Quick Shop Markets, Inc.,

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quick Shop Markets , Inc., an Illinois Corporation and Quick Shop Markets , Inc., a Missouri Cor- poration and Retail Clerks International Associa- tion, AFL-CIO, Local 149. Case 14-CA-4092 November 9, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On June 8, 1967, Trial Examiner Robert Cohn is- sued his Decision in the above-entitled proceeding, finding that the Respondent 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 de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. The Charg- ing Party filed cross-exceptions and a supporting brief to which the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 cross-exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, Quick Shop Markets, Inc., an Illinois corporation, and Quick Shop Markets, Inc., a Missouri corporation, Florissant, Missouri, and its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order.' ' Section 2(f) of the Trial Examiner's Recommended Order is hereby amended by substituting the words "on forms provided" for the words "to be furnished " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: Upon a charge dated August 29, 1966,1 by Retail Clerks International Union, ' All dates hereinafter refer to 1966 unless otherwise indicated. Local 149 (herein the Union or Charging Party), the General Counsel of the National Labor Relations Board, through the Acting Regional Director for Region 14 of the Board, issued his complaint on October 27 against Quick Shop Markets, Inc., an Illinois corporation (herein the Illinois corporation) and Quick Shop Markets, Inc., a Missouri corporation (herein the Missouri corporation). The complaint alleged that the two corporations (herein referred to collectively as the Respondent), because of common officers, ownership, directors, and operators constitute a single, integrated business enterprise, and ad- minister a common labor policy with respect to their em- ployees, and therefore are a single employer within the meaning of the National Labor Relations Act, as amended (herein the Act). The complaint further alleged that by engaging in certain described conduct, more fully detailed herein, the Respondent violated Section 8(a)(1), (3), and (5) of the Act. The two corporations, by their separate, duly filed an- swers, denied specifically that they constitute a single, in- tegrated enterprise, denied that their business operations are sufficient to warrant the Board's assertion of jurisdic- tion, and generally denied the commission of any unfair labor practices, as alleged. Upon the issues thus joined, a hearing was held before me in St. Louis, Missouri, on December 12, 13, and 14, in which all parties were present and represented, and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Oral argument was waived. Briefs had been filed by counsel for all parties, which have been carefully considered. Upon the entire record in this case,2 and from my ob- servation of the witnesses and their demeanor while testi- fying, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE COMPANIES The Missouri corporation, the older of the two compa- nies involved, owns and operates some 40 retail food out- lets called a "Quick Shop" in the State of Missouri.3 At all times material, it was headquartered in Florissant, Missouri, a town located on the northern outskirts of St. Louis. The annual gross sales of the Missouri corporation are "well over $500,000," thereby satisfying the Board's jurisdictional standard for this type of enterprise.4 The Illinois corporation, also headquartered at the same location as the Missouri corporation, owns and operates a "Quick Shop" in Wood River, Illinois, which 2 Subsequent to the hearing, counsel for General Counsel and for Respondent filed separate motions to correct the transcript of proceedings in certain respects Such motions were served on all other parties Having received no objections, the motions are granted, and the papers have been placed in the formal exhibit file One additional error in the transcript is noted by the Trial Examiner as being worthy of correction as follows. p. 442,1 5-6, change "Respondent's Exhibit 15" to "General Counsel's Ex- hibit 15 " s The operation may be described as a self-service, convenient food store that operates 7 days a week, from 7 in the morning until I 1 at night It maintains a smaller inventory than a regular-size food supermarket, and presumably trades upon superior convenience to the customer rather than a large variety of merchandise. All such stores have a substantially similar (1) floor plan (approximately 2,200 square feet), (2) layout of food and checkout counters, and (3) outside appearance 4 Carolina Supplies and Cement Co , 122 NLRB 88, 89 168 NLRB No. 30 QUICK SHOP MARKETS, INC. 181 is a town located across the Mississippi River from St. Louis, also slightly to the north thereof. The Wood River store is the only facility involved in this proceeding. It commenced operations in April, and, during the critical events involved herein, employed five employees. General Counsel concedes, based upon facts in the record, that the Board would not assert jurisdiction over the Wood River facility alone since its annual gross sales and/or interstate transactions do not measure up to the Board's standards for asserting jurisdiction. However, General Counsel urges, based upon the facts hereinafter detailed, that the Missouri and Illinois corporations con- stitute a single employer for jurisdictional purposes: A. Common Ownership The record shows the following respecting common of- ficers, directors, and stockholders of the two corpora- tions: Missouri Illinois Pres. V. Pres. Sec. Tres. Asst. Sec. T. L. Tinsley Clyde L. Tinsley' Clyde L. Tinsley T. L. Tinsley Mary Van Gels T. L. Tinsley Clyde L. Tinsley Wm. H. Cunliff Rm. H. Cunliff Percentage of stock owned : Directors Percentage of stock owned : Directors 33 1./3% T. L. Tinsley 33 1/3% T. L. Tinsley 33 1/3% Am. H. Cunliff 33 1/3% Wm. H. Cunliff Clyde L. Tinsley 33 1/3% Albert Cunliff 33 1/3% (Robert N. Jones)** r Son of T. L. Tinsley rr Not a director It is apparent that ownership and control of policy of both corporations is vested in T. L. Tinsley and his son, Clyde, along with Wm. H. Cunliff. B. Interrelationship of Operations As previously noted , the Missouri corporation is the older one in point of time , and the Illinois corporation was established in early 1966 with the Wood River store being its only operating facility. The Illinois corporation was established by the same persons who effectively control and operate the Missouri corporation. The fledgling Il- linois corporation , apparently lacking the necessary working capital to provide itself with necessary services, contracted with the Missouri corporation for the latter to provide such services as supervision, accounting , payroll, etc., for a fee based upon a percentage of sales. President of both corporations , T. L. Tinsley, explained the procedure: For this service , the only way you can do, we try to get a little corporation started , we open one store. The only way you can do that is you have to have some guidance. We set up this agreement where this small corporation can pay this corporation a per cent ' Such supervisory functions mcluoe "suggestions" in the nature of work layout, pricing, placing of the merchandise on the shelves, and general appearance of the store Coats also collected and banked all receipts of the store 6 B & B Industries, Inc , et al, 162 NLRB 832, Overton Markets, Inc, of sales which would offset the expense of this type of agreement. We did this with any number of people. It is the same as franchise operations do for their franchise stores. Thus, the record established that the same clerical em- ployees who work on the books of the Missouri corpora- tion at its offices in Florissant, Missouri, also perform the same services for the Illinois corporation, even though the two corporations necessarily maintain separate books and records. With respect to supervision, the facts show, as previously noted, that T. L. Tinsley is a chief executive officer of both corporations. Under him in the superviso- ry hierachy is one Daniel Ballard who is supervisor over the Missouri stores as well as the Wood River store. Under Ballard is one Ron Coats, who is supervisor over some eight stores of the Missouri corporation as well as -the Wood River facility. Coats actually hired several of the employees at Wood River, and his duties included regular visitations to that store for the purpose of super- vising its operation.5 Coats was also the person who ad- vised the employees of their layoff (more fully discussed hereinafter), pursuant to the direction of President Tin- sley. The record also establishes that subsequent to such layoff of employees, the Missouri corporation transferred another of its supervisors to work on a temporary basis in the Illinois store. C. Control of Labor Policy As noted, all of the personnel for the Illinois store were hired by supervision employed on the payroll of the Mis- souri corporation . They were also laid off or terminated by the same supervision. Thus, although President Tin- sley testified that the person who might be in charge of the Illinois store at any particular time had the authority to discipline another employee, there were no incidents of such an event in the record . Indeed, one of such em- ployees, Marilyn Melton , testified undeniably that she recommended disciplinary action to Supervisors Coats and Ballard as a result of some alleged activities of the stockboys in the store, but that no action came as a result of such recommendation. On the basis of all the foregoing, I find and conclude that there is sufficient common ownership and financial control , as well as effective day,-to -day supervision of per- sonnel and labor policies by the Missouri corporation of the Illinois corporation to constitute them a single em- ployer for jurisdictional purposes .6 I further find that both corporations are jointly and severally responsible for remedying the unfair labor practices which I find herein were committed at the Wood River facility. II. THE LABOR ORGANIZATION INVOLVED I find that the Union represents employees of retail stores in the Wood River area for the purpose of bargain- ing with their employers concerning wages, hours, and other conditions of employment, and, as such , it is a labor organization within the meaning of Section 2(5) of the Act.7 142 NLRB 615, N L R B v Elias Brothers Big Boy, Inc , 325 F 2d 360, 362 (C A 6), Sakrele of Northern California, Inc v N L R B , 332 F 2d 902 (C A 9), cert denied 379 U S 961 ' The foregoing is based upon the undemed and credited testimony of the Union's business representative 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Establishment of the Wood River Store; and Su- pervisory Status of the Female Employees As previously noted, the Wood River store opened for business in April. Three of the alleged discriminatees herein (Marilyn Melton, Janet Davis, and her brother, Richard Tite), were employed during that month; the other two alleged discriminatees, Jon Greer and Thelma Clark, were hired in June and August 1, respectively. All were laid off as a group on August 25. The reason which prompted that layoff constitutes one of the critical issues in the case. Thus, during the period immediately prior to the layoff, there were five employees at the Wood River store, three women and two boys.8 Each of the women had a key to the store and knew the combination to the safe. One of the women would normally open the store at 7 am., work until 3, at which time one of the other women would work the remaining hours until 11 p .m. During the time she was on duty, the woman would wait on customers, ar- range merchandise, dust the shelves, order groceries, and sign receipts for any merchandise which was delivered such as bread, milk, or ice cream. The functions of the boys were those of stock clerks, to wit: they kept the shelves stocked with merchandise, kept the soft drink box fully supplied with drinks and ice, cleaned the store, etc. However, it should be noted that they, too, on occasion, waited on customers and rang up sales on the cash re- gisters, of which there were two. Respondent, during the hearing, amended its answer to contend that at all times material the three women were supervisors within the meaning of the Act, and that they, therefore, were not entitled to the protection which the statute affords employees.9 While the record reflects that the women do exercise some degree of direction over the stockboys on occasion, the evidence does not support a position that the women either possessed or exercised that degree of authority contemplated by the statute as requisite to constitute them supervisors within the intend- ment of Section 2 (11).' 0 Thus, as previously pointed out, the jobs of the stockboys were of an unskilled and routine nature, thereby requiring little, if any, direction. In this connec- tion Coats testified as follows: Q. Did you give any instructions to the boys, as you refer to them? A. Not to do any ordering, no. Q. With respect to their jobs. A. I told them I more or less mapped their jobs out, what they were to do, and that they were to listen to the girls when they told them to do 8 Both Greer and Tite were of high school age Section 2(1 1) of the Act defines supervisor as follows The term "supervisor" means any individual having authority, in the interest of the employer , to hire , transfer, suspend, lay off, recall, promote , discharge, assign , reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the ex- ercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment ° Section 2(3) of the Act excludes from the definition of the term "em- ployee" any person employed as a supervisor 10 See Precision Fabricators v. N L R B , 204 F 2d 567 (C A 2), cf West Penn Power Company v N LRB , 337 F 2d 993 (C.A 3) " Cf Welch Farms Ice Cream, Inc, 161 NLRB 748, see also C R Hills Division of Shoe Corporation of America, dlbla Hills Department something. Such as maybe what we call run shelves. This is putting merchandise up on the shelves in the front. And on grocery day when they came in they were to put the merchandise on the shelves, price it and put it on the shelf, and- Q. (Interrupting) Excuse me , were you saying seeing? A. Yes, or they had to fill a cooler , and they had to work the produce as far as keeping it fresh. Going over this is something that should be done every day. There is nothing in the record to indicate that the women had any power with respect to hiring , firing, promoting , demoting, or otherwise changing the employ- ment status of thee stockboys. The directions which the women issued were of a ministerial nature not requiring the use of independent judgment ; indeed , much of the work to be performed was done by the women and boys alike. On the one occasion disclosed by the record of a recommendation made by one of the women to manage- ment that one of the boys required discipline , such recom- mendation was not followed. I have also considered that should the three women be deemed supervisors , the result would be more super- visors than employees . Such a disproportionate ratio has been considered by the Board to be a significant factor in determining supervisory status." On the basis of all of the foregoing , I find and conclude that the three women (Janet Davis , Thelma Clark, and Marilyn Melton) were not supervisors , but were em- ployees entitled to protection of the Act. B. The Shortages As previously noted, Thelma Clark commenced work on August 1, as a part-time employee; that is to say that she worked during periods when the regular employees wanted days off. Company records show that she worked 18 of the 24 days which were worked by employees dur- ing August. Like the other women, she had a key to the store, was "in charge" while at work, made sales, operated the cash registers, cleaned and stocked the shelves, etc. Within a day or two after she started work at the Quick Shop, she noticed small shortages in the cash register. That is to say that the money in the drawer was less than it was supposed to be when compared to the amount of sales reflected on the tape of the cash register. She called this to the attention of Supervisor Coats, but he did not appear concerned about it and told her that it was not sufficient to worry about. At that time the shortage was about $4.60. She told Coats that she con- sidered the store to be a "poorly run operation" because everybody had access to the cash register and it was not checked out after an 8-hour shift.12 She also pointed out Store, 155 NLRB 1163, where, in a similar situation, the Trial Examiner observed(p 1170) The anomaly if the heads of the "Hills" departments were to be re- garded as supervisors, is that there would be a Mexican army of managerial topheaviness In no instance , so far as appears, does any department head have more than one person working with him during a shift, and in some instances none 12 Marilyn Melton, who normally worked the 3 to I I shift, testified that at the end of the day she would clear the cash register and put all the change and bills in separate sacks and put it in the safe When Janet Davis (who normally worked the first shift) opened the store in the morning, she would normally count out $200 of the money from the safe and put it in the cash register. Davis then checked the money against the cash register tapes, and that was presumably the only time during the day that such a check was made QUICK SHOP MARKETS, INC. 183 to Coats that when there was just one person on a shift it was practically impossible to watch the whole store, par- ticularly when a number of kids came in as they did, since the store was located in the immediate vicinity of a high school, a junior high school, and across the street from a teenage hangout which was utilized by that age group in the summertime. She suggested that mirrors be placed at strategic locations in the store, but Coats replied that it was not the Company's policy to do that unless it was ab- solutely necessary.13 Later in the month, larger shortages appeared on the cash register." Clark testified that the day she noticed the first "big shortage"-it was slightly over $19-she secured a little brown book in which she recorded each item she sold (in addition to ringing the sale on the cash register). Chief Supervisor Ballard, substituting for Su- pervisor Coats who was on vacation in the Ozarks this particular weekend, came into the Wood River store in the early afternoon of Monday, August 22, for the pur- pose of collecting the money of the previous week. He in- troduced himself to Thelma Clark (since he had never previously met her), and observed her making some sales and afterwards making a mark on a piece of paper. When he asked her what she was doing, she replied that she was trying to keep track of what she had sold in view of the shortages which had occurred. She explained that, in this way, if a shortage occurred that day she could prove that it was not her fault. While he was there, Ballard checked the cash register and found that it was correct except for a few cents which was accounted for by the fact that Clark had paid out that amount for bottle deposits. Upon Ballard's inquiry as to who was responsible for the shortages, Clark stated that she had worked the previous week with "Dicky" Tite, and, according to Ballard's testimony, stated that she did not believe Tite was honest. 15 Ballard immediately reported to President Tinsley respecting the condition of the Wood River store. He told Tinsley that shortages had occurred there and that the clerk had been writing down what she was selling, and that the store was "in a mess" respecting placement of the stock, cleanliness, etc. He also told Tinsley that one of the employees (Tite) had been accused of wrongdoing. Tinsley instructed Ballard to return to the store when this employee was working and interrogate him concerning the matter, and report back to Tinsley. Ballard returned to the store on Monday night, August 22, but Tite was not working, having requested Greer to substitute for him because Tite was sick. Ballard then went to the cash drawer, took out the cash register sheets and showed them to Marilyn Melton (who was on duty at the time), and showed her-the-shortages which appeared thereon. According to Melton's testimony, she told Bal- lard she was glad she had not been working during days of the shortages.16 The following day Ballard reported to President Tin- sley the results of the previous evening's activities, i.e., that Ballard had been unable to talk with Tite concerning the shortages since the latter had not come in to work that evening. Tinsley instructed Ballard to take an inventory of the store as soon as Coats returned from his vacation (he was expected back that day). Coats testified that he received a call from Ballard on Tuesday afternoon and was instructed to report to the Wood River store at 6:30 the following morning to take an inventory. Coats and Ballard conducted the inventory that Wednesday as scheduled, Coats counting the merchandise while Ballard ran the adding machine. Both testified that except for a coffeebreak, neither stopped what they were doing to converse with any other person. They completed the in- ventory shortly after 1 p.m. Ballard then took the raw in- ventory figures to the offices of Respondent and had them tabulated. He received the results later that afternoon which showed a shortage of $252.16. This represented a "shrinkage" of 4.21 percent of gross sales during the period from July 30 through August 23. Ballard im- mediately called Tinsley who was then in Springfield, Missouri, on a business trip, and reported the results of the inventory. Tinsley, upon hearing the results of the in- ventory, instructed Ballard to let Coats run the store for a while "and to just let everyone go until we could get the things straightened out ...."1 7 Ballard then called Coats and advised him of the out- come of the inventory. He instructed Coats that "we had to let the people go" and that he (Coats) was to run the store with the help of some other supervisors until "we could straighten the thing out." C. The Union Campaign Meanwhile, the employees had determined to join the Union and all had signed union'cards on August 18.18 Marilyn Melton telephoned Robert Schreier, business representative of the Union, on August 17, and he came to her house on August 18 and brought five union cards with him. All the employees signed the cards on August 18 and returned them to Schreier. All of the cards were signed at the Quick Shop except that of Greer who signed his at his home in the presence of Schreier. There is no evidence or contention that an agent or supervisor of Respondent was present during the signing of any of the cards. 13 The foregoing findings are based upon the undemed testimony of Clark Coats conceded that he did not call the shortages to the attention of his supervisors 14 There is some dispute on the record as to whether these shortages oc- curred during the weekend beginning August 12 or 19 General Counsel's witnesses who testified concerning the issue contended that the shortages occurred on the former date while Respondent's witnesses contended the latter Respondent, in its brief, argues that the General Counsel's wit- nesses deliberately conspired to prevaricate concerning this point in order to make it appear that the shortages occurred prior to the signing of the union cards on August 18 While I find, based upon my consideration of all of the testimony in the record as a whole, that the Respondent's wit- nesses were correct in this point, i e , that the shortages did in fact occur during the weekend commencing August 19, 1 do not believe that the General Counsel's witnesses deliberately lied about the matter, but were undesignedly confused and mistaken concerning the dates of the events 15 The foregoing findings respecting the contents of the conversation between Clark and Ballard are based upon their respective testimony which, in its essential respects, is mutually corroborative Clark was not interrogated as to the matter concerning Richard Tite 11 Ballard testified that he mentioned the shortages to Melton that even- ing but that he did not recall what she said about them 11 Ballard testified that a 4 21-percent shrinkage is a "bankruptcy shrinkage" which a business could not maintain and stay solvent He maintained that any shrinkage over I-1/2 percent is something that "needs to be looked into " 16 See G C Exhs 8 through 12 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The August 25 Layoff Coats, pursuant to Ballard's telephonic instructions on Wednesday afternoon, August 24, laid off all the em- ployees on Thursday, August 25. He first spoke with Janet Davis (who was on duty at the time) about 10 a.m. He told her that due to the inventory shrinkage and the shortages shown upon the cash register , he was going to run the store for a while with the help of other supervision and that her services would no longer be required. He asked her to give him the keys, which she did. He also asked Davis to tell her brother, Richard Tite, that he was also laid off, which she did. Coats then called Marilyn Melton and Thelma Clark and told them the same thing he had told Davis and asked them to bring in their keys, which they did. He then called Greer and advised him of the layoff but since Greer did not have a key, there was no reason for him to come in and Coats did not see him. In none of the conversations on Thursday among Coats and the employees was the Union mentioned. On Friday morning, August 26, the employees established a picket line about the Wood River store, which continued at least until the time of the hearing. The legend on the picket signs is as follows: Quick Shop Employes [sic] ON STRIKE For A Reasonable Contract PLEASE DO NOT PATRONIZE This Firm Thank You Local 149* Retail Clerks Intl. Assn . AFL-CIO Affiliated With Alton -Wood River Area Federation of Labor * The blocking out of the numbers "344 " and replacing them with the numbers " 149" is reflected as it appears on the original sign. See G.C. Exh. 14. E. The Union's Attempt to Secure Recognition On August 22, Business Representative Schreier, armed with the five cards from the employees at the Il- linois -store, prepared a letter to President Tinsley advis- ing the latter of the majority status of the Union and requested recognition.19 He testified that he mailed the letter about 11 a.m. that day and that, in the presence of one Thomas McNutt, a national coordinator of the Retail Clerks International Association, proceeded to Tinsley's office to show him a copy of the letter; that they went into "See G C Exh 15(c) 20 Tinsley testified that he went to Springfield, Missouri, on Tuesday morning on a business trip , and stayed there until Friday evening , that he had never received any indication that he had been called upon by any union representative at any time , and that he did not know a person by the name of Schreier before the heanng However , I note that the charge in this case was signed by Robert Schreier , that it was served on the Respondent by certified mail, and was actually signed for on September 15, by Thomas Tinsley (See G C Exhs I (a) and (b) 21 See G C Exh 15 22 See Resp Exh 6 23 An allegation in the complaint that Coats coercively interrogated em- ployees concerning their union activities in May was dismissed on the office and identified themselves to the receptionist there; that she informed them that Tinsley was not in at that time and that she did not know when he would return; that they asked her if they could leave their names and telephone number, and asked her to tell Tinsley to contact them, and they did; however, they were never contacted further by Tinsley.20 Schreier did not leave a copy of the letter requesting recognition with the recep- tionist at Tinsley's office. The letter requesting recognition, which Schreier mailed on August 22, was returned to him about a week or 10 days later, unopened, and marked "refused" by the post office department .21 Tinsley explained that the letter was refused not because it was mailed by the Union, but that there had been a longstanding rule in his Company, dating from 3 to 5 years, that he personally is the only one in his office with authority to receive registered mail un- less it is specifically designated to another employee. In support of this contention, Respondent introduced a memorandum from the post office department dated November 29, involving subsequent certified mail which had been sent to Tinsley and had been returned to the sender marked "refused."22 In any event, there is no evidence or contention that Respondent, or Tinsley, received the original or a copy of the Union's request for recognition prior to the layoff of the employees, or, in- deed, prior to the hearing herein. F. The AllegedAntiunion Statements in August The complaint, as amended, alleges that on several oc- casions in August and September, the Respondent, by its supervisor Ronald Coats, made certain coercive state- ments to employees which violated Section 8(a)(1) of the Act. The first of such statements allegedly occurred on or about August 24, when, according to the complaint, Coats coercively interrogated employees at the Wood River store concerning their and other employees' union membership and activities.23 In support of this allegation, General Counsel offered the testimony of Janet Davis and her brother Richard Tite. The former testified that on August 24, she had a conversation with Coats in which he asked her if the "union man" had been there, and if she had signed a card. She replied "yes" to both questions. In addition, he inquired as to whether "all of us had signed one," to which she also replied in the affirmative. Davis also testified as to another conversation she had with Coats on the following day, August 25, at which time he told her, in the backroom of the store, that due to the inventory shrinkage and shortages in the cash drawer, he was going to run the store for a while with the help of supervision. He asked her for the keys, and to advise her brother to the same effect. She complied with both requests. 24 Respondent 's motion at the heanng, after General Counsel rested , in view of the conceded lack of evidence to support the allegation 24 There appears to be an ambiguity in the transcript of proceedings (pp 146-147) respecting Davis' testimony due to an error made by either the interrogator or the court reporter Thus, on p 146, the interrogator asked whether "on the 25th" she saw Coats and had a conversation with him, to which she replied "yes," and related the conversation respecting the union matters Then on p 147, the interrogator inquired whether "on the next day, August 25, did [she] see Mr Coats" She replied "yes" and proceeded to relate the conversation regarding the impending layoff Accordingly, it is clear that she had two conversations with Coats, as she testified QUICK SHOP MARKETS, INC. 185 Coats, on the other hand, testified that he had only one conversation with Davis during this period and that was on Thursday morning, August 25, when he laid her off. His version of this conversation corroborates her in all essential respects. Tite testified that on August 24 he had a conversation with Coats in the backroom of the Quick Shop the con- tents of which may perhaps be best expressed in his own language: A. Well, we were back there and he asked me if I had joined a union. We were back there talking and he asked me how come, and he asked me how the union got in and who had joined and who had all joined the union. I told him all the girls joined before I did and I had joined. He told me I had a good job and all that, and he says if you want to keep the job, you better tell the union that you never wanted to keep it, you know, stay in the union. He asked me if they had told me if they had told me about the union dues and fees. I kept changing the subject, talking about shortages and I asked him if he thought I had done it. He said no, he didn't think I had ever taken anything out of there. He kept talking about the union and he said don't tell anybody you know about what we were talking about. He said go and tell the union you don't want to join. I said I had just gone along with the rest of the girls. Q. At any time did you mention the name, did he mention the name Tinsley to you? A. Yes, he told me that Tinsley had already told him to tell us that there would never be a union here, so don't try and get a union. Coats admitted that he had a conversation with Tite during the afternoon of August 24, the purpose of which, according to Coats, was to find out what Tite knew about the shortages. Coats testified that Tite denied knowledge of how the shortages occurred; that all he (Tite) knew was that Thelma Clark had blamed him and that he would like to see her fired. Coats denied that the subject of the Union was mentioned during the conversation. G. Analysis and Concluding Findings as to August Antiunion Statements There is no question but that, if believed, the foregoing statements attributed to Coats by Davis and Tite con- stitute coercive interrogation and threats violative of Sec- tion 8(a)(1) of the Act. Resolving credibility of witnesses is almost always a difficult and delicate task, and is not less so here. Respondent' s counsel argued that this is a "clear cut case ... of fabrication ... where obvious per- jury has been committed." I cannot agree that such wholesale prevarication existed here. While some wit- nesses impressed me more than others as respects can- dor, forthrightness, directness , and other attributes of demeanor , I find insufficient indication of deliberate fabrication either by way of demeanor or character of testimony. I thus make my credibility findings based upon demeanor considerations " along with the consistency and inherent probability of testimony."25 Applying the foregoing principles to the instant conver- sations, I find the substance to be substanially as Davis and Tite testified. The former impressed me as an honest and candid witness. The latter, who was of more tender years, appeared more flighty and somewhat less sure of himself. However, neither impressed me as being pos- sessed of a character or temperament that would enable them to fabricate. On the other hand, Coats was not impressive as a wit- ness . On critical questions he was reluctant and evasive, and, particularly in a later conversation with Clark and Melton (discussed infra), he was less than candid as to its contents. Also, as discussed more fully infra, I have con- sidered the probability that the conversations occurred when they did from the circumstances that Tinsley likely learned on Tuesday of the union activities at the Wood River store, and directed his subordinates to inquire further into the matter. Accordingly, I find that Respondent, by its agent and supervisor, Coats, on August 24, violated Section 8(a)(1) of the Act by coercively interrogating and threatening employees concerning their union activities. H. Alleged Coercion on the Picket Line The complaint alleges that on two occasions in Sep- tember, Supervisor Coats, by making certain statements to the employees after the picketing began, restrained and coerced them in violation of Section 8(a)(1) of the Act. Thus, it is alleged that on or about September 7, Coats notified employees that he knew who had started the Union at the store. In support of such allegation, Janet Davis testified that she had a conversation with Coats on or about that date at the beauty shop where she worked, which was located in the same row of stores as the Quick Shop.26 According to her testimony, Coats said that he thought Clark or Melton had started the Union because they had stayed on the picket line the longest. Coats was not interrogated concerning this particular conversation. However, assuming that it was made as Davis testified, I find that it was merely a statement of opinion protected by Section 8(c) of the Act, and does not constitute restraint and coercion within the meaning of Section 8(a)(1). The complaint further alleges that on or about Sep- tember 16, Coats advised employees that they had been fired because of the Union and informed them that the store was not union and was not going to become union. Testimony in support of this allegation was offered by Melton and Clark Melton testified that as Coats was leaving work that day he stopped his car at the picket line and asked Thelma Clark and her, "What good we thought it was going to do to harass the girl they had working in there?"27 Melton denied harassing her, and then testified that Coats had a conversation with Thelma Clark which she (Melton) did not hear. She then asked Coats how he would like to be on a picket line and see a replacement doing his work, to which he replied, "It is your fault you are out here, you should have known when you received those union cards you knew you would be fired." Clark then inquired, "You mean you fired us for signing the union cards?" Coats replied yes, that they knew what the salary was when they went to work there and if they did not like it they should not have gone to work. After a further short discussion concerning working conditions in which Melton testified that she did not like having to "put up with 16 year old snots," Coats left. Universal Camera Corporation v N L R B 340 U S 474 xs She started working at the beauty shop on a regular basis several days after the picketing commenced " On an undisclosed date subsequent to the time picketing began, but before September 16, Respondent had hired a female replacement named Pamella Lee Kuykendall 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark's testimony corroborated Melton's in all essen- tial respects regarding this conversation. She then testified as follows regarding the conversation between herself and Coats which Melton stated she (Melton) did not hear: He said, "Well, in the first place, you guys have got no business being out here." I said, "What do you mean?" He said, "You are not employees." I said, "We were never told we were fired," and he said, "I am telling you now." I said, "Why?" He said, "Well, it should have been evident when I handed you your check that you were fired." I said, "You didn't say we were fired." He said, "I am saying it now." I said, "Why?" He said, "Well, the day you people filed the union card you didn't have a job any longer." I said, "Because we signed union cards, we got fired?" He said, "I had orders from the head man to let you all go." I asked him three times, I said, "Ron, are you actually telling us because we signed union cards that we are fired?" He said, "That is right." I said, "Why didn't you say that to our business manager?" He said, "I haven't got to talk business with your busi- ness manager. As far as I am concerned, I don't have any use for him whatsoever. This store is not a union store. It isn't going to be a union store and it will, never be a union store." He go mad and said, "I should never have stopped in the first place to talk to you. I ought to have known I can't talk to you sen- sibly," and he took off.28 Coats testified to a conversation he had on the picket line with Clark and Melton on September 17, at the close of the workday. His testimony with respect to the alleged harassment of Kuykendall is mutually corroborative with that of Melton and Clark. He did not recall any conversa- tion with Melton but accused Clark of trying to put words in his mouth to the effect of telling them that they were fired and to also state that to the business agent. How- ever, Coats stated that he said nothing and drove away. On cross-examination, he admitted stating to Clark on this occasion that "you knew what we were paying when we hired you," but denied stating that if she wanted more she should not have taken the job. He also admitted telling Clark on this occasion that "I told her they had been let go at the time that I called her on the telephone." This was assertedly in response to her statement as to why didn't he tell their business agent that they were fired. 1. Analysis and Concluding Findings as to the Picket Line Statements As with the pre-picket line conversations, there can be no question but that if Coats made the statements at- tributed to him on the picket line, on or about September 16, such threatening and coercing remarks respecting union activities of the employees constituted independent violations of Section 8(a)(1) of the Act, as alleged. The credibility issue here involved has been an equally dif- ficult one for me. Marilyn Melton impressed me as an honest and candid witness who answered questions directly and forthrightly. Clark was more abrupt, tended to be argumentative, and obviously became confused on the matter of dates. However, much of her testimony con- cerning the September 16 incident was mutually cor- roborative with that of Coats and Melton. As previously noted, Coats was not impressive as a witness, being quite evasive and reluctant on critical points. In addition, with particular respect to the September 16 incident, his testimony on direct examination consisted simply of his discussion with the pickets concerning their harassment of Kuykendall after which he left; yet, on cross-examina- tion, he was forced to admit that he did have some con- versation with them respecting the cause and manner of the layoff. The statements attributed to him by Clark are, of course, directly related to the subject matter of his ad- missions, and I believe that he made them substantially as she testified. I thus find and conclude that his statements that the employees were fired because they had signed union cards and that the store would never be a union store interfered with, restrained, and coerced the employees 29 in the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(I) thereof. J. Analysis and Concluding Findings as to the Alleged 8(a)(3) Violations The critical issue to be resolved in a consideration of the alleged violations of Section 8(a)(3) is whether the layoff of August 25 was motivated by the employees' union activities, as contended by General Counsel, or by economic circumstances caused by the employees' dere- lictions, as argued by Respondent. Of course, a necessary prerequisite to the former contention is a determination that the Employer was aware of such union activities prior to the decision to terminate. Direct evidence of such knowledge is provided in the instant case through the credited testimony of Davis and Tite that they related to Coats on the afternoon of Wednesday, August 24, the cir- cumstances regarding the employees' signing of the union cards. In addition to such evidence, however, I also rely upon the following circumstantial evidence which, in my opinion, provides a basis for a reasonable inference that Respondent learned of the union activities at least by Tuesday, August 23, and lends substance and continuity to the finding that Coats, in fact, engaged in such inter- rogations the following day.30 Thus, the record shows that Business Agent Schreier called upon the Respondent on Monday afternoon, Au- gust 22, introduced himself by name and position and, when told that President Tinsley was not in, left his name and telephone number with the receptionist. It may be reasonably assumed that on the following day, Tuesday, August 23, Respondent received the certified letter which was postmarked on August 22 and mailed in Al- ton, Illinois (only a few miles from St. Louis). Although the letter was not opened, the return address in the upper left-hand corner of the envelope stated as follows: R.S.E.U. Local 344 402 State Street Alton, Illinois 62002 The receipt of the foregoing letter with the above- quoted legend of the sender, taken with the visit of Busi- ness Representative Schreier the previous day, leads to a reasonable inference, in my opinion, that -Respondent 28 The record herein (see G C Exhs. 6 and 13) reflects that all five dis- cnmmatees were issued checks dated August 25, which was the last pay- ment made by the Company to them as wages Melton's check was issued in the amount of "no dollars and no cents" because her deductions and grocery bill came to the same amount as her wages 29 As I find the employees to have been discnmmatordy terminated on August 25, it follows that they were "employees" on September 16 ao See Texas Industries , Inc, 156 NLRB 423, 424, F W Woolworth Company v NLRB , 121 F 2d 658,660 (C A 2) QUICK SHOP MARKETS, INC. 187 became aware as of Tuesday, August 23, that a labor or- ganization was interested in contacting the Employer on a business mission .31 Although President Tinsley was out of the city on Tuesday, the record shows that he was in frequent contact during this period with Ballard concern- ing the Wood River store so that it may further be reasonably inferred that he was advised by his office of the Schreier visit and of the receipt of the unopened letter. I am convinced that Tinsley, upon learning of such activities by the Union, instructed Ballard and/or Coats to ascertain the extent thereof. It was this impetus that led to Coats' interrogation of Davis and Tite on Wed- nesday, August 24, the results of which were reported to Tinsley who then gave the direction to lay off the whole group. I thus find and conclude that prior to making the decision to lay off the employees, Tinsley was made aware of their union activities.32 As respects the Respondent's "true purpose" or "real motive" for effecting the layoff,33 there is no question but that shortages existed and that the store was "in a mess," all of which presumably prompted the taking of the inven- tory. 34 Thus, in the late afternoon of Wednesday, August 24, when Tinsley made the decision to lay off, the results of the inventory provided sufficient justification. However, at that time he was also apprised of the union activities of the employees to which he was clearly opposed, as reflected by Coats' statements to the employees. Faced with these dual considerations, the ultimate question becomes what actually prompted Tinsley to make the decision to terminate all of the employees in the Wood River store. After careful consideration of all the evidence in the record, I am convinced that the General Counsel has sustained his burden of proving that the "real reason" for effecting the terminations at the time was to discourage union membership, in violation of Section 8(a)(3) of the Act. In reaching such a conclusion, I have considered the following factors (not listed necessarily in order of importance): 1. Respondent was aware of the union activities of all of the employees and was opposed thereto; 2. The terminations took place immediately and abruptly following such knowledge of union activities without any notice or warning to the employees; 3. Although Respondent amended its answer at the hearing to plead that the employees were terminated "as a disciplinary measure pending the outcome of the in- vestigation," it does not appear that Respondent made any real effort to investigate the causes of the alleged shortages. Respondent argues that it was prevented from making such an investigation by the conduct of the em- ployees themselves; The strike made impossible a kind of investigation that would have normally been conducted; using the polygraph, comparison of sales under direct super- visor as compared with use of "girls in charge" and the other natural frustrations that could not possibly have been foreseen.35 31 It Is to be recalled that the Wood River store , which is adjacent to Al- ton, is the only facility of Respondent in Illinois 32 In making this finding I have also considered and given weight to Coats' statement to Clark on the picket line on September 16, heremabove referred to 33 See Radio Officers' Union of the Commercial Telegraphers Union (A H Bull Steamship Company) v N L R B, 347 U.S 17, N L R B v Brown , dlbia Brown Food Store , 380 U S 278 3' General Counsel appeared to be taking the position at one point in the hearing that the inventory -taking and the results thereof, were per- But it was the Employer's conduct in precipitately lay- ing off the employees - not the employees' conduct - which rendered impossible a comparison of sales under direct supervision. Also, the fact that the employees chose to establish a picket line to protest the Employer's conduct did not foreclose the Employer from seeking to conduct an investigation via the use of a polygraph if it chose to do so; however, there is no evidence in the record that the employees were invited to subject them- selves to such an investigation. Accordingly, this defense of the Respondent does not withstand close scrutiny. 4. The Respondent's posttermination conduct is in- consistent with the asserted economic defense. That is to say that Coats advised the employees at the time of ter- mination that they were simply laid off temporarily pend- ing an investigation of the reason for the shortages;36 yet no investigation was ever conducted and none of the em- ployees were ever recalled. This tends to confirm Coats' later statement to Clark - on September 16, on the picket line - that the employees were actually fired - not laid off - on August 25, because they signed union cards. But the Respondent argues in its brief (p. 39): Since there was no way to determine whether only a few or all of the employees on August 24 were guil- ty of the misconduct which caused the shortages and since the employees by their own choice had im- plicated each other, no recall was necessary. In the first place, the foregoing statement does not ac- curately reflect the testimony in the record. Only two of the employees (Clark and Tite) accused each other of misconduct; nevertheless, Respondent chose to lay off all of them. Assuming without deciding that some were guil- ty of misconduct which would have entitled the Employer to terminate them permanently, the fact that such ter- minations were effected without effort at prior or post in- vestigation reflects adversely on the asserted reason for the termination. 5. Finally, I have considered , in assessing the legitima- cy of Respondent's asserted motive, the failure of Respondent to take into account the fact that the Wood River store was located near a teenage center which resulted in much loitering in the store by children of that age, who may very well have been responsible for some of the inventory shortage. Based upon all of the foregoing circumstances, I find that the stated motive of Respondent does not withstand scrutiny and that I may, within the law, therefore infer that there is another motive- in this case, an unlawful one-which prompted the termination of all the em- ployees. As was recently stated by the Circuit Court of Appeals for the Ninth Circuit in Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466,470: Nor is the trier of fact-here the trial examiner - required to be any more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More petuated by Respondent without sufficient economic motivation, and were calculated to provide an excuse for the layoff. While it is true that a taking of inventory would not appear to provide a resolution to the cash- drawer shortages, the fact remains that the store was in a mess" from a display-of-stock viewpoint, and an inventory had not been taken for a period of almost a month Accordingly, I am not prepared to hold that the inventory-taking was a mere pretext 35 Respondent's brief, pp 38-39 36 As previously noted, Respondent amended its answer at the hearing to so plead 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than that, he can infer that the motive is one that the employer desires to conceal-an unlawful mo- tive -at least where, as in this case, the surrounding facts tend to reinforce that inference. I find and conclude that the termination and refusal to recall the alleged discriminatees herein constitutes a violation of Section 8(a)(3) of the Act, and will recom- mend an appropriate remedy. K. The Alleged Refusal to Bargain In order to prevail in proof of a violation of Section 8(a)(5), General Counsel must show that the Union, at the time of the request for recognition, represented a majority of the employees in an appropriate unit, and that the Employer refused to bargain with the Union, lacking good-faith doubt of the Union's majority status. There ap- pears to be no question in this case that at the time of the attempted demand, the Union represented all of the em- ployees of the store, which presumptively constituted an appropriate unit. 37 The Respondent vigorously asserts that there can be no refusal to bargain collectively in violation of Section 8(a)(5) since, in this case, there was no clear and unequivocal demand for bargaining communicated to the Employer by the Union, citing N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 59 S. Ct. 501, 83 L. Ed. 660. However, the reason for the failure of communication was the Respondent's policy of not allow- ing a subordinate employee to accept certified mail. While there is no substantial evidence here that such policy was discriminatorily motivated38 the fact remains that the Union attempted by the usual customary communication channels to advise the Respondent of its majority status and to request recognition. The record further shows that before the Union was advised that its efforts in this regard had failed, the Employer had terminated the employees, thus making a resort to Board processes; i.e., the filing of a petition under Section 9, impossible.39 As the record shows, on the day following the layoff, a picket line was established in which all of the employees initially participated and carried picket signs the legend of which stated, in part, "employees on strike for a reasona- ble contract." There can be no question but that the Em- ployer's agents observed the employees and the signs dai- ly. Shortly thereafter, on August 29, the Union filed a charge in this case alleging a refusal to bargain on the part of the employer. It has been held that a request to bargain need not be in haec verba, "so long as there was one by clear implica- tion." 40 Here the definitive request failed because of the Respondent's actions. However, the establishment of the picket line and the above-quoted language on the picket signs clearly showed that a majority of the employees desired union representation, and implied a request for recognition. Thus, the circumstances here, as in Scobell Chemical Company v. N.L.R.B.,41 " .. cannot be con- sidered to be anything less than a continuing demand for recognition and bargaining."42 I find and conclude that, under all circumstances, the Union's request for recogni- tion was effectively communicated to the Employer as of August 26, and that the Respondent's failure and refusal thereafter to bargain constituted a violation of Section 8(a)(5) of the Act.43 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8(a)(1), (3), and (5) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent did, on August 26, wrongfully and illegally refuse to bargain with the Union, after the Union was, on August 18, designated as the ex- clusive bargaining representative of all the employees in an appropriate unit, or, in the alternative, even if the Respondent has not refused to bargain with the Union, I find that in order to assure that the desires of Respond- ent's employees be not frustrated in the future, it will be necessary to include in the remedial order, an order that Respondent, upon request of the Union, bargain collec- tively with the Union. Having found that the Respondent discriminatorily ter- minated the employees on August 25, and has, at all times since that date, failed and refused to reinstate them to their former positions, I shall recommend the usual remedy of reinstatement and backpay except as hereinafter noted: Respondent argues in its brief that the usual remedy of reinstatement should not be ordered in this case because of employee misconduct which occurred both before and 37 See Primrose Super Market of Salem, Inc., 148 NLRB 610, enfd 353 F.2d 675 (C A. 1), cert denied 382 U S 830 The record is silent as to whether any of the other stores of Respondent were organized There is no evidence that any other labor organization was seeking to organize the employees on a broader basis 38 Compare Filler Products, Inc v N L R B., 376 F.2d 369 (C A 4) 31 Thus this case is distinguishable on its facts from Filler Products, Inc v. N.L.R B , supra 40 Joy Silk Mills, Inc v N L R.B., 185 F 2d 732,741 (C A D.C ), cert denied 341 U S 914 41 267 F 2d 922 42 Id, at 925 See also N L.R B v Albuquerque Phoenix Express, 368 F 2d 451 (C A 10) 43 It should be noted alternatively that I would have included in my Recommended Order herein a direction that Respondent bargain with the Union respecting the wages, hours, and working conditions of the em- ployees at the Wood River store, in the circumstances of this case, even had I not found an 8(a)(5) violation Thus, the Board has, with court ap- proval, in similar situations, ordered that an employer bargain with the Union where the employer's unfair labor practices resulted in the dissipa- tion of the Union's majority and the destruction of the conditions for a fair election in which the Union could have demonstrated that majority. "To require the Union to submit to another election under these circumstances would be to permit Respondent to profit from its own unlawful conduct at the expense of the Union and the majority of the Respondent's em- ployees." Northwest Engineering Company, 158 NLRB 624, enfd. 376 F 2d 770 (C A D C); see also Wausau Steel Corporation v N L.R B, 377 F 2d 369 (C A 7), Western Aluminum of Oregon, Incorporated, 144 NLRB 1191. QUICK SHOP MARKETS, INC 189 after the layoff, and/or because economic circumstances dictated a reorganization of the Wood River operation. I cannot agree with these contentions, except with respect to Thelma Clark, as hereafter discussed. Although, as previously noted, shortages apparently existed both in the cash register and in the inventory prior to the layoff, none of the employees was shown to have been implicated in the shortages or proven to have been responsible therefor. The most that the evidence shows is that a couple of the employees accused each other of misconduct, but the Employer never made such an ac- cusation (at least prior to the hearing in this case), or made a complaint to the proper authorities.44 But Respondent further argues that a foremost "signal for dishonesty" was the use by Clark of a private tally of the sales made. According to Respondent, this could "serve no useful purpose except to protect one with the propen- sities of a thief." While it may well be that Respondent's procedures (or lack of them) respecting the checking of the cash registers would not adequately protect Clark from accusations simply because she made a private tally, I do not regard her attempted use of the tally as indicative of dishonesty, particularly where, as here, she clearly en- gaged in such conduct in an attempt to protect herself (and Respondent should have realized it); at the same time she suggested to Coats that Respondent attempt to protect itself from thievery by placing mirrors at propi- tious places in the store . This testimony is undenied and clearly does not reflect a character bent upon felonious conduct. In sum, the evidence is not sufficient to bar any dis- criminatee from reinstatement based upon conduct an- tedating the layoff. Respondent further contends that certain conduct en- gaged in by the pickets - particularly Thelma Clark - should bar their reinstatement. In support of this conten- tion, Respondent offered the testimony of two customers of the store. The first customer testified that as he crossed the picket line one of the pickets (identified as Thelma Clark) yelled at him, saying he was "no good" because he crossed the line. He also testified that if the Respondent recalled Clark to work, he would no longer patronize the store. The second customer witness testified that as he and a friend approached the store, Clark said that "[w]e couldn't go in because they was on strike." The customer replied that "[They] could go in if [they] wanted to," and made reference to constitutional rights. Whereupon, Clark referred to the customer as a "prick" and a "scab." The customer admitted that he returned the compliment; i.e., he referred to Clark as a scab. In addition, the customer testified that on one occasion Business Agent Schreier, who was walking with the pickets, advised the customer "not to say anything to the picket, or he [Schreier] was going to put a cut over my eye."45 Andrew Murry, Respondent's new store manager, characterized the picketing as peaceful except as to Thel- ma Clark who engaged in an "excess of hollering at peo- ple and calling them various names from time to time." (However, when pressed as to the latter , he was unable to support the last phrase.) He also testified that he ob- served Clark taking down license numbers of customers' cars parked in front of the store 46 After a careful consideration of all the record evidence respecting any employee misconduct which would bar their reinstatement, I have concluded that there is insuffi- cient evidence that any of the employees, with the excep- tion of Thelma Clark, engaged in any such misconduct. In resolving this issue, I believe it to be a proper and valid distinction that picket line activities directed to the public demand a higher standard of conduct than those directed to other employees. The Board assumed the validity of that premise in Montgomery Ward & Co., Inc.," but con- cluded, in the circumstances of that case, that the em- ployees' conduct in response to the customer's provoca- tion did not warrant a denial of reinstatement. The court denied enforcement, basing its decision, in part, upon the fact that no witness testified that the employee provoked the use of the profane words which were admittedly ut- tered by the picketer. The factual situation in the instant case is similar to that in Montgomery Ward, the language used by the picketer here being only slightly less profane and offensive .411 Here, however, there was clearly no provocation on the part of the customer, unless it can be urged that the mere crossing of a picket line constitutes a sufficient provoca- tion. Clark uttered the offensive and derogatory language first, and it was only then that the customer replied in kind. Under all the circumstances, I will recommend that Respondent not be required to reinstate Thelma Clark, and its backpay liability shall only run from August 25 until October 14.49 Finally, Respondent argues in its brief that no rein- statement should be ordered with respect to the two stockboys because Respondent, since the layoff, has ef- fected a reorganization of the store so that it will be operated solely by a "working manager and two others with no part-time help." Respondent also points out that after the two stockboys were released, they returned to school. It may very well be that, as a result of the picketing, Respondent's business contracted to a degree which would make operation of the store by a three rather than a five-man crew economically feasible. However, this may be but a temporary situation which might be changed upon the Employer's compliance with the remaining aspects of my Recommended Order, or a change in economic circumstances.50 In any event, I do not believe this issue to have been fully litigated on this record, and, under the circum- 44 Thus, this case is distinguishable from N L R B v Big Three Weld- ing Equipment Co , 359 F 2d 77 (C A 5), relied on by Respondent, where the employees "admi [tted] serious misconduct in pilfering the company's property 45 Neither Clark nor Schreier denied the remarks attributed to them, and, as the witness appeared to be candid and forthright , I credit his testimony 46 Murry's testimony was also undemed , and I credit it 41 155 NLRB 999, enforcement denied 374 F 2d 606 (C A 10) 48 In that case the picketer used the words "bastard" and " son-of-a- bitch " Here the words were "prick" and "bastard " 41 This date was based upon the customer witness' testimony (on December 14) that Clark's offensive conduct took place "about two months ago " 10 In this connection , I note G C Exh 2 which reflects that during the period from the opening of the Wood River store until August I, gross sales rose from approximately $1,500 per month to $8,000 per month 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, believe the issue should be more appropriately resolved in the compliance stage of this proceeding.51 Therefore, I will recommend the customary reinstate- ment and backpay order (excepting Clark) subject to Respondent being able to prove in the compliance stage of the proceeding that it has not employed , and does not intend to employ at the Wood River store, any em- ployee(s) who would work substantially the same number of hours and perform substantially the same functions as Tite and Greer. Should Respondent be able to so prove its contention, then backpay to Greer and Tite shall be limited to the period beginning with the date of the dis- crimination against them to the date of Respondent's reorganization of its Wood River store . Such employees not entitled to immediate reinstatement shall nevertheless be placed on a preferential hiring list in accordance with seniority or other nondiscriminatory standards , and shall be offered employment before any new, employees are hired.52 Accordingly, it will be recommended that Respondent offer employees Marilyn Melton, Janet Davis, Richard Tite, and Jon Jeffrey Greer immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings he or she may have suffered by reason of the dis- crimination against them , by payment to each of them of a sum of money equal to that which he or she would have earned as wages from the date of the discrimination against them to the date of offer of reinstatement in a manner consistent with Board policies as set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (This recom- mendation respecting Respondent 's offer of reinstate- ment and backpay to Tite and Greer is subject to the caveat set forth in the preceding paragraph hereof.) It will be further recommended that Respondent make Thelma Clark whole for any loss of earnings she may have suf- fered by reason of the discrimination against her by pay- ment to her of the sum of money equal to that which she would have earned as wages from the date of the dis- crimination against her to October 14, 1966 . Such com- putation of backpay is to be made in a manner consistent with Board policies set forth in the Woolworth and Isis Plumbing cases, supra. As the unfair labor practices committed by the Respondent were of a character which go to the very heart of the Act, it will be recommended that the Respondent cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Quick Shop Markets, Inc., an Illinois corporation, and Quick Shop Markets , Inc., a Missouri corporation, the Respondent herein , is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, AFL-CIO, Local 149, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining , and coercing its em- ployees in the exercise of rights guaranteed them by Sec- tion 7 of the Act, as found hereinabove , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire or tenure of employment of the named discriminatees herein, to discourage membership in a labor organization , Respond- ent violated Section 8 (a)(3) and (1) of the Act. 5. All employees employed by the Respondent at its Wood River, Illinois, store , excluding guards and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 6. At all times since August 18, the Union has been the duly designated collective-bargaining representative of the employees in the aforesaid unit , within the meaning of Section 9(a) of the Act. 7. By failing and ',refusing , on August 26, and at all times thereafter, to recognize and bargain with the Union as the collective-bargaining representative of the em- ployees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8 (a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact , conclu- sions of law , and the entire record in the case, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended , it is recommended that the National Labor Relations Board order that the Respondent , its of- ficers, agents , successors , and assigns , shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees re- garding their activities on behalf of Retail Clerks Interna- tional Association, AFL-CIO, Local 149, or any other labor organization. (b) Soliciting employees to abandon their activities in support of the above-named Union , or any other labor or- ganization. (c) Threatening to close down its operation if the em- ployees select union representation. (d) Telling employees that they would be - or were - fired because they had engaged in activities on behalf of the above-named Union. (e) Failing or refusing to bargain collectively with the above-named Union as the exclusive collective-bargain- 51 Respondent 's contentions are based solely upon testimony of its own witnesses , which is essentially self-serving But the Court of Appeals for the Second Circuit has stated. "To establish that an employer has reduced or adjusted his business to an extent eliminating the job of a discrimmatee requires careful analysis of the books and records of the employer during the backpay period " N L R B v Mastro Plastics Corporation , 354 F 2d 170 (C A 2), enfg 136 NLRB 1342 The Board has also affirmed aTrial Examiner's statement that " mere self-serving and conclusionary state- ments by Respondent that he would have laid off the [discnmmatees] . . for economic and nondiscriminatory reasons do not suffice to deprive those claimants of their remedial rights " W C Nabors d/b/a W C Nabors Company, 134 NLRB 1078, 1088 , enfd. as modified 323 F 2d 686 (C A 5), cert denied 376 U S. 911. 52 Cf Biscayne Television Corporation, 125 NLRB 437, 438-439, Cleaver-Brooks Mfg Corporation, 120 NLRB 1135, 1136-37 QUICK SHOP MARKETS, INC. ing representative of its employees in the unit herein found appropriate. (f) Discouraging membership in the above-named Union, or any other labor organization of its employees, by discriminatorily discharging, or in any other manner discriminating against any employee in regard to his hire, tenure, or other term or condition of employment. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action found neces- sary and designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Retail Clerks International Association, AFL-CIO, Local 149, as the exclusive collective-bargaining representative of its employees in the aforesaid unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an un- derstanding is reached, embody such understanding in a signed contract. (b) Offer to Marilyn Melton, Janet Davis, Richard Tite, and Jon Jeffery Greer, immediate, full, and uncon- ditonal reinstatement to his or her former or substantially equivalent position, without prejudice to their seniority or other rights, privileges, or working conditions, and make each whole for any loss of earnings he or she may have suffered, in a manner set forth in the section hereof enti- tled "The Remedy." (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Make whole Thelma Clark for any loss of earnings she may have suffered by reason of the discrimination against her, in the manner set forth in the section hereof entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (1) Post at its Wood River, Illinois, store and at its Florrisant, Missouri, headquarters, copies of the attached notice marked "Appendix."53 Copies of said notice, to be furnished by the Regional Director for Region 14, after being duly signed by its authorized representative, 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 posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 54 191 IT IS FURTHER ORDERED that the complaint herein be dismissed to the extent that it alleges violations of the Act not found herein. 53 In 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 54 In 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in or activi- ties on behalf of Retail Clerks International Associa- tion, AFL-CIO, Local 149, or any other labor or- ganization, by discharging any of our employees or in any other manner discriminating against our em- ployees in regard to hire or tenure of employment or any other term or condition of employment, because of their union membership or activities. WE WILL NOT coercively interrogate our em- ployees regarding their union sympathies in order to discourage our employees from joining, remaining members of, or assisting Retail Clerks International Association, AFL-CIO, Local 149, or any other labor organization. WE WILL NOT solicit our employees to abandon their activities in support of the above-named Union, or any other labor organization. WE WILL NOT threaten our employees that we will discharge them if they join a union. WE WILL NOT tell our employees that this store will never be a union store. WE WILL NOT refuse to bargain collectively with Retail Clerks International Association, AFL-CIO, Local 149, as the exclusive representative of all em- ployees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 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 or- ganizations, to join or remain members of or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, and refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Marilyn Melton , Janet Davis, Richard Tite , and Jon Jeffrey Greer full reinstate- ment to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges , and we will make them, along with Thelma Clark, whole for any loss they may have suffered as a result of the discrimination against them , in the manner described in the Trial Ex- aminer's Decision. WE WILL notify Marilyn Melton, Janet Davis, Jon Jeffrey Greer, and Richard Tite if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. WE WILL , on request , recognize and bargain with Retail Clerks International Association , AFL-CIO, Local 149, as the exclusive collective-bargaining representative of our employees in a unit comprised of all employees at our Wood River , Illinois, store excluding guards and supervisory employees as defined in the Act, regarding their rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody the same in a signed contract. Dated By QUICK SHOP MARKETS, INC., AN ILLINOIS CORPORA- TION: QUICK SHOP MAR- KETS, INC., A MISSOURI CORPORATION (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate ,directly with the Board's Regional Office, 1040 Boat- men's Bank Building , 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4167.