Lou De Young's Market Basket, Inc.

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lou De Young's Market Basket, Inc. and Retail Store Employees Union, Local No. 20, Retail Clerks International Association, AFL-CIO. Case,7-CA-4994. June 21,1966 DECISION AND ORDER On January 21, 1966, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial' Exlim- iner's =Decision. He further ' found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that 'such. allegations be dismissed. There- after, the Respondent, filed exceptions and a brief in support, the General Counsel filed exceptions and a brief in support, and the Respondent, filed a brief answering the General Counsel's exceptions. 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 entire record in this case, including the Trial Examiner's Decision, the exceptions and briefs, and hereby adopts the Trial Examiner's find- ing, conclusions, and recommendations except as modified. 1. The Trial Examiner found no violation of Section 8(a) (1) of the Act based on Supervisor Meinardi's threatening comment on December 8, at the beginning of the Union's organizational cam- paign, to employees Boosamra and Slagter to the effect that, if Pres- ident De Young came into the back of the store and found one solic- iting the other, he would "fire" both of them. Contrary to Board precedent, the Trial Examiner concluded that Boosamra lost his status as an employee because he was off duty at the time,, and he dismissed the incident without further reference to Slagter. The incident occurred in the store's break or back room,*with Slagter on his breaktime and Boosamra having returned to the store after a union meeting. Clearly a threat by a supervisor is no less coercive when employees are on nonwork time.2 1 See Ward Manufacturing, Inc., 152 NLRB 1270 involving the unlawful application of a discriminatory no solicitation rule to an off-duty employee ; Bauer Alum4num Company, 152 NLRB 1360, in which Member Jenkins dissented because the off-duty return to the premises was in violation of a printed rule which was fairly enforced in his view. 2 Miami Coca-Cola Bottling Company, 138 NLRB 1209, 1210, enfd. 324 F.2d 501. 159 NLRB No. 54. LOU DE YOUNG'S MARKET BASKET, INC. 855 The Trial Examiner concluded that the record evidence on inter- rogation was limited to one instance, which was too isolated to jus- tify a finding of violation of Section 8 (a) (1) in this respect. The instance he credited occurred on December 8 when Vice 'President Wedgwood asked employee Dykstra if he was "involved in this union- business." The Trial Examiner apparently overlooked the Wassen incident of, the next day, December 9, when Wedgwood requested employee Wassen to come with him and asked whether Wassen "was for what the guys were talking about in the back room" and "why" he was for it. Wedgwood was asked no questions about this incident. Additional aspects of it were discussed by. 'the Trial Examiner in another context.3 We find that the Respondent did, in these Dykstra and Wassen incidents, unlawfully interrogate its employees in viola- tion of Section 8(a) (1) of the Act. Concerning an incident on December 10, the Trial Examiner found that Wedgwood's admonition to employee Breedlove not to engage in "other activities" on company time-confirmed 'as meaning union activities when Breedlove, who did not "believe" he was neglecting, his work, questioned whether union activities were meant-:-- involved no violation of Section 8(a)(1). Specifically'the Trial Examiner found that this incident did not constitute a new. or unlawful no-solicitation rule of general applicability, or unlawfully interfere with Breedlove specifically, and amounted. only to a restriction on Breedlove's "indicated excess to the neglect of his work." We, on the contrary, find that this December 10 admonition constitutes oral, promulgation and enforcement of a discriminatory rule against, union solicitation at the height of union activity. The record shows that other solicitations on company time had occurred, for raffles, sports pools, and flower and gift collections, and, as found by. the Trial Examiner, that the Respondent was aware of that fact. By selecting Breedlove, a known union adherent, in a context, of union. organizing, and identifying the thrust of its admonition as union activities, we think the Respondent made explicit its antiunion pur- pose rather than a purpose to protect the proper use of working time.4 We find, on this record, that the Respondent's rule, in the form of the admonition to Breedlove, was precipitately adopted and s See the second paragraph of the discussion of De Keiver's termination, where the Trial Examiner refers to parts of the Wedgwood-Wassen conversation as a "threat not alleged." Actually the, complaint alleges interrogation and threats on December 9 by President De Young, whereas the testimony offered by the General Counsel in support was by Vice President Wedgwood. We note that the customary motion to conform the pleadings to the proof, as to, names and dates , was granted at the close of hearing. 4 See The Wm. H. Block Company, 163 NLRB 616; Ward Manufacturing, Inc., foot- note 1 above. The Trial. Examiner implies , that Wedgwood , spoke .to. Breedlove twice on December 10,. whereas ,. Wedgwood's testimony , indicates, that this occurred only , at the, end of the day. , 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforced to discourage union activities in violation of Section 8(a) (1) of the Act. 2., The Trial Examiner found that the discharges of Breedlove and Albin on the morning of December 11 were not a violation of Section 8(a) (3) of the Act. We disagree with his conclusion. These two employees had the permission of their immediate supervisor to go to. Wedgwood's office that morning. When they got there; ,Wedgwood said: "What can I do for you boys?" Breedlove, the spokesman for the two, said that they were "one hundred percent for the Union" and felt that they ought to tell Wedgwood that. Wedgwood asked why they were telling him something he already knew and Breed- love repeated his belief that they had a duty to tell him. Wedgwood then said that he had known about unions for 25 years, and they did not have to come in and tell him what they thought of it, he knew all about unions. About this time Wedgwood asked .if Albin felt the same way about it; Albin said yes. 'Wedgwood then-ascertained where in the store both were supposed to be working, and sent for De Young, to whom he had already reported his warning to Breed- love. In the meantime Wedgwood asked Breedlove whether he remembered their conversation of the night before about ceasing "outside activities" and suggested that Breedlove, by coming to his office, was disregarding his instructions. Breedlove agreed that he was if the conversation in which he was then engaged was union activity.s By this time De Young had come in, and Wedgwood said to him : "These boys came in to tell us that they are for the Union one hundred percent." Whether De Young made any comment does not appear, biit Wedgwood finally threw up his hands and said: "Well, boys, I guess you had better punch out now." Asked how long the whole conversation lasted, Wedgwood said, ". . . I paused a few minutes-I thought a few minutes-and I would say they probably were in there eight or ten minutes." The incident impressed the Trial Examiner as having the aspect of employee insubordination, particularly in view of his related find- ing-not adopted by the Board-that the Respondent had promul- gated no rule against union solicitation by warning Breedlove not to engage in union activities the day before. But in the circum- stances of this case, we, unlike the Trial Examiner, are persuaded that the Respond'ent's discharge''a'ctiori was motivated by the union animus already-.displayed by..De.Young and Wedgwood in, the very short period during which the organizing campaign had been under way. As we have found, Wedgwood interrogated employees about. 5 The Trial Examiner ' did not ' credit Wedgwood's testimony that Breedlove admitted he' was defying' Wedgwood and intended to keep 'on doing it, reference to which Wedgwood' omitted from his prehearing statement. LOU DE YOUNG'S MARKET BASKET, INC. 857 the Union on December 8 and 9; on December 8 Supervisor Meinardi warned employees Boosamra and Slagter, who were off duty, that they would be fired by De Young if he found them engaged in union solicitation; the next morning Supervisor Dahnke told a group, including Boosamra, that De Young was "on to you guys and he has names and is going to take steps to stop you." Later, that morning of the 9th, Boosamra was discharged by De Young, and De Young referred to the incident in the hearing of the office, girl by stating "that was just the beginning" and saying, that there would be more.6 That afternoon De Young aPhroached De Keivers,, whom he suspected of union activity, and engaged him in a conversation that resulted in De Keivers' quitting (as found by the Trial Examiner and affirmed by the Board), and still later on the 9th Wedgwood told employee Wassen that "they had let a few go" that afternoon: The following afternoon,. Wedgwood, talking with Breedlove, pro- mulgated as to him pan invalid no-union solicitation rule despite the fact that the Respondent customarily permitted solicitation for other activities on working time. In this context of vigorous •antiunionism we conclude that Wedgwood's discharge of Breedlove and Albin the next morning was in furtherance of the Respondent's effort to stop the union campaign by coercive measures, and not merely because he considered that their brief, excused absence from their work stations and, the announcement to him' of their union support a mounted to insubordination. Their declaration of sympathy and support for the Union, made to Wedgwood at a time when he and De Young were intent upon blocking the Union, we find was the real motivation for the discharges, thereby constituting those dis- charges a violation of Section 8(a) (3). 3. The Trial Examiner dismissed the 8(a) (5) allegation on the ground that only a unit of both of the' Respondent's stores-one located at Grand Rapids and one located ' at Holland, Michigan- was appropriate and, as the Union had requested recognition, and had majority support, in a unit limited to the Grand Rapids store, no refusal to bargain had occurred. It was his conclusion that a "totality of the evidence" indicated a "combined operation" of the two stores, with merchandise, employees, and funds treated as one. We do not agree with the Trial Examiner's unit finding based on the evidence here. On the contrary, we conclude, for reasons to be discussed below, that the presumptive appropriateness of a single store unit in the circumstances of this case has not been overcome. On December 16 Union Representative Vander Werff, accompanied by Boosamra and Breedlove who had been discharged by the 6 The record also contains the testimony of, Dairy -Manager Papar that before .lunch on the 9th De Young asked him whether he had seen Breedlove and Albin with union cards. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent the week before, requested recognition of Wedgwood, based on a majority showing "in the store." This presumably meant the Grand Rapids store where the organizing had occurred. Although not discussed by the Trial Examiner, there is testimony that Vander Werff exhibited a pack of authorization cards, and that Wedgwood said he did not want to listen and would "call the cops" if they did not leave. Later the same day the Union put this request in writing, in a letter to the Respondent, and again offered to prove its majority, in a unit of employees "in the store," with signed author- ization cards. It suggested a December 21 meeting date for contract negotiations and also requested the reinstatement of Boosamra, Breedlove, and Albin. Having no response to its letter, the Union, on December 21, filed a representation petition with the Board, de- scribing the unit as: "All fulltime and parttime employees and all fulltime and parttime employees of leased departments of the employ- er's retail store and gas station." The Grand Rapids address of the Respondent appears on the petition. Only the Grand Rapids store has a gas station. On December 22 Wedgwood wrote the Union questioning the Union's majority, but expressing a willingness to bargain if the Union could establish a majority "of an appropriate group of employees," and suggesting that it would cooperate in arranging for such an election. Thus the Respondent did not spe- cifically suggest a two-store unit in its answering letter. The com- plaint, issued on May 14, alleged the single store unit at Grand Rap- ids, but was amended before hearing to specifically include five gasoline station attendants, and exclude truckdrivers, of which there are two. The Respondent's answer, filed after the amendment, denied the allegations of the complaint on unit, but stated that the Respondent had refused to bargain because it did not believe the Union had a majority "in an appropriate unit," again without set- ting forth what it considered an appropriate unit. Its contention, that a unit combining the two stores was the only appropriate, unit was not made until the hearing. We find that the Union made a valid request for bargaining in a unit limited to the Grand Rapids store, and that the Union's repre- sentation petition and the complaint as amended were merely clari- fications of the original unit request.7 The two stores are the only stores operated by the Respondent. They are 22 miles apart. Although accessible by freeway, the driv- ing time is estimated as half an hour. There is no public transpor- tation between the two. The Holland store was purchased by the 7 See Sabine Vending Co., Ino., 147 NLRB 1010, enfd. 335 F.2d 932 (C.A. 5) ; Edward FieZde, Incorporated, 141 NLRB 11S2, 1194-95. LOU DE YOUNG'S MARKET BASKET, INC. S59 Respondent 9 months before the Union's December 1964 organizing campaign at the much larger Grand Rapids store." Different hours are kept at the two stores, Grand Rapids opening 2 hours earlier and closing 2 hours later. A single office located in the Grand Rapids store serves both stores, and President De Young and Vice President Wedgwood have their offices there. Wedgwood testified that 95 percent of his time is spent at the Grand Rapids store and that De Young also spends more time there than at the Holland store. Questioned about his prehearing statement to the effect that either he or De Young was at Holland "approximately one hour a day," Wedgwood testified that he meant 1 hour as a min- imum. De Young, however, testified that he goes to Holland "almost" every day and stays anywhere from an hour to all day. Both Wedgwood and De Young testified that at Holland there was no store manager, as such, but that Moss, an admitted supervisor, was "in charge of" the Holland store when neither of them was there. As De Young put it: "Bob Moss you could probably consider in charge." The following testimony as to Moss's functions ensued : Q. What were his functions in your absence? A. To kind of keeping his eye on the place and make sure the thing ran good and assign some of the help to what they were supposed to do and see that the groceries got put up and marked properly-generally watch the store. Q. In other words, he had the day to day supervision of the store? A. When I wasn't there. In other words, he and I would go over the problems and decide what to do. Q. You say he assigned employees to work? A. As they were needed, I would say so. Q. If an employee were sick, would he give him permission to go home? A. Yes. TRIAL EXADIINER : There is no question about his being a supervisor, is there? A. No, not at all ... Q. Was he permitted to discipline employees? A. We usually discuss things like that, the same as we do in the Grand Rapids store. e We note a record discussion indicating the size of the employee complement at Grand Rapids and the existence of 45 signed authorization cards which bear the Board's time stamp, including that of alleged discriminatee De Keivers . As his discharge on Decem- ber 9 Is not found to have been discriminatory , the number of authorization cards is reduced to 44 in a unit of 82 or 83 employees at Grand Rapids, excluding De Keivers. We find that the Union represented a majority of the employees at Grand Rapids on Decem- ber 16, 1964. S60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And employees were expected to obey his orders? A. Yes, I think they did. Q. If an employee refused to obey an order would he be per- mitted to discharge him? A. Well, I don't recall that happening. Usually he would have a discussion with me. Q. He would make a recommendation? A. I would say so. Q. How was the hiring handled at the Holland store? A. There were a few there when we bought the store and I took care of most of that. Q. What procedure was followed? A. 'Well, there was usually an application filled out and left there for me to look at, or someone come in and ask about it, they would send them in to Grand Rapids to see me, if I don't happen to be there. Q. Did you interview all of the employees hired for the Hol- land store? A. I would say the biggest share of them probably. Let's say yes. Q. Would Mr. Moss ever interview any of them? A. He might have interviewed them or talked to them or something to that effect but he usually discussed it with me. Q. Did he hire any of them? A. I don't think you can say on his own he hired them, no. Q. Part time employees? A. We usually discussed most of that. I was the final say so. Moss did not testify. From the above we conclude that Moss acted in the capacity of a store manager at Holland in December 1964, when the events in question occurred at Grand Rapids, and that he had substantial authority to carry on the daily operations at Holland. This conclusion as to Moss' authority at Holland is sup- ported by other testimony of De Young. Asked if he undertook any clay-to-day operations at Hollaaul, De Young said: "I would make recommendations . . . I made several recommendations . ..'' He further described his own function when at Holland as follows: "Make decisions on where to put things, where to change the aisles around, see if anything had to be done to the property-general management." On the important question of interchange of employees between Grand Rapids and Holland,' the Trial Examiner found that inter- O The only temporary transfers from Holland to Grand Rapids were for the purpose of training Holland personnel. LOU DE YOUNG'S MARKET BASKET, IN. 861 change "is and has been common and whenever need exists; and is most significant because it is not noted for payroll purposes." We, on the contrary, would characterize the normal interchange as infre- quent, and would draw no inference that it becomes significant because it is not recorded for payroll purposes. In this connection we note that Wedgwood testified that Moss'' wages' were' charged to Holland when he was `-spending his time there in order to keep our percentage straight over the sales.'' it is also noted that the Holland store has its own bank account, used exclusively for its deposits and to cover the cost of its own payroll and merchandise. Thus it seems that the Respondent is definitely interested in maintaining cost accounting records for the separate stores, from which-if an infer- ence is to be drawn-it would seem more reasonable to infer that the failure to record temporary transfers for payroll purposes tends to establish either that the policy of making these transfers was not con- ceived as permanent, or that the transfers were insufficient in quan- tity and duration to have substantial cost impact. Analyzing the actual evidence on interchange, we note that De Young, who testified for ,the General Counsel as an adverse witness, stated that two maintenance men from Grand Rapids did consider- able maintenance at Holland, "particularly in the beginning," and "even today" may go there "as much as once a week for some jobs." He spoke of bringing "Grand Rapids help" to rearrange at Holland "quite often . . . two, three, four times a week when we first took it over." He then said that the period of arranging had gone on for `'eight or nine months", and, after that, "some" employees go down every week-"maybe once, twice, or three times." Later, asked by his own counsel whether employees identified by him (De Young) as regularly interchanged 10 went to Holland ever day,, every month, or every week, De Young said : "Whenever we want to make some changes down there, which was quite often at that time . . . No special schedule but whenever we needed them, we move them down on a moment's notice and whipped the place in shape and came back to town." Wedgwood in his testimony seemed to associate inter- change of employees with major changes at Holland, which he char- acterized as "in constant confusion from the time we bought it. Our business was three or four times what it was in there, and everything was too small and confused, and it was just a revolution." Witnesses testifying for the General Counsel added specific dimen- sion to the degree of interchange. Mrs.' De Hollander, the office employee who schedules work for all Grand Rapids employees other "The Respondent called no employees to 'testify on Interchange ,- although De Young had identified about 18 as regularly interchanged. - 862 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD than meat department employees, testified on subpena that she was usually consulted about who could be spared to work at Holland. She also stated : "Alen the Holland store was first opened, they usually sent the night crew over to ,stock the shelves and rearrange the store, but since then, since they got the store rearranged, there has been no set pattern, just when some special occasion comes up." Supervisor Dahnke, who left the Respondent's employ in April 1965, estimated the frequency of Grand Rapids employees going to Hol- land to work at "maybe once every two weeks or once a month." Employees Hazzard and Hildebrandt , among those identified by De Young as regularly interchanged , testified on subpena to what can only, be described as infrequent occurrences . Hazzard was not employed by the Respondent until May, about 2 months after the Holland store opened, and had been to Holland only twice: in August 1964 and in May 1965 , the first time to take inventory and the second time to rearrange the produce department . Hildebrandt, an employee for several years , had been to Holland to work twice when the store opened; he had been there twice after that to help stock the shelves for sales. For sales he was part of a crew of six or seven working about 4 hours. Wassen, who' also testified on subpena, had been to Holland "about every day" the week Holland opened, but only twice since : once to stock and once to take inventory . Henry, a part-time .employee, had, gone to Holland just three or four times "shortly after it opened." We note also that Hazzard, identified as one regularly interchanged , testified that, on both occasions when he worked at Holland, Moss had asked him if he wanted to go. Haz- zard characterized the opportunity as "a pretty big thing to go out to Holland. We don't do it very often." Asked whether other per- sons than he had gone to Holland "this year," he said , "Yes . . . to pick up papers in the side lot there, in the side yard and do a little stock once in a while . . . I believe they fixed a pipe by the meat department one time." Based upon the above testimony, we conclude that once the Hol- land store had been adapted to the business methods of its new own- ers, the instances of Grand Rapids employees working at the Holland store were limited and unpredictable. Considering this type of inter- change in the context of the geographic separation of the stores," the substantial operating authority of the "man in charge" at the newer Holland store, the absence of any bargaining history for employees at either store, and the fact that no labor organization seeks a broader unit, we find that a unit limited to the employees at n Wedgwood conceded that generally employees hired to work in the Holland store are Holland residents or residents of the Holland area. We do not agree with' the Trial Examiner that this factor is irrelevant to the unit question ; or outweighed by other fac- tors in this case. LOU DE YOUNG'S MARKET BASKET, INC. 863 the Grand Rapids store of the Respondent is an appropriate unit for collective bartaining.12 Accordingly, as the Union had majority representation in that unit on December 16, 1964, when it requested recognition of the Respondent, we find that the Respondent refused to bargain in violation of Section 8(a) (5) when it denied recogni- tion on that date. We also find that the Respondent's refusal was not motivated by a good-faith doubt of the Union's majority status inasmuch as there is clear evidence of unlawful efforts, both before and after the refusal, to thwart the employees' union activities and to gain time in which to dissipate that majority.13 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lou De Young's Market Basket, Inc., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Retail Store Employees Union , Local No. 20, Retail Clerks International Association , AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: all full-time and regular part-time employees of the Respondent employed at its Grand Rapids store, including all employees in the grocery, meat, and product departments, cashiers, and employees at its gas station ; excluding truckdrivers, professional employees, guards, the store manager, the assistant managers , managerial and confidential employees, and supervisors as defined in the Act. (b) Discouraging membership in Retail Store Employees Union, Local No. 20, Retail Clerks International Association , AFL-CIO, or in any other labor organization, by discriminatorily discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment , or any term or condi- tion of employment. (c) Indicating surveillance of, interrogating, and threatening employees in connection with protected concerted activities, and promulgating rules against union solicitation on company time while permitting other types of solicitation on company time. 12 See San-On Drugs, Inc., 138 NLRB 1032, Winn-Dixe Stores, Inc., 143 NLRB 848, 860-861, enfd . 341 F 2d 750 (C.A. 6) ; Merner Lumber and Hardware Company, 145 NLRB 1024, 1025-26 , enfd. 345 F 2d 770 (CA. 9), cert . denied 382 U.S. 942 ; Sun Drug Co.. Inc, 147 NLRB 669 , enfd. 359 F.2d 408 ( C.A. 3) ; Primrose Super-Market of Salem, Inc., 148 NLRB 610, 613-617, affd. without opinion , 58 LRRM 2863 ( C.A. 1), cert. denied 382 U.S. 830, motion for reconsideration denied 353 F2d 675 (C.A 1). 13 See Joy Selk Mills, Inc, 85 NLRB 1263, affd. 185 F 2d 732 (C .A.D.C.), cert denied 341 U.S. 914. 864 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Upon request, bargain collectively with Retail Store Employ- ees Union, Local No. 20, Retail Clerks International Association, AFL-CIO, as the exclusive representative of employees at Respond- ent's store in Grand Rapids, Michigan, in the unit found appropri- ate above, and embody any understanding reached in a signed agreement. (b) Offer to John Boosamra, James R. Breedlove, and John Albin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and' other rights and privileges, and make them whole for any loss of pay, together with interest thereon at 6 percent per annum, in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing d Heating Co., 138 NLRB 716; and notify them, if they are pres- ently serving in the Armed Forces of the United States, of their right to full reinstatement upon application, in accordance with the Selective Service Act as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Grand Rapids, Michigan, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 7, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. I ' (e) Notify the Regional Director for Region 7, in writing, within 10 days from the receipt of this Order, what steps have been taken to comply herewith., IT IS HEREBY ORDERED that the complaint be dismissed insofar as it alleges the discriminatory discharge of Bernie Dekeivers. 14 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." LOU DE YOUNG'S MARKET BASKET, INC. 865 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant -to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National' Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain with Retail Store Employees Union, Local No. 20, Retail Clerks International Association, AFL-CIO, as the exclusive representative of our employees in the following appropriate unit : All full-time and regular part-time employees of the Respondent employed at its Grand Rapids store, including all employees in the grocery, meat, and produce depart- ments, cashiers, and employees at its gas station; excluding truckdrivers, professional employees, guards, the store man- ager, the assistant managers, managerial and confidential employees, and supervisors as defined in the Act. WE WILL NOT indicate surveillance of, interrogate, or threaten employees in connection with protected concerted activities, or promulgate rules against union solicitation on company time while permitting other types of solicitation on company time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Retail Store Employees Union, Local No. 20, Retail Clerks International Association, AFL-CIO, or any- other labor organization, to bar- gain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or, all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as amended. WE WILL offer to John Boosamra, James R. Breedlove, and John Albin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss suffered as a result of the discrimination against them. All of our employees are free to become, remain, or to refrain from becoming or remaining, members • of Retail 'Store Employees Union, Local No. 20, Retail Clerks International Association, AFL-CIO, or any other labor organization, except to the extent that such right 243-084-67-vol. 159-56 -866 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as 'amended. Lou DE' YOUNG'S MARKET, BASKET, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-In the event that John Boosamra, James R. Breedlove, or John Albin are presently serving in the Armed Forces of the United States we will notify them of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after dis- charge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compli- ance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 226-3244. TRIAL EXAMINER'S DECISION The complaint herein (issued May 18, 1965; charge filed January 7, 1965), as amended, alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended , 73 Stat. 519, by discharging John Boosamra and Bernie De Keivers on December 9, 1964 , and John Albin and James R. Breedlove on December 11, 1964, and thereafter refusing to reinstate them , because of their pro- tected concerted activities ; and Section 8(a)(1) and (5) of the Act by said alleged acts and by telling employees that it was aware of their union activity and would prevent it, interrogating and threatening employees in connection with the union activities, unlawfully promulgating a rule which prohibited union activity on com- pany time, and refusing to bargain with the Union as exclusive collective -bargaining representative of its employees. The answer denies the allegations of violation and avers that De Keivers quit while the other three were discharged for cause ; and that the Company refused to recognize the Union because it did not believe that a majority of the employees in an appropriate unit wanted to be represented by the Union, the Company informing the Union that it would consent to a Board-conducted election. A hearing was held before Trial Examiner Lloyd Buchanan at-Grand Rapids, Michigan, from July 12 through 15, 1965, inclusive .' Pursuant to leave granted to all parties , briefs have been filed by General Counsel and the Company, the time to do so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Michigan corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. i I regret that other official duties have so long delayed this Decision. LOU DE YOUNG' S -MARKET BASKET, INC. It. THE UNFAIR LABOR PRACTICES 867 A. The alleged independent violation of Section 8(a) (1) While I disclaim responsibility for all that may be said in futuro by way of argu- ment and analysis of the issues of interference, I confess to a feeling of apology for the time and space devoted to those issues at the hearing and here. With company opposition to unionization admitted, findings of discrimination do not depend on proof of independent interference and any inference of motive therefrom; neither does the refusal-to-bargain issue depend on interference found; and finally, the rem- edy is not affected. No more am I concerned with findings of "additional unlawful conduct" which are both unnecessary and without significant effect on the Decision. If the excuse offered that one cannot predict which violations will be found in a case where many are alleged, there comes a time in the decisional process where whether further findings be made or not is unimportant.2 Boosamra testified that on December 9 one of the employees, in the presence of several others, asked Dahnke, one of the supervisors, whether De Young, the com- pany president knew anything about the Union; and that Dahnke replied, "He is on to you guys. He has names and he is going to take steps to stop you." (This and other events alleged took place in the Company's so-called Grand Rapids store, which is located in the city of Wyoming, Michigan, a southwest suburb of Grand Rapids. Facts concerning the operation of the Grand Rapids and Holland stores will be presented in connection with the alleged refusal to bargain, infra.) Dahnke testi- fied that, after a conversation between himself and De Young, an employee asked him what the conversation had been; he could not now recall what he had replied other than that they had been talking about the Union. Crediting Boosamra's testi- mony, I find and conclude that Dahnke indicated company knowledge of union activity and a threat to stop it, in violation of Section 8(a)(1) of the Act. Employee Dykstra testified that on December 8 Wedgewood, the Company's vice president and secretary and majority stockholder (De Young owns the balance of the stock) asked whether he "was involved in this union business," and that he replied in the negative. Dykstra had been working just a few days but he had previously been employed by the Company for approximately 2 years. Wedgwood now reminded him that, in what had apparently been a friendly relationship, he used to praise Dykstra for good work and criticize him for poor work; he pointed out that men are hired for a while and they leave or the Company gets rid of them; he admon- ished Dykstra not to "follow the crowd," as did Wassen, who was on the brink of alcoholism, and finally that he should not "get involved." Whatever the other violations found herein, I would not find unlawful interroga- tion on the basis of the single question put to Dykstra and in the absence of other supportable allegations of interrogation .3 (The complaint does not allege that inter- rogation of Dykstra a few days later and elsewhere in the store, which was preceded by Wedgwood's advice that Dykstra did not have to answer, was violative.) The cryptic reference to getting rid of men and the admonition that Dykstra not get involved might be considered a threat in the context of the question concerning Dykstra's involvement in the union activity. On the other hand this would ignore the reference to good and poor work and following the crowd (whether in union activity or to the apparent brink of alcoholism is not clear). Realizing that opin- ions may reasonably differ as to this, I do not myself find that these remarks con- stituted violative interrogation or threats. Nor do I find violation in the warning by Assistant Manager Meinardi that De Young would fire both Boosamra and Slagter if he came into the back of the store and found one soliciting the other, Boosamra not being on duty and having returned to engage in union activity after a union meeting that evening. There is no question here of interpretation, lawful or unlawful of a nonsolicitation rule. Employees are "off duty" and on "nonwork time" when they are not supposed to be 3 I C Sutton Handle Factory, 119 NLRB 951 "On trifling points nor time nor talent waste, A sad offense to learning and to taste . . -Joseph Story, "Advice to a Young Lawyer," in The Works of Charles Sumner, 1 145 (Boston, 1874) 31 fully realize that this finding and conclusion can be made the subject, not only of exceptions (it is quite understandable that diligent General Counsel will not surrender that hope which springs eternal), but also of addition, modification, disagreement, rejec- tion, and alleged error and inconsistency. If error be found, it is one which I readily acknowledge it does not depend on a flattering distortion of what the Trial Examiner has actually said or on what lie "seems to be saying " 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working during the working shift • or as they enter upon or leave it. While an employee is also off duty the rest of the day, whether sleeping or socializing far from his place of employment , no rule is normally necessary to bar his return for personal or other activity not connected with his work. Aside from any interfer- ence with the work of others, Boosamra's status after his shift had ended and he had left the store was little if at all different from that of an outsider. - ,It is next alleged -that on. December 9 De Young interrogated and threatened employees in connection with union activities and membership. During the conver- sation mentioned supra between De Young and Dahnke, the former asked who was pushing the Union, and himself asked about various individuals. Dahnke testified that he answered "Yes" or "No" as to each although he could not recall any name other than Boosamra's. De Young's interrogation of Dahnke was not overheard by rank-and-file employees and is not itself violative. While violation has been found in Dahnke's report of his conversation, it does not appear that the interrogation was, transmitted or repeated to the employees. I find no violative interrogation here. With respect to promulgation of a rule prohibiting union solicitation on company time, considerable testimony was received concerning one employee, now deceased, who raffled two radios and a turkey among the employees at various times early in the morning and before Wedgwood and De Young arrived. A second turkey was raffled later in the morning, presumably after they had gotten to the store. (Both turkeys were raffled on the same day, shortly before Thanksgiving Day.) It does not appear that either Wedgwood or De Young knew of these, even if the assistant managers did, beyond employee De Hollander's remark to De Young later in the day or on the following day that the first turkey raffle must have been crooked. But De Hollander further testified that the head cashier or De Hollander at her direction openly went-through the store soliciting employee contributions for gifts or flowers in cases of illness or death; that Wedgwood had told her that he would con- tribute if she asked him also; and that others sold chances openly and on working time. Sometimes a sign was merely placed on a sack at the checkout counter, indi- cating a collection of flowers. 1 do not credit Wedgwood's denial of knowledge of any solicitation. In this setting we come to Wedgwood's admonition to Breedlove on December 10. It is not at all clear, even from Breedlove's testimony, that Wedgwood was here warn- ing him against solicitation (according to Breedlove , he had obtained one employee's signature on a union card in the store parking lot on the evening of December 9, and one in the store at the beginning of the next day, evidently before Wedgwood and De Young arrived) rather than against neglecting his work. It was Breedlove who injected mention of the Union. He testified that, when Wedgwood said that he knew that Breedlove had been engaged in other activities on company time and had been neglecting his work, and that he wanted it to cease, he inquired whether Wedg- wood meant union activities; to this the latter replied, "You know. Activities." According to Wedgwood, Breedlove through most of the day had been leaving his work to follow others to the breakroom and restroom area. He worked at var- ious places during the day. Once he walked 30 feet from the produce area to an employee going to the drinking fountain, and then both walked some 50 feet further. Wedgwood and De Young discussed the time thus being lost and, when the latter thereafter reported that Breedlove had told him that the Union was in and that he was' going to' take the place over and whip it into shape, Wedgwood again spoke to Breedlove, at the end of the day. He pointed out that Breedlove had been spending a great deal of time on things which did not pertain to his work, and asked him to discontinue that. Breedlove asked whether this was an ultimatum and, receiving an affirmative reply, asked whether Wedgwood meant union activities, and again latter said, "Yes." If as Breedlove indicated, union activities were the only kind in which he was engaging, and he asked whether Wedgwood meant such, the affirmative reply was understandable and lawful. - It does not appear that Wedgwood promulgated any new or unreasonable rule against solicitation : the issue here was not an employee's solicitation , whether to obtain union cards or support, to sell raffle tickets, or to collect for flowers; but his neglect of his work Breedlove was observably bold and had apparently embarked on a course of action without regard for his obligation to work. The distinction is clear between discriminatory promulgation of a valid rule of general applicability 4 and a limitation on apparent excess, whether of solicitation or mere talking, by one employee . We have no evidence of a limitation or rule being imposed on other 4Ward Manufacturing, Inc, 152 NLRB 1270 LOU DE YOUNG'S MARKET BASKET, INC. 869 employees or, that others (Breedlove himself prior to December 10) spent so much time away from their work. If some solicitation may impinge on work, Breedlove more than exhausted any permitted margin to the extent that he persisted on that day. _ Wedgwood's remarks or warning to Breedlove did not constitute a new or unlawful rule of general applicability. Nor did they unlawfully interfere with Breed- love specifically. Neither then nor thereafter did the Company forbid discussion or solicitation. Wedgwood based his restriction on Breedlove's indicated excess to the neglect of -his- work. Late in the evening of December 11; within the hearing'of the union _representa- tive, Wedgwood said to and in the presence of several employees that, if he had to, he could run the store with fewer people' if the Union came in, and that part-time help would have to be cut out. It' 'does, not appear that Wedgwood was here merely stating a union requirement; this was a violative threat. Similarly on December 18, during the course of a conversation with an employee concerning the Union, Wedgwood referred to' possible discharges and to automation and layoffs in his experience elsewhere, adding that the Union would not hurt him but the employees. This was an unlawful threat connected with, successful organiza- tional activity. I make no findings, with respect to a prior question or various other remarks by Wedgwood during this conversation or his questioning or threat to this employee about a week before. None of this was alleged or fully litigated. B." The allege'd^ violation of Section' 8(a) (3) 1. Boosamra ' Company opposition to unionization is clear although more than that is necessary for a finding of discrimination. We recall that De Young on December 9 had asked Dahnke whether Boosamra was one of those who were pushing the Union. Where as here the Company had knowledge of union activities and suspected various employees, it may not be necessary to show actual knowledge of the activities of each discriminatee. On the same day De Young had questioned the dairy manager con- cerning his knowledge of union activities. While the latter's recollection was poor, it appears that among the names mentioned by De Young were Breedlove and Albin. Boosamra was a leader in the union activities, which commenced with a meeting between several employees and the union representative on December 8. Boosamra talked to other employees on December 8 and 9 and, as they came in, solicited and obtained signatures on cards. We recall also Dahnke's statement concerning De Young's knowledge of those who, were engaging in union activities. It now appears that, still on December 9, De Young declared in the office that "they [were] going to put a stop to this." He left, returned with Boosamra,; and directed that the latter,be given. "his.time, that there-were going to' be a few changes." After Boosamra left, De Young further stated, "That was just the beginning, there would be more yet." To explain this, although he told us that none were discharged because of business conditions, De Young testified that- he meant,that he would have to get the payroll in line with the volume of business. Although up to this point in his testimony, De Young had been stressing Boosamra's shortcomings in recent months and that very morning (Boosamra and others had allegedly goofed off in the past, and again others as well as Boosamra were now engaged in a gab session), this explanation indicated no such concern despite the action which he was taking against Boosamra. Wedgwood offered feeble support with respect to alleged dereliction by Boosamra as he testified that some 4 months before, when several of the boys were dallying, he,had'urgedithat they try to,do,better;•,andthat iin-Septentber or, October he had told Boosamra and another employee to "get on the ball." Aside from the 'fact that Wedgwood himself did, not appear, to regard any of this as serious (this is his appraisal, not-my own), Boosamra denied that Wedgwood had spoken to him about wasting time. De Young's connection of his discharge of Boosamra with a general need to reduce the staff is further undermined by the ear- lier statement that it was the Company's position that Boosamra was discharged because he wasted time, the precipitating incident being that morning's. This shift- ing of position is underscored,by,Boosamra's testimony that De Young told him that they had too many cashiers and were rearranging the store. (Boosamra was used as a cashier and to put up stock.) The reasons given by the Company appear, to be mere pretexts. Others admittedly. were with Boosamra during these "goofings off," and there does not appear to be reason for the selection„of,this active-union sup- porter for discharge. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It does not appear that the Company had even considered action against Boosamr& or others involved with him during this period of several months. Even when a supervisor told Boosamra and several others whom he caught gambling to punch out and see De Young, the latter merely warned against wasting time. I rely on Dahnke's testimony that Boosamra, who was under his supervision, was "a pretty good man," and that he "had no complaints against him"; he never criticized Boosamra for his work although he may have told him that he was talking too much (talk was neither uncommon nor prohibited), and that he had never reported on Boosamra's work to Wedgwood or De Young. I find and conclude that the unsatis- factory aspect of Boosamra's activities was his efforts in support of the Union on December 8 and 9, and that these efforts prompted the discharge on the latter date, in violation of Section 8(a)(3) of the Act. 2. De Keivers As the Supreme Court has stated in the Erie Resistor case,5 When specific evidence of a subjective intent to discriminate or to encourage, or discourage union membership is shown, and found, many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more, be converted into unfair labor practices. I have not overlooked the Company's general motivation indicated by the evidence and the findings of violation. But the facts in connection with the other discharges indicate that they were not prompted by any discriminatory attitude- regardless of such attitude, they would have been and were nondiscriminatorily effected for good cause. Nor have I forgotten De Young's statement that there would be more dis- charges and his explanation that he was speaking of getting the payroll in line with the volume of business, concerning which he had earlier testified. It is clear, despite any attempt to entrap De Young or to bring out the contrary, that business condi- tions, whether they warranted or might have prompted the remaining discharges, did not point to, and they were not pointed, to, in justification; other reasons prompted' the actions taken. Touching all of the bases, even those outside the playing field, I note a claim that Wedgwood, in connection with a threat not alleged, told employee Wassen that he had let a few go because business was slow. The testimony concerning what occurred between De Young and De Keivers is more reliable than an attempt to con- strue this later remark by Wedgwood which further indicated the latter's admitted attitude. We have noted that the employer's attitude is an important factor in analy- sis, but that the suspicion thereby engendered and such evidence of discrimination can be, as they are here, outweighed by the other proof. An unwarranted ex post facto statement, if unwise and conceivably itself coercive, is indeed to be considered; but it does not overcome what in De Keivers' case has been shown to the contrary. It must be borne in mind that we are dealing with laymen, who may be led, by their interests and prejudice, to discriminate. While what may be a subsequent admission 6 is important, it may also be no more than an expression of the same prejudice, as the totality of the evidence here shows, not a reflection of an earlier discrimination. Indeed it may even be the layman's attempt to reap a coercive benefit from the law- ful action previously taken. Such an attempt, if unlawful, does not change the nature of the action to which it refers. Further, were this sufficient proof that De Keivers was discharged despite the evi- dence to the contrary, it would still leave us without evidence of company knowledge and discrimination General Counsel's able and artful argument and his emphasis on the later remark rather than on the circumstances surrounding De Keiver's with- drawal prompt the additional remark that, if the statement represents an unnecessary throwing around of his weight by' Wedgwood and does not itself conduce to har- monious labor relations, it does not warrant a finding of discrimination against De Keivers. I credit De Young's testimony concerning his remarks and intent, as I do with respect to De Keivers' termination. De Keivers had been looking for another job (he had quit the Company's employ several years before, then returned) and his dissatisfaction had apparently been com- municated to De Young, who on December 9 spoke to him about eliminating his or N.L.R.B v. Brie Resistor Corp., 373 U.S 221, 227. G By Wedgwood, who was not in the discussion with De Keivers, or by De Young. Wedgwood knew that one of the jobs was to be eliminated. LOU DE YOUNG'S MARKET'BASKET, INC: 871 another job. We, are iiotwarranted in saying'that, mention of ihis inchoate possi- bility constituted a'constructive discharge or was otherwise discriminatory. Depend- ing on De Keivers' reaction, De Young, if he'would,hav_e eliminated' one of the jobs, might have discharged the other employee. De Keivers did not permit this possibil- ity to be tested as he ran off with the ball. De Keivers testified that, charged with being dissatisfied, he replied that he could not be 'satisfied in the face of a very recent 25-cent-an-hour cut, which had been general,.and concerning which there is no issue? De Young then said that he thought that De Keivers had another job lined up a De Keivers_ did not, deny this but after further-discussion asked, "Well, is this it, Lou?," De Young replied, "Yes„ you can go to the, office and.,get your check." - _ De Keivers had made no sceret of his dissatisfaction; nor does it appear that, as he spoke to others, he was engaged in. protected concerted activities. He was under- standably complaining on ,his own, behalf, and his efforts for improvement were directed toward other employers, not toward better wages here. 'The evidence would not sustain, nor has the General Counsel made, any contrary claim. According to De Young, other produce clerks had told.him,that.De Keivers had said he was very unhappy and had other jobs lined up. When be Young questioned him concerning this, De Keivers replied in the affirmative, citing one job which looked especially good. De Young then suggested that it might be a good idea to take one of those jobs, and De Keivers agreed, saying that he would.finish the day;, and he did. Accord- ing to De Keivers, he askedi whether„De Young thought that he was .behind the Union, the reply being that that had nothing to do with it.., De. Young denied that the Union was mentioned,,even by De Keivers,as the latter claimed.' I credit De Young's version where there are differences.No, apparently discrimi- natory basis has been shown for De. Young's, remarks to De Keivers._ The -latter's ambition is laudable. Whether that or pride or.a combination of the two ,prompted his action, I find and conclude that he quit: there, was, no actual, or constructive dis- charge. If De Keivers was actuated by, the conversation with De Young "to quit sooner than he had planned, he did nevertheless quit voluntarily. At the least, he indicated that he was prepared to quit, thus solving, De Young's problem and prompting the termination. De Young's remarks to him were no more than, a sug- gestion and hardly that, being less than De Keivers had declared. * - Aside from,the fact that the evidence does; not show that he, was- discharged, or discriminatorily provoked into quitting, De Keivers', union activities were minimal and it does not appear that the Company connected him with the Union. Unlike the situation with respect to the other discriminatees, there is no• admission of com- pany knowledge of his union activities' He, testified, that he signed a union card, handed one out, and talked to a few unidentified . employees to see whether they wanted the Union. Nor is there any evidence that De Young thought that De Keiv- ers actively supported the Union. I cannot join .in the General Counsel's ingenious inference; because company knowledge or suspicion of union activities by De Keivers has not otherwise been shown, that De Keivers must have been an "obvious,suspect" ,and led the Company to believe that he was "intimately involved in Union organizing [because,he was] the chronic griper." As if gripes are unheard of from employees who do not engage in concerted activities. Had De Keivers joined other employees in complaining to management concerning the wage reduction, that would be pointed to .as concerted activity for which he could not be discharged. In the absence of a concerted pro- test, the General Counsel argues that De Keivers' individual griping reflects his sup- port of the Union although he did not join in any other marked concerted activity. In short, where the facts do not show it, we-are to infer concerted activity or com- pany belief thereof so that, -whatever De Keivers' did or did not do in that respect, he was discharged discriminatorily! ' - Not determinative but indicative of the Union's appraisal of the situation with respect to De Keivers is the fact that on December 16 it requested reinstatement of "three discharged employees," identified as Breedlove, Albin, and Boosamra; De Keivers was now, conspicuously, omitted. It can scarcely be claimed, and it is not, 7 This reduction indicates that the Company had recently and before the advent of_the Union acted on the adverse economic conditions. Any reference now, to, possible further action did not therefore reflect a suspicious delay and a prompting by union activity. 8 De Keivers testified that he had inquired at the market but had,,not looked anywhere else. He went to work the following day at a place where he had neither expected, wanted, or previously sought employment. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in, view of the, time sequence, that De Keivers' termination of employment was not or would not reasonably be called to the Union's attention when the others were considered. With De Keivers a member and the Union evidently aware of what was going on,he--was presumably known to have quit, not to have been discharged. " 3. Breedlove and Albin Bearing in mind the .company's, opposition to' unionization and the admission of knowledge ,of union activities by ' Breedlbve'and' Albin, we come to consideration of the events leading up to'their'discharge.'' We recall-that on December 10 Wedgwood had warned Breedlove about neglecting his work: I credit Wedgwood's testimony that Breedlove had throughout the day been leaving his work and following others to the breakroom and'restroom'area. In that conteext,- ohe can readily believe that Wedgwood was understandably shocked and more than a little annoyed when Albin and Breedlove came into his' office the following ' morning, the latter announcing that they had come in to inform him that they were 100 percent for the Union and wanted him to know it. When Wedgwood asked why they had come in to tell him that since he already knew it, Breedlove' replied that he just wanted to be sure that Wedgwood knew about the Union. ,' - - I do not believe that Breedlove went further and admitted that he had defied Wedgwood and intended to keep on doing it. This would have been so impressed on Wedgwood's mind that he would not have omitted it in his prehearing state- ment. (De Young also testified to this.) But Breedlove's very appearance in the office was .defiant and, brazen ' * '_ '' ' - ' 's ' `' ^ "' J Whether, Breedlove' had' heard''that' Vander Werff, `the -Union's, represetitative,' had suggested that the employees' go to the office in pairs, as he testified, or had himself heard Vander Werff say it, he did go with Albin. When he asked his immediate supervisor for permission to leave his', work, he did not explain why.9 Nor could the supervisor' countermand Wedgwood's order of the day before that Breedlove stick to his work. As for the possibility that Breedlove would be permitted to go to the office for another reason, his reason on December 11 was neither valid nor proper in the light of what had previously occurred, and without considering his act as an unprotected partial work stoppage. Aside from the fact, as found, that Wedgwood had not promulgated a new rule but had admonished him not to neglect his work, Breedlove's call on Wedgwood early that morning after he had been warned the afternoon before was insubordi- nate and defiant. Notice to'an' employer of employees' support of a union can be and is generally given without repeated interference with the work of either employ- ee's or management. The issue here is not merely-whether Breedlove talked more than or''dtherwi'se `acted'differently from other employees. If he was "among the most active of the Union employee adherents," as declared by the General Counsel, his offense lay in neglect of his work. An order that he talk less and pay more attention to his work when he was neglecting it (Boosamra's activities had not called for any such warning, nor had any been given) was lawful even if promulgation of a general rule would have been unlawful. His defiance of that order prompted and 'warranted Breedlove's discharge. (Even an earlier unfair or' unlawful restric- tion on Breedlove would not warrant such defiance as calling on Wedgwood in the office the next morning.) Having entered the 'office with this, attitude, Breedlove again challenged Wedg- wood and further explored the, possibility of legal entrapment by referring to union activities rather than general failure to attend to his duties. That other employees 10 reported to De Young concerning' union activities without reprimand is not to be equated" with''Breedlove's persistence, and, impudence. It is clear that' Wedgwood had abundant knowledge of various employees" support of the Union. It is equally clear that Breedlove was not-alone or outstanding in such support. (Without minimizing his activities, he was not the first nor had he accomplished the most ) This latter fact does'not itself prove that Wedgwood did not discriminatorily select Breedlove because of such support while permitting others to talk or otherwise 'engage in union activities. But it is in harmony with the evidence, which I credit, that Wedgwood's concern expressed in the warning and 9 Breedlove did not at first recall that he told Wedgwood of his supervisor' s permission: Albin contradicted himself on this point 10 One of these went to the office, as had Breedlove and `Albin, to see De Young-but before his work period.`" LOU DE YOUNG'S MARKET BASKET, INC. 873 the discharge was with Breedlove's neglect of his duties and was not motivated by Wedgwood's opposition to the Union and Breedlove's support. The evidence shows that it was not Breedlove's statement of his sympathy and support for the Union which led Wedgwood to act. The latter, both sides agree, had knowledge of this before Breedlove and Albin came in. The moving factor was Breedlove's coming into the office, neglecting 'his work and interrupting Wedg- wood, in the light of his previous neglect and the warning given him. I find that it was the extent of Breedlove's activity when he should have been working, not its nature, in support'of'the Union;, which prompted, theidischarge .as it had,,the remon- strance or warning the day before., . "° " ' ' ' While Albin had not been warned, he had heard of the warning to Breedlove and made common cause with him, telling Wedgwood that he felt the same way. His testimony did not add to the General Counsel's case. Were this a case of discriminatory discharge of Breedlove, the associated discharge of Albin would also be discriminatory even if the latter's union activities were not otherwise indicated. Here similarly, the discharge of Breedlove being justified, no more discriminatory was the simultaneous action taken against Albin, who joined in the provocative activity in disregard of his duties in the store admittedly after he had been told of the warning given Breedlove." If under the circumstances here presentation of a grievance would make a difference, Breedlove and Albin were not grieving. C. The alleged violation of Section-8(a) (5) The Grand Rapids store was opened in 1956 and incorporated 3 or 4 years later. An expressway or interestate highway runs westerly from the store in Wyoming, which is southwest of Grand Rapids, to the second store, which is on the east side of Holland, one-half -hour driving time and some 20-22 miles distant, and was bought in March 1964. (Union activities commenced in December 1964.) The Company owns both sites. By letter dated December 16, 1964, the Union confirmed its oral claim made to Wedgwood that day that it represented "a majority of the employees in the .store.. . .; and it sought a meeting to negotiate a contract. On December 22 Wedgwood replied, ". . . we do not believe that your Union represents a majority of our employees.". He -expressed a willingness to bargain if the Union could establish "a, majority of an appropriate, group of employees" wanted to be repre- sented by the Union, and he suggested a Board election. It does not appear from the letter that at the time of writing Wedgwood knew that the Union had filed a representation petition the day before. The unit described in the petition included gas station employees and was an expansion, over that in the request; it was again contracted in its description in the complaint, where gasoline station employees were not mentioned and confidential employees were for the first time excluded. . The complaint alleged -that the following is an appropriate unit within the mean- ing of Section 9(b) of the Act: all full-time and regular part-time employees of the Company employed at its Grand Rapids store, including all employees in the grocery, meat and produce departments and cashiers, excluding professional employ- ees, guards, the store manager, the assistant managers, managerial and confidential employees and all other supervisors as defined in,the Act. By amendment to -the complaint, dated June 28, 1965, the unit alleged was expanded to include gasoline station attendants employed at the Grand Rapids gaso- line station, while truckdrivers were excluded. Gasoline station attendants are cer- tainly not "employees in the store," referred to on December 16; nor were they included in the detailed and 'formal description in the complaint. At the hearing it was agreed that, for reasons not now of moment, the exclusion of truckdrivers can be omitted from the unit as described although the addition of the gasoline station attendants remains, the issues revolving around inclusion of the alleged discriminatees in the unit and limitation to the Grand Rapids employees; the Company pointing out also that the Union's' request to bargain and representa- tion petition did not exclude confidential employees. . It was also agreed' that at, the' time of the request in- December, the Unions had cards signed by a majority of the eligible employees in the Grand Rapids store. Twenty-seven were on that date listed as employed in the Holland store, and it is "It will serve no kind -or useful purpose 'at' this time to' characterize Albin Is'-testimony or demeanor. Suffice it to say that`I'do not join'in General Counsel's appraisal 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clear that the Union did not represent a majority of eligible employees in both stores. - Insofar as the Company now claims that the Union's. request to bargain did not sufficiently identify the unit, as by exclusion of two office or confidential employees whom the parties agreed at the hearing to exclude, and part-time student employees, the answer is that a union need not describe a unit with the, precision and, exactitude of a Board decision; and that,- so_far from raising the point when it might readily have been clarified, the Company, while referring to appropriateness as we have noted and shall further consider, objected in this connection, only to "the circum- stances under which some of the cards-were obtained," and questioned whether they indicated the employees' free choice. We can as quickly dispose of the reasons given by Wedgwood for his, refusal to recognize the, Union or do check the cards offered 12 to him. He did not think the Union had a majority; he had, heard of pressure on various employees, to sign. Aside from the violations found and the question of applicability of the Joy Silk Mills rule 13 we note that he did not check this as by asking for the names -of any thus pressured. -De Young, who allegedly,told Wedgwood and was also told that some wanted their cards returned, does not appear to, have asked who had-"cor- nered" the unwilling signers. But whatever the sufficiency of the request for some unit or of the reasons given for the refusal, we must consider the sufficiency of the request for recognition to support the allegation of unit, request, and unlawful refusal, which is before us. If the Company did not with legal exactness state its objection to a single-store unit in its reference to "an appropriate group of employees," neither did the Union in its bargaining request claim the unit now alleged. We must consider the ' differences between the unit described in the request and substantially embodied in the original complaint-and the unit as amended. In Sabine Vending Co. Inc.,14 now before the Court, the Board, reversing the 'Trial Examiner on this point found a refusal to bargain where "any possible vague- ness, ,ambiguity, or imperfection in the original request" was "perfected" in the union's representation petition, which was in the respondent's hands prior' to its refusal to bargain; and where the refusal was not based on the unit claimed. That the Trial Examiner in Sabine found the very distinction which the General Coun- sel strenuously maintained between sales employees (as in the request for recogni- tion) and driver-salesmen (alleged in the complaint) is not of importance here. Accepting the principle there enunciated, I would point out, if it did not clearly appear in Sabine, that the refusal to bargain here was, as it could only be, in response to the request. If the Company's refusal be connected with the expanded unit described in the representation petition, what was the Company's responsibility when the unit was again contracted in the complaint? Does the refusal addressed to the request attach to any unit thereafter described, expanding and contracting with each subsequent claim or allegation? It needs perhaps to be pointed out that, even if the Company had failed to object to the unit when the request was made by the Union, the issue would not be merely whether the Company had thereby waived or otherwise lost its right to question the appropriateness of the unit thus claimed. Rather, can we now properly find a request and refusal to bargain with respect to another unit? 15 The General Counsel has here told us that the unit declared in the amendment to the complaint is a mere clarification of that originally claimed and alleged: it adds five gasoline station attendants and excludes two truckdrivers.16 Whether or not 12 On the limited issue of flashing cards or fanning them out, see John P. Serpa, Inc., 155 NLRB 99, where the Board held that placing five cards in such a way that the em- ployer probably saw the names and signatures cannot create the obligation to bargain or establish the employer's bad faith. The instant case, however, is not limited to such evidence of bad faith; and would be decided differently were all other necessary elements present. 18 Joy Silk Mille, Inc., 85 NLRB 1263. _ 14 147 NLRB 1010, 1011. 19 Cf. Reilly Tar 5 Chemical Corp. v. N.L.R.B., 352 F.2d 913 (C.A. 7), Nov. 17, 1965, dissent reference to "the union's change of view with respect to the appropriate bargain- ing unit. ..." The point here raised was not considered in Reilly. 16 The community of interest between truckdrivers and other employees, which the Board has recognized, -would appear to warrant inclusion of the drivers where. the unit' requested does not mention them.,, Cf. The ,Valley of Virginia. Cooperative Milk Producers. Associa- tion, 127 NLRB 785, 787; Marks Oxygen Company of Alabama, 147 NLRB 228-230. LOU DE YOUNG'S MARKET BASKET, INC. 875 the exclusion be recognized, the addition of a new classification and five employees constitutes a material and substantial variance (besides the reference to confidential employees for the first time after the request and representation petition). While the Company did not note this objection in its denial, of -appropriate unit, a finding of violation would perforce be based on the unit as amended 6 months after'the request and refusal to bargain. But even were a respondent to default in answering or to make admissions of fact,, we could not, ignore the presence of facts to the contrary as we make findings, whether of unit or of demand for recognition. Were there mere ambiguity as declared in Sabine Vending, supra, it might indeed be found- that any issue by the Company concerning the,unit claimed on Decem- ber 16- is an afterthought and a sham; no question concerning the unit having been raised at-that time. But•neither can the Union obtain recognition fora unit different from that which it claimed. That would be following extent of organization to an extreme not only with .respect to, appropriateness of the unit but, also, as the unit is elasticized, the direction to bargain. The reference to employees in the store in the original request to,bargain and the original allegation in the complaint which named the various departments without reference to the gasoline station, were not ambiguous. The amendment - does not clarify;, it substantially changes. the unit description. Looked at another way, the Union,. relying on other violations and citing Joy Silk Mills 17 for a finding of refusal to; bargain, would by an ex post ,facto amend- ment succeed in varying.,and. extending, the unit to, embrace additional employees. If there is a limit to such extension of the unit, it has not been indicated. Whether or not the Company early, questioned whether the unit requested was appropriate, it could not avoid liability under Joy Silk Mills for refusal of a request to bargain for a unit substantially like that alleged. But whatever basis there. may be for finding a bad-faith refusal, and aside, from the issue ,of substantial difference between the units requested and alleged„proof of majority in, an appropriate unit is a sine qua non to a finding of violation.18 The issue thus is whether a single-store unit composed only of the Grand Rapids store employees is appropriate. Consideration of the evidence received in this connection can be introduced by, voicing what' may be but a-fatuous hope:, That we, may.'lay to rest the straw man in the "not per se" argument, who has been,knocked down so many,•times that he has truly earned a long rest if not interment. If the'concept of law and decisional authority means anything,' it is that there are principles which are to be applied in various factual situations. True, the facts found will indicate which principles are applicable. It is almost redundant t o say, as so frequently is said, "In the circum- stances of this case, . . He who would properly apply established legal principles to the facts found is not, to the extent that he is concerned with the facts, proceeding to any per se conclusion; and he who would make different factual'findings should not disown a per se assumption which has not been .made. Reliance should be placed and a distinction based on the different facts found. With such findings explained, there is no need to suggest and then to protest an alleged per se situation. Such protests are a poor substitute for pointing out. that the factual findings and the 'conclusions are not supported and that others should be made. These principles are applicable to the cases cited by both sides, all of which have been noted. But what obtains in a multiple-store chain or even in another two- store situation may not find application here. Although we can rely on similarities and apply the same, principles to whatever extent the facts permit, decision in each case necessarily, depends on the evidence in the case, and this may be significantly different.19 If ever a case cried out against "mechanical" or per se findings and con- clusions, this is it. The record shows that Wedgwood spends, approximately 95 percent of his work- ing, time in Grand Rapids; De Young devotes, more , attention to the Holland store. They rely directly on their department supervisors, who, function at both stores. 17 Joy, Silk Mtills, Inc., supra. Is H. W. El8on Bottling Company, 155 NLRB 7.14,; ' Hermann Equipment Manufacturing Company, Inc., 156 NLRB, 555. F ;;, ' r . • 19 If not so well expressed , this reflects: what. the Board. said, in Sav-On Drugs, Inc., 138 NLRB 1032 where its reconsidered -its i,policy,. of, normally. including employees, within, an administrative or geographic area: - Cf: United, Insurance , Company io f America; 154 NLRB 38, where in connection with differences,in status, similarities and determinative differ- ences were noted. 0 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both owners actively concern themselves with both stores. Thus, while in Grand Rapids, Wedgwood is occupied with buying and supervision for both stores. His limited presence at the Holland store itself reflects the extent to which both stores are operated as a unit as others, both supervisors and rank-and-file employees are sent to the Holland store. While Wedgwood and De Young differ in their emphasis or immediate concern over the respective stores, each in fact is concerned with cer- ,tain aspects of the management of both stores. Both spend time as needed in each store. Clearly supervision by each is close and of the stores jointly. While there is reference, as we,shall'see, to -department managers each of whom functions in both stores; 'this indicating the unity of operation, the directness of the supervision exer- cised by the two owners and the' apparent absence of -separate store - managers as such further underscore such unity. Testimony was received concerning four department managers (meat, produce, dairy, and display) each of them concerned with both stores. If either store has an exclusive operating head, the record does not show it. Moss, sometimes referred to as in charge of display or inventories, was at one time in charge at Holland when De Young was not there. He is now generally at Grand Rapids, and it does not appear that anyone has replaced him in Holland. Moss can make effective recom- mendations for hiring. The store managers are in fact the two owners. It was testified variously that, of the two office employees in Grand Rapids, one works with Grand Rapids,and the other with Holland, employee cards; and that 'each works on ., matte"rs affecting' both , stores.', We need not cite in the detail in which they appear and are repeated in the record all of the facts concerning operation of the stores and the activities or assignments of employees. Permanent transfer from one, store to the other is the exception 20 although it has occurred. More significant is the practice testified to wherein an employee punches in at the Grand Rapids store, works in Holland, and then returns to Grand Rapids, where he punches out. From assignment of employees and a supervisor from the Grand Rapids store to take inventory at the Holland store, and assignment to set up displays weekly or several times each week, through ordering of merchandise at Grand Rapids and delivery there for transshipment to Holland, and maintenance of 'a single pay- roll account for employees of both' stores,21 a single unemployment compensation rating account, and single social 'security and sales 'tax records and returns, it is clear that the stores are operated as a single entity.22 In fact, some Holland store employees -were ' trained in the Grand Rapids store.' While Holland employees were paid on a weekly basis when that store was taken over in March 1964, they were placed on an 'sourly basis to maintain and for various purposes to count them as one with the Grand Rapids operation. As between the two stores, there is no diversity of pay or functions among employees. Whether employees assigned to the Holland store are stocking shelves, taking inventory, or setting up displays,'their duties'are similar to those which they per- form at the Grand Rapids store. Nowhere ' is there a claim of different duties or differences in performance by employees who-work in both stores. Nor is there any evidence that employees of one store, when assigned 'to the other, protested or were surprised or that, unlike the Company, they reacted to such assignments as unusual, undesirable, or outside the scope of their normal duties. (As with the employer, the test here goes beyond subjective attitudes to acts which reflect exist- ing and accepted conditions of employment.) - With respect to delivery of merchandise to the Grand Rapids store and trans- shipment to the Holland store, which is thus treated as an appendage, this is the common practice except when on occasion a small shipment or a full truckload is PD One man who had been employed in Grand Rapids had been transferred to Holland "to help them out." He suffered 'a heart attack and, after recovery , returned to Grand Rapids part-time on a trial basis. m Holland necessarily has a local depository account which is used also to pay for merchandise supplied to the store and to compensate for wages to Holland employees which are' paid out of the Grand Rapids account. " ' 28 Some similarities , as with respect to vacation and holiday programs in the two stores are not probative ; they nia'y be merely ' concomitant ' or coincidental although differences in such respects could befcited as indicating separability . The same may be said ' of similar fringe benefits although the'item becomes significant when , as here , it is covered by the same policies for both stores. See 'United Insurance Company of America, supra. LOU DE YOUNG'S MARKET BASKET, tNC. 877 sent out directly. Merchandise is generally brought to the Grand Rapids store, reloaded or combined with other, merchandise, and then delivered.'by etruckdrivers who are employed-and paid by the Grand Rapids store. There is no evidence of any charge to the Holland store for such services either. As for interchange of employees, it is clear that temporary assignments to the Holland store for maintenance work, stocking, displays, etc., were most frequent when that store was taken over, and that they have been reduced from the two to four times per week frequency. Similarly Grand Rapids employees now take inventory at Holland quarterly instead of once per month as formerly. Several employees testified, that they -are . infrequently assigned to Holland. The General Counsel also cites Dahnke's testimony of interchange once or twice a month, and De ' Hollander's : that this occurred` only on "special occasions." We would expect records of employee interchange were these separate operations. The very unity found explains the absence of such records. Whatever the dispute concerning the extent of interchange, I credit De Young's testimony, of which there is little refutation, as we were assured, that Grand Rapids people help at Holland each week. Pressed by the General Counsel for names, he did name 18 rank-and-file employees and a supervisor,,and added that there are probably 10 or 15 more. I find that such interchange is and has been common and whenever need exists; and is most significant because, as we have seen, it is not noted for payroll purposes. Nor should the availability of employees be mini- mized because the General Counsel refers to these as emergency. situations. These are not act-of-God emergencies, when assistance is sought even, from strangers and distant sources. Transfer of employees during sales and to handle certain, items further- indicates an easy treatment and. regard, by both management,and employ- ees. of the latter as in fact employees of both stores and available for each. If Grand Rapids employees are now less frequently used in the Holland store than they were formerly, this does not reflect on their transferability or status of avail- ability: they are assigned as needed. Nor does a difference in store hours, noted by the General Counsel, reflect autonomous decisions- Of the cases on which the General Counsel appears to rely principally, Frisch's Big Bay Ill-Mar, Inc.,23 is readily distinguishable on its- facts. Among these are separate corporations each of whose operations are conducted by its own manager; the autonomy of control exercised by each manager in day-to-day operation; trans- fer of payroll records when an employee is temporarily transferred, and the fact that it is discretionary with the manager whether the employee retains seniority and other accumulated benefits in such cases or will be treated as a new employee; and each manager's , discretion within established guidelines to determine each employ- ee's,'starting salary: ,. 1 , r ; r, , Although it is almost a digression to do so, it may be in order to point out the different factual situation in Primrose Super Market of Salem, Inc.24 There, each store has a manager and an assistant store manager; displays are handled locally; merchandise is frequently ordered by the store manager directly from suppliers; work schedules and hours are determined by the local store manager, who also figures the hours worked by each employee in his store, employees being paid by separate checks if they work in two stores during the same week; and each store has a separate seniority list, and layoffs are made on the basis of seniority in the given store. The-factors noted in theselother cases and the, evidence in the instant case indi- cate that a single' store unit is not here appropriate. The most weighty factor on the other side is the Union's failure'to this point to attempt to organize the employ- ees in the Holland store. But the Board does not recognize this as controlling.25 The stores are necessarily' "geographically separated." - But single overall unit has been found where the geographic'separation.is greater than here. The totality of the evidence here indicates a combined operation of the two -stores directed and carried out by Wedgwood and De Young from their' headquarters in Grand 23147 NLRB 551. - 23148 NLRB 610, 616 Although the drudgeries of search are made sweet by the hope that facts will bring enlightment and conviction, I have not attempted to distinguish fully the facts in each case cited. . "'No, more so is the fact that no other union is seeking to represent the employees of the Holland store. Cf. Overton Markets, Inc., 142 NLRB 615, 620. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rapids.26 Under the facts here indicated, to find appropriate a unit of Gland Rapids employees only would be to fragmentize a unified operation and to segre- gate employees who have common, interlocking, mutual , even identical interests We have already noted and the General Counsel points out that "the seat of management of the corporation is at the Grand Rapids store, and that the Grand Rapids employees for whom representation is sought are hired, disciplined, dis- charged, etc., by management operating out of that store" But that is only part of the truth These facts are equally true of the Holland store and of all who work there. It does not appear that Moss, who is in charge of displays at both stores and who appears to be the counterpart of the other department managers who function for both stores, has "direct control" or "closely parallel[s]" the store manager described in Pui ity Food Stores, Inc.,27 of which more infra Supervisory authority, to the extent that it may exist in the Holland store, is limited, as we have seen, close and immediate authority is exercised by Wedgwood and De Young, and specialized supervision in addition lies with supervisors as in meat and pro- duce, who work out of the Grand Rapids store. The General Counsel creates a standard of his own when he declares that "if the person in charge of the day-to-day operations of the single store is a super- visor within the meaning of the Act, the Board will consider that store as autono- mous for unit purposes." Aside from the fact that we do not have in the Holland store a person who is in charge, as in Purity Foods cited by the General Counsel,26 the latter has provided a condition which is no condition at all. Any person in charge of the day-to-day operations, where there are 20 or 30 employees, is by definition a supervisor. General Counsel thus argues for too much: Any store is "autonomous for unit purposes" if there is someone in charge of day-to-day operations! Whether he is Moss, whom the General Counsel identifies as local manager although he now spends most of his time in Grand Rapids, or an un- identified person, the authority of a local manager in Holland is minimal although someone must be supervisor. It is not clear how such minimal status supports the concept of single-store autonomy. But by comparison with Winn-Dixie, the Gen- eral Counsel appears to refer to De Young as the one who exercises day-to-day supervision at Holland. (This is not altogether clear since the next paragraph refers to "Moss and his day-to-day management " If the distinction intenced is between supervision and management, I accept it.) Were De Young's authority the basis for finding a single store unit (Holland in the analogy) appropriate, we would be declaring that the existence of an overall supervisor makes a single store an appropriate unit' Considering management, employees, or both, the Holland store is not autonomous, but is a necessary part of the unit, which must include both stores. It is a truism that the findings to be made depend upon the facts adduced. It is a distortion of the facts here as we shall see in a brief reference to the facts in Purity Food, to claim that De Young and Moss jointly make the same decisions as were "together handled" by the manager and store supervisor in that case. (To anticipate, the Board declared in Purity Food that the store manager hires employ- ees for his store after first himself determining how many are required.) With only two stores here, the two owners of the stock of this single corporation per- sonally and intimately supervise operations and employees. So far from intro- ducing a formal hierarchy and separation, they treat the stores and everything involved in them, whether merchandise, employees, or funds, as one. It can read- ily be understood that a two-store operation can and in this case does, as the evi- dence indicates, differ from larger operations not only in size or degree but even in kind. Borrowing from the language in Sav-On Drugs,29 finding that the 16Cf Burlington Food Stores, Inc., 155 NLRB 1192 To recognize as appropriate a unit consisting of all of the stores in two States (albeit small States) where that is requested, and to hold a single store unit appropriate under the facts here proved would suggest undue concern over the request if not over the extent of organization See also Meier Supermarkets, Inc., 142 NLRB 513, where bargaining history and expansion were recognized as indicating a single overall unit although other factors were less cogent than here. Y7150 NLRB 1523, enforcement denied 354 F 2d 926 (C A. 1), Dec 30, 1965 29 Or even as in Winn-Dixie Stores, Inc , 143 NLRB 848, 861, enfd. 341 F.2d 750 (C A 6), where although the store manager is a supervisor without substantial authority, the area supervisor visits the store not more than once a week. 21138 NLRB 1032. LOU DE YOUNG'S MARKET BASKET, INC. 879 two-store unit alone is appropriate will not here operate "to impede the exercise by employees in retail chain operations of their rights to self-organization . The element of residence of the employees could readily be dismissed in view of all of the other facts here and the General Counsel's statement that residence of employees "is not a major point." But the point was discussed at the hearing and it may therefore be in order to consider it here. While residence of employees may affect their employment and transferability and interchange from one store to another, our concern is with the operation of the stores and thus with actual interchange. Possibility of interchange or a lack of feasibility become weighty only as they are realized, and this is shown by evi- dence of transfer or absence of transfer. Having received a great deal of testi- mony concerning the extent of transfer of employees and supervisors as well as of overall direction, our concern is with the loci of actual employment, not with the many uncertain possibilities which stem from residence. It is the realization of such possibilities in actual transfer which may be significant. Nor is it at all clear that availability for employment among residents of a given community when a store needs employees affects the facts and extent of common operation because the community of residence is nearer to or further from that or another store. If it be shown that, for whatever reason, employees are trans- ferred, such transfers are relevant facts as distinguished from possibility or inchoate hope, whether that hope be management's, employee's, or counsel's. This matter of residence is not even an equivocal factor 30 Residence in the general vicinity of one stole cannot indicate a connection with or interest in the other store. But as we have seen, neither does it connect employees with the nearer store Rather than equivocal, this appears to be an irrelevant element. Employment of only Grand Rapids residents in the Grand Rapids store and of Holland residents exclusively in the Holland store, to cite an extreme, would no more indicate separate units than would employment of Holland residents exclu- sively at Grand Rapids and of Grand Rapids residents only in the Holland store. One could but wonder at the arguments which the latter situation would evoke for separate or joint units, or what would be made of a claim that dispersed residences indicate a multistore unit. The Genei al Counsel tells us, "It is evident that Respondent normally hires Grand Rapids residents to work in its Grand Rapids store." We shall see as we further contrast the situation here with that in cases cited by the General Counsel, infra, that any suggestion in this sentence that the Company separates or has a policy to separate employees or potential employees on the basis of residence is without support. No more accurate (and less important) is the statement, "In the instant case, with three exceptions, all of the employees in the unit requested lived within five miles of the Grand Rapids stole." While the great bulk of these live in Grand Rapids or Wyoming, their distance from the store in Wyoming is not set forth and may well be considerably more than five miles. (Were convenience or accessibility criteria, we might compare beeline travel on the divided interstate highway to the west, the store itself being in a southwest suburb of Grand Rapids, with travel through the city of Grand Rapids.) Having said all this, we can nevertheless assume that the employees generally reside nearer to the store in which they are employed. It should not surprise us if employees here or anywhere prefer work nearer their homes. But this does not determine the extent of the unit as established in the busi- ness or the manner in which the business is conducted. Not even when employ- ees are selected for work at the other store is their place of residence considered- their availability (whether they are otherwise not scheduled to work) is considered. Neither in logic nor in fact does the place of residence point to employment in one store or another. Whatever an employee's preference may be, he seeks employ- ment where employment is available; we can speculate that he would normally first seek it in or for the nearer store. But it does not appear that any have refused employment at the further one, whatever bearing that might have on the issue of unit. Nor, as noted, is there even a suggestion that the Company considers place of residence in assignments, whether permanent or on temporary transfer. I have not overlooked cases cited by the General Counsel in this connection. In Winn-Dixie, supra, reliance was placed, as noted by the circuit court, on the "policy to hire employees for work in the neighborhood in which they live." While such a hiring policy may reflect on separability, we have in the instant case no more than 30 United Ineuranoe Company of America, 154 NLRB 38 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an attempt to show and a.showing of residence apart from policy or intent in that respect. The- absence' of such, a>•policy,, iff the, negative; must' be, proved;; is .indicated by.Wedgwood's testimony that he has "no reason to look at [the employees'] home address." In Purity Food Stores, supra, a significant fact cited by the Board was that the number of employees was determined by the local store manager, who hired from among applicants at that store; it was not at all surprising that almost all of the part-time employees who there comprised about 50 percent of the work force, came from the store area. The facts in that case are markedly different from those here, and clearly indicate the single-store unit there found. ..As for Primrose,31 and also cited in this connection, there too the facts are dif- ferent as, we have seen, and the reference to residence cites part-time employees, who constituted the.major part of the employee force." If despite all it be maintained that the residence of employees as here indicated is relevant, I would find that it is far outweighed by the other facts in the case. Like various items which we are sometimes told lack significance when standing alone but which, with others similarly insignificant, somehow attain it, weight may neveretheless be given to employees' residence. But even conceding this, the sum total of the evidence indicates that a single store is not an appropriate unit. As for community of interest, our concern is with the "community of employ- ment interests" between the stores and among the employees qua employees. Thus in addition to factors noted we can consider any others which affect wages, hours, or terms and conditions of employment. But employees' common interest in extra- neous matters is irrelevant, whether, these be church, social, political, or neighbor- hood activities. The employees of'both stores have a common interest in the com- mon and indiscriminate ownership and procedures followed by Wedgwood and De Young in and with respect to both stores. Nor is a true picture presented by any claim that the failure to request recogni- tion in an appropriate unit in some unfair or regrettable manner deprives those in the Grand Rapids store of representation. The Holland employees are in this case entitled to inclusion and joint representation, and should not be excluded by an improper declaration of unit. While for the General Counsel's purposes it would be sufficient to show that a single store constitutes an appropriate unit, not that it is the only appropriate unit, I find that it is not at all appropriate. Whatever the effect of the Company's interference on free laboratory conditions for an elec- tion, the unit issue remains. It could have been decided in the representation pro- ceeding regardless of interference; and, unlike an issue of majority, it is not to be ignored or discarded with a direction to bargain for a unit which is not appropriate. 'I,find. and conclude, that the Company has not refused to bargain collectively with the representatives of its employees. M. THE REMEDY I shall recommend that, to effectuate the policies of the Act, the Company cease and desist from the unfair labor practices found and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall further rec- ommend that the Company offer to John Boosamra immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and. make hun whole for any loss of pay sustained by reason of the discrimination against him, including interest at the rate of ,6 percent per annum, computation to be made in customary manner.32 For the reasons stated in the subsections entitled "De Keivers" and "Breedlove and Albin," I shall recommend that the complaint be dismissed insofar as it alleges the discriminatory discharge and refusal to reinstate De Keivers, Breedlove, and Albin. For the reasons stated in the subsection entitled "The alleged violation of Sec- tion 8(a) (5)," I .shall recommend that the complaint be dismissed insofar as it alleges violation of the section. [Recommended Order omitted from publication.] 81 Primrose Super Market of Salem, Inc, 148 NLRB 610. 82F. W. 'Woolworth Company,, 90 NLRB 289, 291-294; Isis Plumbing, & Heating Co., 138 NLRB 716. ,.