Great Scot Super Market

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the engineers who are represented by the Respondent Union. In making this determination, we are not assigning the disputed work to Local 1525, IBEW, or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute. 1. Employees employed by Casler Electric Company, currently represented by International Brotherhood of Electrical Workers,, Local No. 1525, AFL-CIO, are entitled to operate the "high reach" hoist equipment operated by Casler Electric Company at the sub- station at the Fal-Tex site, Fremont, Nebraska. 2. International Union of Operation Engineers, Local No. 571,, AFL-CIO, is not and has not been entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require Casler Electric Company to assign the above work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local No. 571, AFL-CIO, shall notify the Regional Director for Region 17, in writing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to engineers, rather than to the employees of Casler Electric Company. Concren, Inc., d/b/a Great Scot Super Market, and d/b/a Prechtel and Osburn Co., and d/b/a Prechtel Co.; John B. Prechtel, a Sole Proprietorship, d/b/a Prechtel Co., and d/b/a Prechtel and Osburn Co.; John B. Prechtel and James A. Osburn, a Partnership, d/b/a Prechtel and Osburn Co. and Retail Store Employees Union, Local 550, Retail Clerks International Asso- ciation, AFL-CIO and Douglas Lockhart, David Byrd and R. Michael Myers, a Committee, Party of Interest and Great Scot Employees' Planning Committee, Party of Interest and Great Scot Employees' Independent Union , Party of Interest and Great Scot Employees' Committee, Party of Interest. Case No. 25-CA-1928. January 5,1966 DECISION AND ORDER On February 19, 1965, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent Conren, Inc., and John B. Prechtel, had engaged in and were engaging 156 NLRB No. 43. GREAT SCOT SUPER MARKET 593 in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondents had not engaged in the other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondents, the General Counsel, and Retail Clerks Local 550 filed exceptions to the Decision and briefs. 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 no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case,' and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations only to the extent that they are con- sistent with this Decision and Order. 1. The relevant evidentiary facts, as disclosed by the record and the Trial Examiner, will be briefly summarized in chronological order. In December 1962, the principal Respondent, Conren, operator of the Great Scot Super Market, learned of organizational activity by Retail Clerks Local 550, and filed an RM petition. Thereafter, Conren withdrew the petition, and without any election signed an agreement with Teamsters Local 144 covering its employees. Retail Clerks promptly filed an 8 (a) (2) charge against Conren with respect thereto. Conren countered with an 8(b) (7) (A) charge against Retail Clerks. But Conren then withdrew the charge; joined Teamsters in signing a settlement agreement of the 8(a) (2) case, which was approved by the Regional Director and provided in part that Conren would not recog- nize Teamsters unless and until certified; and filed another RM peti- tion. During this period Conren's agents (including President Hold- ren, Agent and Labor Consultant Howard, and Supervisor Prechtel) told various employees that Conren did not want Retail Clerks and preferred Teamsters if the employees insisted on having a union; and solicited employees to organize a company union. The Employees' Committee (or a predecessor) was accordingly formed, with company assistance, in June 1963. About the same time, on June 7, 1963, an election was held on Conren's second RM petition : both Retail Clerks and Teamsters lost. Objections were filed by Retail Clerks, but were later withdrawn. The validity of this election was thus not attacked. 1 The Respondents' request for oral argument is hereby denied as the record, including the exceptions and briefs, adequately sets forth the issues and the positions of the parties. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Immediately after the election defeat of Retail Clerks and Team- sters in June 1963, Conren orally recognized the Employees' Com- mittee and agreed to abide by the substantive terms of the Teamsters contract, which had been abrogated by the settlement agreement. The Employees' Committee then became dormant. Beginning in December 1963 and January 1964, some 7 months after the election and at a time when renewed organizational activity could be expected by Retail Clerks, Conren urged its employees to revive and expand the Employees' Committee. The employees did so. Management representatives attended all the meetings. Retail Clerks started its new organizing campaign early in March 1964. Conren learned of this by March 10, and Conren Agent Howard told the employees, at an Employees' Committee meeting on that date, that a signed contract with the Committe would keep out Retail Clerks. On or about March 16, Conren agents, for the first time, asked employee and union leader Osburn if he would care to "better" him- self by becoming Supervisor Prechtel's partner in taking over from Conren the operation of Prechtel's department, which stocked or dis- played the merchandise on the shelves and aisles of the supermarket, and which had proved to be the hotbed of union activity on behalf of Retail Clerks. Osburn replied by asking Prechtel if the proposal was a move to prevent organization by Retail Clerks and then fire him, and why President Holdren would offer him such a good deal since Holdren knew he was "pushing for the Retail Clerks." Prechtel answered that the move would enable Osburn to "better" himself, and would also eliminate Holdren's "headaches;" he made it a point to tell Osburn that the department would no longer be able to qualify as part of a storewide unit. About the same time another supervisor, Plummer, told an employee that Conren might reduce hours and institute a part-time operation if Retail Clerks got in. On March 18, Osburn accepted the inducement of a partnership with Prechtel to take over the department. On the same day, Presi- dent Holdren and Prechtel signed a contract whereby Conren sub- contracted the operation of the department to the partnership (Osburn did not sign because he was under 21), and Conren extended to the partnership the services of its bookkeeper and some money to get the partnership started. The subcontract was to become effective in 5 days; is contemplated that the partnership would employ the same employees, with their vacation schedules unaffected by the date they commenced working for the partnership; and it provided that Conren in addition to regular payment for services performed under the sub- GREAT SCOT SUPER MARKET 595 contract would also reimburse the partnership for F.I.C.A., workmen's compensation, and health and welfare contributions for the employees in the department. On March 19, Prechtel told Osburn that Conren would sell the store rather than recognize an outside union. Also on March 19 Conren received a demand from Retail Clerks for recognition as the collective-bargaining representative of a store- wide unit of all employees, including those in the subcontracted depart- ment but excluding those in the meat department and others within the standard exclusions. This unit consisted of 53 employees, and 28 of these employees had designated Retail Clerks as their collective- bargaining representative. On March 20 and 22 other supervisors made threatening remarks to other employees similar to that of Prechtel to Osburn on March 19. When the subcontract took effect on March 23, the employees in the department, all of whom had designated Retail Clerks, were trans- ferred to the partnership, which then granted them a wage increase of 25 cents an hour. Conren ignored the recognition demand of March 19. On March 26 Retail Clerks filed the original charge in this case, and a copy of the charge was duly served on Conren. Accordingly, the Board is pre- cluded by Section 10(b) of the Act from finding that any of Conren's actions before about September 26, 1963, constitute unfair labor practices. But the Board is not precluded from considering such action as a background to throw light and significance on Conren's subsequent unlawful conduct. On April 6, Conren received a recognition demand from Teamsters, which also filed an RC petition. The Regional Director later dis- missed the petition on the ground that the complaint in the present case had issued. The employees in Prechtel's department continued their union activities on behalf of Retail Clerks, and on or about April 11 Prechtel discussed with Holdren a proposal to discharge three of their union leaders (Osburn, Fox, and Unsinger) and received Holdren's approval. Prechtel then called Osburn into the store office, asked him to resign because he had remained "out pushing for the Union [Retail Clerks]," and tried to get a promise from him to quit talking about Retail Clerks. Proving unsuccessful, on April 13, Prechtel summarily dis- charged his so-called "partner" Osburn. On April 14, Prechtel dis- charged the two other employees, Fox and Unsinger, because of their union activity, as Prechtel admitted to Unsinger. Edwards, who had been hired as a temporary employee on April 8, found his timecard removed from the rack when he reported for work as scheduled on 217-919-66-vol. 156-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 15 .2 Osburn, Fox, and Unsinger, although already discharged by Prechtel, were present, and Edwards sought union leader Osburn's assistance. At this point, Prechtel ordered all four employees out of the store, as did Manager Mitchell, and they left. In the foregoing circumstances, the Trial Examiner, we note, found that Conren had engaged in certain unfair labor practices within the meaning of Section 8(a) (1), (2), and (5) of the Act. He further found that two of the discharges-Fox and Unsinger-were unfair labor practices within the meaning of Section 8(a) (3), but were chargeable only to Respondent Prechtel and not to Conren, because according to his finding the subcontract to Prechtel had converted their status to that of employees of Prechtel only. Finally, he found that Conren had not engaged in the other unfair labor practices alleged in the complaint. 2. Conren's principal attack is against the Trial Examiner's find- ing that Osburn was an employee at all relevant times prior to March 23, 1964. The Trial Examiner recognized that Osburn helped Supervisor Prechtel in hiring temporary employees during the Christmas rush in 1963, in directing the night crew, and in ordering replacement merchandise but found that Osburn was not authorized to use his own judgment and had to consult management representatives when any real supervisory problems arose. The Trial Examiner concluded that Osburn's ostensible supervisory authority was of a routine nature and did not involve the use of any substantial amount of independent judgment or otherwise satisfy supervisory requirements of Section 2(11) of the Act. Conren does not dispute the facts on which the Trial Examiner based his conclusion. In any event, the record satisfies us that such facts are correct. Although recognizing, as did the Trial Examiner, that resolution of this issue is not without difficulty, we are not per- suaded that the Trial Examiner reached the wrong conclusion. Accordingly, we adopt the Trial Examiner's finding that Osburn was an employee at all relevant times prior to March 23,1964. 3. The Trial Examiner found that Conren validly deprived Osburn of his employee status on March 23, 1964, and at the same time validly terminated its own liability for the unfair labor practices in which Supervisor Prechtel continued to engage. He found that Conren achieved these results by inducing Osburn to become an ostensible independent contractor under a partnership arrangement with Prechtel for the purpose of continuing to operate the Conren department there- 2 A work schedule which had been prepared by Prechtel discloses that Edwards was scheduled to work on April 15, 16, and 17. The evidence does not show how much longer Edwards' employment was to last. GREAT SCOT SUPER MARKET 597 tofore under Prechtel's supervision and the hotbed of union activity for Retail Clerks. The principal attack of Retail Clerks and the General Counsel is directed to these findings. In making these findings, the Trial Examiner correctly conceded that Conren was engaged in widespread unfair labor practices to prevent its employees from selecting Retail Clerks as their collective- bargaining representative. But he nevertheless concluded that there was an "absence of evidence from which the conclusion may be drawn that this played any part in Holdren's [Conren's] motive in making the contract." The Trial Examiner then sought to bolster this con- clusion by crediting testimony by Conren's president and Conren's labor consultant that they had discussed between themselves a pro- posal to subcontract the operation of Prechtel's department to a pro- posed Prechtel-Osburn partnership before March 1964. But the record does not show and the Trial Examiner did not find that any overt action was taken to finalize these proposals or to tell proposed partner Osburn about them until after the union activity on behalf of Retail Clerks had evoked Conren's unfair labor practice campaign. More- over, we believe that the Trial Examiner did not attach appropriate significance to the fact that the asserted subcontracting action effected no real or substantial change in the employment situation, but was at most a financial or bookkeeping arrangement. Further, Conreri appears to have retained some measure of control over the employees, as is evidenced by the fact that Prechtel thought it necessary to consult with Holdren and obtain his approval before discharging Osburn, Fox, and Unsinger. On all the evidence, we find that the subcon- tracting action was a device whereby Conren hoped to defeat Retail Clerks, as Prechtel in effect admitted to Osburn when first broaching the partnership-subcontracting arrangement on or about March 16. Accordingly, we conclude and find, contrary to the Trial Examiner, that Conren did not validly change the status of either Osburn and the other employees in Prechtel's department, or of Prechtel as one of its supervisors, by the partnership and subcontracting arrangements of March 1964. 4. The Trial Examiner found that the discharges of Osburn and Edwards in April 1964 were not discriminatory, Osburn because he was then an independent contractor and no longer an employee, and Edwards because his temporary employment had terminated and in any event neither Conren nor Prechtel knew he had signed a card for Retail Clerks on the first night of his employment. The evidence, however, does not support the Trial Examiner's grounds for dismiss- ing the cases of Osburn and Edwards. Rather, as we have found above, it shows that Osburn was still a Conren employee; Edwards' temporary employment had not terminated; and even assuming Con- 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ren's lack of knowledge that Edwards had signed a union card, Conren ordered him to leave the store upon his seeking the help of union leader Osburn, in retaining his temporary employment, which still had several days to run. We note that Osburn had continued to be the leading union employee even after Conren tried to warn and bribe him and the other employees to abandon the Retail Clerks. We note further that, as the Trial Examiner found, Conren did not discharge either of these employees for cause. The Trial Examiner also found that although the discharges of Fox and Unsinger were discriminatory, the discrimination was not charge- able to Conren because the discharges occurred after what he consid- ered to be Conren's valid subcontract of the department where they worked. We agree that these two discharges were discriminatory. But, as indicated above, we do not agree that the purported subcon- tract relieved Conren of responsibility for the discriminatory discharges. For the foregoing reasons, we find, contrary to the Trial Examiner, that Conren violated Section 8(a) (3) and (1) by the discharges of Osburn, Fox, Unsinger, and Edwards .3 Even were we to agree with the Trial Examiner as to the validity of Conren's subcontract to the Prechtel-Osburn partnership, however, the evidence indicates and we would find that Conren, with whose president Supervisor Prechtel consulted before making the discriminatory discharges (thus clearly showing that the partnership was not a completely independent con- tractor), stood in the position of a joint employer sharing control over the job tenure of the employees in question, and as such is jointly responsible with Prechtel for their unlawful discharge. 5. The Trial Examiner found in effect that the unit alleged in the complaint was appropriate, and consisted of 53 employees; that a majority of 28 of them had signed cards by the date of the recognition demand on March 19, 1964, designating Retail Clerks as their collective-bargaining representative (excluding cards signed by em- ployees Fisher, Hill, Kent, and Pfister) ; that Conren did not have a good-faith doubt of Retail Clerks' majority; and that Conren accord- ingly violated Section 8(a) (5) and (1) when it failed to grant the recognition demand. Conren argues principally that it was not obligated to bargain with Retail Clerks within a year after the valid election of June 7, 1963 (at which its employees rejected representation by Retail Clerks), on the ground that under Section 9 (c) (3) of the Act 4 employers are provided 8 Since it is conceded that Edwards ' employment was temporary and would have ex- pired long ago, we shall not now order his reinstatement , and will leave to compliance the determination of the amount of lost wages due him. 4 Section 9 ( c) (3) in pertinent part provides : "No election shall be directed in any bargaining unit or subdivision within which , in the preceding 12-month period a valid elec- tion which shall have been held...... GREAT SCOT SUPER MARKET 599 a 1-year period of repose from the bargaining demands of unions. For the reasons set forth in an earlier case,5 however, we find that neither the legislative history of that section," nor its plain terms, manifest any congressional purpose to preclude a union from obtaining recogni- tion either without an election, or within a year after an election, or within a year after an election which it did not win, if it in fact acquires majority status in an appropriate unit. Accordingly, we hold that Section 9(c) (3) did not preclude Conren's employees from validly selecting Retail Clerks as their collective-bargaining rep- resentative by means of union authorization cards during the year following the issuance of the certification of results of the June 1963 election. We further hold, in the particular circumstances of this case-taking into account Conren's unfair labor practices and its demonstrated absence of a good-faith doubt of the Union's majority- that Section 9 (c) (3) did not relieve Conren at the time of the Union's request on March 19, 1964, of its obligation to recognize and bargain with the Union as the duly designated collective-bargaining rep- resentative of its employees. Conren also contends, however, that the Board's Midwest Piping doctrine' precluded it from recognizing Retail Clerks, since it was faced with a conflicting recognition claim by another union (Team- sters, Chauffeurs, Warehousemen, and Helpers Local Union 144), which allegedly gave rise to a real question concerning representa- tion. However, the demand that Conren recognize Teamsters was not made until April 6, 1964, 18 days after Retail Clerks' recognition demand. It is thus evident that Conren was not faced with any con- flicting claim when it received and in effect rejected Retail Clerks' recognition demand. Moreover, Teamsters' demand for recognition was not valid and did not give rise to a real question concerning rep- resentation since Teamsters had not sought Board certification when it made demand for recognition, and since both Conren and Teamsters had signed and the Regional Director had approved an 8(a) (2) settlement agreement providing in part that Conren would not rec- ognize Teamsters unless and until certified by the Board." Conren further contends that many of Retail Clerks' cards, although expressly designating Retail Clerks as the collective-bargaining rep- resentative, are invalid because they were solicited with statements that the cards were desired in order to obtain an election. Conren 5 Rocky Mountain Phosphates, Inc., 138 NLRB 292, particularly at 295. Board policy prior to the passage of Section 9(c) (3) was to direct a new election in appropriate cases within a year of a valid election. This practice Section 9(c)(3) changed by forbidding more than 1 valid election a year. It went no further. 8 See Ray Brooks v. N.L.R.B., 348 U.S. 96, particularly at 100, footnote'' S. '+ Midwest Piping & Supply Co., Inc., 63 NLRB 1060, 1070. 8 Teamsters subsequently filed a petition for certification but the petition was dismissed by the Regional Director on the ground of the instant unfair labor practice proceeding. The Board affirmed the dismissal on appeal. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argues that Retail Clerks' apparent majority status is consequently invalid. This argument lacks merit, however, because, as found by the Trial Examiner, it appears that, with one possible exception, those employees who were told that by signing they would get an election were not also told that this was the only purpose for which the cards were to be used. They were also urged to sign because of the benefits that might be obtained through union representation .9 Absent clear evidence of misrepresentation, we are not willing to permit subjective testimony of the signers as to what their intent might have been at the time to contradict the clear designations expressed in cards they signed.1o Accordingly, for the reasons set forth above as well as for those advanced by the Trial Examiner, but without adopting the Trial Examiner's exclusion of the four cards as mentioned above, we find that Conren violated Section 8(a) (1) and (5) by refusing to bargain collectively with Retail Clerks on and after March 19, 1964. 6. As for the Section 8 (a) (1) violations, the Trial Examiner limited it to certain threats made to employees during the crucial period in March 1964, when organizational activities were at their height. Conren attacks the findings as to the threats made to Osburn, on the ground that Osburn was at least a supervisor and not an employee, and indeed should be regarded as an independent contractor because he had already agreed to become Prechtel's partner in running the department. For reasons discussed above, we find no merit in this argument. Conren further contends that the date of the threats to employee Poe were not fixed, and that Stewart's threat to Greaver mentioned only the "union," without specifying Retail Clerks. The record satisfies us, however, that the Trial Examiner's findings in their context were not isolated or insubstantial. The General Counsel excepts to the Trial Examiner's refusal to find that certain additional remarks made by Supervisor Prechtel to employee Osburn on March 16 and April 11 violated Section 8(a) (1) of the Act. On the earlier date, Osburn inquired of Prechtel why he should be promoted by Conren President Holdren to the status of Prechtel's "partner" to perform the proposed subcontract of Prechtel's department, since Holdren knew he was spearheading the organizing drive for Retail Clerks, and whether the proposal was a move to 0In ruling on the validity of such cards , the Trial Examiner , although following and correctly applying the Board 's holding in Cumberland Shoe Corporation, 144 NLRB 502, nevertheless went beyond the needs of decision in this case to indicate his personal dis- agreement with that holding and to make other personal observations on matters not germane to the issues before him . We do not adopt as part of our decision , the Trial Ex- aminer's extraneous comments referred to above. ( See Lenz Company, 153 NLRB 1399 ) We note, moreover , that the Cumberland Shoe decision has been enforced by the Court of Appeals for the Sixth Circuit, 351 F. 2d 917 (October 26, 1965). 10 Gary Steel Products Corporation, 144 NLRB 1160. GREAT SCOT SUPER MARKET 601 "prevent" that drive. Prechtel did not deny the accusation. Rather, he replied that the proposed subcontracting arrangement would take the "headaches" of the drive off Conren's shoulders and that it did not matter whether the move was one to prevent the organization by Retail Clerks since the department's employees would no longer be qualified or eligible to vote as Conren's employees. On the later date, Prechtel asked Osburn to resign, openly admitting that his demand was made because Osburn had continued to "push for" Retail Clerks. Prechtel added that he would refrain from discharging Osburn if Osburn would cease his activities on behalf of Retail Clerks. In view of our finding that Osburn was an employee and that the partnership-and- subcontract arrangements were not bona fide but rather shams con- ceived to deter Retail Clerks organization of Conren's supermarket, we find that Supervisor Prechel's remarks to Osburn on both March 16 and April 11 were likewise coercive. The General Counsel also excepts to the Trial Examiner's failure to find that the grant of a wage increase to the employees in Prechtel's department on March 23, while maintaining the other employees at their old wage rate, constituted a violation of Section 8(a) (1) of the Act. Conren's defense is that because of the subcontract the wage increase was not chargeable to it, and that it did not even know what increase, if any, the Prechtel-Osburn partnership as an independent subcontractor would institute for its employees. However, again in view of our finding that the partnership-and-subcontract arrangement was a sham, we find that Prechtel remained in the employ of Conren as its supervisor and agent. As the reason for the wage increase was not explained, as it was critically timed to occur only in the depart- ment where the organizational efforts of Retail Clerks were succeed- ing, and as Conren at the time was engaging in many other unfair labor practices as set forth herein, we infer and find that the aim and foreseeable effect of this wage increase was likewise or interfere with the union activity of Conren's employees. Retail Clerks excepts to the failure of the Trial Examiner to find that the transfer of the employees in Prechtel's department to the partnership, as an independent contractor, was also designed to inter- fere with, restrain, and coerce the employees in the exercise of their statutory rights. We find merit in this exception. Accordingly, we find that Conren violated Section 8 (a) (1) of the Act not only by the unlawful conduct found by the Trial Examiner, but also by the additional unlawful conduct we have found above. 7. With respect to the Section 8(a) (2) violation, the Trial Exam- iner found that Conren unlawfully aided and supported the Employ- ees' Committee and unlawfully granted it recognition. In its brief 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Board , Conren argues that it did not intend to operate the Employees' Committee as a labor organization or to aid or support it. As indicated above, the record does not support these arguments. Conren further argues that the Committee ceased to exist after March 1964, and consequently no order should be issued with respect to it. Because Conren has violated the Act with respect to the Com- mittee, however, and in order to prevent a recurrence of its unlawful conduct, effectuation of the provisions of the Act requires that an appropriate order be issued. The General Counsel argues that the evidence shows not only that Conren assisted the Committee , as the Trial Examiner found, but also that Conren actually instigated the original formation and the later revival of the Committee and actively participated in its admin- istration . The evidence satisfies us of the merits of this argument and shows that Conren's conduct constituted domination of the Committee. Accordingly, we shall order it disestablished. THE REMEDY Having found that Prechtel engaged in unfair labor practices as Conren's supervisor, and not as an independent employing entity, we shall follow our customary practice and not adopt the Trial Exam- iner's recommendation that an order be addressed expressly to Prechtel. We note, however, that our Order against Conren and its officers, agents, successors , and assigns , includes Prechtel within its scope. Having found that Conren engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain appro- priate remedial action. Because Conren dominated the Employees' Committee, we shall order Conren to disestablish it as the representa- tive of any of Conren's employees . Because Conren discriminatorily discharged employees Fox, Osburn , Edwards, and Unsinger, we shall order Conren to offer them reinstatement (other than Edwards, a temporary employee whose term of employment would have by now expired), with backpay computed in the manner set forth in the Trial Examiner's Decision. Finally, we shall order Conren to cease granting wage increases to its employees or purporting to transfer them to a subcontractor for the purpose of interfering with their self-organizational rights, or threatening them, or in any other manner violating Section 8 ( a) (1). CONCLUSIONS OF LAW 1. Conren, Inc., is an employer engaged in commerce within the meaning of the Act. 2. Retail Clerks Local 550 and the Employees' Committee are labor organizations within the meaning of the Act. GREAT SCOT SUPER MARKET 603 3. By dominating, assisting, and giving aid and support to, and recognizing , the Employees' Committee , Conren has violated Section 8(a) (2) and (1) of the Act. 4. By threatening to sell its business and to close the store early and put its employees on part time if Retail Clerks Local 550 came in, by Supervisor Prechtel's threats to employee Osburn on March 16 and April 11, 1964, and by transferring its stock department employees to a subcontractor and thereafter granting them a wage increase, Conren violated Section 8 (a) (1) of the Act. 5. By discharging employees Warren Edwards , James Fox, James Osburn, and Jerry Unsinger to discourage their membership in or activities on behalf of Retail Clerks Local 550, Conren violated Section 8(a) (3) and (1) of the Act. 6. At all relevant times, all employees of Conren , Inc., employed at its Great Scot Super Market, Terre Haute , Indiana, excluding meat department employees, professional employees , guards, and supervi- sors as defined by the Act, constituted an appropriate unit for the purposes of collective bargaining. 7. At all relevant times, Retail Clerks Local 550 was the exclusive bargaining representative of all employees in the appropriate unit. 8. By refusing to bargain with Retail Clerks Local 550 on and at all times after March 19, 1964, as the exclusive bargaining representa- tive of its employees in the appropriate unit, Conren violated Section 8(a) (5) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Conren, Inc., Terre Haute, Indiana, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Retail Store Employees Union, Local 550, Retail Clerks International Association , AFL-CIO, as the exclusive representative of its employees in the unit found appropriate herein. (b) Dominating or interfering with the formation or administra- tion of, or contributing financial or other support to, the Great Scot Employees' Committee or any successor thereto, or any other labor organization of its employees , or recognizing the Employees' Com- mittee or any successor thereto as the collective-bargaining representa- tive of any of its employees. (c) Discouraging membership in Local 550 or any other labor orga- nization by discharging or in any other manner discriminating against its employees with respect to their hire or tenure of employment, or any term or condition of their employment. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Granting wage increases to its employees or purporting to transfer them to a subcontractor for the purpose of interfering with their statutory rights, threatening its employees that it will sell its business or discharge them or curtail their hours of employment, or in any other manner interfering with, restraining, or coercing its employ- ees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Local 550 or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act; (a) Withhold all recognition from, and completely disestablish, the Employees' Committee as the collective-bargaining representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment. (b) Upon request, bargain collectively with Local 550 as the exclu- sive bargaining representative of all of its employees in the unit found appropriate herein. (c) Offer to James Fox, James Osburn, and Jerry Unsinger immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them and Warren Edwards whole for any loss of earnings suffered as a result of the discrimination against him in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest as pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716. (d) Notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment record, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. GREAT SCOT SUPER MARKET 605 (f) Post at its place of business in Terre Haute, Indiana, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 25, shall, after being duly signed by the Company's representative, be posted by the Company 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 the Company to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Regional 25, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. ' In 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL withdraw and withhold all recognition from, and completely disestablish , the Great Scot Employees ' Committee or any successor thereto, as the collective-bargaining representative of any of our employees. WE WILL offer to James Fox , James Osburn, and Jerry Unsinger immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make each of them and Warren Edwards whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL, upon request, bargain collectively with Retail Store Employees Union, Local 550, Retail Clerks International Associa- tion, AFL-CIO, as the exclusive representative of our employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement . Said bargaining unit is: All employees of our Great Scot Super Market Store, excluding all meat department employees , professional employees, guards, and supervisors as defined in the Act. WE WILL NOT dominate , interfere with , or contribute financial or other assistance or support to the Employees' Committee or any 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD successor thereto, or any other labor organization of our employees. WE WILL NOT discourage membership in Retail Store Employees Union, Local 550, Retail Clerks International Association, AFL- CIO, or any other labor organization, by discharging or in any other manner discriminating against our employees with respect to their hire or tenure of employment or any terms or condition of employment. WE WILL NOT grant wage increases or purport to transfer our employees to a subcontractor for the purpose of interfering with their statutory rights, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Local 550 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 mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or refrain from becoming or remaining, members of Local 550, or any other labor orga- nization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. CONREN, INC., d/b/a GREAT SCOT SUPER MARKET, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above-named employees presently in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the day of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. 633-8921, if they have any questions concern- ing this notice or compliance with its provisions. GREAT SCOT SUPER MARKET TRIAL EXAMINER'S DECISION 607 STATEMENT OF THE CASE Upon a charge filed March 26, an amended charge filed May 7, and a second amended charge filed June 1, 1964, by Retail Store Employees Union, Local 550, Retail Clerks International Association, AFL-CIO, herein called Local 550 or the Union, against Conren, Inc., d/b/a Great Scot Super Market, and d/b/a Prechtel and Osburn Co., and d/b/a Prechtel Co., herein called Conren, and against John B. Prechtel, a sole proprietorship, d/b/a Prechtel Co., and d/b/a Prechtel and Osburn Co., herein called Prechtel, and against John B. Prechtel and James A. Osburn, a partnership, d/b/a Prechtel and Osburn Co., herein called Prechtel and Osburn, or jointly as the Respondents, the General Counsel issued a complaint and an amend- ment to the complaint alleging that Conren violated Section 8(a)(2) and (5) of the Act; that Conren and Prechtel violated Section 8(a)(3) of the Act; and that the Respondents violated Section 8(a)(1) of the Act.1 The answer and amended answer denied the commission of any unfair labor prac- tices on the part of Respondents.2 This proceeding, with all parties represented,3 was heard before Trial Examiner John F. Funke at Terre Haute, Indiana, on July 27 through 30 and on August 5 and 6. At the conclusion of the hearing the parties were given leave to file briefs, and briefs, exceptionally helpful, were filed by the General Counsel , the Respondents , and the Charging Party on November 2. Upon the entire record,4 and from my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENTS Conren maintains a grocery supermarket at Terre Haute , Indiana, and its annual gross sales exceed $500,000. It is engaged in commerce within the meaning the Act. Prechtel and Osburn Co., an alleged partnership, and its successor, Prechtel Co., an alleged sole proprietorship, performed the services of "stocking" for Conren from March 23, 1964, pursuant to a contract with Conren.5 The General Counsel intro- duced bank statements to show deposits made by Prechtel and Osburn Co. and Prechtel Co. from April 3 to June 19. Deposits for these 12 weeks totaled $12,506.14. All deposits were from sums received under the Conren contract for services provided. Projecting these figures for the entire year, and there is no evidence that they were not representative , the contracting party would receive a sum slightly in excess of $54,000 for its services to Conren.6 Accordingly I find Respondents Prechtel and Osburn and Prechtel Co. engaged in commerce within the meaning of the Act.7 II. THE LABOR ORGANIZATIONS INVOLVED I find Local 550 is a labor organization within the meaning of the Act . With respect to the allegation that the respective parties in interest are labor organizations, the findings, to the extent that findings are necessary, will be made infra. 1 The motion made by Teamsters , Chauffeurs , Warehousemen and Helpers , Local Union No. 144, et at., to Intervene in this proceeding on the ground of a showing of interest submitted in Case No . 25-RC-2622 was denied on the ground that Local No. 144 bad made no showing of interest in this proceeding. 2 Although appearance was entered by counsel on behalf of all Respondents , the answer was submitted on behalf of Concren, Inc., d /b/a Great Scot Super Market, and John B. Prechtel as a partner in Prechtel and Osburn Co., and John B. Prechtel , a sole proprietor, d/b/a Prechtel Co. 8 Appearances were noted on behalf of the four parties In interest named In the com- plaint but the parties in interest did not participate in the proceedings. ' The motion of the General Counsel to amend the record Is hereby granted. 5 General Counsel 's Exhibit No. 22. 6 The General Counsel read into the record a series of figures which showed total pay- ments made by Coren to Prechtel of $17,192.58 from March 28 to July 19, indicating a projected annual payment of $52 ,599.68. 7 Siemons Mailing Service, 122 NLRB 81. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The evidence 1. Background In December 1962 Local 550 picketed the premises of Conren and Conren filed a petition for a representation election in Case No. 25-RM-140 on December 10, 1962. (General Counsel's Exhibit No. 2.) On December 28 the request to with- draw the petition was approved by the Regional Director for Region 25. (General Counsel's Exhibit No. 3.) In the spring of 1963 Conren entered into a collective- bargaining agreement with Local 144, Teamsters (General Counsel's Exhibit No. 13), and a charge alleging violation of Section 8(a) (2) of the Act was filed by Local 550 against Conren on March 25, 1963, in Case No. 25-CA-1727. (General Coun- sel's Exhibit No. 4.) On April 23 a settlement agreement, to which Local 144 was a party, was approved by the Regional Director. Under the terms of this agreement Conren withdrew recognition from Local 144, Teamsters, and ceased to give effect to the contract. (General Counsel's Exhibits Nos. 5-A and 5-B.) On April 2, 1963, while the charge in Case No. 25-CA-1727 was pending, Conren filed charges against Local 550, Case No. 25-CP-15, alleging violation of Section 7(a) of the Act. (Gen- eral Counsel's Exhibit No. 6.) On April 22 the request to withdraw the charge was approved by the Regional Director. (General Counsel's Exhibit No. 7.) On the same day Conren filed a new petition for an election in Case No. 25-RM-145. (Gen- eral Counsel's Exhibit No. 8.) An election was held on June 7 with both Local 550 and Local 144 appearing on the ballot and the Board certified that no union won the election. (General Counsel's Exhibit No. 11.) On March 18, 1964, Conren entered into the contract with Prechtel (General Counsel's Exhibit No. 22) whereby Prechtel agreed to stock all merchandise for 1.4 percent of the gross grocery sales of Conren. On March 19, by telegram, Local 550 demanded recognition as exclusive bargain- ing agent for the Conren employees described therein. Following Conren's failure to reply, the charge herein alleging refusal to bargain was filed on March 26. 2. The status of John Prechtel and James Osburn Certain of the allegations of the 8 (a)( 1 ) complaint charged against Prechtel are also incorporated in the allegations against Conren and the 8( a)(3) allegations are directed against Conren and/or Prechtel. One of the defenses asserted against the 8(a)(1), (3), and (5) allegations is that James Osburn was a supervisory employee of Conren until March 18, when he became a partner of John B Prechtel in Prechtel and Osburn Co. John Prechtel was admittedly a supervisory employee of Conren prior to the establishment of the alleged partnership on March 18, 1964. The super- visory status of James Osburn, which affects among other issues the validity of the authorization cards obtained by Osburn for Local 550, is at issue. The threshold question is whether Prechtel and Osburn was a bona fide partner- ship operating with relation to Conren as an independent contractor or whether it was a sham contrived by Conren to conceal contemplated unfair labor practices. The question posed is not an easy one. John Holdren, president of Conren, testified that he first discussed "farming out" the stockwork at the supermarket with Newlin Howard, a business consultant oper- ating under the firm name of Mann and Howard, in November 1963.8 At or about that time Conren did enter into a contract with Mann and Howard to conduct the "side door" operation fl and there was discussion of contracting out not only the stocking operation but the entire grocery operation. No contract was ever made with Mann and Howard for work other than the "side door" work. According to Holdren the stocking had been performed at night from the time the store opened in July 1962, until June 1963 when Conren switched to day stocking. It was at the time of Holdren's discussions with Howard that Holdren decided to return to night stocking and to keep a record of costs so that if he decided to contract out the stocking he would have an estimate of proper charges. Since November and December were unusual months in the supermarket business Holdren did not make the shift until the middle of January 1964. On March 2 James Osburn was trans- 8 The stocking operation consisted of keeping the shelves stocked with the proper merchandise. It was performed by a group of boys in their late teens or early 20's O General Counsel's Exhibits Nos. 14-A and 14-B. The side door operation was essen- tially a receiving department. GREAT SCOT SUPER MARKET 609 ferred from day stocking to night stocking and it is the contention of the Respond- ents that Osburn was given supervisory status over the night stocking crew, a contention denied by the General Counsel. Since this issue is not entirely remote from the issue of the validity of the Prechtel and Osburn partnership and its independent contractor status vis-a-vis Conren, it is appropriate to determine that issue first. Osburn was first employed as a stocker by Conren about 2 weeks before the store opened in July 1962, at a rate of $1.60 per hour. He was shortly transferred to nonfood department at $75 per week. He then left Conren, returning in December 1962. In April or May 1963 his salary was increased to $80 a week, changed in July to $1.80 per hour for a 45-hour week. He worked the day shift and on weekends on the night shift 10 and on March 2 was trans- ferred to the midnight shift. Prior to this transfer it is not disputed that John Prechtel was in charge of all stocking operations. Osburn testified that he had no authority to hire, fire, or transfer or to exercise responsibly the other criteria of Section II. He was told by Holdren when he transferred that he was to act as a "ramrod" and push the other boys. He did assign their aisles to them and, for himself, he pulled the skids out when he first arrived and helped at the aisles as needed. He admitted that on one occasion he had permitted an employee to leave at 8 a.m. instead of 8:30 to permit him to take his wife to a doctor but stated that the employee had sacrificed his lunch period to depart early. If any serious problem arose he understood he was to call John Prechtel and stated that he did in fact call him at night "probably once or twice a week." (He stated he had received instructions from Holdren to report any problems to him (Holdren) and he would solve them.) On cross-examination Osburn admitted that he issued the orders for merchandise to fill the shelves as needed; that prior to March 2 he usually filled up the milk and ice cream cases; that his working schedule was fixed by John Prechtel. He testified that in December 1963 (it appears that Conren hired temporary extra help during this month) Prechtel told him they needed extra men and he called, at Prechtel's request, his wife's cousin, Robert Vukusich, and told him to come to work. Osburn also called others at this time as did Prechtel and put them to work. Osburn protested to Prechtel against the hiring of one employee but Prechtel hired him regardless. Osburn's rate of pay did not change when he transferred to the night shift but remained at $1.80 an hour. Holdren testified that he first approached Osburn with a request to supervise the night stocking operation in late February 1964, and that Osburn was reluctant to accept. He had a second meeting with Osburn and told him that he had been paying for two supervisors, Prechtel and Osburn in stocking, and that Conren needed a night supervisor and could not pay for a third. He told Osburn he had the choice of accepting or of going back to stock rate ($1.65 per hour) or he would give Osburn 8 weeks in which to find a job. Osburn then accepted the offer, although his request for additional pay was refused. The creation of Prechtel Co. followed shortly after Osburn's transfer to night stocking on March 2. Holdren testified that late in February he again talked to Howard about contract- ing out the stocking operation and asked Howard to talk to Prechtel and ask him if he would be interested in assuming the stockwork.11 Howard reported that Prechtel was interested and later told Holdren that Prechtel wanted to bring Osburn in. Holdren had no objection but he was not sure that Osburn was over 21 (he was not) and suggested that if a contract agreement was reached Osburn's guardian would have to sign for him. On March 16 Holdren spoke directly to Prechtel about the proposition. After checking records he suggested to Prechtel remuneration at 1.4 percent of the gross grocery sales. (Holdren explained how this figure was reached but I do not consider this relevant.) Prechtel considered this offer and the next day asked for 1.42 percent which Holdren rejected. On March 18 the contract with Prechtel was signed, providing for 1.42 after 6 months.12 11 While Holdren refers to a program of day stocking and night stocking It appears that generally there were two shifts working. n Why Holdren did not meet with Prechtel directly is not explained although Holdren stated that prior to talking to Howard he had asked Prechtel if he thought Osburn would be interested in contracting for the night operation of the stock but again he did not deal directly with Osburn. 17 Holdren 's reasons for contracting the stocking operation are given at length in the record but they may be summarized as reaching a fixed cost for stocking in relation to sales ; the hope that the contractor would be interested in increasing sales ; and the possibility that a contractor might work longer hours. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Osburn's testimony is that he was first approached by Prechtel with an offer to take over the stocking operations on March 16. Prechtel came to Osburn's home with a proposed service contract "along with four other pieces of paper." (General Coun- sel's Exhibits Nos. 23-A, 23-C, 23-D, 23-E, and 23-F.) 13 Prechtel showed him the papers and asked him to become a partner with him. Osburn at the moment was undecided and asked Prechtel if it was a move to "prevent" the Union (which was to make its demand for recognition 3 days later ) and Prechtel answered that it was to "Better himself and me." The percentage of 1.4 of gross sales was discussed and Osburn pointed out that the contract did not provide for any increase over a 2-year period and an increase of 1 42 was provided for in the final contract . (General Counsel's Exhibit No. 22.) 14 Wages for the stock employees were discussed by Prechtel and Osburn and it was agreed to pay the day crew $1.90 and the night crew $2. (The raise alleged by the General Counsel to be in violation of Section 8(a) (1).) Osburn did ask why Holdren wanted to give him a deal like this when he knew Osburn had been pushing for the Retail Clerks and Prechtel said it would get the headaches of the stockroom off his shoulders . Osburn also asked what would pre- vent Holdren from dissolving the Company (Prechtel ) and firing him if the Union was voted out and Prechtel said that would hurt Holdren. On March 18 Prechtel signed the contract with Conren after he and Osburn had been advised by Attorney Weddle that Osburn could not sign because he was under 21. On March 20 Prechtel and Osburn met with the night stock crew at Osburn's apartment and Prechtel told them they would now be working for Prechtel and Osburn and advised them of the increase in wages. When the new operation became effective on March 23 the timecards which had been used by Conren were still used and the vacation schedules which had been established remained in effect . The con- tract provided that the contractor should keep in effect the workmen 's compensation insurance and should make all Federal and State withholding deductions and pay- ments and Conren agreed to reimburse the contractor for all sums paid to F.I.C.A., workmen's compensation , and health and welfare contributions. John Prechtel testified that when he first discussed night stocking with Holdren in February 1964, Holdren asked him concerning the possibility that Osburn would take over night stocking under contract and that he subsequently spoke to Osburn several times, discussing salary and hours. About March 11 he spoke to Newt How- ard about the contract but this testimony was not developed . Later, and this date is fixed by Osburn as March 17, Howard , Osburn, and Prechtel went to the office of an attorney named Weddle who told them a guardian would have to sign the contract for Osbum.15 The next day Holdren, Howard, and Prechtel returned to Weddle's office and the contract was signed by John Holden for Conren and by John Prechtel as contractor.16 Prechtel and Osburn agreed, however , that each was to receive $125 per week, and Osburn went to the bank and opened an account in the name of Prechtel and Osburn Co. (The statement which was submitted by the bank for the period commencing April 14 shows the account changed to Prechtel Company by John B . Prechtel.) The testimony of Howard substantially corroborates that of Holdren but it in con- flict with that of Osburn in minor respects. While Osburn testified that he was first approached by Prechtel on March 16, Howard testified that he gave Prechtel the rough draft of the proposed contract with Conren on either March 12 or 14 and that he, Prechtel , and Osburn went to Weddle's office at that time. He does confirm Osburn's testimony that Osburn did not want to go in and that they returned to Weddle's office on either March 16 or 17. I do not regard this discrepancy in dates as material or as affecting the credibility of either Osburn or Howard.17 18 The proposed contract was with Sohn Prechtel as "contractor ." Exhibit No. 23-B outlined the duties of the contractor ; Exhibit No. 23-C showed the percentage cost of stocking as against gross sales for a period of weeks ; Exhibit No . 23-D showed F I C.A. payments, workmen's compensation charges, gross income tax, and health and welfare without showing payments or charges ; Exhibits Nos. 23-E and 23-F was a penciled notation of duties. 11 Osburn testified he never saw the final contract. The date is fixed by Howard as either March 12 or 14. 19 Prechtel testified that he told Osburn they were going to sign the contract and •thait Osburn told him to go by himself. 17 Testimony of other employees indicates that Osburn discussed the proposed partner- ship with them prior to March 16. GREAT SCOT SUPER MARKET 611 3. Conclusions as to the status of Osburn and Prechtel I do not find the record supports the contention of Respondent Conren that James Osburn was a supervisor within the meaning of the Act when he was shifted to the night crew on March 2 nor that he had supervisory status prior to that date.18 When Osburn was "put in charge" of the night crew he continued to work with them and received the same rate of pay he had been receiving. I credit the testimony of Osburn that he was instructed to bring any problem to Holdren and that he did con- sult with Prechtel whenever any problem arose. His direction of the work of the night crew was routine and concededly direction of stocking does not require the exercise of judgment and responsibility in more than minimal sum. I believe the Board has passed on a similar situation in Tinley Park Diary Co., d/bla Country Lane Food Store, 142 NLRB 683, in affirming the Trial Examiner's finding that the night supervisor of the salesgirls was not a supervisor. (See page 691.) Nor do I accept the Respondents' argument that the fact that Esther Gray was admitted to be a supervisor in the pleadings (alleged in the complaint and admitted in the amended answer) and was paid the same wage as Osburn constitutes evidence that Osburn was a supervisor. Pleadings are not proof and there is no testimony in this record as to the duties performed by Esther Gray and no finding has been made as to her status. As to the fact that Osburn was given authority to order supplies for Conren I would again find that it requires the exercise of little independent judgment to order replace- ment for products as they are sold from the shelves. There is no indication that Osburn was given the authority to select or change the products-his was merely a restocking job. Operations under the stocking contract commenced on March 23 and at that time the basic pay rate for the stockboys was increased from $1.65 per hour (there was a differential for the night shift of 10 cents per hour) to $1.90 per hour with $2 for the night crew. The raise was granted by Prechtel (or Prechtel and Osburn) and neither the testimony of Osburn nor Prechtel sheds much light on the reasons for giving this increase. Osburn's testimony indicates that he agreed to the new wage scale. The record does not establish that Holdren was consulted with respect to the wages to be paid under the agreement. The question of the status of Prechtel and of Prechtel and Osburn presents a more serious question. Initially I find that contention of the General Counsel that the contract between John Prechtel and Conren was a sham designed to conceal contemplated unfair labor practices on the part of Conren and to thwart the Union's efforts to organize its employees has little support in the record. Granting Holdren's oppugnancy toward Local 550 and the fact that all of the stockmen were adherents of the local, there is an absence of evidence from which the conclusion may be drawn that this played any part in Holdren's motive in making the contract. Holdren's testimony that he con- sidered contracting the stocking operation and even the entire grocery operation to Howard in the autumn of 1963 and that he further discussed this with Howard, first placing Osburn and later Prechtel in charge, cannot be contradicted. It is, in fact, sup- ported not only by Howard's testimony 19 but by the fact that Holdren contracted the side-door operation to Mann and Howard. During this period there was no threat of union organization of the employees and no election could be held until the following June. It was also during this period that Holdren, for reasons which are untainted by discriminatory motive, returned to night stocking and on March 2 put Osburn in charge of the night stockers.20 Thus changes in the operations of the stocking department were being given serious consideration some time before union activity was revived including the possibility of subcontracting the operation. It is not necessary that either a Trial Examiner or the Board be impressed with the logic of the reasons given by an employer for his decisions; it is necessary that the evidence estab- lishes that they were discriminatory before a violation of the Act may be found. 18 The fact that Osburn recommended or hired temporary employees during the holiday season in December 1963, is not the type of recommendation or hiring implied in the statute. This is no more than the kind of recommendation which any employee might have made to a supervisor who was looking for temporary help to be employed quickly. The decision to hire the men was made by Prechtel. 10 In view of Howard's close relationship with Holdren and the part he played in negotiating the contract, I do not regard him as a disinterested witness. 20 Osburn signed a union authorization card on March 5, 1964, at the apartment of Robert Osmon, business agent of Local 550. On the record this was the start of the Union's 1964 organizing campaign. Organizing in the store first took place on March 7. 217-919-66-vol. 156-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The final issue is whether a partnership agreement was reached between John Prechtel and Osburn. It is clear that had Osburn been of age on March 18 he and John Prechtel would have been signatories (as partners) to the contract with Conren. No other reason has been given by either Prechtel or Osburn for the failure of Osburn to sign the contract. But the fact that Osburn did not sign the contract with Conren does not preclude the finding that a partnership agreement had been made between John Prechtel and Osburn, for a partnership agreement unless barred by the Statute of Frauds (which was not the case here), need not be in writing.21 Osburn's own testimony is that Prechtel made an unequivocal offer of partnership on March 16.22 It is equally clear that Osburn accepted this agreement. It was Osburn, in fact, who had the proposed contract with Conren changed to provide a 1.42 per- centage after the first 6 months. Commencing on March 23 both Osburn and John Prechtel received $125 per week pursuant to their oral agreement, the bank account was opened by Osburn in the name of Prechtel and Osburn Co., and the stock employ- ees were advised by Prechtel at Osburn's apartment and in Osburn's presence that they would be working for Osburn and Prechtel. From the date the contract between Prechtel and Conren became effective, March 23, the operations conformed to that contract and the relations between Osburn and Prechtel conformed to the terms of their oral agreement. (Osburn admitted that he had the authority to issue and did issue paychecks to employees.) Nor does the fact that Osburn was a minor vitiate the contract; it was merely voidable at his election for the defense of infancy can only be asserted by the infant himself 23 Summarizing, I find that prior to March 23, the date when Prechtel and Osburn took over stocking operations, Osburn was an employee of Conren; after that date and until April 13 he was a partner with Prechtel (the name of the partnership is irrele- vant) under contract with Conren to perform the stocking services; the contract between Conren and Prechtel was a valid contract with the partnership and was a sham to conceal unfair labor practices on the part of Conren. 4. Alleged violations of Section 8(a)(1) Paragraph 5 of the complaint alleges that (a) Respondent Prechtel interrogated his employees regarding their union membership on April 3 and 11; (b) Respondents threatened their employees with discharge and other reprisals if they became or remained members of the Union; (c) threatened their employees that they would sell the store or go out of business if the Union won the election; and (d) Conren or Prechtel or Prechtel and Osburn gave a pay raise to employees on March 23. The allegations referring to violations by Prechtel on April 3 and 11 presumably refer to conversations between John Prechtel and Osburn on those dates. Since on both of these dates I have found that John Prechtel and Osburn were partners d/b/a Prechtel and Osburn I find it unnessary to pass upon these allegations. Although not specifically alleged as violations in the complaint, the General Counsel in his brief refers to conversations between Osburn and John Prechtel on March 16 and 19. In the one which took place on March 16 (the day Prechtel asked him to be a partner) Osburn asked if this was a move to "prevent" the Union and why Holdren would give a deal like that when Holdren knew he had been pushing the Union and Prechtel told him it would take the headaches of the stockroom off Holdren's shoulders and that the stock employees would no longer be able to vote in an election. On March 19 (the day after the contract between Conren and Prechtel was signed ) Osburn testified that Prechtel told him Holdren would not stand for a union but would sell the store to a Roy Minor. Ben Poe, an employee in the produce department under Bill Plummer (admitted to be a supervisor), testified that he had a conversation about the middle of March with Plummer in the presence of Darryl Johnson in which Plummer told him that if the Retail Clerks got in he (Plummer) might have to put him on part time and that the store, which was open until midnight, might close at 9 p.m. Darryl Johnson was not called to corroborate this testimony and Plummer was not called to deny it. Employee James Greaver testified that on March 20 he had a conversation with Bill Plummer in which Plummer told him he would feel hurt if he found out Greaver was an instigator for the Union, that he felt responsible for the hiring of Plummer, and that he felt Holdren would probably sell the store if an outside union came in. 2140 Am. Jur. 140, § 21 and cases cited. 22 Implicit in this offer and the salary arrangements was an agreement that the profits Incurred would be shared by John Prechtel and Osburn. 2127 Am. Jur. 773, § 37; Williston on Contracts, § 220, 229 (3d ed.) GREAT SCOT SUPER MARKET 613 Greaver also testified that on Sunday, March 22, he had a conversation with Ernie Stewart, also an admitted supervisor, in which Stewart told him that if an outside union came in Holdren would probably close the store at 9 p.m. and that the majority of the sack help and cashier help would be laid off. 5. Conclusions as to violations of Section 8 (a) (1) I have found that on both March 16 and 19 Osburn was an employee of Conren and that John Prechtel was a supervisory employee. I cannot find any coercion and restraint, however, in Prechtel's statement that the change to the partnership would take the headaches of the stockroom off Holdren's shoulders and that the stockroom employees would no longer be able to vote in the election. The prior holding that the contracting out of the stockwork was not a sham but a legitimate exercise of the managerial prerogative determines this issue. Under these circumstances the state- ment is simply one of fact free of coercion as to Osburn. Since Osburn and John Prechtel occupied the status set forth above on March 19 I find the second statement coercive. Since a sale of the store was not only a threat to Osburn's status as an employee but to his future status as a partner, I find the remark violative of Section 8(a)(1),24 I also find that the conversations between Ben Poe and Bill Plummer and between James Greaver and Plummer in which Poe was told that he might be put on part time and in which Greaver was told that Holdren would probably sell the store if an out- side union came in constituted a direct threat of worsened working conditions and violated Section 8 (a) (1). So too did Stewart's statement to Greaver that Holdren would close the store at 9 p.m. if an outside union came in and that a majority of the sack help and cashier help would be laid off. It is true that the claim can be made that these were isolated instances of coercion and restraint having negligible impact on the rights of the employees but it is also true that they occurred in conjunction with other unfair labor practices found herein and at a crucial period-the time when organization activities were at their height. Under these circumstances a cease-and- desist order is warranted. Included in the complaint is the allegation that a wage increase was granted the stock employees on March 23. This wage increase was granted by the partnership, Prechtel and Osburn Co., but there is no evidence that this increase was granted to interfere with the employees' union membership or activity. On the contrary the incontrovertible testimony establishes that it was granted by John Prechtel and Osburn without consideration of union membership. It would indeed be difficult for the General Counsel to claim that Osburn, who participated in the decision to grant the increase, was motivated by union animus when he is at the same time assert- ing that Osburn was discharged because of his union activity. This record clearly establishes that Osburn, both as an employee of Conren and as a partner in Prechtel and Osburn, was at all times sympathetic to the Union and its objectives. It will be recommended that paragraph 5(d) of the complaint be dismissed. 6. Alleged violations of Section 8(a)(2) The original charge in this proceeding was filed on March 26, 1964. Paragraph 6 of the complaint nevertheless alleges violations of Section 8(a)(2) occurring on various dates between June 7 and an unspecified date in August 1963. Section 10(b) of the Act precludes the filing of any violation based on conduct occurring more than 6 months prior to the filing of the charge. It is therefore recommended that para- graph 6 of the complaint be dismissed.25 Paragraph 7 of the complaint, as amended, alleges that Respondent Conren unlaw- fully assisted the Employees' Organization by certain conduct specified in said paragraph. Darrell Anderson testified that sometime in January 1964, a meeting of the stock- room employees was called by John Prechtel and held in the store. Prechtel told them the meeting was for the purpose of electing a person to represent the stock department on the employees' grievance committee. The election was conducted 24 This is a highly technical finding and it might be argued that in view of the rela- tionship then existing between Prechtel and Osburn it is little short of arrant nonsense to find that John Prechtel could coerce and restrain Osburn. 2 Interminable testimony was taken with respect to Respondent Conren's assistance to various committees during this period with a view to establishing a background for its subsequent conduct alleged to be in violation of Section 8(a) (2). I now find this testimony contributes nothing to the solution of the issues framed by Conren's subsequent conduct and it has been largely disregarded. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the members of the night crew and Jerry Unsinger was elected as their repre- sentative. David Byrd testified that a notice calling for this election had been posted on the company bulletin board and that John Prechtel conducted the election. Jerry Unsinger likewise testified that John Prechtel called a meeting of the stock employees and that he was elected to represent them on this grievance committee. Verna Stevens represented the cashiers, Henry Pulley represented the produce department, Bill Laughlin represented the sack boys, and Judy Thompson represented the nonfood department. Although not elected a member of the committee, Douglas Lockhart, who had been president of the various committees which had been active in 1963, attended all committee meetings. According to Unsinger the newly formed commit- tee held no meetings at which representatives of management were not present and these representatives included Holdren, Ken Mitchell, Ernie Stewart, and Newlin Howard. One meeting was held at Tucker's Steak House (it was stipulated that Holdren paid for all dinners when the meetings were held at restaurants) and topics discussed were methods to improve the store and to improve relations between Hol- dren and his employees. A second meeting was held at Newlin Howard's office where Holdren related an incident concerning two sack boys playing in the store. The com- mittee voted that they should be fired and they were fired. A third meeting was held with Holdren in the receiving room and a vote was taken as to whether the sack boys should be reemployed. The vote was to reemploy the sack boys. Another meeting was held at Louise's Restaurant and Holdren, Newlin Howard, and Mitchell were present and the problem posed by the reversal of the decision as to the sack boys was discussed. The committee again voted to rehire them and it was decided to rehire them when positions became open with loss of seniority. (Neither boy was rehired.) Unsinger testified to another meeting held on March 10 in Howard's office at which the Committee was told by Howard that a contract between Conren and the Commit- tee was one way of keeping the Retail Clerks out of the store. Robert Michaels Myers testified that he was employed at Conren and that in December 1963 he and Douglas Lockhart, both of whom had been prominent in the committee which had been formed in June 1963, discussed reviving the committee and that Holdren agreed that one should be formed. (Hyers' own words were that it was "an implied suggestion" on the part of Holdren.) He did testify that he and Lockhart met with Holdren during December and January but there is no evidence of specific direction from Holdren to either of them. Myers attended the meeting at Tucker's Steak House (he fixes the time as December) but could only recall that the discussion related to the scheduling of work. Myers left the store in January and testified that when he returned about 2 months later there was no committee. Holdren testified that he talked to both Myers and Lockhart in December 1963 concerning the revival of the Employees' Committee but there is no testimony as to exactly what was said. Holdren attended the meetings of the committee and, when the meetings were held at restaurants he paid for the dinners, when they were held at the store the members were paid for the time spent in attending. Notices of meet- ings were posted on Conren's bulletin boards. Newlin Howard testified that he was a business consultant in the firm of Mann and Howard occuping offices at 1724 Wabash Avenue, Terre Haute. These offices were in the building occupied by Conren, Inc. Apart from acting as contractor in the side-door operation Mann and Howard assisted in the scheduling of the various shifts for Conren, a service similar to that they performed for other markets. Howard was approached by Pulley and asked to attend a meeting of the committee on March 10, 1964, which was held in the office of Mann and Howard. At this time Local 550 had started its organizing campaign in the store and Howard stated there was "quite a little discussion" of union activity. Howard advised the employees to take their problem (presumably the problem of their representative status and their relationship with Conren) to any attorney or to the Board. Douglas Lockhart, an employee of Conren, testified that in between March 10 and 19, 1964, he received a copy of a proposed contract (General Counsel's Exhibit No. 34) between the Employees' Committee and Conren. He stated that he did not show it to anyone else and did not know how Pulley could have a copy of the contract and identified that contract (General Counsel's Exhibit No. 28) which Pulley showed at the meeting on March 19 26 as one which had been drafted in May or June 1963. Lockhart stated that on or about March 30 he went to the National Labor Relations Board in Indianapolis and that no further meetings of any employees' committee were held. This visit terminated all activities on the part of any employees' committee. ° There is a discrepancy as to dates , for other testimony refers to this meeting as held on March 10. GREAT SCOT SUPER MARKET 615 7. Conclusions as to violations of Section 8(a)(2) I have no difficulty in finding that the Employees' Committee formed or revived in December 1963 was a labor organization within the meaning of Section 2(5) of the Act. Among the acknowledged purposes of the Committee was discussion of grievances with Conren. Clearly the language of the Act referring to "any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work" embraces the activities of the Committee.27 Neither is there difficulty despite the confusion in the testimony in establishing that Conren contributed unlawful assistance to the Committee. It was revived after consultation with Holdren, if not at his suggestion, a supervisor called for and par- ticipated in the election of one of the members of the Committee, meetings were held on company property, the members of the Committee were paid for their meals and for their time, and there is no evidence that the Committee had any independent existence for it had no meetings which representatives of management did not attend. Holdren's own testimony with respect to the revival of the Committee in December 1963 is that he went to Lockhart and Myers and asked them to "expand" it. It was also Holdren who suggested that the Committee be "better organized" and as a result of this suggestion Newlin Howard 28 conducted an election at which Douglas Lock- hart, not a member of the Committee, was elected its president. Lockhart and How- ard counted the ballots at this election. Howard then suggested that Unsinger and Laughlin designate other representatives so that there would be more representation on the Committee. Contrary to the Respondent I find that participation on the part of Conren, acting through Holdren, Howard, and other supervisory personnel, in the meetings of the Committee and in the election of its members constituted unlawful assistance, sup- port, and interference.29 8. Alleged violation of Section 8(a)(3) Paragraph 8(b) of the complaint alleges that Conren discharged employees Ben Evans, Charles Hill, James R. Fox, James L. Greaver, William Neiswinger, James Osburn, and Darrell E. Anderson on March 23, 1964. This is the date on which these employees became employees of Prechtel and Osburn at wage increases of 25 cents per hour. Since I have found that this partnership was lawfully created and that its contract with Conren was not a sham devised to destroy the Union's majority among Conren employees, I cannot find that this transfer of the employees in any way constituted an unlawful discharge. Whether or not it is unlawful to transfer employees to another contractor to perform the same services at a higher rate of pay for discriminatory reasons is a good question but one that need not be reached. It will be recommended that the allegations of paragraph 8(b) and of paragraph 15 insofar as they relate to 8(b) be dismissed. Paragraph 8(c) of the complaint alleges that Respondent Prechtel and/or Respond- ent Conren discharged James Osburn on April 13, James Unsinger and Jerry Fox on April 14, and Warren A. Edwards on April 15, in violation of the section. The question with respect to Osburn has already been resolved by the finding that a partnership had been created between Osburn and Prechtel and that such a partner- ship continued until the day Prechtel "fired" him. This action dissolved the partner- ship and any rights which remained to Osburn were conferred by the oral agree- ment and not by this statute 30 The discharge of Unsinger and Fox occurred after the "discharge" of Osburn and after the termination of the partnership of Prechtel and Osburn. The discharges were effected by John Prechtel d/b/a Prechtel Co., and the only issue is whether they were effected for cause or to discourage union membership. W N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203. 28 1 find that Howard at all times represented Conren in his dealings with the Committee. 29 S.N.O. Manufacturing Co., Inc., 147 NLRB 809; Mess B. Davis, d/b/a Queen City Transports, at al., 141 NLRB 964; Air Control Products, Inc., 139 NLRB 607; Holland Manufacturing Company, 129 NLRB 776. 30 See 40 Am. Jur. 292, § 236, holding that a partnership may be dissolved by the act of any partner alone in accordance with his own will and pleasure, and at a moment's notice. See also Uniform Partnership Act, § 31(2). 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jerry Unsinger was first employed by Conren in July 1962. He subsequently quit its employment, was rehired on June 2, 1963, was transferred to the payroll of Prech- tel and Osburn on March 23, 1964, and was discharged either April 13 or 14. Unsinger signed a card authorizing Local 550 to represent him on March 5, 1964,31 and also obtained the signatures of other employees to the signing of cards, testify- ing that he spoke to some 25 or 30 employees at Conren. On April 13, when Unsinger was reporting to work for the midnight shift he was called to Prechtel's office and told that his work was not satisfactory and that he was fired. Unsinger then told Prechtel that he thought his work had been satisfactory and that he was being fired because of the Union. It is Unsinger's testimony, and based on their respective demeanors on the stand I credit it that Prechtel then admitted this but told him he was unable to prove it. Osburn then came into the room and there followed an argu- ment concerning Prechtel's authority to fire Unsinger without Osburn's consent. (Osburn had already been notified by Prechtel of his discharge.) 32 Unsinger admitted that during late March and early April he had distributed union literature about the premises-in the lounge, in the produce department, in the incin- erator room, in the restrooms. He denied placing literature where it would be avail- able to the public although he admitted that the public used the restrooms. Unsinger also admitted that he put up pictures generally referred to as "pinups" in the men's restrooms. According to Unsinger during this same period of time it became the pratice for the night crew to search the premises for listening devices and for representatives of management who might have concealed themselves on the premises. It was also the practice of the employees to discuss the Union during their night lunch and coffee breaks which was the reason for the search of the premises. Fox was employed by Conren from May 18, 1963, until March 23, 1964, when he commenced his employment with Prechtel and Osburn. (The record indicates that his employment with Conren ended on March 18, 1964, but this appears to be inad- vertent error.) Fox signed his authorization card designating Local 550 on March 9, 1964, at the request of Osburn. Fox also requested other employees to sign cards. When Fox was asked by John Prechtel if he would be interested in working for Prechtel and Osburn he asked Prechtel if the Union was involved in any way and was told it was not. Fox did not work the night shift of April 13 but came in about 8.30 a.m. on April 14 to call in a frozen food order. He met John Prechtel who told him he was fired because he was "a lousy worker." Fox asked Prechtel if the Union had anything to do with this and was told it did not. He was told the store was not in bad shape and, repeating his original question, was told he was not a bad worker. Questioned from his pretrial affidavit Fox testified that he also asked Prechtel if he was fired because he was for the Retail Clerks Union and that Prechtel had replied that he could take it any way he wanted Like Unsinger, Fox testified that the employees discussed the Union on their breaktime but denied that he took part in any search for listening devices or concealed persons. It appears that he distributed union literature in the store but this testimony is not too clear. Warren Edwards testified that he was hired on April 8 by Osburn as a stocker on the night shift and that he signed a union card that same night. The card was given to James Osburn. Edwards did not have any contact with Prechtel during his employ- ment until the night of the 14th or the beginning of the 15th. He was present and apparently in the same group with Osburn, Fox, and Unsinger when, after all had been fired by John Prechtel, they had reappeared at the store. Edwards understood that he was being ordered out of the store at the same time and he left the store at this time. He did testify that when Osburn hired him he understood the job was temporary but he did not state whether or not the exact duration was specified. Respondents contend that Unsinger and Fox were discharged for misconduct during working time and that Edwards was hired for only 1 week and was not sched- uled to work on April 14 since his week's employment had expired. ii Osburn and Unsinger were the first employees to sign in March. 83 On the next night, April 14, Osburn , Unsinger, Fox, and Edwards all reported to work as usual After working for about 5 minutes they were asked to leave by John Prechtel and Ken Mitchell . The other employees were permitted to remain . The four left after further argument and after the police had been called and Osburn had consulted with Bob Osmon . This incident , while interesting and the source of considerable testi- mony, has little relevance to the case . I do not find that Holdren 's participation in the ejectment of the four Prechtel employees affects the independent contractor relationship. Holdren ( or Conren ) was the owner of the premises where the trespass was being con- ducted and was interested to that extent. GREAT SCOT SUPER MARKET 617 Holdren testified that in early April 1964 he noticed that the backroom was full of partial skids of merchandise, that damaged merchandise was all over the place, that there was damaged merchandise in the freezer, and that the shelves were not getting stocked. Holdren went to John Prechtel and told him he was not living up to the terms of his contract and that he (Holdren) intended to enforce the contract. He did not recommend that Prechtel discharge anyone but on Apiil 13 Prechtel came to him and told him he was discharging three people and named them as Osburn, Unsinger, and Fox. Prechtel testified that about April 9 or 10 he had a talk with Holdren in which he expressed his dissatisfaction with the stocking operation. Prechtel in turn discussed it with Osburn but with what result is not disclosed. Prechtel did testify to conversa- tions with employees Neiswinger, Greaver, and Evans in which they complained about conditions under Osburn on the night shift. They reported that Osburn frequently slept on the shift, that Unsinger and Fox would damage the floor after it had been waxed by putting cigarettes out on it, that Fox and Unsinger spent substantial time in talking rather than working,33 and that union literature was being distributed about the store Although he talked to these employees on several occasions Prechtel testi- fied that he did not go to Osburn, either to verify the complaints or to have correction made in the conditions. On April 13 Piechtel told Osburn he was fired and that the next morning he told Fox he was fired. Prechtel denied that in either conversation he mentioned the Union. He fired Unsinger on the 14th about 11:30 p in. (Unsinger fixed it as the 13th about that time, a discrepancy I consider immaterial.) As to Edwards, Prechtel testified that he was hired for only 1 week and that his term of employment had expired. Greaver, a stockman on the night crew, testified that after March 2 quite a few meetings were held which ran over the breaktimes, that he observed Osburn sleeping on the job, and that he was one of three employees, assigned to look for listening devices. He also testified that the employees threw merchandise from aisle to aisle while stocking it on shelves, identifying both Unsinger and Fox as participant. He definitely recalled seeing Unsinger throw an egg which broke on the floor. In sub- stance he supported Prechtel's testimony and testified that he went to Prechtel and reported conditions to him. Neiswinger corroborated Greaver's testimony and also testified that Unsinger on one occasion had a stack of pinups and that he saw these posted in the men's room. He did not testify that he reported these conditions to Prechtel. 9. Conclusions as to violations of Section 8(a)(3) The discharges of Fox and Unsinger pose the usual problem of weighing contra- dictory, confusing, and ambiguous testimony. Both had been employed by Conren for some time when they were transferred to Prechtel and Osborn on March 23, 1964. The record does not indicate that either had any trouble during their employ with Conren. They were among the first to sign cards with the Local 550 and helped to organize other employees. Together with Osburn they were among the foremost of the union adherents. These facts together with the timing of their discharges so shortly after the Union had made its demand for recognition at Conren and had filed charges against Conren make the firings suspect. Both were flied by John Prechtel directly after he had terminated the partnership of Prechtel and Osburn so the dis- charges were the direct responsibility of the Respondent referred to herein as Prechtel. There is certainly evidence of a laxity of discipline among the night crew, admitted in part by both Fox and Unsinger. Whether this would justify their discharge is not, of course, the question and despite the exhaustive efforts on the part of counsel on the one side to magnify the alleged misconduct and on the other side to minimize it the question remains directed to the real motive of Prechtel. In evaluating his state of mind I have large concern for the fact that although he had sought Osburn as a partner and testified that Osburn was a good friend of his he never seriously discussed the conditions which both he and Greaver state Greaver reported to him nor did he give any account of his discussion of Holdren's complaints to Osburn.34 Nevertheless and in spite of the fact that Osburn was his partner he fired him on April 13 without any warning except for a discussion on April 11 in which Prechtel requested that he 33 Denied by Fox and Unsinger. ss Prechtel's testimony regarding discussions with Osburn as to conditions , a discussion he held with Osburn on the Thursday or Friday before Osburn was fired (April 9 or 10), was elicited on cross -examination and is far from convincing . He did not discuss firing either Fox or Unsinger with Osburn. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resign. The only reason Prechtel gave him, and I credit Osburn's testimony, is that Osburn had been talking about him and Holdren, and had been pushing for the Union. It was then agreed that their relationship should continue until the National Labor Relations Board investigation took place on the condition that Osburn refrain from talking about the Union. On the next workday, Monday, April 13, Prechtel called for him to come to the office and Osburn asked him if he had more union problems and Prechtel answered in the affirmative and told him he would have to fire him. Prechtel's only version of this "firing" is that he had the right to fire Osburn because no written contract existed between them and Osburn had not signed the con- tract with Holdren, and that he had decided to fire Osburn, Fox, and Unsinger as a result of his talks with Greaver. Prechtel's testimony with respect to his reasons for the firings and his discussions with the dischargees is weak and ambiguous. While I have found that the discharge of Osburn is not an issue in this case it can- not be excluded from the evaluation of the simultaneous discharge of Fox and Unsinger. It is almost incredible that Prechtel would have fired his friend and partner solely on the strength of reports from other stockers and without efforts to investigate the situation and correct the conditions. From Osburn's own admissions and from Greaver's reports of the distribution of union literature by Fox and Unsinger it was established that all three were adherents of Local 550. All three were then discharged under circumstances which were most peculiar and there is certainly an implied admis- sion, accepting the credited testimony of Osburn, Fox and Unsinger, in Prechtel's cautious remarks when he was charged with discharging them for union activity, that they could well believe that this activity was a factor. There was no reason to create such an impression unless discrimination was the motive.35 Few 8(a) (3) cases are free from doubt and this is certainly not one of them but I do believe the General Counsel has sustained the allegations of the Compaint that the discharge of Fox and Unsinger violated Section 8 (a) (3) of the Act. As to Warren Edwards the General Counsel has not established that he was to be employed for more than 1 week, there is no direct evidence that Prechtel actually fired him, and, more important, there is no evidence from which I can infer that either Conren or Prechtel had knowledge that he signed a union card on the first night of his employment. The General Counsel has failed to sustain his burden of proof that the discharge of Edwards was discriminatory. 10. Alleged violations of Section 8(a)(S) a. The unit The complaint alleges that all employees of Respondent Conren, at Conren' s store, but excluding all meat department employees, professional employees, guards, and supervisors as defined by the Act, constitute a unit appropriate for the purpose of collective bargaining. The General Counsel contends that 53 employees 36 were employed in the unit on March 19, the day Local 55 made its telegraphic demand for recognition,37 and that all should be included in the unit in determining the majority status of the Union. Conren claims that the stock crew should be excluded on the ground that Conren had contracted their work to Prechtel on March 18 although actual operations under the contract was not to commence until March 23.38 With respect to this contention, I have found no cases apposite and Respondents have cited none. Logic persuades that the date of the demand be equated with the date of the election on the issue of eligibility and that these be the dates on which eligibility be determined. On this the Board has generally held that an employee who is working and on the payroll on the date of the election is eligible to vote regardless of an expressed intention to quit his employment after the election 39 I can see no reason 3' Based both on demeanor and contextual circumstances , I credit Osburn, Fox, and Unsinger as to these conversations. as Respondent's Exhibit No. 9 This total is reached by including James Osburn in the number of employees rather than in the supervisory list. 87 General Counsel's Exhibit No . 17. Conren never replied to this demand. Is General Counsel's Exhibit No. 22. ° Otarion Listener Corp., and its Subidn.ary Audio Electronics Co., 124 NLRB 880; Personal Products Corporation, 114 NLRB 959, 961. See also General Tube Company, 141 NLRB 441, where the Board refused to disturb a Regional Director's ruling that an employee working on the date of election was eligible to vote. GREAT SCOT SUPER MARKET 619 for the Board to distinguish between situations so analagous and I therefore find the stock crew was a part of the bargaining unit on March 19 and that the unit was appropriate 40 b. The cards obtained by Osburn We next turn to the objections directed to the cards secured by Osburn or signed in his presence. The finding has been made that Osburn was an employee of Conren until the effective date of the partnership, March 23, and this finding determines his eligibility to vote in the election and likewise thwarts the attack upon the cards obtained by him. I find these cards to be free from any taint of supervisory solicitation. c. The undated cards Respondents contend that authorization cards which were received in evidence but which were undated should not be computed in establishing the majority status of Local 550. It is necessary, of course, that there be evidence which reasonably estab- lishes that cards which bore no date were actually signed prior to March 19. The contention has also been made by Respondents that employees signed cards because they were told the cards were necessary to obtain an election. Since these and other objections are combined in certain instances the cards will be ruled upon individually. Sharon Curry: This card is undated. I accept Curry's testimony that this card was signed on the Saturday following the layoff of her husband which was either March 12 or 13. I therefore find that it was signed on March 14. Charles Hill: Hill signed an undated card and at the hearing testified that he could not remember whether it was signed before or after March 11. General Counsel offered in evidence notes which he had taken in an interview with Hill on July 16 which indicated that Hill had signed his card before March 11. (General Counsel's Exhibit No. 31.) The document was offered and received as evidence of past recol- lection recorded. It is now my finding that this document is too remote in time (4 months) from the date of the alleged signing took place to establish the approximate date of the signing of the card.41 The card is therefore rejected. Jerry Haney: Haney signed an undated card and testified that it was signed before March 18 or possibly on March 18. I accept his testimony as establishing that it was prior to March 19.42 William Alumbaugh: The signature of Alumbaugh appears on a card which was not only undated but was later completed in other respects by Robert Osmon, union organizer. Unsinger testified that he obtained Alumbaugh's signature on March 17 and that at the time he obtained it he told Alumbaugh the Retail Clerks were orga- nizing the Great Scot (Conren) store and he would like Alumbaugh's help. I accept this testimony as establishing that Alumbaugh (not called as a witness) did designate Local 550 as his bargaining agent at Conren prior to March 19. George Schoffstall: Schoffstall's card was undated but was filled out in his own handwriting. Schoffstall testified that he signed it in March. Jerry Unsinger, who obtained Schoffstalls' signature, testified that the card was signed on March 13. I accept this as the date of signing. Donald Pfister: Pfister signed a card but the date, March 17, and the balance of the card were filled in by another handwriting. Pfister's testimony establishes that the card was signed by him on either March 13 or 14. The card is accepted. Robert Pfister: Robert Pfister testified that he signed and dated an authorization card on March 12 and mailed it to Local 550 on March 18. The postmark on the card reads March 19 and there was testimony from an official of the Post Office that this card was probably delivered on the morning of March 19. Since, however, the desig- nation was actually made on March 12 and implemented by mailing prior to the 40I also find that part-time students performing work similar to that of other em- ployees are eligible as are all other regular part-time employees. I reject the challenge to the eligibility of Burns and Alumbaugh. I also reject the challenge to John Hunt. John Hunt's job of collecting grocery carts outside the store on weekends is as much a part of the integral functioning of the store operations as those of the stockers and sack boys. 41 Putnam v. United States, 162 U.S. 687 ; N.L.R.B. V. Hudson Pulp f Paper Corpora- tion and Pioneer Transportation Service, Inc., 273 P. 2d 660 (C.A. 5). 47 Counsel for the Respondents attack Haney's testimony that he signed on the day Poe and Rhoades told him they had signed theirs on the ground that it was not estab- lished that Poe and Rhoades actually signed on the day they told Haney they did. This is not the issue. Haney was fixing the date as the date they so informed him and it is immaterial whether they signed on that date or not. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demand on March 18 , I accept the card 43 Pfister also signed a card on behalf of the Teamsters but had no recollection of when that card was signed except that he believed he signed the card for Local 550 about I week before he signed for the Teamsters . Later he testified that the Teamster card was signed first and later again that he could not remember . In view of this confusion in the testimony of the witness and the established fact that he did designate both unions to represent him I do not find that there has been a valid and unequivocal designation of Local 550. d. The card of Anne Kent Based on the credited testimony of Charles Greaver, a witness for the General Counsel, I find that Anne Kent signed a card at 1:30 a.m . on March 18 after some 41/2 hours solicitation by Greaver and Robert Osmon. She signed it only after Osmon promised her that he could guarantee her 14 hours per week of work.44 Since this was a promise which Osmon could not fulfill without agreement by the Respondents, I find that this card was obtained by a fraud which went directly to Kent 's motive in signing the card and which was the sole inducement to her signing . This was not the type of promise of better working conditions which a union traditionally offers employees in an organizing campaign and which are understood to be the subject of negotiation with the employer . This was a flat promise of a specific benefit to a par- ticular employee . When Greaver reproached Osmon concerning the guarantee and the fact that Osmon had told the employees a union organizer could not guarantee anything Osmon's reply was that he would cross that bridge when he came to it. e. Inducements to sign the cards Respondents assert that the cards of Greaver, Neisinger, Fisher, Clausman , Curry, Simmers, Reed, and Johnson should not be counted because they were induced to sign by statements that by signing the employees could get an election . However with respect to Greaver, Neisinger, Clausman, Curry, Simmers, Reed, and Johnson there is testimony that the benefits of the Union were discussed with the employees at or prior to the time of signing. In its recent decision in Cumberland Shoe Corpo- ration, 144 NLRB 1268 , the Board apparently departed from its decision in Engle- wood Lumber 45 in which it held that the authorization cards did not establish a majority because the Union did not tell the employees they were authorizing repre- sentation by signing the cards . In Englewood certain employees were told that the purpose in obtaining signed cards was to hold a Board election and these cards were rejected by both the Trial Examiner and the Board. In Cumberland the Trial Exam- iner followed Englewood but was reversed by the Board on the frail and tenuous ground that while the employees were told that "a purpose" was to obtain an elec- tion they were not told that this was the only purpose.46 After the Board's decision in Cumberland the Respondent moved for a rehearing on this specific issue, a motion which was denied by the Board in an unpublished order dated January 13, 1964. This order added the following footnote to the Board's original Decision and Order: 8 The record indicates that the testimony to this effect consisted of affirmative responses by the signatories to leading questions propounded by Respondent's counsel, upon cross-examination , as to whether they were told that a purpose of the cards was to secure an election We do not deem such testimony sufficient to controvert the statement on the face thereof, nor do we consider it inconsistent with an un- derstanding that the cards served the dual purpose of designating a representative and of securing an election. No consideration has been given to Pfister 's affidavit (General Counsel 's Exhibit No. 26 ) as evidence of past recollection recorded In reaching this determination. I re- ceived the affidavit with a reservation as to its evidential value. S* Let Greaver's itestimony speak for itself: A. (GREAVER.) She said to him, that was to the best of my knowledge , I didn't think she was going to sign the card , I was getting very tired myself . As we all stood up at approximately 1: 20 a in. In the morning, she said to Mr. Osmon: "If you could guarantee me my 14 hours a week that I'm getting now, I would sign the card." And he guaranteed her the 14 hours 45 Englewood Lumber Comp any, 130 NLRB 394. 40 The record , as cited by the Trial Examiner in his Intermediate Report , does not sup- port this finding unless it is intended to mean that the word "only " must be used by the organizer when stating the reason for obtaining the cards and that it is not sufficient that no other reason be given. GREAT SCOT SUPER MARKET 621 This footnote, if not intended to overrule Englewood, clearly reduces the principle of that case to a condition of innocuous desuetude.47 On the authority of Cumber- land I accept the cards of all the above employees except Malinda Fisher who presents a slightly different problem. Malinda Fisher stated that the only (that magic word) reason she signed a card was because she was told that if she signed there would be an election. It does not appear, however, that the use of the word "only" by the employee is sufficient to invalidate the card-the word must be used by the solicitmg agent. The rule is that an employee's overt act in signing the card cannot be contradicted by his testimony as to his subjective reasons for signing 48 On the other hand there is her testimony, which I credit, that Fisher's mother asked if Fisher was in any way obligated to the Retail Clerks if she signed the card and the answer was in the negative. This answer, coupled with her express testimony as to the only reason she signed her card, is sufficient to negate any intention to designate Local 550 as her bargaining agent. f. Conclusions as to majority status Based on the foregoing findings made in subparagraphs "a" through "e," I find that Local 550 had, on March 19, 1964, been designated as exclusive bargaining representative by 28 of 53 employees in the unit found appropriate herein. I find that these designations were uncoerced, were free from fraud, and were valid under current Board law. Local 550 had achieved majority status and was entitled to recognition on the date its demand was made. 11. Conclusions as to violations of Section 8(a) (5) The finding that a majority of the employees in an appropriate unit had selected Local 550 as their exclusive bargaining agent on March 19, 1964, has been made. On this date no other labor organization had advanced any claim of representative status and the obligation on the part of the Respondent Conren, absent a good-faith doubt as to the Union's majority status, had become fixed. But an employer may not assert a good-faith doubt of majority status if he is contemporaneously engaging in unfair labor practices calculated to destroy that majority.49 Such other unfair labor practices have been found in the violations of Section 8(a) (1) and (2) of the Act. It is true that a Trial Examiner is disturbed to make a finding of majority status based on cards obtained in the haphazard fashion these cards were obtained. For many years now the Board has required that cards to be used to establish a union's showing of interest must be dated, yet a significant number of these cards were undated. Why this slovenly practice should still continue passes understanding. It is also true that the experience of the Board establishes that there is little relation between the number of authorization cards obtained and the results of an election by secret ballot. Of necessity, however, the Board must accept authorization cards as valid designations when an employer's unfair labor practices make the holding of a fair election impossible. That is the situation here. A Trial Examiner may have the greatest reluctance to order an employer to bargain with a union where, as here, there is grave doubt that the cards were actually intended to designate the Union as bargaining agent but the choice is between unpalatable alternatives, between Scylla and Charybdis. If we are not to permit an employer to profit from his own unfair labor practices we must accept, with skeptical acknowledgement of the probability of error, the fiction that the employees meant to designate the Union when they signed the cards. It is therefore found that Respondent Conren failed to bargain in good faith with Local 550 when it failed to reply to the demand made on March 19. 47 The footnote implies that testimony elicited by leading questions on cross-examination by Respondent's counsel is to be denigrated if it does not support the Board's finding. Historically under Anglo-Saxon law leading questions are addressed by adversary counsel to a hostile witness in efforts to impeach his credibility and the technique has been accepted as valid and necessary if the truth is to be reached. Admin- istrative agencies have been challenged as disdainful of the niceties required by due proc- ess and it is now suggested , if these words have any meaning at all , that the rules of evidence may be modified when it serves the interest of the agency. d8 Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645 ; Joy Silk Mills, Inc. v. N.L.R.B ., 1185 F. 2d 732 (C.A.D.C ). 49 Joy Silk Mills, Inc. v. N L R B., 185 F. 2d 732 (C.A D C.). 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. THE REMEDY It having been found that the Respondent Conren, Inc., d/b/a Great Scot Super Market and Respondent John B . Prechtel, d/b/a Prechtel Co., have engaged in and are engaging in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Conren refused to bargain collectively and in good faith with Local 550 as the exclusive bargaining representative of its employees in the unit found appropriate herein. I shall recommend that Conren be ordered, upon request of Local 550, to bargain with Local 550. It has been found that Respondent John B . Prechtel, d/b/a Prechtel Co., has dis- charged James Fox and Jerry Unsinger to discourage membership in Local 550. I shall recommend that said Respondent offer each of them full and immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of said discrimination in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. 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. Conren, Inc., and John B. Prechtel , d/b/a Prechtel Co., are employers engaged in commerce within the meaning of the Act. 2. Local 550 and the Employees Committee su are labor organizations within the meaning of the Act. 3. By recognizing, assisting, and giving aid and support to the Employees Com- mittee, Conren has violated Section 8(a)(2) and ( 1) of the Act. 4. By threatening to sell its business and to close the store early and put its employees on part time if the Union came in , Conren violated Section 8(a)(1) of the Act. 5. By refusing to bargain with Local 550 of the Act as the exclusive bargaining representative of its employees in the unit found appropriate herein Conren violated Section 8 (a) (5) of the Act. 6. By discharging employees James Fox and Jerry Unsinger to discourage their membership in Local 550, John B . Prechtel, d/b/a Prechtel Co., violated Section 8(a)(3) and ( 1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommended Order omitted from publication.] 'u This is the name by which the Committee, revived in December 1963, is identified on the record. Gulf Power Company and Local Unions 1055 and 624 of the Inter- national Brotherhood of Electrical Workers (AFL-CIO). Case No. 15-CA-f556. January 5,1966 DECISION AND ORDER Upon a charge filed jointly by Local Union 1055 and 624 of the International Brotherhood of Electrical Workers (AFT CIO), herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, on January 29, 1965, issued a complaint against Gulf Power Company, herein called the Respondent, alleging that the Respondent had engaged in and was 156 NLRB No. 53.