Deaktor's Foodland

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. D. Foods, Inc., d/b/a Deaktor's Foodland and Amalgamated Meat Cutters and Butcher Work- men of North America , Local 424, AFL-CIO. Case 6-CA-3813 November 17, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 24, 1967, Trial Examiner William Seagle issued his 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. He also found that Respondent had not engaged in cer- tain other unfair labor practices alleged in the com- plaint and recommended the dismissal of such al- legations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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 and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions' of the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner: Upon a charge filed on January 6, 1967, an amended charge filed on February 17, 1967, a second amended charge filed on March 24, 1967, and a complaint issued on March 30, 1967, by the Regional Director of Region 6, I heard this case at Pitts- burgh, Pennsylvania, on May 25 and 26, 1967. It is alleged in the complaint that the Respondent vio- lated Section 8(a)(3) and (1) of the Act. The principal issue in the case is whether the Respondent discrimina- torily discharged Violet O'Conner, one of its employees. At the close of the taking of testimony at the hearing, counsel for the General Counsel and for the Respondent presented oral argument, and subsequent to the hearing, counsel for the Respondent also filed a brief. Upon the record so made, and in view of my observa- tion of the demeanor of the witnesses, I hereby make the following findings of fact: 1. THE RESPONDENT The Respondent, E. D. Foods, Inc., d/b/a Deaktor's Foodland, is a Pennsylvania corporation which maintains its principal office at Pittsburgh, Pennsylvania, and which is engaged in the operation of a retail food store. Its gross sales since it was opened for business on November 30, 1966, have been in excess of $20,000 a week, and are ex- pected to exceed $500,000 during the 12-month period ending November 30, 1967. It is further anticipated that the Respondent's purchase of goods directly and in- directly from points outside the Commonwealth of Pennsylvania, which since November 30, 1966, have averaged in excess of $1,000 a week, will be in excess of $50,000 during the 12-month period ending November 30, 1967. The Respondent admits that at all material times it has been an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and I so find. It. THE LABOR ORGANIZATION INVOLVED 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 as modified below, and hereby orders that the Respondent, E. D. Foods, Inc., d/b/a Deaktor's Foodland, Pitts- burgh, Pennsylvania, its officers, agents, succes- sors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. In paragraph 1(c) of the Recommended Order and the third indented paragraph of the Appendix, delete "in any like or related manner" and sub- stitute therefor "in any other manner." ' After recommending a broad form of cease -and-desist order, the Trial Examiner inadvertently drafted his Order , paragraph I (c), in narrow form. Therefore, we have modified the Order to correspond to the Trial Ex- aminer's recommendations. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 424, AFL-CIO (hereinafter referred to as Local 424), is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES The Respondent is a family-type corporation and Harry Deaktor has been in the supermarket business for a long time. To trace the history of the Deaktor family business, it is necessary to go back at least to a supermar- ket known as the Star Market, which, the record shows, was in existence at least as far back as 1952. Harry Deak- tor had an ownership interest in the Star Market but, ap- parently, after it was sold to his father and his cousin, its name was changed to Stop-and-Shop. A few years ago, the building in which Stop-and-Shop was located was taken for an urban redevelopment project and demolished, and Harry Deaktor's father moved the busi- ness to Federal Street on the north side of Pittsburgh in order to provide an additional year's employment for its employees. When Stop-and-Shop was finally closed down late in 1966, Harry Deaktor and his wife Edith decided to 168 NLRB No. 48 E. D. FOODS, INC. 293 open the new supermarket involved in the present proceeding; i.e., Deaktor's Foodland. The precise in- terest of Harry Deaktor and his wife in this business does not appear but Harry Deaktor described himself only as its operating head , and, since he is only secretary-trea- surer of the corporation while his wife is its president, it is a fair assumption that Edith Deaktor is the majority stockholder. It should be noted, however, that unlike her husband Edith Deaktor has had no previous experience in running a supermarket. Before opening Deaktor's Foodland, Harry Deaktor decided to employ three of the Stop-and-Shop em- ployees: Wendell Fouzer, Kenneth McKee, and Violet O'Conner. While they were working for Stop-and-Shop, there had been a union shop in effect under a contract between the owners and Local 424, the Charging Party in the present proceeding, and so the three employees whom Harry Deaktor hired to work at Deaktor's Foodland were members of Local 424. Harry Deaktor was aware, of "course, of their membership in Local 424 when he hired them. It is also worthy of note that these three Stop- and-Shop employees were hired as of November 1, 1966, although Deaktor's Foodland, the new store, was not to be opened for business until November 30, 1966. Ap- parently, the new employees worked, however, to get the new store ready for business. The reason for the early hir- ing of these three employees was to avoid any hiatus in their employment between the closing of Stop -and-Shop and- the opening of Deaktor's Foodland. I It is fair to sur- mise that the special consideration that was accorded to them was due to the fact that they were not only old but trusted employees toward whom their Employer felt a special sense of responsibility . McKee and Fouzer had been in the employ of Harry Deaktor since 1952 and 1955, respectively, and had worked both for Star Market and Stop-and-Shop, and O'Conner had been working at Stop-and-Shop since July 1959 .2 McKee and Fouzer were hired as comanagers of the Deaktor Foodland grocery department while O 'Conner was hired as head cashier of the store at an increased salary although she had been only one of the cashiers at Stop-and-Shop. At Deaktor's Foodland, she received $2.10 an hour while the assistant cashier received $2 an hour and the rank- and-file cashiers received only $1.50 an hour . McKee and Fouzer were minor supervisory employees but O'Conner, although head cashier, was not rated as a su- pervisory employee within the meaning of the Act.3 Considering that Star Market and Stop-and-Shop had been union shops, it is not at all surprising that Deaktor's Foodland should have attracted the organizing ambitions of the labor unions in the area, including Local 424, which had had a union-shop contract with Stop-and-Shop. In- deed, the organizing efforts commenced before Deaktor's Foodland had even opened for business. On November 29, which was the day before the open- ing, two organizers for the Retail Clerks Local 1407 ap- proached O'Conner in an aisle of the store and asked her to pass out authorization cards for them. She took the cards but she was in a quandary as to what to do with them. Consequently, she "took the cards to Edith Deaktor and asked the latter what to do with them. Edith Deaktor told her to rid of the organizers but Harry Deaktor, who was present during the conversation, told O'Conner that she could not do what his wife had directed and to go ahead and pass out the cards. O'Conner did so but none of the cards were ever returned to her. During the week after the store opened for business, Fouzer, McKee, and Robert John Berardo, who was produce manager of the store and like Fouzer and McKee a supervisory employee, made contact with Local 424, of which all three of them were members. Fouzer obtained some Local 424 authorization cards, and turned them over to Berardo, who put them in a drawer in the produce department, and told the produce department employees that the cards were there. Some of these employees signed the cards and also left them in the drawer. Berardo engaged in this organizing effort, although Edith Deaktor, who had observed the Local 424 organizers in the store, had directed him to tell his produce department people not to join a union , and he had passed this word on to them. Edith Deaktor had also told Berardo on another oc- casion that she did not want a union and that she did not want him to sign a union authorization card. This conver- sation between Edith Deaktor and Berardo had been overheard by Karen Graves, one of the cashiers. About this same time , Walter Leicher, who is president of Local 424, and Michael Betzold, the general organizer of the Union, had been in the store and talked to McKee about passing out authorization cards but he had left no cards with the latter on this occasion. Betzold, accom- panied by another union representative by the name of Nackyocka, had also paid a visit to the store and talked to Harry Deaktor about recognizing Local 424 but the latter had told them that there was another union circulating in the store, and that he had received legal advice to the ef- fect that when confronted with such a situation he should remain neutral.4 It seems that Harry Deaktor expressed something of the same sentiment to McKee in a conversa- tion in which he told the latter that, if he had his,choice, he would take either Local 424 or Local 1407 in preference to Local 590. It is not clear, however, whether this referred to a Local 590 of the Retail Clerks or of the Amalgamated Meat Cutters. Under date of December 6, 1966, Leicher wrote a one- sentence letter to Deaktor reading as follows : "This is to inform you that we will meet you at your office on Thursday, December 8, 1966 at 10 a.m. for negotiations on a contract." Apparently no reply was made to this letter, nor does it appear that the visit was made unless it was the visit made by Betzold and Nackyocka, which oc- curred about this time. On December 13, 1966, however, Leicher and Betzold paid another visit to Deaktor's Foodland. On this occa- sion, they had authorization cards with them and talked to McKee and O'Conner about distributing them. The union representatives handed the cards to McKee but he was too busy to distribute them and asked O'Conner to do so, and she passed the cards out, mostly to the girls who were running the cash registers, and who signed them immediately. After passing out the cards, O'Conner ' As Edith Deaktor explained it, they were put on the payroll, "even though the store was not even opened , just to keep them so that they could afford to support their families in the interim because they were going to work for us." 2 Harry Deaktor must have been mistaken in testifying that Violet O'Conner had also worked for Star Market, for this is contrary to her own clear testimony. 8 The Regional Director so found in the subsequent representation proceeding initiated by Local 424 on December 16, 1966 ' Harry Deaktor incorrectly testified on direct examination that he knew at this time that two unions were seeking an election . A representa- tion petition was not filed by Local 424 until December, 16, 1966. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to the office to put the pen that she had used in her card signing back in her purse. The Deaktors were in the office at the time, and, since the office was only a slightly raised platform enclosed by glass from which the front end of the store where the cashiers were located was visi- ble, they had been able to observe O'Conner's activities. When the latter came into the office, Harry Deaktor re- marked to her that "this union organization was taking up too much of his time." Later, when McKee was in the front end of the store where the office was located, Harry Deaktor asked him what the union was doing in the store, and McKee informed Harry Deaktor that the union representatives had brought authorization cards in to be signed and that he had turned them over to "Vi" O'Conner to pass out. In another conversation on December 13, O'Conner also told Harry Deaktor that Local 1407 of the Retail Clerks had been pestering her and the latter remarked that "Local 1407 was a good union, too." O'Conner's reply to this remark was that "maybe it was." A few days later Betzold came into the store again and asked O'Conner how things were going, and she replied: "All right." But, so far as O'Conner was concerned, things did not turn out all right at all, for on December 27, 1966, she was discharged. Ever since December 13, the day that she had dis- tributed the authorization cards of Local 424, O'Conner had noticed a change in the attitude of the Deaktors towards her. Prior to this date, she had found the Deak- tors to be very cordial. They had complimented her on her work, told her how efficient she was, and what a good job she was doing. But now, when either of the Deaktors would walk past her in an aisle, he or she would ignore her. She also found herself locked out of the office where she was supposed to do a good deal of her work. Finally, on December 27, about 15 minutes before she was ready to leave her work for the day, Edith Deaktor approached O'Conner in an aisle where she was dusting shelves, and asked if she could talk to her. O'Conner ac- companied Edith Deaktor to her office, which was on the second floor,5 and the latter remarked that she had problems. O'Conner had no idea what Edith Deaktor was talking about but she soon found out. When they reached her office, her Employer remarked that she did not know whether it was her misunderstanding or O'Conner's but she thought that the latter was supposed to be working primarily in the office, and the office was a mess, and that O'Conner was incompetent and did not know what she was doing. O'Conner asked Edith Deaktor why she did not just put her on the cash register if she was doing such a poor job in the office. But Edith Deaktor replied that this would be a demotion, which would be humiliating to her, and that she did not wish to humiliate her. Although O'Conner had testified that she was discharged by Edith Deaktor, and it is clear from her testimony that Harry Deaktor was not present during the discharge interview, Harry Deaktor testified that he was present and participated in the discharge. Thus, he testified: Q. Who discharged Mrs. O'Conner? A. Mrs. O'Conner was discharged by both Mrs. Deaktor and myself. Q. Were you present at the time she was discharged? A. Yes, I was. Q. Did you engage in the conversation? A. I engaged in the conversation. Edith Deaktor, whether knowingly or unknowingly, con- tradicted her husband, however, and testified that he was not present at the time of the discharge- "he wasn't sitting -there at the time" was the way she put it- and that he did not get to talk to O'Conner until after she had been discharged. Perhaps this explains why, when Harry Deaktor was asked "why Violet O'Conner was discharged," he replied that she "was discharged" for the following reasons, which he proceeded to enumerate as follows: Number one. She was insufficient in the making up of her reports. Number two. She failed to adhere to orders given by me. Number three - But then Harry Deaktor never got to explain or even mention what "Number three" was. He became mark- edly abstracted, and when reminded that there was a "Number three," he finally declared that "Number one" and "Number two" would cover it. It is apparent that Harry Deaktor's two reasons are broad and almost all-inclusive, and in the remainder of his testimony concerning O'Conner's discharge he attempted to provide a bill of particulars. But first he attempted to furnish an outline of O'Conner's duties, and made men- tion of the fact that on December 12, he had given a writ- ten list of her duties to O'Conner, in order to "clarify her job" and get her to "perform it in a better position than what she was performing it at that particular time." The list consisted of two small sheets of paper,6 and on the first of these sheets were enumerated the following du- ties: 1. Schedule the breaks for all checkers. 2. Schedule the re-stocking as required. 3. You call for baggers as required. 4. You move in on any drawer & activate a register as demands require. 5. You revise checker schedules throughout the week by consulting me. - 6. Lunch hours are your jurisdiction. 7. Pick-ups, as required [this referred, to the bringing of money accumulated in the cash registers to the office]. 8. Cash checks as required. - 9. Handle office-as required. On the second sheet there were listed these two addi- tional duties: 1. Channel traffic in front of checkouts [this meant steering a customer towards a cashier who was not busy]. 2. Add up Refund Forms. In attempting to specify O'Conner's deficiencies and derelictions as an employee, Harry Deaktor mentioned none prior to December 13, the day on which she passed out the Local 424 authorization cards. Both he and Edith Deaktor complained most about alleged mistakes made by O'Conner in preparing the daily store reports which, This was an office in addition to the store office The second floor of- fice was being completed at the time of O'Conner's discharge. 6 They are in evidence as G C . Exh. 4. E. D. FOODS, INC. 295 apparently, were intended to reflect the sales made in the various departments of the store. According to the Deak- tors, the mistakes consisted of crediting the grocery de- partment with meat department sales, and the mistakes necessitated that they stay up until 3 a.m. in order to cor- rect them. When these mistakes were made presents, however, something of an enigma. Harry Deaktor testified both that the mistakes were made in the week of December 11 and in the week of December 18. If the mistakes were actually made and they were made in the week of December 11, Harry Deaktor in effect cor- roborated the testimony of O'Conner that she was restricted in her use of the office immediately after passing out the Local 424 authorization cards, for he testified that her use of the office was restricted after she had made the mistakes in the daily store reports. It is also apparent from his testimony that he exaggerated the ex- tent to which he and his wife had to burn the midnight oil to correct the alleged mistakes, for he testified that they were made three times in the week in question, and then revealed that the Saturday report of that week was ac- tually correct, thus leaving only two reports that had to be corrected, rather than three. Even more baffling is the fact that the preparation of the daily store reports is not included in the supposedly exhaustive list of O'Conner's duties which was given to her on December 12. Harry Deaktor was specifically asked whether the list effected any change in O'Conner's duties, and replied in the nega- tive; he was also specifically asked whether there\was any mention in the list of preparing the daily store reports, and he conceded that this duty was not included in the list; he also testified that O'Conner did the daily store reports in the office after closing time. From all this it is fair to as- sume that O'Conner had just undertaken the preparation of the reports for the first time as an extra chore. Con- sidering that the store was new, and that even Harry Deaktor and his wife, as well as O'Conner, were then receiving instructions in store management from one of the Deaktor Foodland's wholesalers, known as Fox Groceries, it would hardly be surprising that there should be some confusion and that some mistakes should be tem- porarily made. Harry Deaktor himself revealed in his testimony, moreover, the source of the mistakes in the preparation of the daily store reports. It seems that what O'Conner is supposed to have done was not really to credit the grocery department with meat department sales but with delicatessen sales, and there could certainly be a difference of opinion whether in the operation of a su- permarket delicatessen fell in the category of meat. If confusing the two categories was a mistake, it would not seem to have been unpardonable. - Harry Deaktor further testified that after he and his wife had exhausted themselves in correcting the mistakes in O'Conner's reports they came in one morning to find that she had failed to arrange for the checkers to get their 10-minute morning breaks, and later that same day when it was already 12:30 p.m., he found that she had also failed to start the checkers' lunch periods. Harry Deaktor also related that on Thursday, Friday, and Saturday, December 22, 23, and 24, O'Conner fell far behind the assistant cashier, whose, name was Margery Riehl, in "taking off' the registers; i.e., in totaling the sales shown on the cash registers. Margery Riehl's total was $4,544, while O'Conner's total was only $2,149. It seems that this drop in productivity was one of the two last straws leading to O'Conner's discharge, although, again, "taking off' the registers is not included in the list of O'Conner's duties. The other was her failure to punch her time in and out, despite Harry Deaktor's directive to her that she do so. He himself attributed this conduct, however, to the fact that she was sulking because he and his wife had just decided the week before Christmas to relieve her of all her other duties and put her on the middle cash register to help the other checkers with their pricing during the Christmas rush. The Christmas rush and the multifarious nature of O'Conner's duties may well account for the fact that she slipped up once in scheduling the morning break and the lunch hour. As for her allegedly low productivity in "tak- ing off' the cash registers during the last 3 days before Christmas, this, too, may well have been due to the pres- sure of her other duties, which would interfere with her single-minded concentration on the cash registers. The assistant cashier, on the other hand, would not be sub- jected to these pressures and distractions. Harry Deaktor was finally forced to admit, in addition, that during one of the 3 days Margery Riehl and O'Conner worked on dif- ferent shifts, and that, because of the difference in the volume of business during the respective shifts, no true comparison in productivity would be possible. It is highly interesting, moreover, that Harry Deaktor, in comparing the productivity of Riehl and O'Conner was able to state precisely what hours each had worked during these 3 par- ticular days, which he would hardly have been in a posi- tion to do if, as he claimed, O'Conner was not punching the timeclock. Finally, if O'Conner after being demoted from her job as head cashier, which, in effect, was what happened when she was put on a cash register, was sulk- ing a little, her attitude would be readily understandable. Her demotion would hardly be consistent, furthermore, with the position taken by Edith Deaktor that she would rather fire O'Conner than demote her. Despite all his complaints about O'Conner, Harry Deaktor did not deny, when faced with the question, that he may on occasion have told her that she was a good worker. He could hardly conceal, moreover, his knowledge of her great experience as a cashier in the very act of attempting to explain her demotion. He declared that she was put on the middle register during the week before Christmas because of her "vast experience" which would enable her to transmit prices to the other checkers. Although Edith Deaktor had no kind words for O'Conner as a supermarket worker, she admitted to a sneaking ad- miration for her as a person. Indeed, she called her "a fine person," and "a nice human being." It was simply, she explained, that she was incompetent as a head cashier, and she had to go. Although she advanced in general the same reasons as her husband for discharging O'Conner, Edith Deaktor went further than he did in stressing the deliberate character of O'Conner's alleged misconduct. "She refused to do her job," Edith Deaktor declared. "She would deliberately do things that my husband told her not to do, like taking one girl and putting her on three registers the same day." (Emphasis supplied.) If there is any substance to the testimony of the Deak- tors that Violet O'Conner was incompetent as a head cashier, I am satisfied that the degree of her incom- petence was not the cause of her discharge. The key to the evaluation of the Deaktors' evidence is their per- sistent denial that they knew anything at all about the passing out of the Local 424 authorization cards by O'Conner, or that anybody told them that, coupled with Edith Deaktor's further denial that she told Berardo to 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tell the employees in the produce department not to join the Union. These denials of any knowledge of union activity, ex- cept for the receipt of the union's letter of December 6, are inherently incredible . Considering that Harry Deak- tor had long years of experience with unions and knew how they operated; that he had had a union-shop contract with Local 424 and knew that the three old employees, O'Conner, Fouzer, and McKee, whom he had hired for his new store, were members of Local 424; that the week after the store opened, which was before O'Conner passed out the authorization cards for Local 424, he had, admittedly, received a visit from two representatives of Local 424 who had informed him of their interest in or- ganizing the new store ; and, finally, that the front end of the store , into which any union representatives would come, was plainly visible from the glass cage that con- stituted the store office, it is difficult indeed to believe that the Deaktors were wholly ignorant that any union ac- tivity was under way. In pretending to ignorance, they were attempting to deny not only the testimony of O'Conner, who was of course, an interested witness, but also the testimony of McKee, Berardo , and Karen Graves, who had no direct interest in the outcome of the present proceeding. McKee and Berardo, to be sure, were members of Local 424 and McKee may have borne a grudge against Harry Deaktor because the latter had also later discharged him, but Berardo was still in the employ of the Deaktors, and as a supervisory employee his in- terests were bound up with theirs. As for Karen Graves, the former cashier, who corroborated the testimony of O'Conner and of Berardo , she, too, was no longer em- ployed at Deaktor's Foodland, and it is not even shown that she was a member of Local 424. Since the Deaktors testified falsely that they knew nothing about O'Conner's union activity, and otherwise denied any union animus, it is apparent that they had something to conceal , and that something was a dis- criminatory motive in the discharge of O'Conner. Having testified falsely in one respect , there is a basis for assum- ing that they also testified falsely in other respects, espe- cially when this testimony is so full of flaws. There may well be applied here the ancient maxim,falsus in uno,fal- sus in omnibus. It is true that the evidence also shows that Harry Deak- tor himself had long dealt with unions and that he himself did not have a general union animus . He was willing, ap- parently, to deal with unions and to take , as he put it, either Local 424 or Local 1407. If Harry Deaktor alone were involved in the present case, and it was he, alone, who had discharged O'Conner, there would be a formida- ble obstacle to a finding of discrimination in her discharge. But it was not Harry Deaktor but his wife, Edith Deaktor, who discharged O'Conner , and the union animus of Edith Deaktor is well established by the evidence. The freedom of Harry Deaktor from union animus does not, therefore , help the Respondent's case. The fact that Harry and Edith Deaktor were at logger- heads about the desirability of union organization goes a long way toward explaining the ambivalence in their rela- tionship to O'Conner, and their differing attitudes toward her. It is apparent that Harry Deaktor was more favorably inclined toward O'Conner than Edith Deaktor. This was based in the case of Harry Deaktor on his longer association with O'Conner. He had manifested a personal solicitude toward her as one of a group of em- ployees toward whom his family had owed a special responsibility, and he obviously had had a favorable opinion of her work. He would hardly have sought her out and hired her as head cashier in the new store , which was undoubtedly a promotion, unless he had been convinced that she was a highly desirable employee. Moreover, Harry Deaktor's opinion of O'Conner must be accorded the greater weight , since Edith Deaktor had no previous experience in the supermarket business , and was in a far less favorable position to make a judgment of an em- ployee's value. The question arises, therefore, whether in view of this background, which shows that O'Conner was an old and valued employee, when her tenure in the Deaktor enter- prises as a whole is considered, it is possible to credit her alleged fall from grace, which occurred immediately after she had passed out the Local 424 authorization cards. Coincidence has long arms , and perhaps , it would be possible to believe that, although she had performed well in the job of cashier at Stop-and-Shop, she proved unequal to the more responsible and demanding job of head cashier, and, overwhelmed by its multifarious- du- ties, committed the mistakes and was guilty of the over- sights that were attributed to her by the Deaktors. In view of her highly satisfactory employment history it is not possible, however, to believe, except upon the theory of demonic possession, that she would deliberately have disobeyed orders and that she would even have refused to punch the timeclock. Despite her supposed mistakes, when O'Conner came to the store with Betzold, the union organizer, a few days after her discharge, Harry Deaktor expressed a willingness to reemploy her if his wife should not object. Counsel for the Respondent argues that the list of du- ties that Harry Deaktor gave to O'Conner and to no other employee in the store on December 12, which was the day before she had passed out the authorization cards for Local 424, makes it apparent that she lacked the ability to handle the duties of head cashier. Actually, this argument goes beyond the testimony of Harry Deaktor concerning the function of the list. He merely testified that he gave O'Conner the list in order to clarify her job and to help her to perform it better. As her job was new and the store was new, and her duties were many, it is not at all surpris- ing that Harry Deaktor should have sought to help O'Conner by giving her a list of her duties. This act can- not fairly be 'regarded as an expression of lack of con- fidence on his part in her abilities. It is apparent, moveover, that even after he gave her the list a considera- ble degree of confusion remained as to percisely what her duties were, for, as has already been pointed out, she was required to prepare the daily store reports and to "take off" the registers although neither of these duties was in- cluded in' the list. As for Harry Deaktor's failure to give any other employee a list of duties, this could hardly have any significance, since there was no other employee who fell in the same category as O'Conner. After all, she alone was head cashier, and there was, therefore , no reason, logically, why any other cashier should have been given a similar list. It is not shown that any other cashier, or for that matter any other employee , had duties that in number or extent were at all comparable to hers. I am convinced that the cause of O'Conner's fall from favor immediately after her distribution of the authoriza- tion cards for Local 424, and of her discharge on December 27, 1966, was her union activity. It is a reasonable surmise that her discharge was delayed for 2 weeks only because of the exigencies of the Christmas rush. It is also charged in the complaint , as amended at the E. D. FOODS, INC. 297 hearing, that the Respondent, through Harry Deaktor, committed three independent violations of Section 8(a)(1) of the Act; i.e., (1) the surveillance of the union activities of Violet O'Conner, (2) the interrogation of employees concerning their union membership, sympathies, and at- titudes, and (3) the giving of an order to the employees not to join a union. The evidence relating to supporting the first two of these allegations does not seem to me to make out any in- dependent violations. Harry Deaktor was not particularly subjecting O'Conner to surveillance when he saw her passing out the authorization cards. He simply happened to see her distributing the authorization cards when he looked out of the glass cage that constituted the store of- fice. It is not "surveillance" for an employer to observe what he cannot help seeing. Harry Deaktor did ask McKee what the union representatives were doing in the store after he saw O'Conner talking to them but McKee was a supervisory employee, and Harry Deaktor's question related to the activities of the union representa- tives rather that to those of the employees. As for the or- dering some of the employees not to join a union, this order was issued by Edith rather than Harry Deaktor. Since this issue was fully litigated, however, a finding of a violation may be made, notwithstanding the variance between allegation and proof. IV. THE REMEDY In view of the serious, nature of the violation involved in the discharge of Violet O'Conner, I shall recommend a broad form of cease-and-desist order, restraining the Respondent from infringing upon any of the rights guaranteed to employees by Section 7 of the Act. To remedy the discharge of Violet O'Conner, I shall also recommend, by way of affirmative relief, that the Respondent offer to her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed by her, discharging, if necessary, any new employee hired subsequent to the date of her discharge in order to replace her. I shall also recommend that the Respondent make Violet O'Conner whole for any loss of pay she may have suffered by reason of her discharge by payment to her of a sum of money equal to the amount which she would normally have earned as wages from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during the said period. The amount of backpay is to be determined in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in ac- cordance with Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent, E. D. Foods, Inc., d/b/a Deak- tor's Foodland, is an employer engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 424, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3 By ordering some of its employees not to join a union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby committed unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) of the Act. 4. By discharging Violet O'Conner, one of its em- ployees, on December 27, 1966, because she had en- gaged in union activities , the Respondent has committed an unfair labor practice affecting commerce, within the meaning of Section 8 (a)(1) and (3) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, E. D. Foods, Inc., d/b/a Deaktor's Foodland, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, Local 424, AFL-CIO, or in any other labor organization of its employees, by discharging any of its employees, or in any other manner, discriminating against them with respect to their hire or tenure of employment or any term or condi- tion of their employment. (b) Ordering any of its employees not to join any labor union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to ef- fectuate the policies of the Act: (a) Offer to Violet O'Conner immediate and full rein- statement to her former or substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her in the manner and to the extent set forth in section IV of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and other data necessary to give effect to the backpay requirement. (c) Post at its store, known as Deaktor's Foodland, in Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 6, after having been duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places , including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to assure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in -writing, within 20 days from the date of service of this Decision, what steps Respondent has taken to comply herewith.8 7 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." 8 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 6, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 298 DECISIONS OF NATIONAL 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 Amalga- mated Meat Cutters and Butcher Workmen of North America, Local 424, AFL-CIO, or in any other labor organization of our employees, by discriminat- ing with respect to the hire or tenure of their employ- ment or any term or condition of their employment. WE WILL NOT order any of our employees not to join a labor union. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities. LABOR RELATIONS BOARD WE WILL offer to Violet O'Conner immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniori- ty or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of our discrimination against her. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by any agreement in conformity with Section 8(a)(3) of the Act. E. D. FOODS, INC., D/B/A DEAKTOR'S FOODLAND (Employer) Dated By (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2977.