O. A. Fuller Super Markets, Inc.

0. A. FULLER SUPER MARKETS, INC. 217 ity on behalf of the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with discharge or with any other action because they become members of, work for, of engage in activity on behalf of the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT question our employees about their membership in, assistance to, or activity on behalf of, the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT create the impression that we aie obtaining information about our employees' union activities by stating that we know about statements given to the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor orga- nizations, to join or work for the above-named Union or any other labor orga- nization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refiain from any or all such' activities. WE WILL offer Waymon Lavon Wallace immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make Waymon Lavon Wallace and Charles Flinton whole for any losses they may have suffered by reason of our discrimination against them. All our employees are free to become, remain, or refrain from becoming or remain- ing, members of the above-named Union. MOULTON MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE-We will notify Waymon Lavor) Wallace if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-3311, Extension 5357, if they have any questions concerning this notice or compliance with its provisions. O. A. Fuller Super Markets, Inc.' and Retail Clerks Union, Local 1557, and Amalgamated Meat Cutters & Butcher Workmen's Union, Local 405, AFL-CIO O. A. Fuller Super Markets, Inc. and Retail Clerks, Local 1557. Cases Nos. 10-CA-5620 and 10-CA-5709. April 29, 1965 DECISION AND ORDER On January 15, 1965, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the ' The name of Respondent appears as amended at the hearing. 152 NLRB No. 26. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that prejudicial error was committed. The rul- ings are hereby affrmed. The Board has considered the Trial Exam- iner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with the following. 1. By February 10, 1964, virtually all employees at Respondent's supermarket in Tuscumbia, Alabama, had signed union authorization cards. On that day, a union representative gave copies of the signed cards to store manager Davis. Shortly thereafter Davis said to employee Johnson, "I see you signed the card, the Union card," and, after receiving an affirmative answer, added, "I wonder who started it?" Johnson did not reply. The General Counsel alleged that by the foregoing, Davis had unlawfully interrogated Johnson about union activities. According to the Trial Examiner, however, "this was no interrogation (despite the reporter's insertion of a mark)," and no reply was expected. We do not agree with this inference of the Trial Examiner. When Davis initiated the conversation with Johnson about the latter's signing of a union card, Davis already knew from the authorization cards given to him that Johnson had signed one. Davis' engaging Johnson in conversation about signing a union card was therefore meaningless unless he had some other motive for doing so. The "I wonder" statement followed immediately after Johnson had confirmed having joined the Union. We do not believe, as the Trial Examiner apparently did, that in making this statement Davis was talking to himself, and that neither he nor Johnson expected a reply. A more likely evaluation of the conversation is that in "wondering" out loud about the union leadership, Davis was probing for the names of the leaders. The fact that Johnson did not reply to Davis' state- ment does not prove that Johnson understood that no reply was expected of him. His silence is as attributable to unwillingness to inform on his fellow employees as to a belief that he was not being questioned. We infer and find, contrary to the Trial Examiner, that Davis interrogated employee Johnson as to the union leadership among the employees, and that by so doing Respondent violated Section 8(a) (1) of the Act.2 2Arkansas-Loui8iana Gas Company, 142 NLRB 1083, 1089; The Ready-Mix Concrete Company of Lawrence, Kansas, 142 NLRB 502 , 506-507. 0. A. FULLER SUPER MARKETS, INC. 219 2. The Trial Examiner found that Respondent did not discrimina- torily discharge Larry Lewis. We disagree. Lewis entered Respondent's employ in May 1963 as a stockboy and became a checker in January or February 1964. A checker in a super- market is the employee who checks out a customer's purchases and col- lects payment therefor. Lewis joined the Union in February 1964, and Store Manager Davis admittedly learned of this fact on February 10, 1964. Thereafter, according to Davis, he formed the impression that Lewis was speaking to other employees about the Union. On May 9, 1964, Davis discharged Lewis. When asked the reason by Lewis, Davis listed the following (according to Lewis) : politicking for the Union; smoking, drinking, and eating behind the checkout counter or in the checkout lanes; being discourteous to customers; and having a dirty checkout lane. Davis admitted that he had told Lewis that one of the reasons for discharging him was that he had been poli- ticking for the Union. Although the Trial Examiner concedes that Davis' words about politicking for the Union "would support a find- ing of discriminatory discharge," he finds that Davis "used the wrong words in suggesting one reason when he was in fact ... motivated by another...." As to this the Trial Examiner found : ... I am impressed by Davis' statement that he objected because Lewis was blocking the checkout lane, although he did not say that, and charged him with politicking in the lane. While Davis' words would support a finding of discriminatory discharge, it ap- pears from the entire testimony that he merely used wrong words in suggesting one reason when he was in fact ... motivated by another, i.e., Lewis' attitude as manifested by his discourtesy. Thus, the Trial Examiner seems to be saying that in using the words "politicking for the Union" Davis meant "blocking the checkout lane," but that the real reason for the discharge was neither of these but Lewis' discourtesy toward customers .8 We do not agree with the Trial Examiner that Davis' statement to Lewis about politicking was a use of wrong words and that he actually meant to refer either to blocking the checkout lane or discourtesy to customers 4 It is difficult to understand how a person of Davis' appar- ent intelligence and position could have used words to describe the first, when he meant either of the other two. Moreover, Davis' testi- mony indicates that politicking, blocking of the checkout lane, and dis- courtesy to customers were three distinct ideas in his mind. Thus, a By discourtesy to customers , Davis apparently meant that Lewis failed to say, "Thank you , come again," on checking out customers. ' The overriding impression of Davis' testimony as a whole is its lack of "consistency and inherent probability," ( Universal Camera Corporation v. N.L.R B , 340 U S. 474, 496), and of constant shifting in his explanations for the discharge of Lewis. See N.L.R B. v. Georgia Rug Mill, 308 F. 2d 89 , 91 (C A. 5). 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD according to Lewis' uncontradicted testimony on this point, Davis gave politicking for the Union and discourtesy to customers as two separate reasons for the discharge. Further, Davis testified that before dis- charging Lewis, he had prepared a list of reasons for the discharge. Politicking for the Union and blocking of the checkout lane were apparently listed as two separate reasons on this list. Davis also testi- fied that he gave the politicking reason to Lewis, but did not mention blocking of the checkout lane, because he did not read all the reasons for the discharge from the list which he had prepared. In other words, Davis' testimony was that he had failed to mention blocking the lane, not that he had referred to it as politicking. Finally, at the close of his cross -examination, after the distinction between blocking the check- out lane and politicking for the Union had been explored, Davis answered affirmatively when asked by the General Counsel if politick- ing for the Union had been a reason for the discharge of Lewis.5 Accordingly, we reject the Trial Examiner's finding that, when Davis gave as one of the reason's for Lewis' discharge, the latter's poli- ticking for the Union, Davis actually meant to refer either to Lewis' alleged blocking of the checkout lane or to his alleged discourtesy to customers. To the contrary, we conclude that we are amply "justified in accepting respondent's announced reason [s] at . . . face value." 6 We find that Lewis' protected activities-what Davis termed his "poli- ticking"-were a "substantial . . . motivating reason' 1 7 for his dis- charge, and that therefore Respondent violated Section 8(a) (3) and (1) of the Act by discharging Lewis. THE REMEDY Having found that Respondent has engaged in unlawful interroga- tion in violation of Section 8(a) (1) of the Act, we shall order that it cease and desist therefrom and to take certain affirmative action in order to effectuate the purposes of the Act. 5 The following is Davis ' testimony on this point: Q But you did tell him [Lewis ] when you fired him that one of the reasons for discharging him was because he was politicking for the Union" A. Yes. Q That was one of the reasons 9 A. Yes. 6N.L:R.B. v. Corning Class Works, 293 F. 2d 784, 786-787 (CA 1). 7 The full statement from N L.R.B. v. Whiten Machine Works, 204 F 2d 883, 885 (C.A 1) is as follows In order to supply a basis for inferring discrimination , it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason , despite the fact that other reasons may exist [ Emphasis supplied ] There is no need therefore to consider whether any of the multitude of other reasons advanced by Davis for Lewis ' discharge , including discourtesy , were in fact involved in the decision to discharge Lewis see also N L R B v Jamestown Sterling Corp , 211 F. 2d 725 , 726 (C A . 2) ; Butler Brothers v. N L.R.B., 134 F. 2d 981 , 985 (CA 7) ; Wil- liams Motor Company v . N.L.R B., 128 F. 2d 960 , 964 (C.A. 8). 0. A. FULLER SUPER MARKETS , INC. 221 Having found that Respondent discharged employee Lewis in viola- tion of Section 8 (a) (3) and (1) of the Act, we shall order that it cease and desist from such unlawful conduct and post the usual notices. We shall also require Respondent to offer Larry L. Lewis immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of the offer of full reinstatement , less his net earnings during said period, in the manner prescribed in F. V. Woolrwortli Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing ct Heat- ing Co., 138 NLRB 716. As the Respondent's discriminatory discharge of Lewis is of a nature striking at the roots of employee rights guaranteed by the Act, we shall also order that Respondent cease and desist from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. ADDITIONAL CONCLUSIONS OF LAW Upon the foregoing findings of fact and the entire record in this case, we hereby delete the Trial Examiner's conclusion of law 3, and adopt new conclusions of law 3 through 6 as follows : 3. By interrogating employee Johnson as to "who started " the pro- tected activities amongst its employees, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guar- anteed them in Section 7 of the Act , in violation of Section 8(a) (1) of the Act. 4. By discharging employee Larry Lewis because of his Union activ- ity, Respondent has engaged in unfair labor practices as defined in Section 8 (a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent has not engaged in unfair labor practices except as stated in paragraphs 3 and 4 above. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, O. A. Fuller Super Markets, Inc., its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or activities on behalf of , Retail Clerks Union , Local 1557, Amalgamated Meat Cutters & Butcher Workmen's Union, Local 405, or any other labor organization , by dis- 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charging or in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any other term or condition of employment, because of their union membership or activities. (b) Interrogating its employees as to activities on behalf of any labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to join or assist the aforementioned or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds is necessary to effectuate the purposes of the Act. (a) Offer employee Larry L. Lewis immediate and full reinstate- ment to his former or a substantially equivalent position, without prej- udice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the dis- crimination against him, in the manner set forth above in the section entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act in 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, and all other records necessary and appropriate to determine the amount of backpay due under the terms of this Order. (d) Post at its store in Tuscumbia, Alabama, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 8In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." 0. A. FULLER SUPER MARKETS, INC. 223 IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violation of the Act not found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in, or activities on behalf of Retail Clerks Union, Local 1557, Amalgamated Meat Cutters & Butcher Workmen's Union Local 405, or any other labor orga- nization, by discharging or in any other manner discriminating against our employees in regard to hire or tenure of employment or any other term or condition of employment, because of their union membership or activities. WE WILL NOT interrogate employees as to activities on behalf of any labor organization in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist the aforementioned or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. WE WILL offer to Larry L. Lewis immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him, in the manner provided in the section of the Decision entitled "The Remedy." All our employees are free to become or refrain from becoming mem- bers of the above-named labor organization. O. A. FULLER SUPER MARKETS, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-In the event the above-named employee is presently serving in the Armed Forces of the United States we will notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION The consolidated complaint herein (issued June 22, 1964; charges filed February 24, April 3, May 14, and June 8, 1964), as amended, alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Larry L. Lewis on or about May 9, 1964, and failing to reinstate him, because of his protected concerted activities; and Section 8(a)(1) of the Act by said alleged acts and by interrogation and threats in connection with union activ- ities and desires. The answer, as amended, admits the discharge and failure to reinstate Lewis but denies the allegations of violation. A hearing was held before Trial Examiner Lloyd Buchanan at Tuscumbia, Alabama, on September 11, 1964. Pursuant to leave granted to the parties, a brief has been filed by the Company. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED It was admitted and I find that the Company, a Tennessee corporation with prin- cipal office and place of business in Nashville, Tennessee, operates retail grocery supermarkets in Tennessee and Alabama, the store in Tuscumbia, Alabama, being alone involved in this proceeding; that during 1963 the Company received gross revenue in excess of $500,000, and purchased and received supplies valued at more than $500,000 from suppliers located outside the State of Alabama; and that it is engaged in commerce within the meaning of the Act. It was admitted and I find that the Unions are labor organizations within the meaning of the Act.' II. THE UNFAIR LABOR PRACTICES A. The alleged independent violation of Section 8(a)(I) It was stipulated that, of 14 eligible employees, all but 3, the store manager's wife, the meat market manager's wife, and I other, signed union cards, all apparently on or before February 10, when union representatives appeared at the store, showed the cards to Davis, manager of the store, and gave him copies. 1. Threat Employee Mitchell testified that late in February or early in March he asked Davis why another employee had quit and was told it was done to get a job with another market. Continuing, Mitchell asked whether he had gotten the job, and Davis replied that he thought not When Mitchell asked, "Why not?" Davis replied, "Possibly because of the card he signed " One can recognize, in the last remark, an element of warning of the result of such a union activity. But I do not regard it as a threat or warning by Davis even if it were being claimed that he was "getting a punch in" on being questioned by Mitchell. Without attempts to foist his own opinion on the employees, Davis was here evidently guessing and expressing an opinion at Mitchell's request. Under the circumstances it would be silly to argue (and it has not been argued) that Mitchell was asking for the other store's reason if Davis actually knew. 'At the hearing, reference was made to "the Union" and to union cards without differentiation 0. A. FULLER SUPER MARKETS, INC. 225 2. Interrogation Mitchell also testified that on February 8 or 15 Bass, the meat market manager, asked him whether he knew of any plan to organize a union in the store. (If true and if before the cards were shown to Davis on February 10, this would show com- pany knowledge of union activities for possible bearing on Lewis' discharge although, as we shall see, the evidence concerning Lewis' union activities is meager.) Mitchell allegedly replied that there was no use in lying: he had signed, to which Bass remarked that he thought that a union was for a larger store than this one. Whether Lewis was correct in his statement that the cards were signed 2 weeks before they were shown to Davis (he testified, "We signed the Union card on Monday night, first part of February"; Mitchell testified that he signed on Thursday, Febru- ary 6), it is clear that Bass' alleged inquiry occurred, if at all, before February 15, and therefore on February 8. The latter categorically denied that he questioned Mitchell or discussed the Union with him at any time. I am reluctant to make a credibility finding in favor of Mitchell on this direct and simple "did, did not" situation. My observation of the witnesses' demeanor is of no help here. Aside from Mitchell's reference to his signing on February 6, we do not know the extent of any organiza- tional activities before February 8 or how knowledge of such activities was com- municated to Bass. Although there is evidence of somewhat earlier signing, con- ceivably the mass signing to which Lewis testified took place immediately before the cards were shown to Davis. (All of this review of bits of the testimony magnifies it beyond any importance which the General Counsel has claimed for it, whatever attempt may hereafter be made at a "fragment by fragment" analysis.) Finally in this connection, and aside from the trifling nature of the alleged question, we have neither such systematic interrogation of employees nor such context of interference as would support a finding of violative interrogation by Bass. In the absence of evidence of early discussion or other union activity, the record would warrant a finding that Davis' knowledge of such activity stemmed from the showing of the cards on February 10. Employee Johnson testified that on the evening when the cards were shown to Davis or the next day, Davis said to him, "I see you signed the card, the union card," and after receiving an affirmative answer, added, "I wonder who started it?" Johnson apparently did not reply. It seems, as it evidently did to Johnson, that this was no interrogation (despite the reporter's insertion of a mark) and that no reply was expected. Nor would I find a threat or other tendency to interfere in this brief simulacrum of Hamlet. B. The alleged violation of Section 8(a)(3) Lewis was discharged on May 9, allegedly for cause. He testified that Davis had never criticized his work although, about 2 weeks after the cards were signed, Davis had told him that for the past 2 weeks he had been "about the sorriest" of all the employees he had ever had. Contrariwise, Davis testified that Lewis had started out as a pretty good checker in January but that after 1 or 2 weeks he stopped being courteous to customers; and Davis spoke to him about this 10 or 12 times "all along." He testified further that Lewis would sit on the checkout counter and would not get up to wait on customers and that he smoked and ate at the checkout counter, "but the main thing was being unfriendly to customers." (Lewis knew that it was company policy to say, "Thank you, and come back.") Davis also mentioned Lewis' smoking and eating at the checkout position. While I credit Davis generally, I do not credit his statement that he did not know of other checkers smoking there. He did add that some checkers eat and drink on the checkout lines or lanes that they frequently step out to do this. What might be overlooked in others could trigger the discharge of one who has seriously or more frequently transgressed. If not clearly spelled out, the impression left by the various witnesses for both sides is that on one hand these latter things were not flaunted or brazenly done by the employees while management on the other hand made a show of enforcement but winked at eating, drinking, and smoking at the checkout counters. It can be understood that such activities might be engaged in between waiting on customers rather than while they were actually being served. This was suggested by Young, the senior checker and a reliable witness, who testified that she was sympathetic 2 to the General Counsel and has seen Davis himself smoking in the checkout lane although she would not say that he was checking out at the time. Young testified similarly that she eats on the checkout lane about every day. Yet, while she noted 2 The fresh cask long keeps its first tang. Horace, Ep. I, it, 69. 7 89-7 3 0-6 6-v o f 152-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Glynn, the district manager, walked in one day while she was eating an apple, she added that she doesn't usually do that in his presence- "It was more or less under- stood" that she was not to do that. Davis testified forthrightly that he does not try to do "too much" about such trans- gressions. While he spoke to Lewis several times about smoking up front on the checkout line, the situation is correctly portrayed in Lewis' statement, not contra- dicted, that Davis once had said to him that if Glynn walked in he should be pre- pared to swallow his cigarette. But thanking customers and asking them to come back is recognized as an important aspect of courtesy upon which management insists; and the credible testimony is that Lewis became remiss in this respect to the point that Davis described him as being, during the last 3 or 4 weeks (we recall that Lewis placed the comment several months earlier), the sorriest employee he had ever had. A questionable and even contrary note creeps in with Davis' testimony that, while his main and most serious objection was Lewis' lack of courtesy, and he did not give Lewis the various reasons which he had for discharging him, he did tell Lewis that he was discharging him for politicking for the Union. With respect to the facts in this connection, Davis testified that Lewis did a great deal of whispering which, while he did not hear what was said, Davis figured was about the Union. (He had never heard Lewis talk about the Union, and did not ask whether he was talking about the Union.) But more important than such facts is Davis' motive particularly in the light of his statement to Lewis about politicking for the Union; and that statement, part of the res gestae, carries great weight in any assessment of motive even if Davis did not actually know what Lewis was discussing. As we weigh all of the facts and weigh the credibility of the various witnesses, I am impressed by Davis' statement that he objected because Lewis was blocking the checkout lane, although he did not say that, and charged him with politicking in the lane. While Davis' words would support a finding of discriminatory discharge, it appears from the entire testimony that he merely used wrong words in suggesting one reason when he was in fact, as the evidence clearly indicates, motivated by another, i.e., Lewis' attitude as manifested by his discourtesy. Lewis' whispering and presumed union talk, or his union activity generally does not appear to have been different from that engaged in by other employees and, at the moment, by whichever employee had joined him in any given conversation. Davis' naive reference to politicking, which would generally determine the issue against the Company, is here overcome by his credited explanation and by con- sideration of the attendant circumstances. We have in this case a "pretext" situation in reverse. What appears on its face or per se to be an admission against interest was credibly explained by Davis 3 While recognizing Davis' remark when he had sufficient valid reason for the discharge, I emphasize two other facts: his apparent acceptance of the union activities of the other employees for several months without animus and the limited extent of Lewis' union activities. Lewis' attitude (not with respect to protected concerted activities) is exemplified in his remark to another employee after Davis had told him to do something, that he would do it this time but that, after the Union came in, he would tell Davis what to do! Lewis testified only that he did not recall whether he had said this. Lewis was not discharged for this, nor does it appear that Davis knew of the remark. But the incident helps to describe and explain Lewis' attitude and his lack of courtesy as described. I distinguish between lawful, if annoying, assertiveness in connection with protected concerted activities, which is sometimes encountered, and a chip-on- the-shoulder or devil-may-care attitude which manifests itself in poor work perform- ance and which Lewis exhibited. From all of the testimony, I am persuaded that discipline in the store is less than Spartan; but that Lewis exceeded the permissible and permitted bounds of dis- courtesy considerably beyond the 2 percent of the time which he admitted. As Young testified, employees were circumspect in their conduct when they transgressed what are generally regarded as rules for proper store conduct. (We have yet to consider the written rules.) Having observed Lewis, I believe that his lack of restraint stemmed not so much from a lack of understanding as from a newly acquired but unwarranted and excessive boldness. Basically, the question is whether the Company, 3 months after submission to it of signed cards 4 could lawfully discharge one of the 11 (any one since Lewis' activity does not appear to have been significantly greater than that of the other 10), whose work lacked an important element, lesser and more prevalent shortcomings aside. 8 Cf. Rubin Bros. Footwear, Inc., et al, 99 NLRB 610. We do not know what, if any, steps were thereafter taken with respect to representa- tion. There is no claim here of violation in that connection. 0. A. FULLER SUPER MARKETS, INC. 227 I have not overlooked Lewis' testimony on cross-examination that he talked to two employees for the Union during working hours and that he talked to others about the Union; and that this was done up front while he was sacking groceries behind the checker. Were we compelled to guess, it would be that his conversation for the Union took place early in February since all except the wives of the managers and one other employee had signed by February 10. (Lewis was talking "for," not merely about the Union ; he asked an employee whether he was going along or would wait to join. ) Company knowledge under the small plant rule would presumably be acquired at that time. As for talk about the Union, the evidence indicates that talking is quite general in the store and, again inferring company knowledge, talk about the Union would evidently be favorable on the part of the various employees, including Lewis, since virtually all had signed cards. There appears to be no sig- nificant aspect here as far as Lewis is concerned. If, as we recall, Davis figured that Lewis was whispering about the Union, this would be neither strange nor unusual. Lewis also testified that he talked "some" after the cards were shown to Davis, and finally that he was so engaged right up to the time he was discharged. Despite the questionable element in Davis' reference to Lewis' politicking in the checkout lane, I find that Lewis became less courteous to customers and was dis- charged for that reason. Davis testified that Lewis' work became worse and worse and that he had spoken to Glynn about firing Lewis; but that , after the cards were submitted to him, he took no action for fear of getting "into trouble." As noted, there was no reason connected with union activities for singling out Lewis among all of the employees for discharge in May. (No independent interference vis-a-vis Lewis is claimed . He testified that before his discharge no supervisor had ever mentioned the Union to him directly.) If, for whatever reason, Davis merely criticized Lewis' work after he was informed of the signed cards, Lewis did not thereby acquire any right to continue to treat customers without the required courtesy or to get "worse and worse ." If Davis did not discharge Lewis in February because he feared possible Board involvement, he was not thereafter barred from taking such action nondiscriminatorily. Davis acted on his own observation, not on any reports by Bass or Hellums, who is regarded as a supervisor . Bass does not appear to have reported to Davis his own observations of Lewis' lack of courtesy. But such observations bear on the issue whether Lewis in fact was discourteous to customers . That he was dis- courteous was further testified to by Hellums, whose favorable attitude toward the Union had changed and who, although not certain , was thereafter pretty sure that he reported Lewis' lack of courtesy. Lewis' shortcomings have been found without reference to various written rules. But despite his uncertainty and his denial of some of these, it is clear that there was distributed and he received at least two sets of written rules. Davis testified that each checker signed for a copy of the rules distributed at the first of the year. While his testimony was not confirmed by production of the signed sheet , it is clear that the rules were distributed , and I have no reason to doubt it . Young supported Davis' testimony in this connection . Lewis admitted receipt of one set and, while he could not recall whether it was before or after the cards were signed , Davis fixed the time as being approximately a month before the cards were shown to him. Because, as we have noted, Lewis was discharged primarily because of his manner toward customers , and there is no question but that the rules stressed courtesy and that he recognized the requirements in that respect, the evidence concerning other rules and transgressions is significant more for its bearing on credibility with respect to Lewis' attitude toward customers than for the extent or seriousness of such other transgressions. Further bearing on credibility is Lewis' denial that on an occasion when Davis rebuked him he had been sitting on the checkout stand with his feet on a garbage can. Confronted with his earlier statement to that effect, he admitted it was true. We have found that, despite Davis' reference to politicking by Lewis when he did not know what Lewis was saying and when other employees also talked, Lewis was in fact discharged for cause , would have been discharged earlier, and was not discriminated against. Although a tendency to interfere can be found in Davis' remark against politicking , standing alone as interference rather than discrimination this incident is minimal. If any suspicion of violation exists, it is because of the General Counsel's diligent pursuit of isolated bits which suggest transgression by a store manager experienced in the mechanics of his duties but quite ingenuous or inartful with respect to certain legal requirements. Despite the latter's lack of dissimulation , and indeed because of it, I credit his testimony and find that he did not discriminate against Lewis. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Retail Clerks Union, Local 1557 is a labor organization within the meaning of Section 2(5) of the Act. 2. Amalgamated Meat Cutters & Butcher Workmen's Union, Local 405, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) or (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. United Park City Mines Company and Frank E. Stindt. Case No. 07-CA-1576. April 09,1965 DECISION AND ORDER On February 8, 1965, Trial Examiner David Karasick issued his Decision 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 Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. Pursuant to the provision of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order , the Order recom- mended by the Trial Examiner and orders that the Respondent, United Park City Mines Company, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner 's Recommended Order, with the following modifications : As Utah is a right-to-work State, the phrase "except as authorized in Section 8(a) (3) of the Act" is deleted from paragraph 1(d) of the 152 NLRB No. 18.