Low Bros. National Market, Inc.

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Low Bros. National Market, Inc. and Retail Clerks Union Local 1288 , Retail Clerks International As- sociation, AFL-CIO. Case 20-CA-5703 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE June 30, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 4, 1970, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief. The Union and the General Counsel also filed 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Low Bros. National Market, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1. Add the following as paragraph 2(c) and re- letter the paragraphs accordingly. "(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." RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Fresno, California, on January 6, 1970.' The complaint herein dated October 16 al- leges that Low Bros. National Market, Inc., herein called the Respondent, violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discharging Richard Franco because of his activities on behalf of Retail Clerks Union, Local 1288, Retail Clerks International Associa- tion, AFL-CIO, herein called the Union. Respon- dent's answer, dated October 20, admits many of the factual allegations of the complaint but denies the Respondent violated the Act. The complaint was based on a charge filed by the Union on August 4. All parties appeared at the hearing, were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs which have been carefully considered were filed on behalf of the General Counsel and Respondent. Upon the entire record' in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a California corporation, has a retail grocery store called Low Bros. National Market or National Market in Los Banos, California. During the year preceding the issuance of complaint, Respondent purchased products valued in excess of $50,000 directly from suppliers located outside the State of California and sold products valued in ex- cess of $500,000. The complaint alleges, the Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7). of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting and the Prior Case In December 1968, the Union sought to organize the National Market. On January 2, the Respon- All dates are in 1969 unless otherwise specified 2 The General Counsel filed a motion to correct the transcript of the record Respondent objects only to changing the word "psyching" to "- slacking" on p 75, 121. To the extent that the motion is unopposed it is granted and the following changes are made p . 7,1 20 "881 " is changed to read 8(a)(3 ), p 119,1 5 the word "whether " is deleted 184 NLRB No. 11 LOW BROS . NATIONAL MARKET, INC. 99 dent filed a petition for an election in Case 20-RM-1147 and, pursuant to an "Agreement for Consent Election," an election was held on January 30. The Union did not receive a majority of the votes and filed timely objections to the election. The Union also filed a charge against Respondent in Case 20-CA-5415, alleging that Respondent vio- lated Section 8(a)(1) of the Act. Complaint issued upon the charge, and the unfair practice case and representation proceedings were consolidated and heard by Trial Examiner David E. Davis on June 10. The Trial Examiner found that Respondent vio- lated Section 8(a)(1) of the Act by engaging in various acts of coercion against its employees and by the same conduct substantially interfered with the election and inhibited the employees from ex- pressing their free choice therein. He therefore recommended that the election be set aside, that a new election be conducted, and that the represen- tation case be severed from the complaint case. Specifically, the Trial Examiner found that Mor- rey Low, Respondent's president,3 threatened em- ployee Moore with loss of his employment if the Union won the election; that Rudolph Galvan, manager of Respondent's National Market,4 threatened employee Vickers with discharge if she voted for the Union; and that Galvan discouraged employees from adherence to the Union by threatening them with stricter working conditions. The Trial Examiner credited the testimony of em- ployee Vickers that Galvan told her that Respon- dent's employees had been represented by a union on a previous occasion but that it had rid itself of all employees one by one. All the unfair labor prac- tices were found to have occurred in the latter part of January 1969. On January 8, 1970, the Board is- sued its Decision and Order in Case 20-CA-5415, 180 NLRB 592, adopting the findings, conclusions, and recommendations of the Trial Examiner. On February 15, employee Richard Franco was given a 2-week notice of termination. Franco ceased his employment with Respondent on February 28. The General Counsel contends that Franco was discharged because of his activity on behalf of the Union and that the discharge was a continuation of the Respondent's conduct of several weeks before which the Board has found to have been in violation of the Act. The Respondent contends that Franco's discharge had nothing to do with union activity but resulted from the return from military service of former employee Larry Bernardo, the decrease in business which prevented Respondent from keeping both Bernardo and Fran- co, and from Franco's performance as an employee which Respondent considered unsatisfactory. B. Franco's Discharge Franco was hired at the National Market by Manager Galvan in mid-November 1968. As a box- boy, Franco's duties were to shelve food, carry out customers' groceries to their cars after putting the groceries in boxes, and unloading trucks when they came in. On December 29, 1968, there was a meeting at Galvan's house. At this meeting a number of em- ployees, including Franco, signed union member- ship cards. At that time Galvan was in favor of the Union and he remained that way, according to his own testimony, until about 3 days before the elec- tion of January 30, when he told every employee in the store that he had changed his mind about the Union and that he didn't think they were ready for a union. During January, Franco was vocal in his support of the Union and he spoke to other employees in the store, telling them that he was in favor of the Union and that everybody was going to benefit from it. In addition to speaking to the employees, Franco had a number of conversations with Respondent's president, Morrey Low, and Galvan. 1. Franco's conversations with Low On or about January 7, Franco had a conversa- tion with Low in Low's private office. Franco had been called to the office on the loudspeaker. No one else was present. Low asked Franco if he liked working for Respondent and Franco answered that he did. Low said that he had been fighting the Union for 8 years and talked about the store and his financial problems. Low went on to say that he wanted Franco's help in getting out of the mess and he said that the mess he was referring to was the Union. At the end of the conversation, Low asked for Franco's support and shook his hand. The second conversation took place about Janua- ry 14. Once again Franco was called to Low's private office on the loudspeaker and as before they were alone. Low told Franco that he had given Franco's brother a start at the store and he had given Galvan a high position as manager of the store. He then told Franco that Franco would have a difficult time getting employment with any other employer.' Low asked if he still had Franco's sup- port. The third conversation occurred about January 21. Franco was once again paged on the loud- speaker. Low told Franco that the day was getting close and he needed Franco's support. Low also said that even if the store did go union, things ' Respondent's answer admits that Morrey Low is president and a super- visor within the meaning of Sec 2(11) of the Act 1 so find. ' Respondent's answer admits that Galvan is manager and a supervisor within the meaning of Sec 2(11) of the Act. i so find 51n an apparent reference to either Low 's or Franco's ethnic background , Low compared the color of their skins and said "no white em- ployer will hire you " 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would still be the same, that he still would be running things his way, and that he might cut hours or lay employees off. Low explained to Franco that if the Union got in his overhead would go up, he would have financial problems, and for that reason might have to let someone go.6 2. Franco's conversations with Galvan As was noted above, Manager Galvan was active- ly prounion until about 3 days before the January 30 election, at which time he told all the employees he changed his mind and, according to the credible testimony of Franco, that when the employees voted they should think about what they were doing and vote the right way. During the period that both Galvan and Franco were in favor of the Union, they spoke about it on an almost daily basis. Franco also talked to other employees about the Union. One of them was Jim , the store butcher. Franco testified that about a week before the January 30 election he was called to the office by Galvan and, in the presence of employees Steve Moore and Jeff Smith, Galvan asked him what the big idea was talking to Jim about the Union. Franco further averred that he asked Galvan how he had found out and Galvan answered that Jim had called Low who in turn had called Galvan and that Low was mad about it. Galvan denied having any such conversation with Franco. I credit Franco. Galvan impressed me, from my observation of him on the witness stand, as an intelligent person who was quite capable of testifying in a clear, direct manner. Instead, he was evasive and far less than candid in much of his testimony, as indicated by the implica- tion in his initial testimony that he had not told the employees in the store about his change of mind about the Union and then his subsequent testimony in which he admitted that he told every employee in the store that he had changed his mind. His failure to recall his testimony at the prior hearing impressed me as an attempt to conceal information rather than a real lapse of memory. Franco was sometimes confused and often had difficulty in communicating, but my observation of him on the witness stand convinced me that he was a truthful witness who was trying his best to be accurate. It is true that Franco placed this conversation about a week before the election, whereas Galvan dated his change of heart about the Union as 3 days before the election. However, whether Franco was incor- rect about his date or Galvan was previewing his change of mind, I find that this conversation did occur during the latter part of January. Franco had another conversation with Galvan on January 30, just before the election. It took place in the warehouse of the store with no one else present. Franco credibly testified that Galvan told him to vote no; he replied that it wasn't "worth the hass- le"; Galvan said, "Think about your job"; and he replied that he would go through with it anyway and vote the way he felt. Galvan denied that he ever told Franco that Franco would be laid off or apt to be laid off if the Union won. He did not specifically deny the conversation to which Franco testified. I find that the conversation did occur as was testified to by Franco. 3. Franco's conversation with Respondent's attorney, Ted Frame On January 29, outside of President Low's office, Respondent's lawyer, Ted Frame, had a conversa- tion with Franco. Frame told Franco that he didn't care how Franco felt about the Union and he didn't want to know but he wanted to tell Franco Low's side of the story. Frame then talked about Low's financial problems and how difficult it was for Low. In his initial testimony, Franco stated that Frame asked him how he felt about the Union and he an- swered that the Union was good. However, on cross-examination, Franco admitted that when the conversation opened Frame said he didn't want to know how Franco felt about the Union. While it is possible that at different points in the conversation Frame said he didn't want to know and then asked about Franco's union sympathy, the cross-examina- tion sheds enough doubt on the question of Frame's interrogation of Franco that no weight can be given to Franco's assertion of interrogation. Frame did not take the stand. 4. Vickers' conversation with Manager Galvan Barbara Vickers worked for Respondent as a checker or cashier from July 1968 until April 13, when she left Respondent's employ for reasons un- related to this case. Franco often boxed groceries which she checked out and he often spoke to her in favor of the Union. She, herself, had signed a union card at Galvan's home with the other employees. A few days before the election, Galvan told her that everyone had changed their minds about voting for the Union.' On February 1, Galvan came up to Vickers' checkstand and they had a conversation. Vickers testified that Galvan said he had been talking to President Low about the Union, that if Franco started "goofing off and psyching off on his job," he knew what had to be done, and that he knew that Franco had voted for the Union. Galvan re- called the conversation with Vickers but he testified that he told her that if Franco didn't straighten up he would have to let him go whether These findings with regard to all three conversations between Low and Franco are based on the credible and uncontradicted testimony of Franco Though Low took the stand to testify on behalf of Respondent, he did not take issue with any of Franco 's testimony relating to these conversations ' These findings are based on the credited testimony of Vickers Galvan testified that he did not have any recollection of a specific conversation with Vickers but he did recall telling all the employees that he had changed his mind I credit Vickers' version of the conversation LOW BROS. NATIONAL MARKET, INC. they joined the Union or not. As indicated above, I did not find Galvan to be a credible witness. On the other hand , Vickers was direct, forthright, and fully credible . I credit her version of the conversation. 5. The discharge On February 15, President Low gave Franco a 2- week notice of termination . Low told Franco that former employee Larry Bernardo had returned from military service; he had more need for Bernar- do than Franco; things were too slow for him to keep on both of them; and he would rehire Franco if things picked up again. C. Respondent's Defense 1. The return of Larry Bernardo Low owns and operates another store in addition to the National Market. The second store is located in Merced, California, and is named the Super M Market. Larry Bernardo began work for Low in the Na- tional Market store in September 1964. He left Low's employment after working for a little over a year because he could not get along with Low's parents who at the time had a stock ownership in the store. By November 1966, Low's parents no longer had an interest in the stores and Bernardo went back to work for Low, but this time at the Super M store. While he was working there, he ran the cash register, worked produce, and did everything in the store . He was considered a good worker. After about 4 months of employment at the Super M, Bernardo was drafted into the Army. Be- fore he left for service, Bernardo told Low that he would like to have his job back when he got out, and Low told him that he could. Low told him that he could not promise that Bernardo would have any particular job when he came back but he would have a job. About 5 or 6 months before Bernardo was due for discharge from the Army, he wrote to Eddie Owl who was then the store manager of the Super M and said that he was coming back. Owl replied that there was no opening at the Super M but there was one at the National Market . Bernardo was discharged on February 13 and reported for work on February 15. On that date he was hired at the National Market as assistant manager . Accord- ing to Low's credible testimony, he wanted Bernar- do at the National Market because he needed an assistant manager there and he knew that Bernardo could do everything in the store. Low testified that he did not keep Franco when Bernardo reported for work because he couldn't af- ford to have both of them on the payroll and because Franco who was a junior employee at both stores, was less capable than Bernardo . In support of his contention that he could not afford to keep both employees on the payroll at the same time, Low showed through the use of a sales chart that 101 the National Market sales for the month of Februa- ry were lower than in any other month of the year. The chart also showed a substantial rise in the sales volume for March, April, and May. However, Low testified on cross-examination that both stores show a decline in sales every February and there is no evidence in the record to indicate whether or not a reduction in sales has ever resulted in the discharge of an employee in past years. As there is no way of establishing through the evidence in the record that there is a correlation between gross sales and a par- ticular fixed number of employees that are needed and there is likewise no evidence of any past prac- tice which would indicate such a correlation, the bare gross volume figures have little meaning. How- ever, it is important to look at the question of whether or not Franco was replaced . If he were replaced , Respondent's argument that it could not afford an extra man could not be given much weight. After Franco was discharged, two new employees were hired who did similar work to that which had been done by Franco. One was David Myers and the other Ken Otto. According to the testimony of Low, Myers was hired in the latter part of March because Low knew that Myers' father had a finan- cial problem and he wanted to help out. Low also testified that Myers worked for about 2 weeks about 12 hours a week. As to Ken Otto, Low testified that he was hired as a part timer about the first of May, and that business had increased by then. With regard to the date that Myers started his employment, Low was testifying from memory rather than from records because, according to Low, Myers was paid in cash and no payroll record was ever prepared on him. Barbara Vickers testified that she saw a new boxboy doing Franco's work about a week after Franco was discharged. Franco's last date of employment was February 28 and she saw the new boxboy, whose first name she recalled was David, about March 5. She concurred with Low's testimony that Myers worked for about 2 weeks and that he was only a part-time worker. She was certain that the new boxboy came to work about' a week after Franco left and not a month after as was testified to by Low. According to Vickers' testimony, the other boxboy, Ken Otto, was hired on March 15. She stated that she remem- bered that date because it was on the same day that she gave her notice that she was quitting on April 15. On April 15 when she did leave Respondent's employ, Otto was still working. Franco's testimony corroborated that of Vickers' with regard to the hiring date of Myers. Franco averred that he went back to the store about a week after his discharge and he saw someone else that he did not recognize boxing food. The new boy was putting groceries in sacks and taking them out to people's cars and he wore the same type of blue apron that Franco had worn when he was working there. 427-835 0 - 74 - 8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the date of hires of Myers and Otto, I credit Vickers rather than Low. Low had with him when he testified records of employees' hiring dates, but these records omitted the names of Otto and Myers. It is difficult to believe that Low would allow any employee to work for him without keep- ing records of that employment. His testimony that he kept no such records with regard to Myers does not reflect well on his credibility. The fact that he had to rely on memory with regard to the hiring date of Otto because the records he had with him omitted Otto's name also gives pause. On the other hand, the testimony of Vickers and Franco that they saw Myers working a week after Franco's discharge is fully credible. In a similar vein Vickers' testimony that she specifically remembered the date that Otto started working because that was the date that she gave her own notice is credible. Vickers left Respondent's employ about April 15 and she was sure that Otto was working at that time. According to Low's testimony, Otto was not hired until some time in May which would be more than 2 weeks after Vickers left. I find that Myers replaced Franco as a boxboy about a week after Franco's discharge, that Myers worked for about 2 weeks, and then that on about March 15 Otto replaced Myers. However, both Myers and Otto were part-time employees whereas Franco was a full-time employee. 2. Franco's performance on the job President Low testified that in reaching the deci- sion to discharge Franco, he considered Franco's ability as a worker. According to Low, Franco couldn't check, couldn't do produce, and in general didn't have the makings of a clerk. Respondent points to only two specific incidents relating to Franco's conduct. On one occasion, the date of which was not given, a bottle of baby food had been broken on the floor of the store and Low told Franco to pick it up. Franco was then called to the front of the store to box groceries and he forgot about cleaning up the baby food. According to the credible and uncontradicted testimony of Franco, he was never criticized about this incident. The other incident was also on an undetermined date. According to the testimony of Galvan, a customer complained that Franco stared at her and frightened her. Franco was not able to check (run the cashier) and Low's testimony that he could not handle produce was credible. It is clear from the testimony of a number of witnesses that his all-around ability as a clerk was limited. However, he was a boxboy, and a boxboy's duties were very limited in nature. Respondent contends nonetheless that Franco's ability and attitude even as a boxboy were not up to par. Employee John lacopi testified that Franco was lazier and more sluggish than the other wor- kers; Low testified that Franco didn't seem to get the job done; Galvan testified that Franco was sometimes moody and didn't like taking orders, he complained to the checkers about doing too much boxing, though he wasn't either fast or slow he didn't do things right, and he made one of the checkers nervous by talking back to her; the assistant manager, Larry Bernardo, testified that Franco did not always follow directions; employee Clairmonte Graper testified that Franco was not as smart as the other boys, he was sometimes silent when he was asked a question, he sometimes passed baskets through so hard they would bang into her, he sometimes mumbled and talked to himself, sometimes he wouldn't talk to anyone, he would complain that the noise of the cash register gave him a headache, and he used words that she didn't understand. Franco was never told that he would be discharged unless his work or attitude improved. However, there was some conflict of testimony con- cerning whether he was ever praised or repri- manded about his work. Franco testified that at one time Galvan told him that he was finally catching on. Galvan denied ever making such a statement. Though I believe Franco to be a more reliable wit- ness than Galvan, the entire incident is without sig- nificance. Even if Galvan did on one isolated occa- sion mildly praise Franco, such a limited comment would not reflect on Franco's overall work per- formance. Galvan testified that he told Franco many times to straighten up and he also spoke to Franco's older brother about it. Franco did not deny Galvan's testimony in this regard but once again there is little significance that can be at- tributed to such a remark. It is the kind of remark that can be used in either a trivial or a major matter. There is no dispute that at the time of the discharge Franco was not told that he was an un- satisfactory worker and he was told that if things picked up he would be able to come back. Franco acknowledged that he wore trimming on the cuffs of his pants and that he sometimes wore a headband, armbands, and peace buttons. Franco denied that anyone ever told him to take off the headband. He stated that he took it off before putting on his apron. He acknowledged that he wore his armbands and peace symbols to work, that he was told to take them off, and he removed them. He also acknowledged that Galvan told him that his hair was getting too long and that he needed a hair- cut. Though he did get a haircut eventually, Galvan kept reminding him to keep his hair short. Galvan also described Franco's headbands and peace buttons. Galvan went on to testify that Fran- co was not neat and that he wore Levis and tennis shoes when a white shirt and tie were required. The composite picture8 that emerges of Franco is Franco's own description of his appearance was amplified somewhat by the testimony of Manager Galvan, Assistant Manager Bernardo , and em- ployee Graper LOW BROS. NATIONAL MARKET, INC. 103 that of a rather sluggish worker of limited ability who tended to be moody, uncommunicative, and at times sullen. He wore his hair long and he some- times wore braids on his pants, and a headband in his hair. However, Respondent does not argue that Franco's appearance was adversely affecting either its business or its image. As Respondent pointed out in its brief, the General Counsel opened the area of Franco's dress and Respondent's contention is that Franco's dress was part of the overall picture of an unsatisfactory employee. That brief reads in part: "We did not contend at hearing, and we do not now contend, that Franco's dress per se was a reason for his discharge." he was not offering Franco his job back and that they both thought it was a kind of a little joke. Franco testified that he had no recollection of such a conversation with Bernardo and - that he never told Bernardo that he did not want to come back. Bernardo's testimony was credible and it is quite possible that Franco, who had previously been the subject of "riding" on this subject, may have for- gotten the particular incident. However, I attribute no significance to the conversation. Bernardo was playing a rather nasty game and Franco's response could not reasonably be considered to be a rejec- tion of a job. 3. Respondent's contention that it did not believe Franco wanted to return Respondent introduced into the record con- siderable evidence with the intention of establishing that it had cause to believe that Franco did not desire to return to work. Presumably, Respondent is taking the position that Franco was originally laid off because business was bad and he was not needed when Bernardo returned from the service; in reaching this conclusion Franco's poor work was considered; and after business did subsequently im- prove one of the reasons that Franco was not re- called was that Respondent thought that he did not want to return.9 About 2 weeks after Franco had left Respon- dent's employ, he came back to the store and had a conversation with employee John lacopi. Manager Galvan was present during the discussion. lacopi, who considers himself somewhat of a "tease," testified that he asked Franco as a joke whether Franco wanted to come back. Franco answered to the effect that he didn't want to hassle with people any more. lacopi testified that they both had a laugh over it and that he considered the question and answer to be a jest. Galvan testified that he took the conversation seriously. I do not credit Gal- van's testimony in this regard. It was obvious that lacopi did not have authority to offer Franco reem- ployment and it was just as apparent that lacopi, in a rather sadistic manner, was trying to needle Fran- co. After observing Galvan, I'do not believe he was so naive as to accept Franco's response at face value. Assistant Manager Bernardo testified that about 3 weeks after Franco left Respondent's employ, he saw Franco at the parking lot of Gianoni's Market, a place where single people gather, and he asked Franco whether he would like to come back to work and what he thought about the job. He further testified that Franco answered that he didn't like the hassling with the people and that he did not want the job back. Bernardo went on to testify that ° Respondent's brief mentions each of these arguments , though does not connect them t0 See also Sutherland Lumber Company, Inc , 176 NLRB 1010, N L R B D. Analysis and Conclusions Nothing in the National Labor Relations Act prevents an employer from discharging an em- ployee where he believes that the employee is not a good worker or where he disapproves of an em- ployee 's hair style or mode of life in general. How- ever, an employer does violate the Act where he discharges an employee because of the employee's union activities and the employer will not be al- lowed to use the employee's hair style, mode of life, ability, or anything else as a pretext to disguise the real reason for the discharge. The sole question presented in this case is whether or not a substan- tial motivating reason for the discharge was Fran- co's union activity . As the court said in N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1, 1953): "In order to supply a basis for inferring dis- crimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity . It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may ex- ist. "10 The evidence establishes that Franco was active on behalf of the Union ; Respondent knew of that activity; Respondent had a virulent animus against the Union; and Franco was discharged within a relatively short time after engaging in protected ac- tivity . The activity that Franco engaged in was the signing of a card and the outspoken support he gave the Union among his fellow employees. Respondent knew of this activity because Manager Galvan was privy to the signing of the card, warned Franco not to talk to another employee about the Union , and on January 30, the day of the election, ascertained from Franco that Franco still supported the Union . In addition , Galvan told Vickers on February 1 that he knew Franco voted for the Union . Respondent's animus toward the Union is established by the conversations that Franco had with President Low and Galvan and the conversa- tion that Galvan had with employee Vickers, all of v. Lexington Chair Company, 361 F 2d 283 (C A 4, 1966), N L R B v Symons Manufacturing Co , 328 F 2d 835 (C A 7, 1964) 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which are discussed in more detail below. Even without that independent evidence of animus, Respondent's conduct, as found by the Board in the prior case , 180 NLRB 592, established that Respondent 's animus toward the Union was suffi- ciently vitriolic to motivate Respondent to commit such widespread violations of Section 8(a)(1) of the Act as to require a broad form order prohibit- ing Respondent from interfering with the Section 7 rights of employees in any manner." As to timing, the notification of discharge took place on February 15 and Franco's last avowal of support for the Union occurred in his conversation with Galvan a little over 2 weeks before on January 30. In determining whether there was a causal con- nection between the protected activity and the discharge, the actions and statements of the agents of Respondent, as well as the defenses raised by Respondent, must be considered. The election was scheduled for January 30. Dur- ing the month prior to that date, Respondent en- gaged in a vigorous antiunion campaign which, as found by the Board in the prior case, included con- duct which violated the Act. On January 7, Pre- sident Low asked Franco whether he liked working for Respondent and in the same conversation told Franco how he had been fighting the Union for 8 years. The implication of this conversation was unmistakable: if Franco liked working for Respon- dent, he had better recognize the fact that Respon- dent did not like the Union. Low's second conver- sation with Franco, which took place on January 14, removed some of the veil from the threat. Low asked if he still had Franco's support and told him that he would have a difficult time getting employ- ment with any other employer. The third conversa- tion which took place on January 21 also contained an implied threat to discharge Franco. Low told Franco that even if the store did go union , things would still be the same , that he still would be running things his way, and that he might cut hours or lay employees off. Though Low did talk about financial problems that might cause him to let someone go if the Union came in, in the context of the prior conversations , Low was implying that Franco had a job if the Union was out and did not have a job if the Union was in. On January 30, the day of the election, Galvan laid it on the line to Franco by telling him "think about your job" while attempting to convince him to vote against the Union. Galvan 's remarks to employee Vickers on February 1 gave body to Low's threats . Galvan told " See R ! Reynolds Foods, Inc, 168 NLRB 305, where the Board adopted the Trial Examiner 's Decision which found "The Board's earlier findings are properly considered evidence relevant to the present case with respect to Respondent 's Union animus and against which the further al- leged violations herein must be evaluated " Respondent's reliance to the contrary on Campbell & McLean, Inc, 118 NLRB 967, is misplaced In that case the Board found that the Trial Examiner had given undue weight to certain conduct that the Employer had engaged in some 4 years prior to the incidents which gave rise to the case before the Trial Examiner and that there was no relationship between the facts of the two cases In the instant her that he had spoken to Low about the Union; if Franco started "goofing off and psyching off on his job," he knew what had to be done; and he knew Franco had voted for the Union. I believe that the clear implication of Galvan's remarks was that Respondent was determined to get rid of Franco because of Franco's union activity and that Respon- dent was going to jump on the first excuse it could find. At that time Galvan apparently expected the excuse to be poor work on Franco's part. It seems that Franco surprised him because there is no evidence of any poor work between Galvan's February 1 conversation with Vickers and the notice of discharge on February 15. As the an- ticipated excuse did not materialize, another one had to be found. Bernardo's return to work after military service on February 15 provided a seemingly plausible reason for letting Franco go and Franco was given his notice of termination on that date. Respondent contends that Bernardo had a prior claim on the job and that in effect he replaced the lesser skilled Franco. There is no question that Respondent had the right to take Bernardo back, but the impact on Franco is far from clear. Bernar- do was hired as an assistant manager. Franco was a boxboy, a job which required very limited skills and ability. If Bernardo were taking over Franco's job and doing boxing, he would be of very little use to Respondent as an assistant manager. Respondent's contention that business was bad in February and that therefore it could not keep both Bernardo and Franco is also subject to question. The week after Franco was let go, Myers was hired as a boxboy. Low's altruistic concern for Myers' father does not convince me that he would hire an employee he had no need of. Apparently Respondent needed a boxboy and when Myers left, Otto replaced him. Though Myers and Otto both worked part time and Franco worked full-time, I believe that Respondent did want a boxboy as long as it was not prounion Franco. It is true that Franco's ability was limited, his use- fulness to Respondent was narrow, his attitude toward work was sometimes provoking, and his su- pervisors were not pleased with his appearance.12 However, I am convinced from the statements and actions of Respondent 's agents that Respondent was willing to put up with Franco as long as he was antiunion but that they would not tolerate him when he was prounion. I believe it was just because Franco was an employee of marginal abilities that Respondent thought it could get rid of a union sup- porter and then find a plausible pretext to disguise case the unlawful conduct which Respondent is alleged to have engaged in occurred on February 15 and 28 , and the conduct which the Board has found to have violated the Act occurred only a matter of weeks prior to that time The allegations in the complaint relate to matters which would be a continuation and extension of the same type of conduct which the Board dealt with in the prior case '= In spite of the fact that Galvan hired him after seeing him and there is no evidence that his appearance changed between the time he was hired and the time he was discharged LOW BROS. NATIONAL MARKET, INC. 105 the real reason for the discharge. As set forth above, Galvan at the time of his conversation with Vickers thought that the pretext would be poor work but Bernardo's return from service presented Respondent with another excuse for discharging Franco. When Franco was discharged, he was not told that his work was bad and he was told that he would be reemployed if business picked up. Respondent's reliance on evidence that it had reason to believe that Franco did not want to return also indicates that Franco was not as unacceptable an employee as Respondent would picture him. In conclusion I find that Franco was discharged because he engaged in union activity and that the reasons put forth by Respondent to explain the discharge are simply pretexts to disguise the real reason for the discharge. I further find that Respon- dent, by discharging Franco for his union activity, violated Section 8(a)(3) and (1) of the Act.13 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Respondent discharged and failed to reinstate Richard Franco in violation of Section 8(a)(3) and (1) of the Act, I shall recom- mend that Respondent offer him reinstatement and make him whole for any loss of pay resulting from his discharge from the date of his discharge to the date on which he is offered reinstatement, less his net earnings during that period. Such backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the unfair labor practices committed by Respondent as found by the Board in Case 20-CA-5415, 180 NLRB 592, and the broad order prohibiting Respondent from engaging in any viola. tions of Section 8(a)(1) that the Board found necessary in that case, I find that a broad cease- and-desist order is appropriate in the instant case. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and failing to reinstate Richard Franco because of his activity on behalf of the Union, thereby discouraging membership in the Union, Respondent has violated Section 8(a)(3) of the Act. 4. By the foregoing conduct Respondent has in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Sec- tion 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. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, Low Bros. National Market, Inc., shall: 1. Cease and desist from: (a) Discriminating against employees by discharging them in order to discourage employees from joining or supporting the Retail Clerks Union, Local 1288, Retail Clerks International Associa- tion, AFL-CIO, or any other labor organization. (b) In any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to reinstate Richard Franco to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. (b) Make Richard Franco whole for any loss of pay he may have suffered by reason of the dis- crimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, in the manner set forth in the section of this Deci- sion entitled "The Remedy." (c) Notify Richard Franco if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in ac- cordance with the Selective Service Act and the 'S The complaint is narrowly drawn and does not allege any independent violations of Sec 8 (a)(l) of the Act Low's three conversations with Fran- co, Galvan 's criticism of Franco for talking about the Union, and Galvan's conversations with Franco and Vickers are not mentioned in the complaint and the General Counsel relies on them in his brief only as background for Franco 's discharge rather than as independent violations I will therefore make no findings with regard to independent violations of Sec 8(a)(1 ) of the Act, particularly as a currently outstanding Board order prohibits Respondent from engaging in any violation of Sec 8 (a)( 1) of the Act 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its Los Banos, California, store co- pies of the attached notice marked "Appendix."14 Copies of said notice, on forms provided by the Re- gional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.15 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional 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." 16 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 20, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT do anything that interferes with, restrains , or coerces employees with respect to these rights. More specifically, WE WILL NOT discriminate against employees by discharging them in order to discourage em- ployees from joining or supporting the Retail Clerks Union , Local 1288, Retail Clerks Inter- national Association , AFL-CIO, or any other labor organization. WE WILL immediately offer to reinstate Richard Franco to his former or substantially equivalent position without any change in seniority or other privileges he enjoyed before we discharged him and we will pay to him any money he lost as a result of the discrimination against him with interest at 6 percent. WE WILL notify immediately the above- named individual , 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 ac- cordance with the Selective Service Act and the Universal Military Training and Service Act. LOW BROS. NATIONAL 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, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.