Better Val-U Stores of Mansfield, Inc.

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organization, to form labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer to Howard Ellis immediate and full reinstatement to his former or substantially equivalent employment without prejudice to his senior- ity or other rights and privileges and will make him whole for any loss of earnings and benefits suffered as a result of our discrimination against him. WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of their rights set out in the second paragraph above by coercively inter- rogating them concerning membership in or activities on behalf of Communi- cations Workers of America, AFL-CIO, or any other labor organization; or by directly or indirectly promising benefits for desisting from union member- ship, support, or activity or directly or indirectly threatening reprisals for union membership, support, or activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights set out in the second paragraph above. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Communications Workers of America, AFL-CIO, or any other labor organization. SOUTH CENTRAL TELEPHONE ASSOCIATION, INC., Employer. Dated------------------- BY------------------------------------------- (Representative) (Title) NOTE.-We will notify Howard Ellis if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 1200 Rialto Building, 906 Grand Avenue , Kansas City, Missouri 64106 , Telephone FR4-5082. Better Val-U Stores of Mansfield, Inc. and Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case 1-CA-5274. November 4, 1966 DECISION AND ORDER On June 13, 1966, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed an answering brief. 161 NLRB No. 71. BETTER VAL-U STORES OF MANSFIELD, INC. 763 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that Respondent violated Section 8(a) (1) of the Act by Personnel Manager Zulka's threats of reprisal against employees who engaged in union activity and his promises of benefit as rewards to the employees if they refrained from such activity. Contrary to the Trial Examiner, however, we find that Respondent further violated Section 8(a) (1) by the admitted state- ment of Meat Department Manager Joseph Lobe, Jr., to employees Sandra St. Laurent and Floyd Martin that : "Harry Bokoff [Re- spondent's president] would never let a union in the store anyway." We do not view this statement as merely an expression of opinion protected by Section 8(c) of the Act. In our opinion, Lobe's state- ment clearly implies that it would be futile for the employees to join the Union because the Respondent would never agree to recog- nize the representative of its employees. Such a statement is violative of Section 8(a) (1) in that it restrains employees and interferes with their rights guaranteed in Section 7 of the Act. 2. While we agree with the Trial Examiner that Brenda Dossat, the principal union organizer in the market, was discharged on December 8, 1965, for discriminatory reasons, we do not agree with him that her statements shortly before Thanksgiving Day were not concerted and protected. At that time, some 17 employees were called together in the company lounge by Bokoff and Zulka for instruction in correct bagging procedure and courtesy to customers. During the meeting, Dossat asked for, and obtained, permission to speak, at which time she informed Bokoff that everyone was in agreement that they did not like the way he treated the employees, that on several occasions he had caused girls to cry, and that the employees would be more courteous to customers if he were more courteous to them. Dossat expressed resentment at the personal abuse directed toward unit employees by Bokoff. Since she spoke in their behalf concerning a condition of their employment, we conclude that at all times Dossat was engaged in concerted and protected activity. We therefore dis- avow the Trial Examiner's dicta that had she been discharged for what she had said at the meeting and not, as he concluded, for her 764' DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities, the discharge would not have violated the Act. Con- trary to the Trial Examiner, we regard Dr. J. C. Campbell, Dentist, 157 NLRB 1004, as applicable precedent. 3. The General Counsel has excepted to the failure of the Trial Examiner to recommend a bargaining order to remedy Respond- ent's violations of Section 8(a) (1) and (3) of the Act. We find merit in this exception. The record in this case shows that late in November 1965, Dossat contacted Local 371 and secured -a number of union authorization cards for the purpose of organizing employees of Respondent. About the same tinge, Bokoff learned that the Union was attempting to organize his employees and informed his brother, the only other shareholder, and Zulka. It is undisputed that as of Decen-lber 9, and at all relevant times, a majority of the employees in the appropriate unit had signed cards authorizing the Union to represent them.' On December 6, Lobe, as indicated above, told employees that President Bokoff "would never let a Union in the store." On December 8, employee Dossat was illegally discharged because of her union activ- ity. On December 9, Union Representative Michael Donahue called Bokoff, informed him that Local 371 represented a majority of the employees, and requested a meeting for the purpose of negotiating a contract. Bokoff, by his own admission, reacted in an irate manner. According to Donahue, Bokoff said that Local 371 was not entitled to organize the store, that the employees were not eligible for union membership, that Bokoff was not going to retain many of the pres- ent eniplloyees, that employees had been signed "illegally," and Bokoff would not discuss anything over the telephone. Bokoff agreed, how- ever, to meet with the Union on December 14 with Respondent's attorney present. Within a day or two after this conversation, Zulka told employees that their jobs were safe as long as they "didn't walk out with any union elan or anything to do with the Union." He further stated that the store would be closed before a union would be let in, and that there would be raises in a short time. On Decem- ber 12, at a previously scheduled union meeting, the employees informed Donahue and Business Agent Pizzi that Dossat had been discharged as a consequence of her union activity and Respondent's supervisors had made the threatening statements set forth above. Thereafter, Pizzi and Donahue consulted with Petronelli, the presi- dent of Local 371. In the belief that Respondent was destroying the Union's majority, they concluded it would be futile to meet with 'The General Counsel has excepted to the failure of the Trial Examiner to count four authorization cards. However , as the Union 's majority does not depend on any of these four, we find it unnecessary to resolve the issues relating thereto and neither adopt nor reject the Trial Examiner's findings in this regard. BETTER VAL-U STORES OF MANSFIELD, INC. 765 Bokoff on December 14 for purposes of collective bargaining. Accord- ingly, the Union filed the instant charges rather than attempt to negotiate in the context of Respondent's unfair labor practices. The Trial Examiner found that a bargaining order was not war- ranted in this case because Respondent had not "refused to meet with the Union nor rejected any request to bargain." We find it unneces- sary, for purposes of this Decision, to determine whether, as con- tended by the General Counsel, such a meeting would have been futile, or to decide whether or not a violation of Section 8(a) (5) occurred. For, even assuming that the evidence does not support a finding of an actual refusal to meet and bargain with the Union, we are of the opinion, nevertheless, that Respondent's flagrant unfair labor prac- tices, continuing after the Union attained a majority, which were aimed at dissipating the Union's majority and destroying the condi- tions for a fair election if required to establish that majority, are such as to require a remedial bargaining order directing the Respondent to bargain with the Union on request in order properly to remedy the unfair labor practices herein found.2 Nor can Ave agree with the Trial Examiner that the continued allegiance of Respondent's employees to the Union, despite the Respondent's unfair labor practices, requires a finding that the Union could not reasonably have believed that its majority was being dissipated. Even were that so, this would not reduce the Respondent's obligation. to bargain upon request with the Union as the majority representative of the employees in the unit, or dispense- with the present need for the bargaining order we inter alia prescribe to remedy the Respondent's violations of Section 8(a) (1) and (3). [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 2(a) relettering the para- graphs therein accordingly : [" (a) Upon request, bargain collectively with Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen. of North America, AFL-CIO, as the exclusive representative of all its employees employed at its Mansfield, Connecticut, store, excluding office clerical employees and all supervisors as defined in the Act, 2 Bairnon Mills, Inc., 140 NLRI: 011 ; Delight $akety, Inc., 145 NI IM 893, enfd. -us F .2d 344 ( C.A. 6) ; Western A.inmin .um. of Oregon, Incorporated., 144 NLI{B 1191 . And see Editorial "El Impartial," Inc . v. _l'.L.R. B.. 278 F2d 184 (C.A . 1) ; Piasecki Aircraft Cor- poration. v. Y.L.R.B.. 280 F .2d 57 5 , 591-592 (C.A. 3) ; 1). 11. Holmes Compony . Ltd. v. E.L.R.B., 179 F.2d 870 , 879-880 ( C.A. 5) ; Summit Mining Corporation v. 200 P2d 894 (C.A. 3), enfg. as modified 119 NLIIB 1668 ; A'.L.R.B. v. Calderera, 209 F.2d 265 (C.A. 8), enfg. as modified 1.04 NLRB 760 ; Texarkana Bas Company, inc. v. 1V'.I.IIJt., 119 P . 2d 480 ( C. A. 8), enfg. as modified 26 NLRB 582 ; cf. X.L .R.B. v . I'lomatic Corp., 347 F . 2d 74 (C.A. 2). 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed contract." [2. Add the following as the sixth indented paragraph of the Appendix attached to the Trial Examiner's Decision : [\ TE WILL, upon request, bargain-collectively with Food Han- dlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive repre- sentative of all our employees employed at our Mansfield, Con- necticut, store, excluding office clerical employees and all super- visors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such under- standing in a signed agreement.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This is an unfair labor practice case under Section 10 (b) of the National Labor Relations Act, herein called the Act, brought against the above-named Respondent, Better Val-U Stores of Mansfield, Inc. It was initiated by a charge filed on Decem- ber 17, 1965, and an amended charge filed on December 27, 1965, by Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. A complaint based on these charges was issued on January 27, 1966, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 1 (Boston, Massachusetts). That complaint, as amended at the hearing, in substance alleges that Respondent has violated Section 8 (a)(1), (3), and (5), and that such conduct affects commerce within the meaning of Section 2( 6) and (7), of the Act. Respond- ent has answered admitting some facts but putting in issue the unfair labor practices. Pursuant to due notice this case came on to be heard and was tried before Trial Examiner James V. Constantine at Willimantic, Connecticut, on March 29, 30, and 31, 1966. All parties were represented at and participated in the hearing, and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argument.- Briefs have been received from Respondent and the General Counsel. Upon the entire record in this case, including the stipulations of the parties, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, also called the Company herein, a Connecticut corporation, is engaged at Mansfield , Connecticut, in selling and distributing groceries, produce, meat, and related products at retail . While it began operations on or about November 3, 1965, the projected gross value of the Company 's sales and dis- tributions exceeds $500,000 a year. It also has purchased and purchases large quantities of groceries , produce, meat, and related products "from and through" States other than the State of Connecticut . I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. It. THE LABOR ORGANIZATION INVOLVED Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Work- men of North America, AFL-CIO, herein called Local 371 or the Union, is a labor organization within the meaning of Sections 2(5) and 8 (a) of the Act. BETTER VAL-U STORES OF MANSFIELD, INC. III. THE UNFAIR LABOR PRACTICES LITIGATED 767 The following issues were litigated at the hearing: (1) Whether. Respondent lawfully refused to bargain collectively with the Union. This, in turn, depends on (a) Whether the Union had a majority in the unit which the parties agree is appropriate, and (b) Whether, even if the Union enjoyed majority status, the Company unlaw- fully refused to recognize and bargain collectively with it. (2) Whether the Company interfered with, restrained, and coerced employees in the exercise of rights vouchsafed to them under Section 7 of the Act. (3) Whether Respondent discriminatorily discharged employee Brenda J. Dossat. A. The refusal to bargain collectively 1. The Union's demand according to President Bokoff On November 3, 1965,1 Respondent, which owns and operates supermarkets in Connecticut, opened a new supermarket in Mansfield, Connecticut. Only this store is involved in this proceeding. About 3 weeks prior to that it hired some employees to aid in preparing for the opening. Some of these were cashiers, who were instructed on the operation of cash registers by a representative of National Cash Register Company. Many of the cashiers were inexperienced, but Brenda Dossat, one of them, was quite experienced, having worked as a cashier at another supermarket. Harry Bokoff, the company president, testified that "by hearsay" he first learned in the second or third week following November 3 that the Union was attempting to organize the employees at the Mansfield store. He was told this by a business- man in Willimantic, and he passed this on to his brother, the only other stock- holder, and to Personnel Manager Zulka. The first time Harry Bokoff knew defini- tely was when Michael Donohue, an International representative of the Union, telephoned him on December 9 to demand recognition for the Union. In the December 9 telephone call Donohue stated that the Union represented a majority of the employees, asked for an appointment to negotiate a contract, stated that he has "the contracts" ready, and inquired if Bokoff wanted to sign the contracts. Bokoff replied by making an appointment at the store with Donohue for December 14, at which time the Company's attorney would also be present. In addition, Bokoff stated that he could not understand how Donohue knew who the employees were, since Bokoff himself did not know them yet. However, Dono- hue never kept the appointment and did not again communicate with Bokoff. Nor did any one else from the Union communicate with Bokoff. In this conver- sation Bokoff also said that he did not think Donohue had a right to "organize them in the store" during working hours, as Bokoff felt this was illegal. Bokoff also testified that Donohue's call upset him and made him irate. 2. The Union's demand according to International Representative Donohue and Business Agent Pizzi a. Donohue's testimony On Thursday, December 9, Michael Donohue, International representative of the parent union of Local 371, telephoned Company President Bokoff from the home of Business Agent John Pizzi of Local 371. After introducing himself Donohue stated that Local 371 "represented a majority" of Bokoff's "workers" and that it "had a majority of the signed cards to that effect." Then Donohue asked Bokoff "if he would recognize us and to agree to set up a meeting so that we would sit down and negotiate a contract." Bokoff replied that Local 371 was not entitled to organize the store , that the employees were not eligible for union mem- bership, that he was not going to keep many present employees, that "it was an illegal maneuver," that employees had been signed during store hours and behind his back, that he "intended to bring this to the attention" of the NLRB, and that he would not discuss anything over the telephone. Donohue assured Bokoff that it was not unusual to recruit new workers and in fact in many cases workers 'All dates mentioned hereafter refer to 1965 except where otherwise specified. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were "organized" before being employed or even before a "new opening." Bokoff reiterated that he would not discuss matters over the telephone and that Donohue would have "to discuss it" with Bokoff's attorney. After some further talk Donohue and Bokoff agreed to meet on December 14 at the store with Bokoff's attorney present. Donohue "assumed" the meeting was to "meet . for the purpose of recognizing the Union and negotiate a contract"; but Bokoff did not say he would recognize the Union. At the time of this call Donohue and Pizzi had 39 authorization cards in their possession. About 15 or 16 came in the mail to the Union's office in Hartford, according to Business Agent Pizzi. Donohue did not keep the appointment to meet with Bokoff on December 14. According to Donohue, this course was followed "because it became plainly evident that at the union meeting on Sunday, December 12th that this company had engaged in a campaign of coercion and intimidation and had dissipated our union majority and that we decided that our only recourse was to file unfair labor practice charges with the Board." However, Donohue did not know of the discharge of Brenda Dossat on December 9 when he telephoned to Bokoff. No further attempt after December 14 was made.to communicate with Respondent by the Union. b. Business Agent Pizzi's testimony In late November Brenda Dossat telephoned to John Pizzi, business agent for Local 371. As a result Pizzi met with Brenda on Thanksgiving Day at her home where he gave her 60 to 65 cards with accompanying self-addressed envelopes. Pizzi told her to solicit employees to sign cards and to turn them over to her or to mail them directly to the Union in the self-addressed envelopes. Pizzi scheduled a meeting of Respondent's employees for Sunday, December 5, and notified Brenda thereof. She in turn orally invited the employees to attend. As of December 5, Local 371 had 30 signed cards in its possession, and an additional 9 by December 8. (See General Counsel's Exhibits 3-41). Another meeting of Respondent's employees was held on December 12 by Pizzi. As a result of employee reports received at that meeting, Pizzi met the next day with International Representative Donohue and Petronelli, the president of Local 371. They decided not to meet with Respondent's President Bokoff on December 14 "because of the unfair labor practices we felt it would be useless at this time to meet with Mr. Bokoff on the 14th" and Respondent "had definitely destroyed our majority in that store." At Pizzi's request, Dossat prepared a list of employees and their addresses to be used in connection with the Union's organizing campaign. She gave it to him at the December 5 meeting of the Union, having composed it by reading timecards dis- played in the racks. 3. The Union's majority Sandra St . Laurent started as an employee about a week before the Mansfield store opened . About December 5, employee Sharon Gorgone gave her a union card to sign . Sandra signed it and returned it to Sharon. (See General Counsel's Exhibit 3 .) Sandra also saw Patricia Pattay sign a similar card in her presence at the time . Pattay received her card from employee Taras Tuczkewycz. Taras asked Pattay to fill out and mail in the card . I find that Pattay validly desig- nated the Union thereby and that her card will be counted . Economy Food Center, Inc., 142 NLRB 901, 912, 333 F.2d 468, 471 (C.A. 7). Sharon told Sandra, in soliciting her card, that "it really would be a good thing if we had the Union at Better Val-U, and wages would be better, and everything all around would be better." Nothing in this language impairs the validity of Sandra's card . Conren, Inc., 156 NLRB 592. Hence it will be counted as valid designation of the Union. Cashier Maureen McDermott signed a union card between December 5 and 8. It was given to her by Brenda Dossat. Nothing in the record impugns the validity of this card . Hence I find that it will be counted as a valid designation of the Union. Employee Frances Chesko signed a union authorization card within 2 weeks of a union meeting held on December 5. Although she could not recall the date, I find that it was before December 9. Absent evidence that Chesko 's signature was improperly obtained , I find that her card is valid and that it will be counted in computing the Union 's total number of cards. N.L.R.B. v. Gotham Shoe Manu- facturing Co., Inc., 359 F.2d 684 (C.A. 2). BETTER VAL-U STORES OF MANSFIELD, INC. 769 Bagboy Michael Negrelli signed a union authorization card within 2 weeks of December 8. Since nothing in the record shows it was improperly solicited, I find that Negrelli's card is valid and that it will be counted. Sharon Gorgone, an employee in the courtesy booth, signed a union authori- zation card prior to December 8. It and several other cards were given to her by Brenda Dossat. Some were also given to Sharon by Union Business Agent Pizzi. Sharon also distributed union authorization cards to other employees. During the 2- week period prior to December 8, she witnessed the following employees sign such cards "in front of" her: Jerry Haggerty, Barry Dubina, William Andrychowski, David March, William Harris, and Zane Mercier. Absent any evidence that their signatures were obtained by fraud, misrepresentation, coercion, or other pro- scribed means, I find that the cards of Gorgone and of the six employees whose signatures she witnessed are valid and will be counted. Taitel and Son, 119 NLRB 910, 912, enfd. 261' F.2d 1 (C.A. 7), cert. denied 359 U.S. 944; N.L.R.B. v. Hunter Engineering Company, 215 F.2d 916, 923 (C.A. 8); Northwest Engineer- ing, 158, NLRB 624. Employee Wayne Dootson signed an authorization card for Local 371 a week or two before December 8. He did not read it. It was given to him by Sharon Gorgone. Merely because Dootson did not read it will not destroy its validity. S.E. Nichols Co., 156 NLRB 1201. See N.L.R.B. v. Gotham Shoe Manufacturing Co., Inc., 359 F.2d 684 (C.A. 2). And, absent evidence impugning the method used to obtain Dootson's signature, I find that his card valid and will be counted. General Steel Products, Inc., 157 NLRB 636. Employee Larry Tangari signed a union authorization card before December 8. It was given to him by Sharon Gorgone who told him "it was for the Union to get the Union." Nothing in the record mars the validity of this card. Hence I find that it is valid and will be counted. Another employee who signed a union authorization card is Charles Warrender. He did so at a time when Dossat was employed at the store; i.e., on or before December 8. I find that his card is valid and it will be counted. Employee Frederick Neff signed a union authorization card on or before December 8. It was given to him by Brenda Dossat. Neff was hired on the day when the store opened, but his card reads that at that time he had been employed in the store 6 months. But the store opened on November 3. Hence, I find Neff is mistaken as to the length of his employment. Nevertheless, I credit him in all other respects. Therefore, I find that Neff's card is valid and it will be counted. Danny Clark signed a card given to him by Brenda Dossat on or before Decem- ber 8, when Dossat was discharged. Brenda said, "it would give more pay," and "they wouldn't be able to lay you off so easily." I find that no fraud or mis- representation was practiced on Clark to induce him to sign. Accordingly, I find that Clark's card is valid and will be counted. Another employee who signed a card for the Union is produce employee Paulette Pehowdy. It was given her by Brenda Dossat and was executed before Dossat was terminated on December 8. Dossat told her "it would mean more pay" and asked her to sign if she "wanted a union in." I find no objectionable conduct on the part of Dossat in soliciting Pehowdy's signature. Brenda's words are a campaign promise and not a guarantee. Conren, Inc., 156 NLRB 592, treats such language as propaganda and not as a positive assurance that wages will be raised. "The very act of signing . calls for a finding that the employee knew what he was doing." Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8). Cf. N.L.R.B. v. Gotham Shoe Manufacturing Co., Inc., 359 F.2d 684 (C.A. 2). Hence I find that this card is good and will be counted. Employee Cynthia Attivissimo signed a card for the Union, which she received from Brenda Dossat. It was subscribed at Cynthia's home on or before December 8, i.e., while Dossat was still employed at the store. Cynthia mailed it to the Union the next day. I find this lard is good and will be counted. Rita Vertefeuille, a cashier, received a card from Brenda Dossat and signed it while Dossat was still employed at the store; i.e., on or before December 8. Then Rita mailed it to the Union. I find that Rita's card is valid and will be counted. Another cashier to whom Brenda Dossat gave a card is Anne Sayers. Anne signed it a few days after December 5 and mailed it to the Union. I find that Anne's card is valid, that the Union received it not later than December 9, and that it will be counted. 264-188-67-vol. 161- 5 0 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brenda Dossat also gave a card to employee Rose Houle, who signed it before Brenda's discharge. Then Rose mailed it to the Union. Although Rose did not know when Brenda was discharged, this is not fatal. I find that Rose's card is valid and that it will be counted. Linda Szegda, an employee, also signed a union authorization card. It was given to her by employee Maureen McDermott. Since Linda was unable to recall when she signed it, I find that it will not be counted. This is because the General Counsel has failed to sustain his burden of showing that the card was signed on or before December 9, the date of the Union's demand for recognition. Employee Charles Bockus received a card from Sharon Gorgone and signed it while Dossat was still employed there. He estimated that this occurred about a week before the first union meeting, which I find was held on December 5. Then he mailed it to the Union on the same day. On that day Bockus also signed his wife's name to a card (Sharon Bockus) at her direction. She read it before telling him to sign for her. At that time Mrs. Bockus was also an employee of Respond- ent. This latter card was received from Sharon Gorgone. He mailed this latter card, as well as his own, to the Union. I find that both cards are valid and will be counted. Mrs. Bockus' is not invalid because her husband signed for her, since he was designated, and acted, as her agent with express authority to sign. See Northwest Engineering, 158 NLRB 624; Lifetime Door, 158 NLRB 13. Employee Margaret Ruder received a card from Brenda Dossat, and signed it while Brenda was still working at the store. I find that this card is valid and will be counted. Timothy Baley, an employee, signed a card, received from Sharon Gorgone, about 2 weeks before the second union meeting, which I find was held on Decem- ber 12. On cross-examination, Baley testified that he thought that he signed after the first union meeting, which I find was held on December 5. Manifestly a date 2 weeks before December 12 must fall before December 5. Hence, I find that Baley is mistaken as to the exact date of signing. But I find that he signed before December 9. Further, I find that his card is valid and will be counted. Employee William MacDonald signed a card which he received from Sharon Gorgone. He signed before Brenda's discharge. Although MacDonald did not know when Brenda was terminated, I find that this is not decisive ,, for no one questions that Brenda left Respondent's employ on December 8. I find that MacDonald's card is valid and will be counted. _ Susan Martindale, a cashier, also signed a card which was given to her by Sharon Gorgone. Althought Susan was unable to recall when it was signed, she testified credibly that Brenda Dossat was working at the store at the time and that it was about 2 weeks before Brenda's discharge. Hence, I find that Susan's card was executed before December 8. When Sharon gave Susan the card Sharon said that "they wanted to get a union in" and that if Susan "didn't want to be let go" she should sign it, otherwise "if they got the Union in there and [ Susan] didn't sign the card [Susan] would be one of the first ones to go." This constitutes coercion, for it threatened Susan with a loss of her job, and I so find. Misconduct of a solicitor vitiates a card of the employee affected thereby. Bernard S. Happach v. N.L.R.B., 353 F.2d 629, 630 (C.A. 7); Teletype Corp., 122 NLRB 1594, 1595. I find coercion of this type amounts to misconduct. Engineers & Fabricators, Inc., 156' NLRB 919, relied on by the General Counsel, is distinguishable. Sharon also said that the Union "would be a good idea because it would get us a pay raise to what other stores were making and we would get more benefits from it:' This last statement is permissible campaign propaganda, and therefore does not affect Susan's card. Conren, Inc., 156 NLRB 592. Since Susan's freedom of choice was coerced by the threat that she would lose her job unless she signed, I find that her card is invalid and it will not be counted in ascertaining whether the Union had a majority on December 9. Employee Carol Maheu signed a union authorization card which was given to her by Brenda Dossat. Then Carol mailed it to the Union. Since Carol has no recollection when she signed it, I shall not count it in computing the number of valid cards on December 9. However, this card bears an NLRB date stamp of December 21 and may be counted as a valid card on that date (Cameo Lingerie, Inc., 148 NLRB 535, 536), if the Union's demand is a continuing one. However, as found elsewhere herein, the Union's demand of December 9 is not a continuing one. Judith Kulic, an employee, signed a card which was given to her by employee Maureen McDermott. After signing it Judith returned it to McDermott. The card BETTER VAL-U STORES OF MANSFIELD, INC. 771 bears an NLRB date stamp of December 21. It will not be counted as a valid card on December 9 because Judith could not recall when she signed it. But it will be counted as valid on December 21. See Cameo Lingerie, supra. Employee Richard DePathy signed a card which he received from Maureen McDermott. He signed, and McDermott filled in the rest, about a week before Dossat's discharge. Then he gave back the card to McDermott. I find this card is valid even though McDermott wrote in some of the blank spaces, because I find that DePathy signed the card. S.E. Nichols Co., 156 NLRB 1201. Hence, it will be counted in determining whether the Union had a majority on December 9. Employee Julius Quick signed a union card while Dossat was still employed at the store. Hence, I find it was signed on or before December 8. It was given to him by employee Maureen McDermott to whom he returned it shortly after' signing. No evidence in the record impugns its validity. Hence I find it is valid and will be counted. Employee Thomas Quinn is another of those signing a union card. He received it about 3 weeks before the first union meeting of December 5, and signed it about a week after he received it. It was given to him by employee Taras Tucz- kewycz. Quinn also testified that he believed he received the card in December. Manifestly there is some inconsistency in his testimony as to when he signed. I find that Quinn signed his card about 2 weeks before December 5, and further find that immediately upon signing it he mailed it to the Union. As nothing in the record detracts from the validity of this card, I find that it is good and will be counted. Employee Taras Tuczkewycz signed a union card at the union meeting held on December 5. Taras received it from Business Agent Pizzi. Absent evidence undermining the soundness of this card, I find it is valid and will be counted. Employee Frank Brown, a bagboy, signed about "a week or more" before Dossat was laid off on December 8. The cashier, whose name he could not remem- ber, who gave it to him said he "would get more money and that everyone else signed." The words "get more money" are campaign propaganda and do not impair the card. Conren, Inc., 156 NLRB 592. And the words "everyone else signed" have not been shown to be false; but, even if not true, they do not destroy the validity of the card. Merrill Axle and Wheel Service, 158 NLRB 1113; Engi- neers & Fabricators, Inc., 156 NLRB 919; H. Rohtstein Co., 120 NLRB 1556, 1559. Hence, I find this card is valid and will be counted. S.E. Nichols, 156 NLRB 1201, is distinguishable, for there, like here, the employee relied on the solicitor's misrepresentation that 75 percent of the employees had signed cards. Brenda Dossat signed a union authorization card at her home on Thanksgiving Day, November 25, and gave it to Business Agent Pizzi of Local 371, who was present at the time, I find this card is valid as a designation of the Union and it will be counted. The card of employee Paul Paradis was signed by him in the presence of Brenda Dossat, who solicited his support and saw him subscribe thereto while she was employed at the store. Hence, I find it was executed on or before December 8. However, Paradis did not testify. But this does not doom the validity of the card, for I find it is properly authenticated. Taitel and Son, 119 NLRB 910, 912, enfd. 261 F.2d 1 (C.A. 7), cert. denied 359 U.S. 944; N.L.R.B. v. Hunter Engineering Company, 104 NLRB 1016, enfd. 215 F.2d 916, 923 (C.A. 8); Aero Corporation, 149 NLRB 1283, 1287. See Lifetime Door Company, 158 NLRB 13; Northwest Engineering Company, 158 NLRB 624. Further, I find that the signature of Paradis was not obtained by reprehensible or objectionable conduct. Accordingly, I find that this card is valid and will be counted. Concluding Findings as to the Refusal to Bargain Collectively Initially, I find that the following unit, which is not disputed, is an appropriate unit for the purposes of collective bargaining with respect to those matters which are made bargainable by the Act: All employees of Respondent's Mansfield, Connecticut, store, excluding office clerical employees and all supervisors as defined in Section 2(11) of the Act. Further, I find that on December 9, Local 371 made a demand for recognition, and that it also mentioned that it had cards from a majority of the store's employ- ees. The unit was not more specifically characterized in that demand, but I find that the description of the unit in the demand as consisting of the store's employees 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is sufficient to support a ,request' for recognition as to those employees found above to compose an appropriate unit. Hence the fact that a slight variance exists between the unit mentioned on December 9 and that pleaded in the complaint does not desfrby,the validity of the demand. Brewery and Beverage Drivers and Workers Local'No.,67 (Washington Coca-Cola) v. N.L.R B., 257 F.2d 194, 196 (C A.D.C ). Secondly, I find that ion' December 9, when Respondent received the Union's demand, 60 'employees were' employed in''the unit, computed as follows.' It was stipulated that 59 at least belonged in the unit on December 9: To that number will be added' employee Brenda'Dossat, as I have' found elsewhere in this Decision that she was discriminatorily discharged. Employees "ousted from their jobs because of unfair labor practices ' . 'remained' employees for the purpose of determining majority representation by the Union and collective bargaining obligations of the Respondeht:"' N.L.R.B. v. Sifers Candy Company, 171 F.2d 63, 66 (C.A. 10); N.L.R.B. v. Hunter Engineering Company, 215 F.2d 916, 921 (C.A.'8). See Section 2(3) of the Act. Thus I find 60 employees were in the unit on December 9. Further, I find .that' on December 9, the'Union possessed 34 valid designation cards. Each of these cards'has been individually arialyzed above and found to be valid and' worthy of being counted' in ascertaining whether Local 371 enjoyed majority status on December 9: 'One of the cards which I have not counted is that of employee Susan Martindale -because'I have found it was obtained by coercion engaged in' by' employee `Sharon Gorgone. Engineers'•& Fabricators, "Inc., 156 NLRB 919, 'on which the Geheral' Counsel relies to validate Martindale's card, is distinguishable. Respondent contends, however, that "a positive conclusion'to be drawn from her [Martind'ale'sl testimony was that 'others among the signers were also falsefy induced"by. these separate meetings 'with Miss Gorgone." But I'do nol'find'this "positive conclusion." Nor do I infer that other employees solicited by Gorgone were similarly coerced. This is because no others whom Gorgone 'induced to sign testified that she used similar language to prompt them to'subscribe. It'is'also 'significant that no signers have asked for the return of their cards. Conren, Inc.', ;156 `NLRB 592. Consequently, I deem this argument of Respondent irisufficient td' demolish the Union's majority. Cf. Mid West Towel and Linen Se'r'vice,,143' ,NLRB 744, 753, 339 F.2d 958 (C.A.-7). 'A vigorous' argument has been advanced, by the General Counsel' that the Union's demand of December is' a c'ontinuing'one and that it was viable on December 11 and 21."But',on the' record unfolded before me I am unable to find •a continuing demand, e4 cially'since 'I- find''the Union made no further efforts after' December 9 to. meet or even, to get in touch with Respondent. Cf. N.L.R.B. v., Dahlstrom Metallic Doort6.,' 11'2"F'2d' 756'(C.A. 2)., Hence;' I'find that a contrary result is'not required by'Hen'ryi`Spen',& Conipany,'Inc, 150 NLRB 138,'139, or Scobell Chemical Company, Inc. v. 'N.L.R.B., 2'67 'F.2d 922 (C.A. 2),' or Local 152 v. N.L.R.B., 343 F.2d 307, 310,(C.A.D.C.). Those cases are distinguishable because they' involve ''more than a naked demand and thus on their peculiar facts present a continuing 'demand' for 'recognition. Unlike those cases, Local 371 made no overt act after December 9 which can be 'construed as a renewal of the request of December' 9.,See N:L.R.B. v.' Cactus' Petroleum, 355 F.2d 755 (C.A. 5). Cf. American Federation of'Grain Millers'v. N.L.R.B., 197 F.2d 451 (C.A. 5). I find that the filing-of a charge does not fulfill the function of a demand. Cf. N.L.R.B. v.`Pennwoven,'Inc.,41944 F.2d 521;' 524 (C.A. 3). However, if material,'I find that the Union also had a 'majority on December 11 and 21' in' the unit above found to be appropriate. ' Since 'the Union had majority status on December 9, Respondent was under a statutory obligation to recognize and bargain with it upon request. I am of the opinion, and find, that this obligation is discharged by promising to meet with the Union at 'a reasonable time following its demand for a meeting. Admittedly, Respondent agreed to-meet with Local 371 on December 14, I find this is a rea- sonable time after December 9. But Local 371 admittedly did not keep the appoint- ment for December 9 nor communicate with Respondent thereafter. Hence, I find the record does not show a refusal to meet with the Union after December 9. The General Counsel seeks-to shield the Union's failure 'to meet or communicate with Respondent after, December 9 by contending that (a) President Bokoff on December' 9' manifested a state' of mind inconsistent with a good-faith desire to meet, and (b) Respondent committed unfair labor practices between December 9 and 14; so that a meeting' would ' have been useless. But I find that both of these contentions lack merit bn the record before me. BETTER VAL-U STORES OF MANSFIELD, INC. 773 In the first place, I find nothing in President Bokoff's conversation of December 9 with Union Representative Donohue indicating a refusal to bargain in good faith. While Bokoff expressed his irritation freely, if not vigorously, he said nothing warranting the inference that he would not deal with Local 371 if it proved its majority. In fact, Donohue expressly testified that he 'assumed that the meeting set for December 14 was to achieve recognition and negotiate a contract. Moreover, if anything Bokoff said suggested an unwillingness to act in good faith on Decem- ber 9, Donohue did not so interpret it, for Donohue made plans to meet on Decem- ber 14. Plainly nothing in Bokoff's talk on December 9 caused Donohue to protest to Bokoff that a meeting on December 9 would accomplish nothing and was therefore futile. Nor do I find that Respondent engaged in any unfair labor practices justifying a refusal to meet on December 14. While I find that Respondent did commit some 8(a)(1) conduct, I further find that this did not disclose an attitude of such hos- tility to the Act that a meeting on December 14 would have been in vain. See Dayco Corp., 157 NLRB 1459. Nor does the discharge of Dossat on December 8 aid the General Counsel's position. The employer received no demand until Decem- ber 9, and the Union admittedly did not know of this discharge on December 9. Hence, I find that on December 9 the discharge of Dossat did not portray an attempt on Respondent's part to evade its obligation under the Act to recognize and negotiate with the Union. Accordingly, Joy Silk Mills, Inc., 185 F.2d 732, 741 (C.A.D.C.), does not apply. Moreover, there is nothing in the record warranting the conclusion that Dossat's discharge excused Local 371 from attending a bargain- ing session scheduled for December 14. See Ben Duthler, Inc., 157 NLRB 69. And I also find that Respondent did nothing to dissipate the Union's majority. Further, I find that the Union did not lose its majority between December 9 and 21, for I find that not a single signer of a union card defected, or withdrew, or sought to withdraw, from the Union. Hence the record will not justify a finding that the Union was warranted in believing that Respondent dissipated its majority. Finally, the General Counsel presses the point that Respondent's counsel did not show up for the meeting of December 14 and that this proves had faith on Respondent's part. But this absence of counsel is meaningless; the Union did not refuse to attend because of the absence of counsel, but only because of Respondent's alleged unfair labor practices. In fact, it was not until the trial herein that it was developed that Respondent's attorney did not come to the store on December 14. Accordingly, I shall recommend that this branch of the complaint be dismissed on the ground that the fair preponderance of the credible evidence will not support a finding that Respondent refused to meet with the Union on and after Decem- ber 14. See Section 8(d) of the Act. Cf. N.L.R.B. v. Kentucky Utilities Company, 182 F.2d 810, 313-814 (C.A. 6). In my opinion N.L.R.B. v. Security Plating Co., 356 F.2d 725 (C.A. 9), is distinguishable. Although I have found that Local 371 had an uncoerced majority on Decem- ber 9, I find that no bargaining order is warranted in view of the additional finding that Respondent has neither refused to meet with the Union nor rejected any request to bargain. See N.L.R.B. v. Calderara, 209 F.2d 265, 268 (C.A. 8); N.L.R.B. v. Flomatic Corp., .347 F.2d 74 (C.A. 2). Cf. Aaron Brothers Company of California, 158 NLRB 1077. B. Interference, restraint, and coercion Sometime during the week of December 6, Supervisor Joe Lobe, Jr., told employ- ees Sandra St. Laurent and Lloyd Martin that if he wanted to fire somebody he did not want any union telling him that he could not; he never had worked under a union and he never would; he thought paying union dues was like giving money to a syndicate; and President Bokoff would "never let the Union in the store any way." This conversation occurred in connection with Lobe's mentioning to Sandra and employee Lloyd Martin dissatisfaction with the work performance of another employee. I find the foregoing as facts. Respondent's contrary evidence is not credited to the extent it is not consonant with the foregoing. Lobe's testimony is set forth in the next paragraph. Joseph Lobe, Jr., the manager of the meat department, I find to be a supervisor under the Act. After Christmas he commented on unions to employee Lloyd Mar- tin but did not know, at the time, of union activities by employees at the store. Martin had mentioned that a union was picketing Big G. Supermarket in nearby Groton, Connecticut. Lobe, Junior, replied that he "did not think unions were worth a blast," that he did not care for unions, and that he did not like them. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin expressed his opinion about unions. Then Lobe, Junior, said that President Bokoff would never let any union in his store, adding that he did not know "how Big G let them in, but any independent would not." Employee Sandra St. Laurent overheard this. Lobe, Junior, further testified that neither Bokoff nor any other officer or supervisor uttered any such sentiments to him, and that these were his own views. But I am unable to find any unlawful element in the above language of Lobe. Hence, I find that it is not forbidden by Section 8(a) (1) of the Act, because I find that union animus is not an unfair labor practice. Metal Processors Union Local No. 16 (Poiay) v. N.LR.B., 337 F.2d 114, 117 (C.A.D.C.), N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4). The statement that President Bokoff would "never let the Union in the store," while decidedly antiunion, nevertheless constitutes no more than an expression of opinion protected by Section 8(c) of the Act. It does not connote that Bokoff would not bargain with the Union. Employee Frances Chesko testified that about 2 days after Dossat was fired, she spoke to Personnel Manager Zulka. Informing Zulka that six or seven girls "had more or less elected" her as spokesman, Chesko asked if their jobs were secure as rumors were circulating that employees were going to lose jobs "because of all this union stuff going around." Zulka replied that their jobs were safe as long as they "didn't walk out with any union man or anything to do with the Union" or went out on strike. Continuing, Zulka said that the store would be closed down "before they would let a union in," and that the store in such event would be closed if necessary; he also stated that in a short time he would give raises after he got organized in the new store and "mentioned something about vacations and pay." Further, Zulka told Chesko that those going out on strike would be replaced. The above is an abridgment of Chesko's testimony. Zulka denies he told Chesko that if there was no union in the store there would be raises and vacations, or that he discussed raises and vacations with pay with Chesko. However, a general pay increase was given on February 7, 1966 . He also denies that he told Chesko the place would be closed down if there was a union in it. This conversation with Chesko took place 2 days after Dossat was fired. However, in this discussion Chesko talked about union activity, but did not men- tion any employee by name except Brenda Dossat Chesko said Brenda was one of the organizers for the Union. Further, Zulka denies telling Chesko that if the employees did not go union they would have nothing to worry about. Zulka also testified that, in case of a strike, he would bring employees from other stores of Respondent to operate the store during the strike; but, if this could not be done, he would have no choice but to close the Mansfield store for want of help to run it. On this branch of the case I credit Chesko. To the extent that Zulka's testimony clashes with Chesko's, I do not credit Zulka. From my observation of these two witnesses, I find that, in general, Zulka is not reliable. Patently Zulka's statement to Chesko is coercive as it unmistakenly (a) threatens reprisals for union activity and also retaliation in case the store is unionized, and (b) promises benefits or rewards for refraining from union membership or activity. Cf. Bourne v. N.L.R.B., 332 F.2d 47 (C.A. 2). However, that part of the statement that those going out on strike would be replaced is not coercive, since it correctly states legal action which an employer may take. Perkins Machine Co., 141 NLRB 697, 700; N.L.R.B. v. Texas Industries, 336 F.2d 128, 130-131 (C.A. 5); Schick Incorporated, 118 NLRB 1160, 1162-63. See Coors Porcelain Company, 158 NLRB 1108. On or about December 10 or 11 employee Sharon Gorgone had a conversation with Personnel Manager Zulka in the courtesy booth. Employee Dorothy Danks was also present. Zulka told them Respondent was holding a Christmas party, and added that he would "talk to [president] Bokoff about giving everybody a Christ- mas bonus." This is the General Counsel's version. However, Zulka testified that he does not remember telling Sharon Gorgone about a Christmas Party and a Christmas bonus. But he testified that he did post a notice on the bulletin board informing the employees there would be a Christmas party. That party was actually held. A few older employees, transferred from the Lisbon store of Respondent, received Christmas bonuses. On this aspect of the case I credit the General Counsel's evidence. Perhaps it is desirable to observe that in general I have not credited Zulka because he impressed me as an unfeliable witness while he testified Nevertheless I find no violation of the Act in Zulka's above talk. As to the Christmas party, I find it was BETTER VAL-U STORES OF MANSFIELD, INC. 775 given ` to,all•6inployees • in all-of the Company's stores, including those in which no union was 'interested, and, therefore, no antiunion considerations were involved. Fashion Fair, Inc., 157 NLRB 1645. As to the Christmas bonus, I find that no intent to undermine the Union was involved (Harrah's Club, 158 NLRB 758); nor do I find an attempt to evade an obligation to bargain with a majority repre- sentative, since the Union took no pains to demonstrate its majority. A naked assertion of majority, asserted over the telephone, does not compel an employer to forgo granting a Christmas bonus absent an attempt to show that majority. Cf. Serpa, Inc., 155 NLRB 99; Fields v. N.L.R.B., 325 F.2d 754, 761 (C.A. 2); Strydel, Incorporated, 156 NLRB 1185. In my opinion, N.L.R.B. v. Dahlstrom' Metallic Door Company, 112 F.2d 756 (C.A. 2), is distinguishable. However, in this last case the Second Circuit implied no obligation rested upon an employer to bargain "with any one claiming to represent a majority" and not making any attempt to prove it. At page 757. In late November or early December, James Zahansky spoke to employee Julius Quick. I find that Zahansky is a supervisor within the meaning of Section 2(11) of the Act. Quick "brought up the subject" himself that he had signed a union card and "about trying to get a Union." Zahansky's only reply was to inquire whether Quick had ever before worked in a "union store." On this evidence I find no unlawful interrogation as alleged in paragraph 17(h) of the amended complaint and set forth in General Counsel Exhibit 1-N. Bourne Co. v. N.L.R.B., 332 F.2d 47, 48 (C.A. 2). Accordingly, I shall recommend that this segment of the com- plaint be dismissed. Employee Michael Negrelli testified that, while in the presence of employees Larry Tangari and Wayne Dootson in the employees' lounge on December 2 or 3, he overheard Personnel Manager Zulka talking to employee Chesko in the office directly overhead. In effect, Negrelli testified that he heard a conversation between Zulka and Chesko, claiming the voices could be heard through two vents. Further, Negrelli testified that in this conversation he heard Zulka ask Chesko for a "couple" names of persons who were "signing cards," and Chesko mentioned Brenda Dossat. I do not credit Negrelli because I find that employees Dootson and Tangari, both of whom were simultaneously in the room with Negrelli, testified credibly, as set forth in the following paragraph, that voices from the office overhead were inaudi- ble. Hence, I find that the General Counsel has failed to establish this aspect of the complaint. About December 2 or 3, employee Wayne Dootson was in the lounge, under- neath the main office, with employee Larry Tangari and Mike Negrelli. Dootson testified that he heard voices above, but, other than hearing Frances Chesko' s name, he could not discern the words thereof because "it was all mumbles." Although Larry Tangari testified that he heard Zulka and Chesko talking, he was unable to ascertain what they said. C. The discharge of Brenda I. Dossat 1. Testimony of President Harry Bokoff and Vice President Rubin Bokoff This portion of Bokoff's testimony was given as a witness for the General Counsel. Dossat was hired as a cashier 2 or 3 weeks before November 3. She was dis- charged on December 8. Sometime during the weekend next prior to December 8 President Bokoff made the decision to let her go. Bokoff testified that he decided to discharge her immediately following an instructional meeting for the cashiers and bagboys. The meeting was to inform them of customer complaints. This decision was communicated on the same day to Harry Zulka, the Company's per- sonnel manager, with instructions to discharge her "as soon as possible without disrupting the operation of the store ." At that time Brenda's immediate supervisor was H. Jay Bradford, the front end manager, but Bradford was not informed of Bokoff's decision to fire Brenda. When Zulka terminated Brenda he handed her a "blue slip" stating that she was laid off for lack of work. Such a dismissal notice is required by State law, according to Bokoff. In fact, according to Bokoff; Brenda was actually laid off for insubordi- nation in insulting him at the meeting mentioned above, and not for lack of work. The circumstances, as described by Bokoff, are as follows: . At the instructional meeting described above, which Brenda attended, Brenda in the presence of all those attending told Bokoff that he did not know how to talk to 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the presence, of other, employees; that she did not like the way Bokoff, talked to the employees; and, that he -did not know, how to handle employees or run a business. This so upset •Bokoff that he decided to discharge Brenda. At that time-he did not know her, name,, and assumed she was an employee because he "assumed ... all the faces that were in the room were my ,employees." Nor did he know whether she belonged to or solicited for the Union.' Personnel Manager Zulka was also present. At the meeting Bokoff addressed the employees' as to how , to perform the mechanics of their duties, impressed upon them that their relations to the customer were important and gave the public an image of the store, and told the employees that customers were entitled to excellent service. During this talk, Brenda inter- rupted, to make the remarks above attributed to, her by Bokoff. Although this "shook up" Bokoff, he did not remember whether he chided Brenda for "challeng- ing the teacher." Brenda was not immediately discharged because it was first neces- sary to obtain a replacement for her. After Brenda was terminated, employee Chesko asked Personnel Manager Zulka if their jobs were safe, for they would "walk out on the job" if they were going to lose their jobs because of union activities. Zulka replied he was not concerned with their "activity" but only with the running of the ' store;, and,' if they walked out, he would replace them with employees,from other stores of the Company. Rubin Bokoff is Respondent's vice president and one of its directo'rs. I find he is a supervisor under the Act. He and Harry Bokoff are The only stockholders. Rubin testified that he never discussed with Harry union policy or 'instructions to super- visors concerning union activity. After the above-mentioned instructional meeting at which Dossat criticized Harry Bokoff, Rubin and Harry had a discussion on the telephone. They decided to let Dossat go because Dossat "insulted Harry's integrity.' It was decided to dismiss' Dossat as soon, as possible. However, at the time Rubin had no knowledge of Dossat's union activity, and such activity played no part in the determination to terminate her. 2. Henry Zulka's testimony Zulka, the company personnel manager, testified as a witness for the General Counsel. His testimony follows. He hired most of the employees, including Brenda Dossat, for the Mansfield store when it opened. In her application Dossat mentioned that she worked as a cashier at a nearby A & P store in 1961 and 1962. Zulka knew that A & P was unionized. As a cashier, Brenda was an excellent worker. Although other cashiers were paid $1.25 Brenda's pay was soon raised to $1.50 an hour. She was hired at $1.25, as were all cashiers. Shortly after the instructional meeting mentioned above, President Bokoff instructed Zulka to discharge Dossat, but Zulka did not do so immediately because "it would take a few days to replace her." On December 8 about 2 p.m. Zulka called Dossat to his office and notified her that she was receiving a "blue slip." This slip was signed by Zulka. When Dossat asked for an explanation, Zulka replied she was discharged for "the way you rudely spoke to Bokoff in the prior weekend," and "the blue slip verified this." However, the blue slip gave as the reason for Dossat's dismissal "laid off for lack ,of work." When Brenda pointed out the incon- sistency between the slip and Zulka's oral reasons, he replied the slip was mcor, rectly made out so she could collect unemployment compensation benefits and this deception "was comomn practice throughout the State to aid persons in collecting such benefits.." However, employees of Respondent discharged after December 8 for insubordination received blue slips with- "an entry of insubordination." At this point Dossat broke into tears, and Zulka drove her home at her request. On Decem- ber 8,- after Dossat was discharged, Zulka was told by. Dotty Danks and another employee that Dossat was connected with the,Union. About 2 days after Brenda's discharge, employee Frances Chesko spoke to Zulka in his office. First Chesko stated she was spokesman for seven other cashiers. Informing Zulka "that there are union activities going on in the store," Chesko explained "this is why she came to him" and asked "how this would affect the jobs." Continuing, Chesko stated that the cashiers were afraid of losing their jobs "for one reason or another." Zulka assured her such fears were groundless. Then Chesko inquired what would happen if the cashiers "walked out." He replied that they would be replaced by employees from the Company's other stores, or, if none were available, he "would have to close" the Mansfield store. Soon ' thereafter Zulka assured the other cashiers that "everything was fine and they weren't going to lose their jobs" because of any union activity. BETTER VAL-U STORES OF MANSFIELD, INC. 777 Prior to Dossat's discharge, Zulka had heard from employees that the Union was organizing the store. Zulka's testimony for Respondent, reaffirms the foregoing. He also insisted that he told Brenda, when he gave her the blue slip, that she was discharged for her remarks to President Bokoff, and that he offered to drive her home. Prior to December 8 no supervisor or employee reported to Zulka that Dossat had engaged in any union activity. Employee McDermott testified that on December 8 she asked Supervisor Zulka why Brenda Dossat was laid off. Zulka replied it was for lack of work, and that he needed night girls and not day girls. Thereupon McDermott offered to work nights to allow Dossat to be retained for day work. Zulka rejected this offer and added that he had no choice but to lay off Dossat. Then McDermott asked Zulka if Dossat had been fired "because of the Union," but Zulka said, "What Union?" Zulka pro- tested he did not know anything about the Union. 3. Brenda Dossat's testimony Brenda Dossat was hired as a cashier about a week and a half before the store opened on November 3. Her immediate supervisor was Jay Bradford, the front- end manager, who, I find, is a supervisor under Section 2(11) of the Act. She was hired by Personnel Manager Zulka. Prior to this she had served as a cashier for a period of about 3 years at A & P and Shop Easy Market, both in the vicinity of Willimantic. A week before November 3 and again on November 3 and 4, Respondent conducted training sessions for its cashiers, each lasting about 3 hours. Brenda attended these. Representatives of National Cash Register Company acted as instructors at these classes. Brenda assisted these representatives to some extent. During the week preceding Thanksgiving Brenda discussed a union with two employees. Thereafter she called Business Agent Pizzi of Local 371. As a result of this call Brenda and Pizzi met at her home on Thanksgiving Day. She signed a union card during this meeting. Pizzi gave her about 60 union authorization cards to pass out. She openly distributed all of them to employees at the store by December 8. Employees McDermott and Gorgone received several for further distribution; they returned many of them signed and completed later on. Before passing out cards and after receiving signed cards Brenda kept them in the pocket of a smock which she wore over her regular clothing, and about 11/2 inches at the top of them was visible. She also kept the accompanying envelopes in this pocket. She personally observed employees Negrelli and Paradis sign cards. By Decem- ber 5, Dossat had obtained many signed cards herself and from employees who aided her in distributing them. Dossat turned these cards, about 14 or 15 in all, over to Business Agent Pizzi at the December 5 meeting of the Union. From November 26 to December 5, Dossat spoke to 40 or more employees at the store in soliciting adherence to the Union. She orally notified employees of the December 5 union meeting and invited them to attend. She also typed up a list of all the names and addresses of employees and gave it to Pizzi on Decem- ber 5. This was prepared by reading the timecards on the rack. And about a week before December 5 she asked Frank Ives if he wanted a union authorization card and showed him one, but he declined on the ground that he could not because he was "a boss." 2 I find that Ives, who manages the frozen food and dairy department, is a supervisor under the Act. Dossat also testified that, between November 26 and December 5, she discussed the Union with employees Attivissimo and Pehowdy when they were standing about 4 or 5 feet away from the manager of the produce department. But I find that the manager did not overhear this conversation. About a week before Thanksgiving, November 25, Dossat attended a class held by Respondent for cashiers and bagboys. About 16 or 17 employees attended. They were addressed by President Bokoff and Personnel Manager Zulka. Bokoff spoke to the assembly about correct bagging and courtesy to the customers, and 2 Frank Ives denies that Dossat talked to him about a union card , but admits that she asked him if he would he interested in joining the Union. Ives testified that he declined on the ground he was "going to go on salary." Ives testified he was an hourly employee at the time. But he also testified that he was supervisor of the frozen food and dairy depart- ment. The answer admits that he is a supervisor under the Act, and I so find . This find- ing is not inconsistent with Frank's statement that lie was paid by the hour, for super- visors may be reimbursed on an hourly basis. Since Respondent has adduced no other evidence of the duties of Ives, I: find that the admission in the answer has not been contra- dicted . Ives denies that he told any officer , director , or supervisor of the above conversa- tion with Dossat. '778 DECISIONS OFi NATIONAL LABOR- RELATIONS -BOARD -informed those present that complaints had been received that groceries Were poorly bagged . Before Bokoff finished Dossat spoke up. She did this without being asked by Bokoff for any remarks, but after- requesting and • obtaining permission to speak from,Bokoff. She told him that everyone was in agreement that they did not -like the way he treated ;the employees and that the employees would treat the customers courteously if he was courteous to the, employees: Continuing,, Dossat mentioned ,that Bokoff talked in a loud; voice and in the past , at least caused two girls to cry "from the tone , of his -voice in. speaking ,to them"; and said ,that Bokoff• upsets people when he yells at them. - In .his remarks Personnel Manager Zulka assured the . employees that Bokoff did not mean anything by his loud voice, and that Bokoff was "often like that." Dossat replied to this by stating she still did • not like it and that, although she would be disliked for saying so, she still had to say , although she idtd not want to hurt his feelings, that Bokoff should not treat the employees as he did, and that she did not like the way "we were being , treated." Zulka replied that Bokoff did not mean anything, for this was his way of talking, and added that no one would hold, any hard feelings , against Dossat "for this.:Bokoff^ also said he had no hard feelings for what she said and would forget the name of 'the person who said it in a day or two. ` ' On or about December 3, Respondent Sandra Vendette reported for work as a new cashier. Dossat gave her some assistance in becoming acquainted with the cash registers . Dossat was praised for her work as a cashier by Supervisor Joe Lobe, Jr., and by Spellman of the National Cash Register Co. Dossat also worked for 2 or 3 days in'the candy department . Supervisor Joe Lobe, Sr., complimented her work in this latter capacity. On Wednesday, December 8, Dossat was scheduled to work from 9 a.m. to 3 p.m. as a cashier . About 1:30 or 2 p.m. Jay Bradford , her immediate supervisor, told her that Zulka desired to see her at the courtesy desk . Upon entering the courtesy booth Dossat was handed a white envelope by Zulka who, contemporane- ously therewith, told her, "This is your blue slip and your pay. You are laid off." When Dossat asked for a reason, Zulka replied , "Well, we just have to let you go. I get my orders ." The blue slip recited that Dossat was laid off for lack of work. When Zulka added that he had too much day help, Dossat reminded him that she worked 2 nights a week and that he had never offered her night work ; she also asked why a new cashier (Sandra Vendette ) had been hired if they were short of work. Zulka replied that he "got his orders and they had to let [Dossat] go." Although Dossat requested permission to finish the day, i.e., work until 3 p.m., Zulka denied this and said "you can go right now." Shortly thereafter Zulka, learn- ing from Dossat that she had no ride home, offered to take her home in his car, and she accepted . On the way home Dossat again asked Zulka why she was termi- nated ; but he merely replied that he just had to lay her off, although he acknowl- edged that she was a good worker, honest, and competent. 4. Other testimony of Respondent Jay Bradford, Dossat's immediate supervisor, testified that, although he often saw Brenda at work, he did not observe that she carried any union cards or that any such cards protruded from the pockets of her smock ; he did not notice that she circulated any papers among the employees; he did not hear her talk about a Union to any employees; he did not know she was connected with any union; he did not see her do anything to indicate that she was engaged in union activity; he was ignorant of her union membership and "union work " until Zulka told him of it the day after her discharge ; and on December 9 Zulka told him that Dossat "and others had been engaging in union activity ." Further, Bradford testified that neither President Bokoff nor Personnel Manager Zulka discussed Brenda with him and never talked to him regarding their policy or attitude toward unions, and that he never noticed anything in the pockets of Dossat's smock. Finally, Bradford testified that he did not know the names of employees other than Dossat who engaged in union activity until about a week after Dossat's discharge , and then only "through other employees," and that he was not consulted on the decision to discharge Dossat. General Manager Joseph Lobe, Sr., whom I find to be a supervisor under the Act, is in charge of all the employees in all the departments at the store. He is front-end manager Bradford's superior. Lobe, Senior, testified that he never saw Dossat carrying cards in her smock, never heard her talking about a union to the BETTER VAL-U STORES OF MANSFIELD, INC. 779 ,employees, or otherwise observed her engaging in any activities on behalf of any union. Further he testified that he first learned of Dossat's union activities about 3 days after her discharge, that he first learned of union activities at the store about 2 or 3 weeks before the hearing herein, and that no officer or supervisor of The Company discussed unions with him. Finally, he testified that he was not con- sulted as to whether Dossat should be discharged. Joseph Lobe, Jr., a supervisor and manager of the meat department, testified that he neither saw nor was aware of any union activity at the store, and that no unions were discussed with him by any member of management. Supervisor Frank Ives testified substantially to the same effect, except that he stated that he over- heard Dossat soliciting employees to join the Union while Dossat worked at the store, and that Dossat asked him to sign a union designation card while she was still employed there. Concluding Findings as to the Discharge of Brenda Dossat 1. As to Respondent's knowledge of Dossat's protected activity In order to find that Brenda was unlawfully discharged, it must first be estab- lished that Respondent had knowledge or was aware that she was engaging in some activity protected by the Act. I find that Respondent had such knowledge on or before the date she was terminated. Such finding is based upon the entire record and the following subsidiary findings, which I find as facts: a. Respondent operated a small plant or establishment. The small plant doctrine, consistently followed by the Board (American Grinding & Machine Co., 150 NLRB 1357, 1358), has received court approbation. N.L.R.B. v. Melrose Processing, 351 F.2d 693, 697-698 (C.A. 8); N.L.R.B. v. Joseph Antell. inc., 358 F.2d 880 (C.A. 1); Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). N.L.R.B. v. Alvaro Manufacturing, Inc., 327 F.2d 998, 999 (C.A. i ), is inapplicable. b. Personnel Manager Zulka gave no reason for the discharge, other than that be had been ordered to do so, when Dossat importuned him for a reason after it became apparent that the legend on the blue slip was not true. In this respect I credit Dossat; and Zulka's testimony inconsistent therewith is not credited. In par- ticular I do not credit Zulka that he told Dossat she was discharged for what she said to President Bokoff. It has been held that the "failure to give any explanation" to an employee when he is terminated warrants the inference-and I draw it- that the employer had knowledge of the employee's union activities. American Grinding & Machine Co., 150 NLRB 1357, 1358; Virginia Metalcrafters, 150 NLRB 958. And the Fifth Circuit Court of Appeals has adjudged that failure to offer a reason for a layoff "alone would be enough to support an inference that the layoff was discriminatory." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5). Cf. N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511 (C.A. 5). I draw this inference. c. Admittedly a false reason was given in the recitation of the blue slip that Dossat was laid off for lack of work. "Affirmative proof, however, that the reason given was false warrants the inference that some other reason was being concealed." N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880 (C.A. 1). I draw the inference that another reason was being concealed when Dossat was handed the blue slip, and that such reason is union activity. Cf. Shattuck Mining Corp. v. N.L.R.B., 362 F.2d 466 (C.A. 9). d. Supervisor Frank Ives had actual knowledge that Dossat was engaged in soliciting union membership. e. While of minor significance , I find that Respondent knew before December 8 that its Mansfield store was being organized by a union. In fact, President Bokoff informed Personnel Manager Zulka that the Union was organizing the Mansfield store. See Rosen Sanitary Wiping Cloth Co., Inc., 154 NLRB 1185, footnote 2. 2. As to Dossat's union activity It is my opinion , and I find, that Dossat was engaged in union activity , that such activity was open, and that it was carried on in the store . It is not necessary to pinpoint precisely which one or more of Dossat's activities came to Respondent's actual knowledge . Cf. N.L.R.B. v. Alvaro Manufacturing, Inc., 327 F.2d 998, 999 (C.A. 1). Hence, Respondent's argument that such conduct of Dossat as dis- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributing cards, soliciting membership, discussing the Union with employees, and preparing lists of employees from timecards, has not been shown to have been carried on in the presence of supervisory personnel 3 is not well taken. However, I expressly find that two aspects of Dossat's activities did not come to. Respondent's knowledge and that Respondent was not aware of the same on or before December 8. The first is the meeting at Dossat's home on Thanksgiving Day, November 25. This is because the small plant doctrine will not support an. inference of knowledge as to "an off-hour, off-the-premises meeting." N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880 (C.A. 1). See Hadley Manufacturing Corporation,. 108 NLRB 1641, 1650. The other is the carrying of union cards in Dossat's smock pocket. This is because the visible part of the card protruding above the top of the pocket does not expose any text indicating that the instrument is a union. designation card. See General Counsel's Exhibit 31. 3. As to the true reason for Dossat's discharge It is my opinion, and I find, that Brenda Dossat was discharged for engaging in activity on behalf of Local 371, and that the reason advanced at the trial is a pretext to disguise the true reason. Respondent argues strenuously that the burden is on the General Counsel to establish that the discharge was discriminatory. Of course this is a correct statement of the law, and I specifically rule that this onus. rests on the General Counsel at all times. Interborough Contractors, Inc., 157 NLRB 1295; Rubin Bros. Footwear, Inc., 99 NLRB 610, 611, 203 F.2d 486 (C.A. 5); N.L.R.B. v. Murray Ohio Manufacturing Co., 326 F.2d 509, 513 (C.A. 6); N.L.R.B. v. Park Edge Sheridan Meats, Inc, 341 F.2d 725 (C.A. 2). Further, I recognize that union activity neither confers immunity from discipline by the employer (Metals Engineering Company, 148 NLRB 88, 90), nor insulates an employee from discharge for nondiscriminatory reasons. Wellington Mill Divi- sion, West Point Manufacturing Company v. N.L.R.B., 330 F.2d 579, 586-587 (C.A. 4); N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725 (C.A. 2). "Engaging in protected, concerted activity . . . does not perforce immunize employ- ees against discharge for legitimate reasons." Mitchell Transport, Inc., 152 NLRB 122, 123. I also find that Brenda's conduct at the instructional meeting constitutes lawful grounds for her discharge. Nachman Corp., 144 NLRB 473, 475, footnote 6, is distinguishable. Moreover, if in fact she was terminated for that reason the dis- charge must be upheld, as being made for lawful cause under Section 10(c) of the Act, regardless of its soundness, or wisdom, or severity. N.L.R.B. v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 809 (C.A. 1); N.L.R.B. v. United Par- cel Service, 317 F.2d 912, 914 (C.A. 1); N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8); Thurston Motor Lines, 149 NLRB 1368, "Without question an employer may discharge an employee for any reason provided the reason is not con- duct protected by the Act." Interborough Contractors, 157 NLRB 1295. On the other hand, "the fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his union activities." N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8). Accord, N.L.R.B. v. Symons Manu- facturing Co., 328 F.2d 835, 837 (C.A. 7); Portable Electric Tools v. N.L.R.B., 309 F.2d 423, 426 (C.A. 7). Further, I find that Dossat's remarks at the instruc- tional meeting were not concerted activity because she had not been chosen by other employees to speak for them. Hence Dr. J. C. Campbell, Dentist, 157 NLRB 1004, is not applicable. In finding that Dossat was discharged for union activity, rather than for cause, I have relied on the whole record and the following subsidiary findings, which I find as facts: - a. Timing is important, I find that.Dossat was discharged shortly after engaging in union activity. Further, I find that in relevant part this activity commenced at the store on the day after Thanksgiving Day; i.e., on November 26. Arkansas- Louisiana Gas Co., 142 NLRB 1083, 1085; Texas Industries, Inc., 156 NLRB 423; N.L.R.B. v. Mira-Pak, 354 F.2d 525 (C.A. 5). Actually, Supervisor Ives knew of Dossat's union activity, as he so stated in his own testimony a^ Respondent's witness. Respondent's contention that because he (lid not con- vey this. information to management it cannot be ascribed to Respondent is untenable. Cf. Ravena Sportswear, 142 NLRI: 1299, 1305, footnote 11 ; W. T. Grant Company v. N.L.R.B., 337 F.2d 447, 448 (C.A. 7). BETTER VAL-U STORES OF MANSFIELD, INC. 781 b. Also, I find that the manner of the discharge is significant . I find that cause -existed for Brenda's discharge about a week before November 25,4 for her criti- cism of President Bokoff. Yet admittedly nothing was done at the time-Dossat was not even warned, reprimanded, or reproved. In fact the incident was ignored, as far as Dossat knew, until after Dossat began her union activity. Even then it is of some import that she was abruptly discharged without notice before her work- day ended. Texas Industries, 156 NLRB 423; Arkansas-Louisiana Gas Co., 142 NLRB, 1083, 1085-86; Quest-Shon Mark Co., 80 NLRB 1149, 1150; Virginia Metalcrafters, 158 NLRB 958. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829; N.L.R.B. v. L. E. Farrell Co., 360 F.2d 205 (C.A. 2). It is no defense that the discharge was postponed until a replacement could be obtained, for at least Dossat should have been put on notice immediately that her behavior merited disciplinary action. N.L.R.B. v. Longhorn Transfer, 346 F.2d 1003, 1007 (C.A. 5); Mid-west Towel and Linen Service, Inc., 143 NLRB 744, 745, enfd. 339 F.2d 958 (C.A. 7). Failure to warn or reprimand thus is probative. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (C.A. 8); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 887 (C.A. 1). c. A false reason was given on the blue . slip for the layoff; i.e., Dossat was notified in writing that she was being laid off for lack of work when admittedly this was not the true reason. This warrants the inference, which I draw, that another reason was being masked by this false reason. And I further infer from the entire record that this other, or true, reason, is union activity. This inference is further supported by the fact, which I find, that the blue slips of other employees contained the true reasons for their termination. I do not credit Zulka that a false reason was noted on the slip for Dossat's benefit; it is inconceivable that Respond- ent would want to benefit an employee who was allegedly being discharged for what Respondent considered a serious act of insubordination. Further, I do not credit Zulka that he told her a false reason was recorded on the blue slip to enable her to draw unemployment compensation, or that he told her she was being terminated for her remarks to Bokoff. It is true, and I find, that evidence of union animus appears to be slight. Cf. N.L.R.B. v. Flomatic Corp., 347 F.2d 74, 78 (C.A. 2). This is not fatal. It is the motivation, regardless of its intensity, behind the discharge which renders the dis- missal illegal. I have found this motivation to be unlawful upon appraising all the circumstances touching upon Dossat's discharge. N.L.R.B. v. D'Armigene, 353 F.2d 406 (C.A. 2). Cf. N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006-7 (C.A.5). d. I find that Dossat was the prime mover in bringing the Union to the Mans- field store and assiduously strove to aid it. While I recognize that union adherents are not insulated against discharge for misconduct (Star-Brite Industries, Inc., 127 NLRB 1008, 1011; Mitchell Transport, Inc., 152 NLRB 122), I also realize that misconduct may not be used as a vehicle to discharge an employee for union activity. N.L.R.B. v. L. E. Farrel Co., 360 F.2d 205 (C.A. 2); McCormick Long- meadow Stone Co., Inc., 155 NLRB 577; NL.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8). A contrary result is not dictated because other union adherents were retained, although such retention carries some weight. However, the question is whether Dossat was discriminatorily discharged and not whether other union supporters were kept on. While the fact that McDermott and Gorgone, who also actively worked for the Union, were not discharged, cannot be overlooked, I never- theless am persuaded, and find, that this does not override the conclusion that Dossat was dismissed for union activity. e. I find that neither of Dossat's immediate supervisors, Lobe, Senior, and Bradford, was consulted on the question of discharging Dossat. This has some probative value. Virginia Metalcrafters, Incorporated, 158 NLRB 958. f. "The failure to give an acceptable explanation, although pressed for one," may be considered in determining the real motive which activated the discharge. Virginia Metalcrafters, Incorporated, supra; N.L.R.B. v. Radcliffe, 211 F.2d 309, 314 (C.A. 9). g. Finally, it is not necessary to show that the only reason for the discharge is the union activity of Dossat. Hence the fact that Dossat could also have been dis- 6I find that the instructional meeting was held about a week before November 25, and not on December 3 or 4. Respondent's contrary evidence is not credited. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged for her remarks to President Bokoff will not salvage the discharge as lawful. "In order to supply a basis for discrimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activ- ity. It need not be the only reason but it is sufficient if it is a substantial or moti- vating reason, despite the fact that other reasons may exist." N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). I find that Brenda's union activities were a substantial or motivating reason for her discharge, although cause existed for her discharge in that she insulted President Bokoff. N.L.R.B. v. Longhorn Transfer, 346 F.2d 1003, 1007. In this connection, I have not disregarded the 'maxim that merely because employer action coincides with a union drive a dis- criminatory purpose is not thereby established. Star-Brite Industries, Inc., 127 NLRB 1008, 1011; N.L.R.B. v. Covington Motor Company, Inc., 344 F.2d 136, 138 (C.A. 4). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to amount to unfair labor practices, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices prohibited by Section 8(a)(1) and (3) of the Act it will be recommended that it cease and desist therefrom and that it take specific affirmative action, described below, designed to effectuate the policies of the Act. In view of the finding that Respondent discriminated with respect to the tenure of employment of Brenda J. Dossat, it will be recommended that it be ordered to offer to her immediate and full reinstatement to her former position or one substantially equivalent thereto, without prejudice to her seniority and other rights and privileges. It will further be recommended that Dossat be made whole for any loss of earnings suffered by reason of the discrimination against her. In making Dossat whole Respondent shall pay to her a sum of money equal to that which she would have earned as wages from the date of such discrimination to the date of reinstatement or a proper offer of reinstatement, as the case may be, less her net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner estab- lished by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated by the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Since the discrimination involved in the discharge of Dossat goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4), it wiii be recommended that the order issued safeguard employees against infringement in any manner of the rights vouchsafed to them by Section 7 of the Act. R. & R. Screen Engraving, Inc., 151 NLRB 1579. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 371 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Brenda J. Dossat, thereby discouraging membership in Local 371, a labor organization, Respondent has engaged in unfair labor practices as defined in Section 8(a)(3) and (1) of the Act. 4. By (a) threatening employees with reprisals if the Union became their collective-bargaining agent, and (b) offering employees rewards or benefits if they refrained from union membership or activity, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. BETTER VAL-U STORES OF MANSFIELD, INC. 783 - 5. All employees of Respondent's Mansfield, Connecticut, store, excluding office- clerical employees and all supervisors as defined in Section 2(11) of the Act,. constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sections 8(a)(5) and 9 of the Act. 6. On December 9, 1965, and at all material times thereafter, Local 371 repre- sented a majority, and was the exclusive bargaining representative, of all the employees in the aforesaid unit for purposes of collective bargaining within the meaning of Sections 8(a)(5) and 9 of the Act. 7. Respondent has not committed any other unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and' upon the entire record in this case, it is recommended that Respondent, its officers,, agents, successors, and assigns, shall: 1. Cease and desist from: (a)Discouraging membership in Local 371, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to. their tenure of employment or any term or condition of employment. (b) Threatening employees with reprisals if Local 371 becomes their collective- bargaining agent. (c) Promising employees rewards or benefits if they refrained from union mem- bership or activity. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights safeguarded to them by Section 7 of the Act, except to, the extent that such rights 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. 2. Take the following action designed to effectuate the policies of the Act: ('a) Offer Brenda J. Dossat immediate and full reinstatement to her former position or one substantially equivalent thereto, without prejudice to her seniority or other rights and privileges previously enjoyed by her, and make her whole for- any loss of pay she may have suffered by reason of the discrimination against her,. with interest thereon at the rate of 6 percent. (b) Notify Brenda J. Dossat, if presently serving in the Armed Forces of the United States of her right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon reasonable request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all. other records necessary to ascertain the amount of backpay due under the terms of this. Recommended Order. (d) Post at its store at Mansfield, Connecticut, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Direc- tor for Region 1, after being signed by a duly authorized representative of Respond- ent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be, taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.e' IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 5In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced; by a decree of a United States Court of Appeals, the words "a Decree of the- United States, Court of Appeals Enforcing an Order" shall be substituted for the words "a. Decision. and Order." IIn the event that this Recommended Order Is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within. 10^ days. from, the date of this Order, what steps Respondent has taken to comply herewith." 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL- CIO, or any labor organization, by discharging any of our employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten employees with reprisals if said Local 371 becomes your collective-bargaining agent. WE WILL NOT offer employees rewards or benefits if they refrain from union membership or activity. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed to them in Section 7 of the Act, except to the extent that such rights 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. WE WILL offer Brenda J. Dossat immediate and full reinstatement to her former position or one substantially equivalent thereto, and make her whole for any loss of pay incurred by her as a result of her discharge by us, with interest thereon at 6 percent per annum. All our employees are free to become, remain , or refrain from becoming or remaining, members of the above-named Local 371 or any other labor organization. BETTER VAL-U STORES OF MANSFIELD, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3358. Tyler Pipe and Foundry Company and International Molders and Allied Workers Union , AFL-CIO. Case 16-CA-2568. No- vember 4, 1966 DECISION AND ORDER On July 7, 1966, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. 161 NLRB No. 66.