Eckerd's Market, Inc.

ECKERD'S MARKET, INC. 337 Eckerd's Market, Inc. and Retail Clerks Interna- tional Association, Local 204, AFL-CIO. Cases 11-CA-3942 and 1 1-CA-395 5 June 15, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On February 16, 1970, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel and the Union filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. 1. The Trial Examiner found that "fountain manager" Malone was in charge of the combination soda fountain and lunch counter in Respondent's Wilmington, North Carolina, retail store involved herein, and was a supervisor within the meaning of the Act. We disagree. Malone spent 95 percent of her time serving food and beverages to customers, alongside the three other fountain girls, and operating the grill. She spent the remainder of her worktime ordering sup- plies as needed from vendors specified in a list prepared by Respondent's "fountain coordinator," and preparing records which indicated the foun- tain's profit and loss. Neither activity involved a substantial degree of independent judgment. The Employer's "fountain coordinator," who is respon- sible for setting up the fountains throughout Respondent's chain of stores and overseeing their operation and profitability, established the prac- tices and procedures for Malone to use and regu- larly conferred with her. Although Respondent argued that Malone was a supervisor, it is clear that Store Manager Jones, not Malone, prepared the fountain employees' work schedules; granted a wage increase to them without first consulting Malone; gave fountain employees time off, often after an employee called him, rather than Malone; assigned nonfountain employees to assist Malone if she was shorthanded; and had to be notified by Malone if the fountain girls wanted to change shifts. Malone was never told that she had the authority to hire and fire employees, and when, on one or two occasions, she asked Jones to repri- mand a fountain employee, Jones conducted his own investigation. Even though Malone was an experienced foun- tain employee who ostensibly "ran" the fountain, her duties were routine in character and did not require the exercise of independent judgment. As the record is devoid of evidence that Malone pos- sessed any of the other indicia of supervisory status normally required, we find Malone was not a super- visor within the meaning of the Act.' 2. The Trial Examiner found that Respondent, in enforcing its policy against the display in its stores of any controversial insignia, placards, or notices, did not violate Section 8(a)(1) and (3) of the Act when it threatened to and did discharge four em- ployees2 because they refused to remove the union buttons which they were wearing on their clothing at work . We disagree. The Union began a campaign to organize the em- ployees on June 24, 1969.3 During the following week, the Union received signed authorization cards from a majority of the employees in the ap- propriate unit. On June 30, several union suppor- ters began to wear union buttons about the size of a 5-cent piece bearing the legend, "Retail Clerks Union, AFL-CIO. July 1969." On July 1, the same day that Jones told the em- ployees at a meeting that the Union would be op- posed "by every lawful and proper means," he or- dered employees Painter and Malone to remove their union buttons. Malone did so, but Painter, given the choice of removing the button or leaving the store, chose the latter course of conduct. The next day, July 2, Jones discharged employees Malone, Morgan, and Price for not removing their union buttons as ordered. We agree with the Trial Examiner that Painter's case is indistinguishable ' Frank G Shattuck Company, 106 NLRB 838, 843 (head counter clerk) Y Malone, whom we found was not a supervisor , above, was discharged with employees Morgan , Painter, and Price 3 All dates are 1969 unless otherwise indicated 183 NLRB No. 40 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the clear discharges of Malone , Morgan, and Price on July 2. We basically agree with the Trial Examiner's ex- position of the applicable law in this area. As we said in Consolidated Casinos Corp., 164 NLRB 950: The right of employees to wear union insig- nia at work has long been recognized as a pro- tected concerted activity . Further, as the Board held in Floridan Hotel of Tampa, Inc., in the circumstances of that case, "the fact that the employees involved come in contact with hotel customers does not constitute such `special circumstances ' as to deprive them of their right, under the Act, to wear union buttons at work." Here , as in Floridan Hotel, there was no strike nor union animosity between groups of employees; the buttons were inconspicuous and the legends on them were in no way provocative; and there was no substantial evidence that they affected Re- spondent's business or that the prohibition against wearing them was necessary to main- tain employee discipline. [Emphasis supplied and footnotes omitted.] However, contrary to the Trial Examiner , we find that Respondent has not established sufficient "spe- cial circumstances " to justify its conduct. The only specific incident relating to customer complaints testified to by Jones, in a vague and somewhat con- flicting manner , involved customer Rawlins' com- plaint that an employee had offered him a union button prior to July 2. Jones also described com- plaints from "several" unnamed customers prior to the discharges, but gave no details, and testified to the fact that three or four complaints were received after the July 1 and 2 discharges. There was no strike or animosity among em- ployees at Respondent's store during the organiza- tional campaign to justify the prohibition against wearing union insignia . Since mere contact with customers is not a basis for barring employees from wearing union buttons, it follows that Respondent's business or employee discipline had to be affected by the display of union buttons for it to justify the discharges. Clearly, the vague , general evidence presented by Respondent was not substantial enough to establish either of the latter "special cir- cumstances" warranting removal of the small, in- nocuously labeled union buttons worn by its em- ployees. Accordingly , we find that by threatening to discharge , and discharging , employees Malone, Morgan, Painter, and Price for wearing union but- tons on their clothing at Respondent violated Section 8 ( a)(3) and (1) of the Act. 3. We agree with the Trial Examiner that the Union did not represent an uncoerced majority of the employees in the unit found appropriate when it demanded recognition on July 1. We do so, how- ever, not because Malone solicited several authorization cards, as we have found that she was not a supervisor , but because of the representa- tions, made by Fox and Malone in soliciting signa- tures to the cards, that the employees who signed such cards were only expressing an interest in learn- ing more about the Union and were not obligating themselves to become members of the Union. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , the Board will order Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged Ruth Malone , Beverly Morgan, Mary Painter, and Marguerite Price, the Board will order Respondent to offer them immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suffered from the time of their discharge to the date of Respondent 's offer of reinstatement. The backpay for the foregoing employees shall be computed in accordance with the formula approved in F. W. Woolworth Com- pany, 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. We shall also order Respondent to preserve and, upon request , make available to the Board or its agents, payroll and other records to facilitate the computa- tion of backpay due. As the unfair labor practices committed by Respondent are of a character striking at the root of employee rights safeguarded by the Act, we shall order that Respondent cease and desist from in- fringing in any manner the rights guaranteed in Sec- tion 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.d 532, 536 (C.A. 4). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. ECKERD'S MARKET, INC. 2. Retail Clerks International Association, Local 204, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Ruth Malone, Beverly Morgan, Mary Painter, and Marguerite Price, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Eckerd's Market, Inc., Wilmington, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against , any employee engaged in activity on behalf of Retail Clerks International Association, Local 204, AFL-CIO, or any other labor organization. (b) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist the above-named or any other labor or- ganization , to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Ruth Malone, Beverly Morgan, Mary Painter, and Marguerite Price immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for loss of pay in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 339 Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its retail store in Wilmington, North Carolina, copies of the attached notice marked "Appendix."4 Copies of said notice , on forms pro- vided by the Regional Director for Region 11, after being duly signed by an 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of its Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Retail Clerks International Association, Local 204, AFL-CIO, or any other union, by discharging or otherwise discriminating against our employees because of their union or con- certed activities. 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, join, or assist the above-named Union, or any other labor organization , to bargain collec- 427-258 O-LT - 74 - 23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively through representatives of their own choosing, and to engage in other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Ruth Malone, Beverly Mor- gan, Mary Painter, and Marguerite Price im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without preju- dice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered as a result of discrimination against them. WE WILL notify the above-named employees, if presently serving in the Armed Forces of the United States , of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. ECKERD 'S MARKET, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Room 1624, Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211, Ext. 360. TRIAL EXAMINER 'S DECISION SIDNEY SHERMAN, Trial Examiner: Copy of the initial charge herein was served on Eckerd's Mar- ket, Inc., herein called Respondent,' on July 7, 1969, the complaint issued on October 15,2 and the case was heard on O.;tober 28 and 29.3 The issues litigated related to alleged violations of Section 8(a)(1),(3), and (5). After the hearing a brief and a motion to correct transcript4 were filed by the General Counsel, and a brief was filed by the Union. Upon the entire record, the following findings of fact and conclusions are adopted: Respondent's name appears as amended at the hearing 2 All dates are in 1969 , unless otherwise indicated ' Certain employees were permitted to intervene at the hearing I. RESPONDENT 'S BUSINESS Eckerd's Market, Inc., is a North Carolina cor- poration which operates a number of retail stores, including one at Wilmington, North Carolina, which is the only store involved in the case at bar. Respondent's annual gross revenues exceed $500,000, and it annually receives from out-of-state sources goods valued at more than $50,000. Respondent is engaged in commerce under the Act. II. THE UNION Retail Clerks International Association, Local 204, AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)( I) of the Act by interrogating employees about their union activity and by threatening discharge unless they ceased wearing union buttons at work. 2. Whether Respondent violated Section 8(a)(3) by discharging Malone, Morgan, Painter, and Price for displaying union buttons. 3. Whether Respondent violated Section 8(a)(3) and (1) by reducing the hours of work and chang- ing the work shift of Fox, and by thereafter discharging him. 4. Whether Respondent violated Section 8(a)(5) and (1) by refusing to recognize the Union. A. Sequence of Events The Union's organizing campaign at Respon- dent's Wilmington store began on June 24, when Union Agent Brendle approached employee Fox in the store and handed him some union authorization cards with the instruction to have them signed by other employees. During the next few days, 15 such cards were signed. On June 30, several of the union adherents began to display on their clothing buttons bearing the words "Retail Clerks Union, AFL-CIO." Early on July 1 Store Manager Jones discharged Fox, allegedly for failing to order cer- tain stock items. Later that day Jones called a meeting of the employees and addresed them on the subject of the Union, announcing the deter- mination of Respondent to oppose the Union "by every lawful and proper means," and citing the dis- advantages of union representation and some of the alleged fallacies of typical union propaganda. The same day and the next, Jones admonished several of the employees to remove the union insignia they were wearing, and, upon ascertaining that three of ' For the ruling on that motion see the order of December 30 For other corrections of the transcript and certain evidentiary rulings, see that order and the one of January 23, 1970 See, also, the order of February 10, 1970, relating to a postheanng offer of proof by Respondent ECKERD'S MARKET, INC. 341 them had not complied, discharged them and gave a fourth the choice of removing her button or leav- ing the store. She left. In the afternoon of July 1, Union Agent Brendle asked Jones to recognize the Union, claiming to represent a majority of the store employees and dis- playing a batch of cards in an envelope. Jones' only answer was to refer Brendle to the Board. The request was renewed the next day with no result. On July 5, a union officer wrote to O'Herron, Respondent's chief executive officer, seeking recognition and offering to prove the Union's majority via a card check by a neutral party. By letter dated July 10, O'Herron declined, citing cir- cumstances that had come to Respondent's atten- tion which convinced it that the Union did not represent an "uncoerced" majority of the em- ployees in an appropriate unit. So far as the record shows, there was no further contact between the Union and Respondent. B. Discussion 1. The 8(a)(1) issues Painter testified, without contradiction, and it is found, that when, about 9 a.m. on July 1, she began to wear a union button, Jones asked about the legend on the button; when she read it to him, he asked her if she had joined the Union; she answered that she had gone to a union meeting; and he or- dered her to remove the button.6 Whether such in- terrogation was unlawful will be considered at the conclusion of this Decision. During July 1 and 2, Jones admittedly ad- monished Price and Morgan, as well as Painter, to remove the union buttons displayed by them on their clothing, and, when they failed to comply, or- dered them either to remove their buttons or leave the store. In addition, Palmer testified that on July 1 she removed her union button, after being told by Jones that Respondent's policy barred her wearing both the button and her store badge.' Since it is found below that the displaying of the buttons did not, under the circumstances of this case, constitute protected, concerted activity, it fol- lows that Respondent did not violate Section 8(a)(1) by threatening discharge for such activity, or by ordering employees to desist therefrom." Fox testified that on June 27, when he began to wear a union button in the store, Store Manager Jones asked him for the name of the Union; Fox pointed to the button, calling out the name; Jones asked who was the union organizer; Fox displayed Brendle's card; Jones asked what the Union was promising and what percentage of the employees the Union needed to obtain; and Fox answered that the Union already had obtained the necessary majority. Jones' version of the foregoing incident was that on June 30, he asked Fox if the name of the Union was "Retail Clerks Union" and that, after producing what appeared to be a business card, Fox answered in the affirmative. Here, as el- sewhere, Fox's testimony conflicted in material respects with statements in a pretrial affidavit. In view of this, as well as other matters affecting Fox's credibility (discussed below), I do not credit his foregoing testimony insofar as it conflicts with that of Jones, and find only that on June 30, Jones, as he testified, attempted to verify through Fox the name of the Union. While even such a limited inquiry might have been regarded by Fox as designed to elicit from him some clue as to his union sentiments, he might just as well have at- tributed the inquiry to mere curiosity on the part of Jones.5 5 As found below, Jones did not take any overt position against the Union until the next day Malone also testified about interrogation by Jones However, as she is found below to have been a supervisor , any such interrogation would not have been unlawful r The record shows that Malone was also involved in these incidents However, in view of her supervisory status, no finding is made as to her 'There was some testimony about a threat by Jones in his July 1 speech to (a) discontinue certain employee discount privileges and (b ) discharge employees for union activity Neither of these was alleged in the complaint, and at the hearing the General Counsel specifically disclaimed any conten- 2. The 8( a)(3) issues a. The discharges for wearing union buttons Admittedly, Jones discharged Price and Morgan on July 2 because of their refusal to comply with his instruction to remove their union buttons," and on July 1 gave Painter the choice of removing the button or leaving the store, whereupon she elected to leave. I deem Painter's case indistinguishable for present purposes from those of Price and Morgan.'° The buttons were about the size of a 5-cent piece and, in addition to the name of the Union's parent, bore only the legend "July 1969." Respondent contends that, in discharging these employees, it was merely enforcing a longstanding, nondis- criminatory policy against the display in its stores of any controversial insignia, placards, or notices. O'Herron, Respondent's board chairman, testified that this has been Respondent's policy for over 30 years, and that it has been communicated to store managers . While, admittedly, it has never been communicated to employees, except in the form of oral ad hoc warnings, the record affords insufficient basis for rejecting O'Herron's testimony, cor- roborated by Jones, that such has been Respon- tion with regard to (b) In his brief, the General Counsel makes no reference to either of these matters Accordingly, they will not be further considered ( In any event , as to (b), the preponderance of employee testimony , as well as the documentary evidence, is that Jones merely warned of discharge for union activity during worktime As to,the legality of such a warning in the present context , see Central Soya of Canton, Inc , 180 NLRB 546 ) On the same date, Jones discharged Malone for the same reason No violation may be found as to her because of her supervisory status 10 Mayrath Company, 132 NLRB 1628, 1630, Standard Fittings Co, 133 NLRB 928 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's policy . Nor is there any persuasive evidence that such policy has been discriminatorily en- forced." From analysis of the Board and court decisions dealing with disciplinary action against employees for wearing union insignia , the following principles emerge: 1. The display of such insignia is a form of con- certed activity and does not cease to be protected merely because it occurs during worktime.12 2. It is no defense that the disciplinary action was based , as here, on a longstanding nondis- criminatory rule or policy against the wearing of any controversial insignia," or that such action was not taken for the purpose of discouraging union ac- tivity, it being sufficient that such action inherently tends to discourage union activity. 3. However, the disciplinary action will be deemed lawful upon a showing of "special circum- stances." The Board has found such special circum- stances to exist where , because of the provocative nature of the legend on the insignia , in the context of factional bitterness and recriminations among the employees engendered by a prolonged and un- successful strike , it was found "entirely reasonable" for the respondent to apprehend that the insignia "would promote disorder and engender further divi- siveness between strikers and nonstrikers. 11114 How- ever, even in such a poststrike situation , the em- ployer may not lawfully prohibit the display of in- conspicuous union insignia such as are involved in the case at bar.15 Nor will it suffice for an employer to show that the display of such insignia in a plant produced momentary work stoppages , complaints by a few nonunion employees , some distraction of employees from their work , or excessive conversa- tion.'s Where, as here , the insignia are displayed by employees of a retail establishment who wait on the employer's customers, the Board has required a showing that such display resulted in "customer complaints, loss of business , friction between union and non-union employees, or detracted from the dignity of" the employer's operations.17 " Price testified that during the latest presidential campaign she wore, in Jones presence, a pin with a small elephant 's head , and Morgan gave like testimony as to wearing a religious medal However , from visual inspection, I am satisfied that the elephant pin could easily have passed for a piece of costume jewelry , and Morgan , herself, acknowledged that the religious medal would probably not have been recognized as such by non-Catholics Under these circumstances, I credit Jones' denial that he observed either of the foregoing insignia , since, even if they were displayed in his presence, they might well have escaped his attention. " Republic Aviation Corporation v N L.R B , 324 U.S 793 Harrah's Club, 143 NLRB 1356, enforcement denied on other grounds 337 F 2d 177 (C A 9) " United Aircraft Corporation, 134 NLRB 1632 Boeing Airplane Company, 103 NLRB 1025, enfd. on this point 217 F.2d 369 (C.A. 9). 1° Central Soya of Canton, Inc., 180 NLRB 546; Power Equipment Com- pany, 135 NLRB 945, enfd. 313 F 2d 438, 442 (C.A 6); Armour & Co, 8 NLRB 1100, 1 112 The Board in these cases cited the absence of proof that the wearing of the insignia caused a "serious disturbance" or substantial loss of production. "Floridan Hotel of Tampa, Inc, 137 NLRB 1484, 1486, enfd. as It follows from the foregoing that in the case at bar the Board would find Respondent 's rule to be proper, as applied to the union insignia , only if it was sufficiently shown that it was reasonable for Respondent to expect that the display of such insig- nia would have a substantial adverse effect on (a) employee efficiency or discipline or (b) relations with customers, and that , in evaluating the reasonableness of Respondent 's judgment in the foregoing respects , the Board would consider events that occurred after, as well as before, the disciplinary action.18 Respondent attempted to show the reasonable- ness of its disciplinary action through certain testimony by Jones concerning the situation in the store during the union campaign . This was to the effect that during the last week in June, while Union Organizer Brendle was frequenting the store and contacting the employees on behalf of the Union , they seemed to become nervous and disturbed and unable to concentrate on their work. Jones added that after the employees began wear- ing union buttons, which , so far as the record shows, first came to his notice on July 1,19 there were overrings at the cash register, and employees engaged in conversations among themselves, which impeded service to customers. Jones also cited an instance when two nonunion employees com- plained of the quality of the service given them at the fountain.20 One may have some reservations as to whether such testimony established that there was a substan- tial deterioration in employee efficiency as a result of the wearing of the buttons or that Respondent had good reason to apprehend that such would be the case .21 However, there is no need to resolve that point since there was no controversion of Jones' further testimony that on July 1 he received a number of complaints from customers about the buttons, and in this connection Jones cited the case of Rawlins , who was offered a button by an em- ployee, and contemporaneous complaints by "several" other unidentified customers . Jones also modified 318 F 2d 545 (C A 5), and cases there cited See also Con- solidated Casinos Corporation , 164 NLRB 950. '" See United Aircraft Corporation, supra , where, in finding the respon- dent's apprehension of disruption of production to be reasonable, the Board cited incidents occurring after the disciplinary action 1° Jones testified that he did not see any union buttons before July 1 and there was no probative evidence to the contrary (Although Fox claimed to have pointed out his button to Jones on June 27, 1 credit Jones ' denial See fn. 29 , below Only one other union adherent, Malone , claimed to have worn a button in the store before July 1, her testimony being that she did so on June 30 However , there was no evidence that Jones noticed the button on that date nor even that it was worn in his presence ) 20 Three of the four girls discharged for wearing buttons worked at the fountain. Only one of the four fountain employees ( Young ) was not shown to have worn a union button 21 As noted above, Jones initially attributed the decline in employee effi- ciency to the campaign of solicitation within the store conducted by Brendle during the last week of June (before any buttons were displayed) While he also cited instances of inefficiency while the buttons were dis- played, and blamed the buttons therefor, it is not clear how he could deter- mine that it was the buttons rather than the union campaign in general that was responsible for the employees ' agitation ECKERD'S MARKET, INC. mentioned complaints by three or four additional customers which were received after July 2. The foregoing testimony was marked at points by vague- ness and there was an apparent conflict between Jones' initial assertion that the only complaint about the buttons that he could recall as having been made before the employees were discharged was that of Rawlins, and later testimony that several others had made like complaints even be- fore Rawlins did. Nevertheless, there was no con- troversion of such testimony, and, even if one discounts Jones' foregoing belated recollection of the "pre-Rawlins" complaints , there remains a hard core of testimony concerning four or five customer complaints about the buttons . In the Floridan Hotel case the Board indicated that proof of customer complaints would be a valid defense in a case such as this.22 Accordingly, it is found that Respondent was privileged to enforce its antiinsignia rule by discharge and threats of discharge, and no violation is found with respect to such conduct. b. Fox Fox was hired in November 1968. Of the em- ployees, he was the most active solicitor for the Union. When he was hired, Jones promised to give him 5 hours' overtime work each week in addition to the regular 40 hours. His principal duties con- sisted of ordering stock from Respondent's warehouse or from predesignated outside sources, whenever the supply of an item on the shelves fell below a specified level. His overtime duties con- sisted of preparing for shipment to Respondent's warehouse or to suppliers articles under warranty which had been returned by customers. Like all the other employees, he worked on one of the store's two shifts, which required that each employee re- port on alternate days at 9 a.m. and 1 p.m. On June 28, a Saturday, Jones notified him that his weekly hours would be reduced to 40 and he would be transferred to the store's other shift. On june 30, the next workday, he worked under the new shift and hours schedule. Early the next morning, Jones notified him of his discharge for failure to order certain items. The General Counsel contends that the reduction in hours, the change in shift, and the discharge were all motivated by Jones' resentment of Fox's union activity. While admitting that, as found above, he asked Fox on June 30 about the name of the Union, and that he singled him out for this inquiry because he had seen him talking to Brendle and had been told that Fox had discussed the Union with an assistant manager, Jones denied that he was 22 While it is true that all but one of the foregoing four or five complaints came to Jones' notice only after the discharges had been effected and that they, therefore, could not have been motivated by such complaints, the latter would, nevertheless, seem to be relevant under the United Aircraft case to show the reasonableness of Respondent 's apprehension that the dis- play of Union insignia would offend customers 343 aware of Fox's prounion sentiments . However, it is clear from Jones' foregoing admission as to his reasons for interrogating Fox that he had ample cause to suspect that Fox was involved with the Union, and such suspicion was undoubtedly rein- forced, if not confirmed, when, as Jones testified, Fox produced a card and supplied the name of the Union therefrom. In any event, the inference is warranted, under all the circumstances, that Jones was not unaware of Fox's union sentiments.23 However, Jones insisted that the reduction in hours was related to the hiring of one Davenport, on June 19, nearly a week before the advent of the Union, to work in the stockroom. According to Jones, the volume of returned merchandise having increased to the point where Fox could not handle it during his 5 hours of overtime, Jones decided, when he hired Davenport, to assign to him all of that work, and instructed Fox to familiarize him therewith, which Fox did. Jones added that beginning on June 30, he in fact assigned Fox's overtime duties to Davenport, thereby necessitating the reduction in Fox's hours. The latter did not dispute any of the foregoing testimony but, in fact, acknowledged that he had not always been able during his overtime hours to complete the processing of the returned merchandise on hand, and that on June 19, he began to train Davenport in that work. Accordingly, it is found that the decision to replace Fox with Davenport on the overtime work was made before the advent of the Union, and that the reduction in Fox's hours was related to that decision and not to any discriminatory considera- tions. As for the change in shift, Fox acknowledged that it meant only that he would work the same hours, albeit on different days,24 and Jones ex- plained without contradiction that the change was made necessary by the fact that he had three men -m Fox's old shift doing the same work, and only one man on the other shift, who was preparing to leave on vacation. I credit such testimony and find no violation here. As to Fox's discharge on July 1, Jones' explana- tion was that he had decided to take the action the previous evening on discovering certain derelictions by Fox, and that, in making that decision, he also took into account a recent general decline in Fox's efficiency and reliability. According to Jones, Fox had been a satisfactory employee until about June 1, when his performance began to deteriorate to the point where it became necessary for Jones to warn him of discharge if his work did not improve. As instances of the foregoing deterioration, Jones cited (a) two complaints by customers during the L' The small size of the unit would alone warrant such an inference Wiese Plow Welding Co, Inc, 123 NLRB 616 24 Thus, instead of reporting the next workday (June 30) at 9 a m , he had to report at I p in , and the following day at 9 a in instead of I p m 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first part of June about certain offensive remarks by Fox in connection with the cashing of their checks'25 (b) his failure about June 15 to order charcoal, which oversight he falsely denied, and as a result of which the store had no charcoal for over 2 weeks, and ( c) his obtaining permission to leave work by misrepresentation. Finally, on June 30, ac- cording to Jones, he learned that Fox had ordered too many typewriter ribbons, and later, at 6 p.m. that day, Jones ascertained that, although he as- sured Jones that he had done so, Fox had neglected to order two items-washcloths and Similac26- from Respondent's warehouse. The Similac was ad- mittedly one of the most important items in the store. Jones testified that he was so provoked by this further proof of Fox's unreliability that he de- cided to discharge him the next day. Fox admitted the failure to order charcoal and one of the check-cashing incidents, and that he was reprimanded therefor. He admitted also that he had obtained leave from work through misrepresenta- tion, and that he had ordered to many typewriter ribbons, but disputed Jones' testimony as to the failure to order the washcloths and the Similac. As already noted, Fox's testimony was at times in con- flict with his pretrial affidavits. At other times, he fell into vacillation and self-contradictions, and he displayed a fitful memory in critical areas. Under these circumstances, and notwithstanding Jones' occasional testimonial lapses, I credit him as against Fox and find that, although representing to Jones that he had done so, Fox did not in fact order the foregoing items from Respondent's warehouse on June 30. It is further found, as testified by Jones, that he had several weeks before warned Fox of discharge if he did not improve'27 and that he had in the past discharged other employees for un- satisfactory work.211 The only factors supporting the General Counsel's case are (1) Respondent's union animus, and (2) the timing of the discharge in rela- tion to the incident on June 30, when Jones elicited from Fox the name of the Union under circum- stances which should have confirmed Jones' suspi- cions that Fox was a union adherent. As to (1), on July 1 Jones admittedly delivered to the assembled employees a speech which urged them in vigorous terms to repudiate the Union. He also, as found above, threatened employees with discharge, and did discharge them, for refusing to 23 Fox 's duties included approval of customers' checks 29 A brand of milk for infants 2' Fox made an obortive effect at the hearing to portray Jones as having responded favorably , when early in June Fox hinted at his desire for a raise However , Fox finally admitted, contrary to his pretrial affidavit, that he was not promised a raise, and that Jones told him on that occasion that he "had some improving to do," and Fox did not expressly deny that Jones had also indicated on that occasion that Fox would not be retained unless his work improved 29 There was no evidence nor contention that others had been retained despite deficiencies comparable to those of Fox 29 While not strictly germane to the instant issue, it may be noted that although Fox insisted that he, too , displayed a union button during the last week in June, Jones denied that he at any time saw such a button on Fox I remove their union buttons. However, it has been found that Respondent was thereby lawfully enforc- ing a nondiscriminatory policy. Moreover, certain of the circumstances under which those discharges were effected militate against, rather than aid, the General Counsel's contention that they demon- strate a disposition to discharge solely because of adherence to the Union. Had Jones been so disposed, it would seem that, whenever an em- ployee identified herself as a union adherent by dis- playing a union button, Jones would have discharged her forthwith, using as a pretext the pol- icy against wearing controversial insignia. Instead, he repeatedly offered such employees opportunities to avoid discharge by removing the buttons. Such conduct bespoke a concern about enforcement of Respondent's "anti-insignia" policy rather than a disposition to visit reprisals on employees solely because of their union sentiments. As for the timing of the discharge in relation to Jones' apparent confirmation of his suspicions about Fox 's interest in the Union , the significance thereof is again diluted by Jones' foregoing demon- strated willingness to retain union adherents even after they had identified themselves as such" It may be urged that Jones was more resentful of Fox's union activities because they were more extensive than those of the other employees. However, there was no direct evidence that, before discharging Fox, Jones was apprised of the extent of his solicita- tion activity nor that he was aware that it was greater than that of Malone,30 who was given two opportunities to avoid discharge by shedding her union button. Moreover, with regard to the timing of Fox's discharge, it is necessary to give due weight to the fact that, as found above, Jones had only recently warned Fox of discharge unless he mended his ways, and that the matters which came to Jones' at- tention on June 30, and which according to him triggered the discharge were not patently trival or unsubstantial, but might well have been deemed by Jones to reflect upon Fox's efficiency and reliability and to afford good reason for implementing the foregoing warning of discharge.31 All things considered, the evidence does not seem to preponderate in favor of a finding that Fox was terminated for union activity, and it will be recommended that the pertinent allegation of the complaint be dismissed. credit such denial , not only because of the circumstances cited above af- fecting Fox's credibility in general , but also because there is no evidence that Jones at any time objected to Fox's displaying a button, nor any ap- parent reason why Jones should have enforced the antunsigma rule against other employees, but not against Fox She solicited three employees , as against six by Fox In its brief the Union points out the oversights by Fox that came to light on June 30, involved only 3 items out of the 500 to 1,000 that he was responsible for ordering However , Fox admitted that one of the three items-Similac-was "about the most important " item in the store , and it is understandable that Jones would be as much , if not more , provoked by Fox's apparently deliberate concealment of his oversights as by the over- sights themselves 3. The 8(a)(5) issue a. The appropriate unit ECKERD'S MARKET, INC. 345 The complaint alleges that the unit appropriate for bargaining consists of all the employees at Respondent's Wilmington store, excluding profes- sional employees, office clerical employees, guards, and supervisors as defined in the Act. Respondent objects to this unit description only insofar as it ex- cludes professional employees. The only employee affected by such exclusion was Batts, the store's pharmacist. She was registered under state law and the record warrants a finding that her training and duties are such as to constitute her a professional employee under the Act. Since it is Board policy, absent circumstances not here present, to exclude professional employees from units containing non- professional employees, 32 it is found that the unit described in the complaint is appropriate. b. The Union's majority status There were submitted at the hearing, and duly authenticated, 15 signed cards, each of which con- tained an unambiguous authorization of the Union to represent the signer in collective bargaining about wages, hours, etc. It was stipulated at the hearing that at the time of the Union's initial request for recognition on July 1, there were 26 persons on the payroll of the Wilmington store.33 Of this number, it is not disputed that Store Manager Jones and his assistants, Seabrook and Cain, must be excluded as supervisors, and Batts is excluded for reasons al- ready stated. Of the remaining 22 names, the General Counsel would exclude Ballard, Barry, and Ward as temporary employees.34 On the evidence, it is found that Barry and Ward, who were both students, were hired, apparently in June 1969, with the understanding that they would work only during their summer vacation and, if work was available, during their Christmas vaca- tion. Accordingly, it is found that they were tempo- rary employees hired for a definite term, who did not have sufficient community of interest with the other employees to warrant their inclusion in the storewide unit.35 The General Counsel would also exclude as a temporary employee Ballard, a porter, who was '$ Sec 9(b)( I) of the Act forbids the Board, in directing an election, to include professional employees in the same unit with nonprofessionals, without affording the former an opportunity to vote separately on such in- clusion Where a union is the petitioner, the Board has consistantly refused to direct such a separate election, unless the union has submitted a showing of interest among the professional employees , and, absent such a showing, has excluded them Vickers, Incorporated, 124 NLRB 1051 , Gary Steel Products Corporation, 127 N LRB 1170, Liggett Drug Company, Inc, 110 NLRB 949, General Instrument Corporation, 140 NLRB 18, enfd 319 F 2d 420 (C.A 4) Here, no card was submitted by the Union for Batts , the only professional employee, and the record affirmatively shows that she did not sign one See my order of December 30, par II, item 8 hired to work on a part-time basis until such time as Respondent could find someone to work full time. Ballard worked regularly about 12 hours a week for a period of 6 months until he was replaced (in Sep- tember) by a full-time employee. Since Ballard was not hired for a definite term, it is found that he was not a temporary employee but a regular, part-time employee, and he will be counted as in the unit.36 Respondent would exclude Malone, who signed a union card, as a supervisor or managerial em- ployee. She had the title of "fountain manager," and directed the work of three other girls at the combination soda fountain and lunch counter. Although the bulk of her time was devoted to serv- ing customers, she was admittedly told, when hired, that she was to "run" the fountain and would be responsible for the profitability of its operations. She was required to maintain a record of receipts and expenses, and had authority to change the prices of fountain items.37 If she needed more help, she would apply to Jones, who would assign em- ployees to the fountain from other areas in the store. With regard to shift assignments at the foun- tain , Malone testified that they were arranged by the other girls, without consulting her. However, it is apparent from, all the circumstances that Malone was the only one who could have authorized such action by the others, and the fact that she acquiesced therein does not negate her authority in that area. As to the station assignments within the fountain area, while she asserted that the arrange- ment in effect was suggested by one of the girls, Malone admitted that she made the final decision in that regard. She also made recommendations to Jones with regard to disciplinary action, which recommendations were given considerable weight, although he would conduct an independent in- vestigation of the matter. Her rate of pay was 30 cents an hour higher than that of the other fountain personnel. In view of the foregoing, it is found that Malone was both a supervisor and, by virtue of her power to fix prices, a managerial employee,38 and may therefore not be counted as in the unit. Respondent would exclude Gootee as a con- fidential employee. While the record fails to establish that her status was such as to require her exclusion on that ground'39 the only evidence as to her duties was Jones' uncontradicted testimony that she worked full time in his office, where she per- " This number did not include Fox, who, as noted above , was discharged early in the morning of July I " As to Ward, who signed a union card , the General Counsel took no position at the hearing , but in his brief urged her exclusion 'S See Brown-Forman Distrillers Corporation, 118 NLRB 454, Belcher Towing Company, 122 NLRB 1019 '" Personal Products Corporation, 114 NLRB 959, 960 'r She testified she would do so only after consulting the other fountain employees However, it is clear under the circumstances that such con- sultations were voluntary on her part and that there was nothing to prevent her from acting on her own in this area, nor did she so contend " Eller Co , 108 NLRB 1417, 1422 See the B F Goodrich Company, 115 NLRB 722,724 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed secretarial work for him . She will ac- cordingly be excluded as an office clerical em- ployee .40 Of the 18 remaining persons on the July 1 payroll, I 1 had before that date signed cards that were duly authenticated at the hearing . However, of these cards the record shows that four (Purdy's, Wilson's, Young 's, and Morgan 's) were solicited by Malone, who as found above, was a supervisor. Ac- cordingly, these cards may not be counted.41 Without these cards, the Union had no majority as of July 1.42 An additional reason for invalidating the cards of Wilson, Purdy, and Young, as well as that of Hughes, is afforded by the testimony of those em- ployees, which was not only not contradicted but was partially corroborated by Fox, that they signed in reliance on representations by Malone or Fox that, in so doing, they were only expressing an interest in learning more about the Union and were incurring no membership, or any other, obligation to the Union.43 In view of the above findings, it is not necessary to determine whether any of the foregoing, or other, cards are invalid for other reasons'44 nor " For cases treating as "office clencals" employees who perform secretarial work , see Vulcanized Rubber and Plastics Company, Inc , 129 NLRB 1256, 1258, Pine State Creamery Company, Inc. and Southern Ice Cream, 130 NLRB 892, 894 , E H Koester Bakery Co., Inc, 136 NLRB 1006, 1014 , Carling Brewing Co. Inc , 126 NLRB 347, 349, Dohrmann Commercial Company, 127 NLRB 205, 207. 4i Sopps, Inc., 175 NLRB 296, and cases there cited , Nash-Finch Com- pany, dibla Jack and Jill Stores , 178 NLRB 458. 11 This would be true even if one counted the card of Fox , despite the finding above that he was discharged early in the morning of July I (several hours before the Union 's first bargaining request ) for nondiscriminatory reasons 41 As to the effect of the representation that the sole purpose of signing was to show interest in learning more about the Union , see, generally, Levi Strauss & Co, 172 NLRB No 57, McEwen Manufacturing Company and Washington Industries , Inc., 172 NLRB No 99, and N L R B v Gissell Packing Co , 395 U S 575 As to the effect of the "no-obligation" represen- tation , see Silver Fleet, Inc , 174 NLRB 873 (While, as pointed out in the Union's brief, this Examiner expressed a different view in Home Pride Provisions, Inc , 161 NLRB 634, the Board did not pass on the matter there and Silver Fleet is now controlling , in any case ) It is true that Fox testified , albeit after some vacillation, that, in addition to the representations described above, he told these and other employees whether the Union's requests on July 1 and thereafter were properly framed or directed, nor any of other matters which would have been per- tinent had the Union obtained valid cards from a majority of the employees in the unit. It will, accordingly, be recommended that the refusal-to-bargain allegation of the complaint be dismissed. There remains to be resolved the legality of Jones' interrogation of Painter on July 1. While such interrogation occurred in the context of an order to remove her union button, it has been found that such order was not unlawful. In view of Painter's own advertisement of her union sentiments by displaying the button, Jones' inquiries about that emblem and about her union affiliation cannot be regarded as so patently coer- cive as to be per se unlawful. In any event, even if deemed to be violative of the Act, such interroga- tion, standing alone, would not warrant a remedial order. RECOMMENDED ORDER It is ordered that the complaint herein be dismissed in its entirety. that their cards would be used for a "card check," if over 51 percent signed However, such a statement , even if made , would be clearly incon- sistent with such other representations , and, absent any explanation by Fox of the meaning of his rather cryptic reference to a card check, could have done little to dispel the impact of such other representations Moreover, to the extent that the employees denied that Fox referred to a card check, I credit such denials, not only because of the incongruity of such a reference in the context of his other representations, but also in view of Fox's general unreliability as a witness , as well as his afternoted vacillation on the instant point " If one were to consider only the testimony of Fox, the General Coun- sel's principal witness on the point, it would be necessary to reject also the cards of Bellamy , Ellis, Hodgins, Painter, and Palmer For, the record shows they were solicited by Fox, who testified that he made the same representations as are described above to all those he solicited However, the testimony of Bellamy, Ellis, and Hodgins raises some doubt as to their reliance on such representations. Since it will not affect the result, in any event, no attempt will be made to evaluate these conflicting considerations, and it will be assumed for present purposes that the cards of the foregoing three employees are valid In the cases of Painter and Palmer , who dis- played union buttons after signing the cards, I deem controlling the fact that, by donning the buttons , they removed any doubt as to their desire for representation by the Union