs asked her why she had not signed the petition.12 Bruce said she knew nothing about the petition and in further conversation she told Subs (evidently in explanation of sign- ing with the Union) that the girls had asked for a nickel raise and had been refused. 8 The supervisory status of Violet Kenny is disputed Sonny Subs was the son of Edwin F. Subs , owner and president of Tinley. Sonny was plant and store manager. m It is a fact that the husbands attended the meeting. n All salesgirls received this increase . ( General Counsel 's Exhibit No. 5 "According to the testimony of Bounds a petition disavowing the Union had been pre- pared by a salesgirl named Phyllis Lewis in June . All the girls signed but Bruce COUNTRY LANE FOOD STORE 691 Sonny told her he had been fighting the Union for years and that the girls had cost him a lot of money.13 I credit the testimony of Bruce. c. Other testimony Janet Rodman, employed as a bookkeeper by Respondent, testified that in June she had a conversation with Sonny Subs at which George Freed (or Fried) was present. Freed, identified as a clerical employee, was in the inner office with Suhs and Rodman was in an adjoining office. The subject of the Union came up and Suhs, standing between the two offices told Freed and Rodman that they would find his mother and sister working in the store and that they (Rodman and Freed) would probably be working there too. He said this would happen before he would have a union in the store. Violet Kenny testified that on May 14, 4 days after she was fired, Sonny Suhs called her at home and asked her to return her uniforms. During their conversation Sonny told her that he had received a letter from the Union and that he told her he was not going to have a union and that he would let all the girls go and bring in his sister, mother, and relatives to operate the store. Betty Villa testified that she prepared separate letters of resignation from the Union for the signature of herself, Bounds, and Bruce on August 3. Villa said the letters were typed by Delia Kee from her handwritten drafts. Villa and Bounds signed the letters but Bruce refused. The letters, typed in duplicate, were then sent to Bert C. Bentley, secretary of Tinley, and to the Union. (General Counsel's Exhibit Nos. 18 a, b, c, d, and e.) 3. Violations of Section 8(a)(3) a. The status and discharge of Violet Kenny In January, Kenny was the senior salesgirl. At that time she was receiving $1.30 per hour. At the end of the January 29 pay period she received a 10-cent increase and at the end of the following pay period she received another 10-cent increase.14 It was at this time that she was given the position designated as night supervisor, and the increases were her agreed-upon compensation. According to Sonny Suhs she was told that her responsibilities as night supervisor would be the same as Delia Kee's on the day shift. (The two shifts overlapped, since the night shift started at 1 p.m. and concluded shortly after the store closed at 9 p.m. Kee did not leave until 4 p.m.) Kee was paid a weekly salary of $86 and received 2 weeks vacation and possessed authority to hire and fire, a power specifically denied Kenny. Suhs' testimony concerning Kenny's new responsibilities is unclear, except that he wanted someone to be responsible for the night shift. Kenny's own testimony is that there was no substantial change in her duties after her promotion except that responsibility after 4 p.m. was fixed on her. All of the girls performed the same functions interchangeably. They sold to customers, they stacked shelves, they operated the cash register, and locked the safe and turned off the lights before they went home. Kenny stated that when she was there she checked the safe before she left; if she was not there one of the other girls did it. New girls were referred to Kenny for instructions in the work just as Kenny had been referred to Mary Bounds when she was employed.15 The duties performed by the salesgirls were routine and easily learned and did not require the talents of a Renaissance man. The night shift had operated without a supervisor before Kenny was appointed and none was hired or appointed after she left. Upon the testimony of Kenny and other salesgirls I do not find that Kenny was a supervisor within the meaning of the Act.16 Kenny worked the day after the union meeting, May 9, which was the day on which Villa informed Sonny Suhs of the union meeting. On the next day when she reported for work her timecard was missing. She went to the office and Edwin 13 This remark was not explained . It could, of course, refer to the 10-cent increase given the girls. 14 Starting pay was $1.25 with an automatic increase of 10 cents at the end of 3 months. The discrepancy between these figures and the pay received by Kenny in January is accounted for by the fact that a 10-cent increase was granted the salesgirls by Respondent on May 12. 15 Mary Bounds had a record of broken employment with Country. She was senior sales- girl when Kenny was employed but left, which established Kenny's seniority. 1e Pane State Creamery Co., Inc., 130 NLRB 892. 712-548-64-vol. 142-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Suhs was there and told her they could not afford to pay her $1.50 an hour and were letting her go. Kenny offered to take a cut in pay but the offer was refused- Suhs said they were cutting expenses and starting with her. She had a further conversation with Suhs in which she asked if that were the only reason and was told it was and again offered to take a cut and was again refused. The only reason given her by the Respondent was economic necessity. No allegation of improper or inefficient performance on her job was made, although there was testimony that Kenny had refused to work on a Saturday 17 in April to replace a girl who was sick. b. The discharge of Bruce Bruce, as has been stated, was employed as a salesgirl by Country, attended the union meeting at Kenny's home and signed an authorization card for the Retail Clerks. Subsequently she was interrogated as to her union activity by Edwin Suhs, Sr., and was given a 10-cent raise with the admonition to go along with the Respondent. In June she was the only girl who refused to sign a petition dis- claiming the Union and in August she refused to sign a letter withdrawing from the Union. She testified that on August 3 Sonny Suhs told her all the girls had signed a petition 18 stating they did not want a union except her and she said she knew nothing about it. On August 14 Bruce informed Sonny Subs that her family was moving, that she would not be able to work for a week and that Villa had agreed to work for her. This arrangement was agreed to by Sonny and Edwin Suhs, Sr. Bruce then went to the office to collect her pay and her testimony as to the further conversation follows: He [Sonny] asked if I had gotten a call from the Union and I said "No" and he said, "We got a letter from them" and he went on and said it would have been better if I had signed-withdrew my name. I guess what they meant if I'd signed the paper along with the other girls or something like that and I said, "No," I don't know if I would have signed it at that time if I had been asked" and Mr. Suhs said, "Well, you can still sign this" so he started to go into the office to get the paper and I said, "No, I'm not going to sign anything now." Sonny says, "No? Just let it go like it is." It was this arrangement which led to Bruce's discharge. According to Delia Kee, and her examination on this point is lengthy and her answers at times were con- fusing, Villa came to her on Saturday, August 18, and told her that she could not work for Bruce the next day, Sunday, the 19th. Villa gave Kee the impression that Bruce might be expecting her to work that day so Kee called Bruce who either told her she could not be in at all or that she could not be in until 6 p.m. Neither Bruce nor Villa worked on Sunday. On Tuesday, April 21, Bruce called Kee at her home but Kee testified nothing was said about Bruce's absence on Sunday. Kee testified that the next morning, Wednesday, she had a conversation with Sonny Suhs in which she informed him of Bruce's failure to work on Sunday and Sonny told her that if it was up to him he would fire Bruce but that Kee could use her own judgment. When Bruce reported to the store on Wednesday Kee called her into the office and told her she would have to let her go. Kee told her she was a good worker but that she had taken hours off without securing a replacement.19 11 Saturday was Kenny's day off and she had made it known that she would not work on Saturday. is This apparently refers to the petition which, according to Bounds, was circulated in June The letters drafted by Villa were mailed on August 3, and were directed to Bert Bentley, secretary of Tinley. There is no reason to believe that Sonny Suhs knew of these letters until after August 3 and his statement that all the girls had signed would serve to confirm the inference that he was referring to the petition. 16 Kee's testimony reads as follows: Q. And what was said? A. I told her I would have to let her go, and that I had discussed it with Sonny that morning, and that he told me that if it was up to him, he would discharge her. But that I could use my own judgment. I told her I would keep her because of her good work, which Lois was a very good worker. But I said, that the point that she took o8 hours without getting a replacement, that that just can't be in the store. Q. Do you recall anything she said? A. Yes, she said she thought it was because of union transactions. I told her, "No it wasn't." That the union didn't have a thing to do with it. Q And that is as much as you remember of the conversation A. That is all I remember, sir. COUNTRY LANE FOOD STORE 693 Bruce's version of the circumstances is not substantially different. Bruce testified that Villa had agreed to work for her on the day she moved and that the day she actually moved was Sunday, August 19. However she testified that Villa had agreed to work for her on Wednesday, April 15 and Saturday, April 19. Since Bruce's days off were Thursday and Friday there was no need for her to secure a replacement on those days. (Villa was not questioned by either party as to the agreement so her understanding is not in the record.) Bruce admits that in the telephone conversation with Kee and Villa on Saturday both she and Villa told Kee they could not come in on Sunday. Her testimony reads: Q. Yes, and what about Sunday, the 19th? A. She [Villa] had told me two weeks earlier she would work on the day I moved and Sunday was the day I was going to move. Q. And did she work for you on Sunday, the 19th? A. No, she did not. She offered to come in at 5 or 5:30 and I said, "That's all right with me, if it's all right with you girls." Q. Did you have any conversation on Sunday, the 19th with any supervisor of the store? A. Not Sunday I didn't. Saturday I did. Q. On Saturday, the 18th, you had a conversation with whom? A. Deedee [Delia Kee] and Betty [Villa]. Betty said she couldn't come in. I said, "I can't either because I'm moving." Q. What, if anything did Deedee say? A. I told her I might be able to make it by 5 or 5:30 or 6. No, I said I'd make it by six. She said, "If you can't make it by six, you don't need to come in." Q. And this is what Deedee told you on the 18th? A. That's right. On the 18th, on Saturday. Q. Now, did you come in at all on Sunday, the 19th? A. No, I did not. The next conversation Bruce had with any supervisor at Country was in the telephone call she made to Kee on Tuesday, the 21st. She told Kee- she was straightened out and Kee told her she had quit. Bruce denied quitting and told Kee she had informed her she would give 2 weeks' notice of quitting so a replacement could be found and Kee repeated her statement that she thought she had quit 20 On Wednesday, Bruce went to the store to get her check and was told by Sonny Suhs that Kee wanted to talk to her. When she saw Kee she was told that she was being let go and could have her check when she turned in her uniform. Bruce admitted that she was told by Sonny Suhs that he would have fired her for taking off on Sunday. In subsequent testimony, Bruce admitted that she had gone to the store on Sunday, the 19th, to purchase food and had met Sonny and told him that Betty was not coming in to work for her and that Sonny told her her job was more important than moving. 4. Violation of Section 8(a)(5) The Appropriate Unit and Majority Status By letter dated May 11, 1962,21 and received by the Respondent on May 12, the Retail Clerks demanded recognition as bargaining representative in a unit described therein as follows: All full-time and part-time employees working for the employer's retail establish- ment including and located in Tinley Park, Illinois, excluding professional em- ployees, guards, and supervisors within the meaning of the National Labor Relations Act. The appropriateness of the unit is not disputed and despite the ambiguity of the description I find that the demand intended to include all employees employed by Country with the specified exclusions and I find such a unit appropriate for collec- tive bargaining. On May 11 and on May 12 there were five employees working in this unit. These were Lois Bruce, Mary Bounds, Betty Villa, Phyllis Lewis, and Jackie Gray.22 The parties have stipulated and I agree that Delia Kee was supervisor of the 20 Kee, in her testimony, makes no reference to any assumption on her own part that Bruce had voluntarily quit. 21 General Counsel's Exhibit No. 13. 23 There is dispute as to whether a part-time employee named James Wickerman (or Wichterman) was employed in the unit. In view of the finding hereinafter made it is un- necessary to resolve this issue. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit. I have already found that Violet Kenny was not a supervisor and in view of the further finding that she was discriminatively discharged on May 10 I find that she was an employee within the meaning of the Act on May 11 and 12. I therefore find that the total number of employees in the unit on May 11 and 12 was six. On May 8 four of these employees had signed authorization cards designating the Retail Clerks as their bargaining representative. These were Bruce, Bounds, Villa, and Kenny. On the basis of the signed authorization cards the Retail Clerks represented four of the six employees in the unit found appropriate on May 11 and 12. There is, however, testimony in the record which clouds this claim of majority status. Betty Villa testified that although she signed an authorization card at the meeting at Kenny's house on May 8 she had a talk with her husband on the next day in which she decided to "stay out of the Union and don't get involved in it." She further testified that "We talked it over, so I didn't [get involved]." Not only did Villa express her determination to her husband but on either May 9 or May 10 she went to Sonny Subs and told him "what I had done." She told him of the meeting at Kenny's home with the union representatives and although she denied telling Sonny the names of the employees who attended I do not credit this part of her testimony.23 Although Villa did not sign a withdrawal from the Union until August 3 (Bounds signed on the same day), I find that her action in notifying Suhs of her signing with the Union, together with her announced decision to her husband to stay out of the Union, constituted a revocation of her designation. Her conversation with Suhs took place before the commission of any unfair labor practices on the part of the Respondent and, in fact, it constituted the first direct confirmation of union activity at Country. In view of these circumstances, particularly the voluntary character of Villa's repudiation of the Union, I would not include her among the employees designating the Retail Clerks as their representative on May 11 or 12.24 I therefore find that the Retail Clerks did not represent a majority of the six employees in the appropriate unit at the time it demanded recognition from the Respondent. Since the Retail Clerks did not represent a majority of the employees at the time of its demand I shall recommend that the complaint, insofar as it alleges a violation of Section 8 (a) (5) of the Act be dismissed. B. Conclusions 1. Violations of Section 8(a)(1) I find that Respondent violated Section 8(a)(1) of the Act in the following instances: (1) The granting of a 10-cent raise to all the salesgirls employed by Country im- mediately after the union meeting at the home of Kenny on May 8. Bruce was notified of this raise by Edward Suhs and the notification occurred during a discussion of the union meeting and was accompanied by the admonition to her to "go along with us." The timing and circumstances under which the wage increase was given, following a refusal to give a 5-cent raise in April, raises a clear inference that the increase was granted to discourage union activity 25 (2) Interrogation of Bounds as to her union activity by Edwin Subs, Sr., and interrogation of Bruce by Delia Kee. In neither instance was the interrogation ac- companied by the safeguards required by the Blue Flash decision,26 and, occurring in a 29 Subs was extremely evasive with respect to the source of his information as to the meeting at Kenny's home. When directed by his attorney to answer the question of the General Counsel as to who told him of the meeting his answer was, "The closest to my recollection, with everybody talking about it, Betty Villa did " Subs' subsequent interroga- tion of Bruce and Bounds and the discharge of Kenny established his knowledge of the employees who attended the meeting Such knowledge must have come from Villa. '' Cf. Cactus Petroleum, Inc, 134 NLRB 1254, where the Board found that the with- drawals from the Union could be attributed to the employer's unfair labor practices As anyone who has observed the significant discrepancies which may be found between the number of employees signing authorization cards and the number who vote in favor of the designated union at an election conducted by secret ballot can testify, authorization cards are an unreliable source of establishing majority status When, however, an employer makes the conduct of a fair election impossible by the commission of unfair labor practices, no other means may be available. 28 In view of this finding I see no need to pass on the allegation in the complaint that Respondent promised a wage increase to discourage union activity. re Blue Flash Express, Inc., 109 NLRB 591. COUNTRY LANE FOOD STORE 695 context of other unfair labor practices, the interrogations reasonably tended to coerce and restrain the employees in the exercise of their right to engage in union activity. (3) Threats by Edwin Suhs, Sr., and by Sonny Suhs to employees Bruce, Bounds, and Rodman that the Respondent would let all the girls go and employ relatives to operate the store rather than have a union represent the employees. The complaint does not allege Respondent's participation in the revocation of union authority (General Counsel's Exhibit No. 18-a through 18-e, supra) constituted an unfair labor practice. In his brief to the Trial Examiner, however, the General Counsel requests that this conduct be found in violation of Section 8(a)(1) on the ground that it was fully litigated at the hearing and the letters were received in evidence. In view of this assertion it is necessary to quote from the record, where the following colloquy took place: Q. (By the TRIAL EXAMINER.) May I ask what these [the exhibits] are sup- posed to establish? A. (By Mr. PERRY.) I'd rather not say. A. (By Mr. MASLANKA.) Actually they are for the purpose of establishing that there was an attempt to get these girls to withdraw from the Union, that the supervisor, Deedee, typed these up, that the Employer got a hold of these things and knew who withdrew. Q. (By the TRIAL EXAMINER.) I assumed that was the purpose, but I didn't see any allegation in the complaint. A. We are not asking for a finding, they cease doing this any more because this is one of those things, so they did it once. We are not going to ask him to stop doing it again. We don't think they ever will do it again but it proves- or at least we will allege that they knew who refused to sign and knew who withdrew. In view of the specific limitation placed upon the purpose of the documents I am unwilling to consider them for another purpose specifically disavowed at the time of the offer. The General Counsel may not continually shift positions unequivocally taken at a hearing to suit his own purposes. McCulloch Corporation, 132 NLRB 201, 203. For that reason I shall not go beyond the scope of the complaint. 2. As to violations of Section 8(a)(3) As to the discharge of Violet Kenny, I find that it was for reasons discriminatory within the meaning of the Act and intended to discourage union activity and mem- bership among the employees of Country. The discharge followed the day after Respondent learned of the union meeting at Kenny's home and in a context of expressed hostility toward union organization among the employees of Country and other unfair labor practices, including specific threats to replace the employees with members of the Suhs family. Respondent's allegation that the discharge was motivated by economic necessity does not withstand scrutiny since a large portion of the savings effected was distributed to the other employees in the form of wage increases which I have found to have been given for the purpose of discouraging their union activity. Nor is the asserted excuse consistent with the granting of a 20-cent increase to Kenny only 4 months prior to her discharge. In addition there is the testimony of Sonny Suhs that only 4 days before the discharge he had asked Kenny to open the store for him on Sundays during the summer so that he could go boating and fishing and that he had intended to break her in the duties required. I think it clear that Suhs had no intention of discharging until he was informed by Villa of the union meeting . When he received that information the discharge was precipitate and even Kenny's offer to take a reduction in pay could not avert it. In his testimony Suhs made several references to a refusal on the part of Kenny to work on Saturdays and a specific refusal to work on one Saturday in April when a girl called in sick. I find no casual connection between this refusal, long known to the Respondent, and Kenny's discharge. In N.L.R.B. v. Wayne W. Wilson Co., 311 F. 2d I (C.A. 6) the court stated: The conjunction in time with union activity rather than violation of work rules substantiates the inference that the lay-offs were for union activity rather than the violations. Moreover, the prior finding that the employer opposed the union organization effort by coercing the employees lends support to the con- clusion that his motives for discharge of union adherents were impermissible under the law. I agree, and find the discharge of Kenny in violation of Section 8(a)(3) and (1). 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The case of Bruce presents a more difficult decision . She was admittedly the only employee at the plant in August who had refused to disavow the Union. Respondent's knowledge of this is clearly established by the conversation between Bruce and the two Suhses on August 14 when she arranged to be absent . I credit her version of the conversation in full. On the other hand there is the fact that she failed to appear for work on Sunday, August 19, when requested to do so and like- wise failed to provide a replacement . The record is clear that arrangements for substitutions could be made among the girls without interference from Delia Kee but in this case the arrangement failed and Bruce had knowledge that it would fail. While there is no showing in the record that the failure of both Bruce and Villa to report for work had serious impact on Respondent 's operation of its store or that it suffered pecuniary damage as a result of Bruce's failure, nevertheless , it warranted discipline. In the absence of evidence of unlawful motive it is not the business of a Trial Examiner to determine the quality or nature of the discipline to be meted and an employer may of course discharge an employee for no reason at all. But the record in this case contains evidence of continuing unfair labor practices on the part of Respondent and a prior discharge for an unlawful motive . Specifically as to Bruce, she was interrogated by Edwin Subs, Sr., and Sonny Subs as to her union activity on May 10 and was told to "go along with us." On May 20 she was interrogated by Delia Kee and finally admitted attending the union meeting. On August 3 and again on August 14 she was asked why she had not signed the petition disclaiming union activity . Thus from the time Respondent learned of union activity until her last working day Respondent had engaged in coercive interrogation as to her union activity and had made efforts to obtain her disavowal of union activity, efforts which proved fruitless . The summary discharge of Kenny for holding a union meeting at her home establishes that Respondent had no scruples against violating Section 8(3) of the Act. When this disregard for the statute is considered in conjunction with the nature of Bruce's offense ; the fact that Kenny had refused to work on a Saturday when requested without penalty; that no other girl had ever been fired for failure to report; that none of the girls had complained to Kee because of the additional burden imposed by Bruce's absence and the fact that Bruce was conceded to be a good worker, I find the asserted reason spurious. This is a case in which conflicting inferences may reasonably be drawn but a balancing of the facts and the testimony leans more heavily on the side of unlawful than lawful motive. It is my conclusion that the actual as distinguished from the alleged motive for the discharge of Bruce was her union membership and her refusal to disavow it. Accordingly I find the discharge in violation of Section 8 (a) (3). IV. THE REMEDY Having found the Respondent has engaged in and is engaging in certain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Although I have found that Respondent discharged Kenny in violation of the Act I shall not recommend immediate reinstatement or backpay . The evidence in the record indicates that, at least to the time of the hearing, no replacement was hired for Kenny either as night supervisor or as salesgirl . Since, at the time of her discharge, Kenny's pay and responsibilities were distinguishable from that of the other salesgirls, I shall not recommend that Respondent discharge a salesgirl to provide employment for Kenny. It will, however, be recommended that Kenny be given preferential hiring status and that she shall be offered reinstatement for the first position , either as night supervisor or as salesgirl , which becomes available at Country. Reinstatement, as provided herein , shall be without prejudice to Kenny's seniority status or other rights and privileges. Having found that Respondent discriminated against Bruce by discharging her on August 22 in violation of the Act , I shall recommend that it make her an immediate offer of reinstatement to her former or substantially equivalent position without prejudice to her seniority status or other rights and privileges . I shall further recommend that Respondent make Bruce whole for any loss of pay she may have suffered by reason of said discrimination against her by the payment of a sum of money equal to the amount she would normally have earned from the date of discharge , less any net earning during the period , said sum to be computed in accordance with the Woolworth formula.27 Interest at the rate of 6 percent per 27 F. TV Woolworth Co , 90 NLRB 289 COUNTRY LANE FOOD STORE 697 annum on said sum shall also be paid Bruce in accordance with the Board 's decision in Isis Plumbing.28 In view of the nature and extent of the unfair labor practices , including the threat to get rid of the employees of Country and operate the store with the family, and because discriminatory discharges go to the heart of the Act, the commission of other unfair labor practices may reasonably be anticipated. I shall therefore recommend that Respondent be ordered to cease and desist from interfering with the exercise of the rights guaranteed employees in Section 7 "in any other manner." Upon the basis of the foregoing findings of fact and upon the entire record in this 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. Retail Clerks is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating against Violet Kenny and Lois Bruce with respect to their hire and tenure of employment , thereby discouraging membership in a labor organiza- tion, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and ( 1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not refused to bargain in good faith with the Retail Clerks in violation of Section 8(a)(5) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case , it is recommended that Tinley Park Dairy Co., d/b/a Country Lane Food Store, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees regarding their attendance at union meetings and concerning their union membership and sympathy; granting its employees a wage increase to discourage union membership and activity ; threatening its employees with loss of jobs and threatening them that Country would be run by "the family" if they selected a union as their representative. (b) Discouraging membership in and activity on behalf of the Retail Clerks Union, Local 1540, AFL-CIO, by discharging any of its employees, or discriminating against them in regard to hire and tenure of employment, or any term or condition of employment. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Lois Bruce immediate and full reinstatement to her former or to a sub- stantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination practiced against her, as provided in "The Remedy" section of this Intermediate Report. (b) Place Violet Kenny upon a preferential hiring list and offer her reinstatement to her former position as night supervisor if and when such position becomes available or offer her a position as salesgirl with Country if and when such a position becomes available. Such offer shall be made to Kenny before any other persons, other than Lois Bruce, are hired for work as night supervisors or salesgirls at Country. Reinstatement shall be without prejudice to Kenny's seniority status and other rights and privileges. (c) Preserve and, upon request, make available to the National Labor Relations Board or its agents for examining and copying all payroll and other records neces- sary for computation of the amount of backpay due as herein provided. Make avail- able all hiring records to determine whether any person has been hired by Country 28 Isis Plumbing d. Seating Co., 137 NLRB 716. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a position for which Kenny is qualified between the date of the close of the hearing and the issuance of this report. (d) Post at its Country Lane Food Store at Tinley Park, Illinois, copies of the attached notice marked "Appendix." 29 Copies of said notice to be furnished by the Regional Director of the Thirteenth Region shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 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 other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Intermediate Report and Recommended Order what steps Respondent has taken to comply herewith.30 It is further recommend that the complaint be dismissed insofar as it alleges Re- spondent engaged in unfair labor practices in violation of Section 8(a) (5) and as to any other violations not specifically found herein. 29 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." 31 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent 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 National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT ask our employees if they have attended union meetings. WE WILL NOT increase the wages of our employees to discourage them in their right to belong to Local 1504, Retail Clerks International Association, or any other union. WE WILL NOT threaten to fire all our employees and run the store with mem- bers of our families if our employees join Local 1504, Retail Clerks International Association, or any other union. WE WILL NOT discharge any employees because they joined Local 1504, Retail Clerks International Association, or any other union. WE WILL offer reinstatement as an employee to Lois Bruce and make her whole for any loss of pay she may have suffered because of our discrimination against her. WE WILL place Violet Kenny on a preferred hiring list and will offer her her former job back before we hire anyone to take her place. All our employees are free to become members of Local 1504, Retail Clerks International Association, or any other union, and they are also free not to become members of any union unless in the future we shall enter into a lawful union-shop contract with a union which represents our employees. TINLEY PARK DAIRY CO., D/B/A COUNTRY LANE FOOD STORE, 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, Midland Building, 176 West Adams Street, Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions.