Big Y Supermarkets

BIG Y SUPERMARKETS 405 Big Y Supermarkets and Amalgamated Meat Cutters, Food Store & Allied Workers of North America, AFL-CIO, Local No. 33. Case 1-CA-5988 October 29, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On December 26, 1967, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended that the allegations pertaining thereto be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Decision. The Respondent also filed with the Board a motion to correct and supplement the record, and subsequently the General Counsel filed an answer to the motion. Respondent filed a response to the General Counsel's answer.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 recommendations of the Trial Examiner,' except as modified below. 1. We find merit in Respondent's exception to the Trial Examiner's finding that Respondent "inter-; rogated" Constance Menard on May 20, 1967. The record indicates that Paul D'Amour, Respondent's president, did not question Miss Menard in any respect on this occasion. We do find, however, that D'Amour created an impression of surveillance by stating to Miss Menard that he knew how she had voted in the previous election, but he did not know what was said to her to have her change her mind. We find that this statement violated Section 8(a)(1) of the Act. 2. We find merit in Respondent's exceptions to the Trial Examiner's recommendation that Florence Danie, Paul Bernard, and Dennis LaJeunesse be transferred to or reinstated with backpay in the meat department at the Chicopee Falls store. The com- plaint contained no allegation that the three above- named persons were discriminatees and the record contains no evidence to support the Trial Examiner in this regard. We therefore shall strike all reference to Danie, Bernard, and LaJeunesse from the Trial Exam- iner's Recommended Order and the appendix thereto. 3. We agree with the Trial Examiner's finding that Respondent violated Section 8(a)(1) and (3) of the Act by transferring Joseph Kumor from the meat department in the Chicopee Falls store to another store because of his union activities. We disagree, however, with the Trial Examiner's further finding that this transfer "induc[ed] [Kumor] to quit" his job, and his consequent recommendation that Kumor be offered reinstatement with backpay. Insofar as it relates to Kumor, the complaint alleged only that Kumor was transferred to a less desirable job at another store because he had engaged in protected concerted activities. The Trial Examiner, after considering the "timing and the circumstances of the transfer" and the "credited testimony" that Kumor was "transferred because he was talking" for the Union, found, and we agree, that Kumor's transfer was a violation of Section 8(a)(1) and (3) of the Act. There was no allegation in the complaint, however, that Kumor was constructively discharged, and the issue of constructive discharge was not litigated. It is clear, therefore, that the question of the Respondent's legal liability for Kumor's decision to terminate his employment is not properly before us for decision. The record indicates that Kumor volun- tarily quit his job because of a change in his work schedule at the store to which he was transferred. The complaint did not allege that the change in schedule was unlawfully motivated. If an employee quits his job after being transferred, an employer cannot normally be held legally responsible for that action, unless it is alleged and is shown that the termination That part of Respondent 's motion to which the General Counsel interposes no objection is herewith granted. The remainder of Respond- ent's motion requests the Board to take official notice that the Regional Office file shows that the Regional Director administratively investi- gated an allegation concerning the constructive discharge of Joseph Kumor and that such claim was found to be without merit and was not included in a later amended charge . The General Counsel 's answer in effect argues that the Board may only take notice of "formal documents " which, he implies , would not include the administrative 173 NLRB No. 67 files that the Respondent seeks to have noticed . Without passing upon the precise question raised by the motion , we hereby deny it as being moot, since we decide elsewhere that in view of the fact that the complaint herein did not allege that Kumor was constructively discharged , the remedy ordered by the Trial Examiner cannot be adopted 2 No exceptions were filed to ihF - Trial Examiner 's dismissal of certain of the allegations of the complaint. Accordingly , we adopt those portions of his Decision pro forma. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the culmination of a plan on the part of the employer to force such action, or the foreseeable consequence of the earlier transfer. Such a plan was not alleged in the complaint, litigated at the hearing, nor shown by the evidence herein, nor is there any allegation or evidence that Kumor's decision to quit could reasonably have been foreseen by the Respond- ent at the time of the discriminatory transfer. In view of our conclusions in this respect, we shall not order Respondent to offer reinstatement to Kumor. How- ever, although it does not appear that there was any wage differential between the stores from which, and to which, Kumor was transferred, he would have a backpay claim for any such differential which might have existed for the period during which he worked at the latter store. We shall therefore order backpay for Kumor, to make him whole for loss of earnings, if any, resulting from the discriminatory transfer. 4. We also find meet in Respondent's exception to the Trial Examiner's finding that the refusal to hire Christine Scagliarini violated Section 8(a)(1) and (3) of the Act. The Trial Examiner found that Respond- ent had indicated to Christine that it would consider her application for employment up until the time that the Union won an election in the store in which Christine's sister was employed. At that time, the Trial Examiner found, the Respondent attempted to retaliate against Christine's sister, believed by Re- spondent to be a union supporter, by stating that it could not hire Christine because of an alleged policy against hiring relatives of present employees. Even if we assume with the Trial Examiner that the reason given for not hiring Christine was questionable, we cannot find that a violation warranting a remedial order has been made out. The record does not indicate that Respondent's president, who had merely fended off questions about Christine's possible em- ployment with the suggestion that she file an applica- tion, ever seriously considered hiring her; nor does it show that there were any openings at the time that her final request for employment was denied; nor does it demonstrate that she had all of the necessary qualifications for any position that might have been available. Furthermore, the complaint alleges that Christine was not hired because she "had engaged in protected concerted activities by assisting and sup- porting the Union." The record is totally devoid of any evidence to support this allegation. Accordingly, we shall dismiss that portion of the complaint relating to Christine Scagliarini. 5. We adopt the Trial Examiner's ultimate con- clusion that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to permit Linda Scagliarim, upon her graduation from high school, to transfer to the day shift, where she could work longer hours. However, we do not consider his remedial recom- mendations to be appropriate to Linda's case. The Trial Examiner recommended that Linda be awarded backpay from the time of the refusal to transfer until Respondent offers her reinstatement. The record shows that, after the refusal, Linda continued to work on the night shift for 3 months, at which time she "just quit." The complaint does not allege, and the evidence does not demonstrate, that her decision to quit was in any way a product, calculated or foreseeable, of the refusal to transfer her. We shall amend the Trial Examiner's recommendation by limiting the running of backpay from the time of the refusal to transfer until the date of Linda Scagliarini's resignation. THE REMEDY In order to remedy the effects of the unfair labor practices herein found and to effectuate the policies of the Act, we shall order that the Respondent cease and desist from unlawful conduct and take certain af- firmative action. We shall require that the Respondent offer to Jean Menard immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered during the period from May 20, 1967, to the date of a proper offer of reinstatement. We shall require that Linda Scagliarini be made whole for any loss of pay she may have suffered during the period between May 30, 1967 and August 27, 1967, by reason of the discrimination against her, as found above. We shall require that Respondent offer to Robert McHale, Jeannine Fradet, Constance Menard, and Richard Martin, immediate transfer to their former or substantially equivalent positions in the meat department of the Chicopee Falls store, without prejudice to their seniority and other rights and privileges, and make them whole for loss of earnings, if any, from the time of their discriminatory transfers to the date of proper offers of transfer. Backpay for the four last-named employees, McHale, Fradet, Menard, and Martin, shall consist of the difference, if any, in wages and other benefits between that which they would have received at the Chicopee Falls store and that received by them at the stores to which they were transferred. Backpay shall also be paid on a similar basis to Joseph Kumor, limited as indicated in the body of this Decision. Any such backpay liability which might arise in favor of Constance Menard shall terminate as of September 1967, at which time she BIG Y SUPERMARKETS 407 quit her employment to enter college. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co, 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Big Y Supermarkets, Chicopee Falls, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Attempting to undermine Amalgamated Meat Cutters, Food Store & Allied Workers of North America, AFL-CIO, Local No. 33, by transferring any employee because he or she voted for that Union. (b) Discriminating against any employee to dis- courage membership in, or to undermine, the above- named Union or any other labor organization. (c) Unlawfully creating the impression of surveil- lance of its employees' union activities or voting preferences. (d) Threatening to withdraw benefits or establish less desirable working conditions if employees vote for union representation. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to Jean Menard to her former or substantially equivalent position, without prejudice to her seniority, and other rights and privileges; and make her whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer transfer, to their former or substantially equivalent positions in the Chicopee Falls meat department, without prejudice to their seniority and other rights and privileges, to Robert McHale, Jeannine Fradet, Constance Menard, and Richard Martin, and make them whole in the manner set forth in the section of this Decision entitled "The Reme- dy„ (c) Make whole Linda Scagliarini and Joseph Kumor in the manner set forth in the section of this Decision entitled "The Remedy." (d) Notify Jean Menard, if presently serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and make available to the Board, or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at all its stores in Chicopee Falls and elsewhere in Massachusetts copies of the attached Notice marked "Appendix."3 Copies of such Notice, on forms provided by the Regional Director for Region 1, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where Notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 1, in writing, within 10 days from the date of the receipt of this Decision and Order, what steps the Respond- ent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not specifically found herein. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT try to undermine Amalgamated Meat Cutters , Food Store & Allied Workers of North America, AFL-CIO , Local No. 33, by trans- ferring out employees who voted for that Union. WE WILL NOT discriminate against employees for supporting Amalgamated Meat Cutters, Food Store & Allied Workers of North America , AFL-CIO, Local No. 33, or any other Union. WE WILL NOT create the impression of surveil- lance of our employees about union activities or how they voted. WE WILL NOT threaten to withdraw benefits or change working conditions if our employees vote for a union. WE WILL NOT interfere with our employees' union activities. WE WILL offer Jean Menard reinstatement, and give her any backpay due her. WE WILL offer to transfer Robert McHale, Jeannine Fradet, Constance Menard , and Richard 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin, to the Chicopee Falls meat department, and give them any backpay due them. WE WILL give backpay to Linda Scagliarini and, any backpay due Joseph Kumor. WE WILL notify Jean Menard, if presently serv- ing in the Armed Forces of the United States, of her right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. BIG Y SUPERMARKETS (Employer) Dated By (Representative) (Title) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 20th Floor, John F. Kennedy Federal Build- ing, Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617--223-3300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner This case was tried at Chicopee, Massachusetts, on October 17-20, 1967,' pur- suant to a charge filed on June 22 and amended on August 14, by Amalgamated Meat Cutters, Food Store & Allied Workers of North America, AFL-CIO, Local No. 33, herein called the Union, and pursuant to a complaint issued on August 17. The case arose during the time the Respondent, Big Y Super- markets, herein called the Company, was seeking a court injunction against the Board's conducting separate depart- mental elections in two of its stores The primary issues are (a) whether two of the four transfers made by the Company from the Chicopee Falls store's meat department after the first election, and three of the five transfers from the unit after the Union's victory in the rerun election, were illegally designed to undercut the Union, (b) whether the Company discrimina- torily refused a shift change and longer workweek for another unit employee, and discriminated against sisters of two unit employees, after the second election, and (c) whether the Company threatened and coercively interrogated employees, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the ' All dates, unless otherwise indicated, refer to the year 1967 2 The General Counsel 's motion to correct the transcript, dated November 3, is granted and the transcript is hereby corrected ac- cordingly. briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company is a Massachusetts corporation which is engaged, through separately incorporated supermarkets, in the retail sale of food and related products in Chicopee Falls, Massachusetts, and nearby cities, where it annually receives large quantities of food directly from outside the State, and has a gross volume of business exceeding $500,000 annually. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of the Act. 11 THE ALLEGED UNFAIR LABOR PRACTICES A. Background of the Case On November 21, 1966, the Board directed that elections be held in two of the Company's stores, with the Union on the ballot in separate meat department units. Big Y Supermarkets, 161 NLRB No. 109 (1966) Taking the position that "separate store and separate department units are inappropriate and that the underlying unit decision of the Board .. is contrary to law, void and of no legal effect," the Company sought an injunction in the Federal district court against the Board's conducting the separate elections. The injunction was denied on January 19 Big Y Supermarkets, Inc v. McCulloch, 263 F. Supp 175 (D. Mass. 1967). In the elections which followed on January 20, a majority of the employees in all four units voted against union representation. (The closest vote, in the Chicopee Falls meat department, was 5 votes for and 7 against the Union, with 2 challenged ballots. The vote in the unit of remaining employees in the Chicopee Falls store was 3 votes for and 26 votes against another union, the Retail Clerks, with 3 challenged ballots.) Thereafter the Company filed an appeal in the injunction action, and the lower court's judgment was affirmed on June 12. Big Y Supermarkets, Inc. v. McCulloch, 378 F.2d 304 (1 Cir 1967). In the meantime the Regional Director, upon objections filed by the Unions, set aside the elections because of the Company's failure to file the required election eligibility lists. (The Regional Director found it unnecessary to rule on the Union's further objection that the Company interfered with the free choice of the Chicopee Falls meat department employees by an antiunion talk on the morning of the election.) New elections were held on May 19 in all 4 units. This time the Chicopee Falls meat department employees voted 7 to 3 in favor of the Union, in contrast to the votes in the other 3 units, overwhelmingly against union representation. (The BIG Y SUPERMARKETS Retail Clerks received only 1 out of 29 votes in the other Chicopee Falls unit.) On June 26 , the Regional Director overruled the Company's objections to the election and certified the Union as the exclusive representative of the meat department unit in the Chicopee Falls store . On August 2, the Board denied the Company's request for review. B. Alleged Discriminatory Motivation 1 Testimony of ex-supervisor The General Counsel asserts that the Company, while challenging the Board's unit determination , discriminated against Chicopee Falls meat department employees "because of the close vote in that unit in the first election " and "the Union's victory in that unit in the second election." In support of this contention , the General Counsel offered the testimony of a former supervisor in the Chicopee Falls store, Meat Manager Roland Leduc who, if credited , revealed a discrimina- tory motivation for the Company' s transferring two meat department employees (Robert McHale and Joseph Kumor) after the first election , and also the fact that after the second election , the Company reached its conclusion about which seven employees voted for and which three voted against the Union. Leduc testified- (a) A few days after the January 20 election, President Paul D'Amour, in the presence of Operations Director Lee Huston, told Leduc that "McHale had voted for the Union He was sure on this. And that they would transfer him out to another store for special training to become a meat cutter, and then somehow get rid of him." (Emphasis supplied. ) (McHale was transferred on February 1 to the so-called Willimansett store, on Meadow Street in Chicopee , where a larger majority of the meat department employees had voted against the Union ) (b) Shortly after the Company transferred Kumor out of the Chicopee Falls meat department on April 28 (3 weeks before the second election), Store Manager Jules Drapeau told Leduc he thought Kumor "had been transferred because he was talking openly for the Union. "(Emphasis supplied.) (c) On May 20, following the 7 to 3 vote for the Union on May 19, President D'Amour told Leduc "that it was obvious who voted against the Union because there was only three votes; and that from their research, that these three were . . Rita Gilbault, Norma Moreau, and Ingeborg Coleman." (Emphasis supplied. These three were the only employees who testified on behalf of the Company at the trial . The alleged discnminatees, Jeannine Fradet, Constance Menard, and Richard Martin (who were transferred out of the Chicopee Falls meat department on June 21 and 22), and Linda Scagliarrni (who was denied a longer workweek), were among the seven remaining voters in the unit.) Without explanation , the Company failed to call as a witness either Operations Director Huston or Store Manager Drapeau. Therefore Leduc's testimony in (b), above, concerning the statement by Drapeau, is undemed ; and Leduc's positive testimony in (a), above, concerning D'Amour's stated plan to get rid of union supporter McHale, remains undenied by the witness. D'Amour testified that he did not recall "any specific conversation with Mr. Leduc with regard to Mr. McHale," nor talking with Leduc in Huston's presence about transferring McHale, but that "I may have" told Leduc that McHale would be advised that he was being transferred for special training. Concerning Leduc's testimony in (c), above, that D'Amour said 409 he knew from "their research" which three of the employees voted against the Union , D'Amour admitted talking to Leduc on May 20 about the results of the election . When asked what was said, D'Amour testified , "I said that I didn't know who voted for whom because it was a secret ballot. How can I tell?" The General Counsel , describing this as a "convenient disclaimer" for D'Amour to have made , argues that "it simply does not ring true." I agree . Such a conversation would have been pointless. I discredit D'Amour's assertion as a mere afterthought The Company subjected Leduc to exhaustive cross- examination , both before and after defense witnesses Guilbault, Moreau, and Coleman testified I agree with the General Counsel that this cross-examination served to enhance Leduc's credibil- ity. Leduc greatly impressed me as a forthright , honest witness who (although preferring not to be called as a witness and to "get involved" ) did his best to answer all questions truthfully, regardless of whom his answers might benefit. Accordingly, I credit his testimony concerning the Company 's motivation and its "research" on how the employees voted in the May 19 election. I also credit Leduc's further testimony , revealing the concern of another management official, General Manager Edward Corbiel, about who voted for and against the Union Leduc testified that a few days after the May 19 election, Corbiel was in the store and as he was passing by the delicatessen case, he turned toward Jeannine Fradet (one of the alleged discriminatees who was working on the case at the time ) and told Leduc "that she had voted for them, too ," referring to the Union . (When called as a witness , Corbiel denied that he ever had a conversation with Fradet, but did not deny telling Leduc that Fradet was one of those who voted for the Union.) Accordingly , I find , on the basis of Leduc's testimony and before considering other evidence , that the Company took into consideration McHale's and Kumor's union activities when deciding to transfer them, and that the Company reached a determination at least by May 20, that Fradet , Constance Menard, Martin, and Scagliarini were among the seven meat department employees who voted for the Union on May 19 2. Attention on seven union supporters On May 20, the day after the second election, the Company sent a letter to all its employees , discussing the election results. The letter recited the "overwhelming" votes for the Company, excepting the 7 to 3 vote in the Chicopee Falls meat department. Concerning the meat department vote, the letter predicted no "changes for a long while" because of the pending litigation in the courts, and concluded We wish to express our heartfelt gratitude to all who worked so hard to fight against being split up into small groups and we will go to all possible means to prevent this small group of seven people from trying to change the destiny of approximately 500 BIG Y employees. [Emphasis sup- plied.] The General Counsel contends that pursuant to these announced intentions, the Company "did indeed go to all possible lengths to retaliate against this group of seven people ... to remove them from the unit in anticipation of the third election which Respondent was seeking." Then on June 21, the same day the Company transferred two of the seven union supporters (Fradet and Constance Menard), and the day before it transferred another one of the seven (Martin) out of the unit, it wrote its employees another letter, 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD calling their attention to the seven unidentified employees who voted for the Union, and claiming that the seven were being scrutinized by their fellow workers. Also stating that the Union may "eventually fade away," and predicting that "this activity will be forgotten like water over the dam," the letter concluded Watch out for the [union] "trouble makers". If you encourage them, they'll keep trying, but if you stand up to them for your own convictions they will eventually fade away. Needless to say, they are up against some strong opposition from the majority of you, backed up by forceful support from your company. This is only the beginning and this so-called first victory amongst 7 of 10 employees in one department of the six BIG Y stores may prove to be the Union's biggest defeat and certainly a big disappointment for their very few supporters. Never in the history of our company has such a few people been scrutinized thusly by their fellow workers. Fingers are being pointed, accusations are being made. We suggest that understanding and forgive- ness be the new by-word and in the long run, this activity will be forgotten like water over the dam. ... Let us fight on and win out. [Emphasis supplied.] This letter clearly directed the employees' attention to the seven union supporters, at a time when the Company was transferring out of the unit four of the employees (including antiunion employee Norma Moreau to fill a "very dire demand" for a meatwrapper in another store ) Upon consider- ing the timing and wording of the letter, in the context of the earlier announcement that the Company would go to "all possible means" to prevent "this small group of seven" from changing the destiny of the Company's employees, and other evidence of the Company's motivation, I draw the inference that the Company was taking into consideration the union activities of Fradet, Constance Menard, and Martin when it decided to transfer them out of the unit on June 21 and 22 3 Replacement of union supporters Whereas the Company contends that its actions "were dictated, as in the past, by the operational requirements of their business," the General Counsel argues that the transfers and replacements show a discriminatory pattern The evidence shows that at the time of the January 20 election, there were 14 employees in the meat department unit (including Roger LaBrecque, who cast a challenged ballot). Only 8 of these 14 remained in the unit at the time of the May 19 rerun election, and at the time of trial there remained only 3 (including 2 who the Company determined had voted against the Union on May 19) Between the first and second elections, the Company transferred out 4 employees (Alexander Drumm, McHale, Kumor, and LaBrecque), 2 quit, and 3 were transferred into the unit, reducing the complement to 11. (Two of those transferred out, Kumor and LaBrecque, cast challenged ballots in the May 19 election) Between May 19 and August 2 (when the Company's request for review was denied), the Company transferred out 4 employees (Norma Moreau, Fradet, Constance Menard, and Martin), 1 quit, and 5 employees were transferred into the unit, plus another (Sandy Weinberg) who was working in the unit temporarily. Thus on August 2, the unit consisted of 11 permanent employees. Between then and the date of trial, 1 unit employee (Meatcutter John Delaney) was promoted from the unit to meat manager, 2 (John Benard and an employee transferred in after May 19) were transferred out, and I (Linda Scagliarini, the alleged discnminatee denied full-time employment) quit. Inasmuch as there were 10 or I 1 employees working in the department at the time of trial, either 3 or 4 additional replacements had been brought in by that time. This made a total of 11 or 12 persons transferred in permanently, and 1 temporarily, to replace at least in part the persons who left the unit Among the seven employees who the Company determined had voted for the Union on May 19 (Benard, Florence Dance, Fradet, Dennis LaJeunesse, Martin, Constance Menard, and Linda Scagliarim), none was working in the meat department at the time of trial The only one still remaining in the unit was Dance, who was off from work with a back injury, receiving workmen's compensation There were thus nine voting employees transferred out of the unit (four after the first election and five after the second). The complaint does not allege a discriminatory motivation for four of the nine transferred (Drumm, LaBrecque, Moreau, and Benard). One of these (Alexander Drumm) whose duties included meat cutting, was transferred out of the unit about February 18 (shortly after the meat cutting trainee, alleged discriminatee McHale, was transferred out), leaving a shortage of meatcutters in the department, even after meatcutter Delaney was transferred into the unit about March 28, Rita Guilbault (one of the three employees who the Company's "research" disclosed had voted against the Union on May 19 and who were called to testify on behalf of the Company at the trial) gave testimony about Drumm's union activity before his transfer However, there is no direct evidence when she furnished this information to the Company (although there is evidence that the Union was openly discussed). The last of the four transferred was Paul Benard , one of the seven the Company determined had voted for the Union on May 19. The General Counsel argues that by transferring out union supporters and replacing them with employees from other stores, or from the Chicopee Falls store's other bargaining unit which had voted overwhelmingly against union representation, the Company hoped to dilute the Union's support in the meat department On the other hand, the Company presented evidence of other transfers between stores in the normal course of business, particularly upon the opening of a new store (as on April 25, when the Springfield store was opened) The Company introduced into evidence a copy of its Employees' Manual (revised April 1, 1966, about 6 months after the Union petitioned for an election), which contains a provision that "An employee may be temporarily or permanently assigned to such duties as the needs of the Company require. In the future growth of the Company, it is expected that employees will accept transfers to other locations operated by the Company with the interest of the employee's development and promo- tion in mind and for the enhancement of the continued growth of the Company " (The Company's brief inadvertently asserts that the Employees' Manual in evidence was revised on February 1, 1965, and argues that "This statement of policy was adopted and officially announced some 6 months before the Union petitioned for an election in September, 1965." The evidence does not show whether an earlier version of the manual contained the same language, or whether or not the manual was first adopted during one of the earlier union organizing campaigns ) I have considered all the General Counsel's and the Company's detailed arguments, and the supporting evidence, on whether the transfers and replacements indicate a discrimi- BIG Y SUPERMARKETS natory pattern or legitimate operational requirements, in evaluating the other evidence and contentions in the case C. Alleged Discriminatory Transfers 1 Question of credibility Executive Vice President Gerald D'Amour, who testified that he had the primary and final responsibility for the transfers of employees between stores, gave testimony in support of the Company's contention that the transfers of the five alleged discrrminatees were dictated by the operational requirements of the business With the exception of the limited testimony by President Paul D'Amour, the Company offered no corroborating testimony, and gave no explanation for not calling other management officials who purportedly parti- cipated in the decisions. The Company having placed such reliance on Gerald D'Amour's testimony, and the General Counsel having ques- tioned his credibility, I deem it important first to assess the trustworthiness of Gerald D'Amour as a witness, before discussing the several transfers and other alleged discriminatory actions. When called as the first defense witness, Gerald D'Amour gave explanations for transferring McHale in February and Kumor in April Then when asked about the general staffing situation in the meat department "between the first and second election," he claimed that "we attempted during that period to ... adopt a status quo position and not make any material changes This was done for two reasons .. for the morale of the group . [and] to indicate that we were not in any way trying to reciprocate or hurt anyone whatever happened in spite of the fact that we were too overstaffed, and we were suffering economic payroll losses week in and week out." (Emphasis supplied.) He explained that in the period "from January through May [we] were carrying about 17 or 18 employees," and doing about the same volume of business as at the time of trial, with only 10 or 11 employees in the department. He testified that during that period (January through May), he would have liked to have made several transfers to the other stores, all of which were understaffed. Such a distorted picture reflects adversely on Gerald D'Amour's credibility. As already indicated, there were not 17 or 18 employees in the department from January through May, and not a surplus of "several" employees whom he would liked to have transferred to understaffed stores, but whom he did not because of the so-called status quo policy. There were 14 employees in the dapartment on January 20, and by May 19 the Company had transferred out 4 employees, including 2 meat cutting employees (McHale and Drumm) in February, thereby contributing to a serious shortage of meatcutters in the department. The 11 employees in the department on May 19 were the same number employed there on August 2. Furthermore, when D'Amour was recalled on the last day of the trial to prove up a list of permanent transfers between stores, he revealed that the Company decided during this period of time to permanently transfer a fifth employee, Constance Menard, out of the unit, and did transfer her to the Fairview store on April 29, but transferred her back to Chicopee Falls shortly thereafter when it was found that she was no longer needed there. Thus, instead of maintaining a status quo between the elections and keeping in the unit an 411 excess number of employees needed in other stores, the Company reduced the complement from 14 to 11, and transferred out 5 employees-including 2 in February and 1 who was transferred back into the unit when not needed in the Fairview store. At this point in the direct examination of D'Amour, the Company's counsel asked him questions which appeared to give him an opportunity to retract his testimony that there was an extreme overstaffing of the meat department, that the Company did not make any material changes between the elections, and that the overstaffing continued through May, "for the morale of the group" (presumably in the election campaigns), and "not ... to reciprocate" (presumably mean- ing, not to take reprisals after the close January 20 vote in the department) Thus, the counsel asked if there was "any change . . in your overall policy in transfers" necessitated by the opening of the new store in Springfield (on April 25, about 3 weeks before the May 19 election), and whether employees who voluntarily quit between the first and second elections were replaced. Then, without being asked, the counsel volun- teered to the Trial Examiner, within the hearing of the witness, "That several other employees were transferred out" during that period D'Amour testified that "we took advantage of the possibility of that Springfield store opening to get these various teams in all the stores equalized," and that "we didn't" replace the employees who voluntarily quit. He next testified that the department was understaffed with meatcutters and that John Delaney, "a full-fledged meat cutter," was brought in. Still he did not concede that there was no great overstaffing at the time of the second election, but testified (when questioned about transferring three of the alleged discriminatees a month later in June) that the Company then (in June) took into consideration "the fact that we were overstaffed at Chicopee Falls," although "we were in better balance" between meat- cutters and nonmeatcutters. On cross-examination, Gerald D'Amour first acknowledged his earlier testimony. Q. Now, you testified that the Employer followed a policy of not making any material changes in the Chicopee Falls meat department between the two elections, is that correct? A. That's correct. Q. You stated also that the Company was overstaffed in the Chicopee Falls meat department? A. That's correct. He was then asked, "Wasn't the size of that department reduced somewhat between the date of the first election and the date of the second election" He paused, appeared to become quite nervous and flustered, and gave the somewhat evasive answer "Well, there were two quits to my recollec- tion " Shortly thereafter, the General Counsel again gave him the opportunity to correct his earlier testimony about the continued overstaffing at the time of the second election- Q. Well, is there any question in your mind, Mr. D'Amour, that the total employee complement in the meat department declined between January 20 and May 199 A. Well, are you referring to the total hours being consumed in that department as of January 20 versus May 199 Is that what your question is? Q No, my question is the number of people employed in the department. A. It is my recollection that there may have been 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD slightly less number of people on May 19 than there were January 20. I would have to verify that by checking the records. [Emphasis supplied ] (Earlier he had testified that he had just prepared a list of meat department employees for the Company's counsel ) When next asked, "Now, you testified that all during the time between the elections from January to May, that the Employer was overstaffed in the Chicopee Falls meat department, and short in the meat department in other stores, is that true," he simply answered, "That's true." Finally, when asked what was his policy in the meat department "after" the second election, he again appeared quite uneasy After giving his answer, in which he admitted that the so-called "overstaff problem" no longer existed, he quite noticeably turned and looked at the Company's counsel, as if curious to know the counsel's reaction to the answer The answer was A. After the second election, the changes had already been made because of the Springfield store opening Therefore, the department had been reduced sufficiently, and the overstaff problem no longer existed, so we reverted right back to the same status in that store as all the other stores, whereas, we were able to- TRIAL EXAMINER- That is as of what date9 The date of the election, or when? THE WITNESS After the date of the election, yes Subsequent to May 19th. [Emphasis supplied.] Thus, after all the opportunities, D'Amour still did not retract his testimony about the continued overstaffing on May 19, but testified that the problem no longer existed at some unspeci- fied time after, or subsequent to, that date. (Kumor was transferred to the Springfield store before the second election, on April 28; Jeannine Fradet and Richard Martin were transferred to Springfield after the second election, on June 21 and 22.) Further on cross-examination, he claimed that after the second election, there was an overstaffing of girls (non- meatcutters) in the department, and that this imbalance had existed since October or November 1966. At no time did he mention the fact that in February, shortly after the first election and during the period when he claimed a status quo policy was in effect, he transferred two meat cutting employ- ees from the unit. Upon observing Gerald D'Amour's demeanor on the stand, and evaluating all his testimony, I am compelled to find that he was willing to give testimony considered helpful to the Company's cause, even if not factually accurate I further find that he gave the distorted picture of the staffing of the meat department to bolster his explanations for making employee transfers. 2. Transfers after first election a. Robert McHale Sometime before the January 20 election, a policeman reported to the store manager at the Company's Fairview store that McHale had been rude to the policeman when he was shopping for two turkeys in the Chicopee Falls meat depart- ment. There is no evidence that McHale was disciplined, or even spoken to about the incident. Twelve days after the election, on February 1, the Company transferred McHale to the Willimansett store, about 2 miles away. In explanation for the transfer, Vice President Gerald D'Amour testified that the Company decided that McHale's work was not satisfactory, that he required more training, that he would have better training opportunities in the larger store, and that "The question of environment was brought out as a reason-trying to place the individual into the store where the climate, the atmosphere, was in our opinion better, whereas, there would be a new challenge for the individual, new faces, a new boss with which to work where we were hoping we could determine better that he was qualified to do the work. "(Emphasis supplied ) Meat Manager Leduc credibly testified, as previously found, that a few days after the January 20 election, President D'Amour, in the presence of Operations Director Lee Huston, told Leduc that "McHale had voted for the Union. He was sure on this And that they would transfer him out to another store for special training to become a meat cutter, and then somehow get rid of him." Having previously credited this testi- mony, revealing a discriminatory motivation for the transfer, I find that the Company discriminated against McHale in regard to his tenure and conditions of employment because of his union activities, thereby discouraging membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. b. Joseph Kumor Kumor, employed full time on a day job elsewhere, worked 3 evenings a week As an accommodation, the Company had pernutted him to work on alternate evenings On April 28, without prior notice, the Company directed him to report to the meat department in the Springfield store, which had opened on April 25. He appealed to Operations Director Huston to be transferred back to the Chicopee Falls store, which was nearer his home. According to Kumor's undisputed (and credited) testimony, Huston "simply said no, they ran all qualified employees through a computer in order to staff the Springfield store, and I was chosen as one " (There is no corroboration anywhere in the record that a computer was actually used. Gerald D'Amour did not mention a computer ) Upon arriving at the Springfield store, Kumor asked if his schedule at the Chicopee Falls store was "going to hold, and they said yes." He had been working Monday, Wednesday, and Friday. However the next week, the Company required him to work 2 days in a row (scheduling him to work Tuesday, Thursday, and Friday) Thereafter, the Company scheduled him to work Thursday, Friday, and Saturday "I told them I would not work three nights in a row. They said that was the schedule, I was to abide by it." He quit. Describing the procedure that was followed in staffing the new Springfield store, Gerald D'Amour testified that the Company selected individuals from the other stores, setting up "a team or a nucleus for operating" the new store, and "hiring other people to complete the staffing." Explaining Kumor's transfer, he testified, "The primary purpose was to have trained personnel in our methods of operation to assign to the [meat] case at that new Springfield store." However, I note that the decision to transfer Kumor was an afterthought, inasmuch as he was not transferred (nor notified of the transfer) until the afternoon of April 28, 3 days after the store opened. Furthermore, on cross-examination, D'Amour re- vealed that he did not consider Kumor a top-notched counterman. BIG Y SUPERMARKETS 413 Considering the tinting and circumstances of the transfer, and the above-credited testimony by former Meat Manager Leduc that shortly after the sudden transfer, Chicopee Falls Store Manager Drapeau told Leduc he thought Kumor "had been transferred because he was talking openly for the Union" (3 weeks before the second election), I find that the real reason for the transfer was Kumor's union activities, and that the transfer violated Section 8(a)(1) and (3) of the Act 3 Transfers after second election a Constance Menard According to Miss Menard, President Paul D'Amour spoke to her about her vote and the Union on the day after the second election She testified that about 5 p.m. on May 20, D'Amour "said he knew I had voted no in the previous election, but he didn't know what was said to me to change my mind," and also commented that "the Union is not in yet." (This was the same day that President D'Amour told Meat Manager Leduc that the Company's "research" had identified Coleman, Guilbault, and Moreau as the three employees who voted against the Union-leaving Menard and six others to have voted for the Union.) D'Amour (who, as heretofore found, falsely claimed he told Leduc, "I didn't know who voted for whom because it was a secret ballot How can I tell?"), testified that he did not specifically recall talking to Menard after the election, but that he went around after the election and thanked all the employees "for their support"- even those in the Chicopee Falls meat department, "in the interest of good sportmanship." I credit Menard's version, which corroborated in part Leduc's testimony about the Company's identification of the union supporters. Although Menard had previously protested being trans- ferred to another store, and although Gerald D'Amour testified that the Company had a policy of giving "very strong consideration" to keeping employees "as close to their homes as possible," the Company transferred her from the Chicopee Falls store, which was about 2 blocks from her home, to the Fairview store, about 3 miles away-when, as credibly testi- fied by Menard, "There was no one to take my place at that time at the Chicopee Falls store." Upon arriving at the Fairview store, to work in the delicatessen section of the meat department, she reported to the delicatessen leadlady, Connie Nadais, who "was surprised at my being there. She asked what I was doing there. She said they didn't need anyone on the delicatessen at that time " There were already three other employees working in the delicatessen None of these employees, nor the meat manager or store manager, was called to deny Menard's testimony Gerald D'Amour, claiming that "we were overstaffed at Chicopee Falls" (thereby ignoring the facts that the comple- ment had already been reduced to I 1 employees, and 2 other female employees were being transferred out at the same time), testified that "reviewing the work load of the people there to try to bring that meat department in line with our particular guide line sales per man hour, we were able to relieve her from that department .. and we needed the help at Fairview, so this was the reason she was selected to go to Fairview from Chicopee Falls." This purported reason consti- tutes a shifting in the Company's position. Whereas Meat Supervisor Roland Moreau explained to Menard at the time (as Menard confirmed on cross-examination) that in trying to get some sort of balance in the meat department, the Company had decided to train her to relieve people on vacation, and that she might be transferred to still another store, Gerald D'Amour merely claimed at the trial that she was not needed at Chicopee Falls and was needed at Fairview (As previously noted, neither Roland Moreau nor any of the other managers or officials was called to corroborate Gerald D'Amour's testimony.) Concerning Menard's testimony about not being needed where she was transferred, the company brief contends that what she was told by Nadais "was an isolated and unsubstan- tial comment by an employee in the new store whom the record clearly shows was not a supervisor . . and is insuffi- cient to support a violation of Section 8(a)(3) " However, the facts that Menard was not expected, and was told that she was not needed by a person who ordered for the delicatessen, made out the work schedule (subject to approval), and (at least routinely) directed the work in the delicatessen, have some probative value even if Leadlady Nadais was not a supervisor within the meaning of the Act From the credited testimony and all the circumstances, I find that the Company had determined that Constance Menard voted for the Union, and that the Company was discrimina- torily motivated in transferring her out of the unit, in violation of Section 8(a)(1) and (3) of the Act b Jeannine Fradet and Richard Martin Even without the transfers of Fradet and Martin from the meat department on June 21 and 22, the department was already being depleted. The complement there had been reduced to 11 employees by May 19, the date of the second election. And on June 21, the Company was transferring Norma Moreau, to fill a "very dire demand" for a meat wrapper at another store. There would have remained 10 employees except that the Company was also transferring Constance Menard (as discussed above), leaving only 9 in the department and no one to do her work. Yet, the Company proceeded to transfer Fradet and Martin (who, like Menard, the Company determined had voted for the Union in the May 19 election), as well as Meat Manager Leduc (The company counsel brought out, while cross-examining Leduc, that Meat Supervisor Roland Moreau advised Leduc at the time that he "was being transferred for extensive training," and that Leduc quit, believing that the Company was giving him "the same deal" as President D'Amour said they were giving Robert McHale-transferring hum out for special training and "then somehow get rid of him ") Thus, even without transferring Fradet and Martin, the Company was reducing the meat department to nine employ- ees-two fewer than on August 2, and one or two fewer than at the time of trial. As already noted, by August 2 the Company had transferred in five permanent employees, plus one tempo- rary employee. Furthermore, employee Florence Danie credi- bly testified that shortly after meatwrapper Fradet was transferred, a female meatwrapper was brought in to do Fradet's work. The explanation given by Gerald D'Amour for the transfers of Fradet and Martin was that the volume of business at the new Springfield store had gone down, that some of the new employees there had quit because the meat manager could not give them "the amount of time they required," and the meat manager "called it to our attention." Therefore, accord- 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to D'Amour, the Company checked its roster of meat department employees in all its stores, considered the location of Fradet's and Martin's homes and the fact that one of them was a meatwrapper and one a counterman, and selected them "to complete the staff" at the Springfield store. He did not explain why he was replacing new employees with experienced employees, why Fradet's replacement was not sent to the Springfield store, or whether the Company thought Fradet and Martin would be willing to work the number of hours which caused the new employees to quit at the Springfield store. But according to D'Amour's explanation, the Company decided to replace the new Springfield employees with these two experi- enced employees, further depleting the staff at the Chicopee Falls meat department (reducing it to only seven employees, before replacements were brought in). The company brief states that "Gerald D'Amour related that these transfers were part of the normal pattern of the Company's operations," but does not give D'Amour's explana- tion. Instead, the brief states that "The business reasons of the Employer were explained by Gerald D'Amour," citing the transcript page reference to D'Amour's explanation, but not repeating the obviously pretextual basis for the transfers. I find that the transfers of Jeannine Fradet and Richard Martin were likewise discriminatorily motivated, to deplete the ranks of the union supporters in the Chicopee Falls meat department, and violated Section 8(a)(1) and (3) of the Act D Other Alleged Discriminatory Actions 1. Against the Scaglrarini sisters a Refusal to hire Christine Scaglrarinr Linda Scagliarini was one of the seven meat department employees the Company deternuned had voted for the Union on May 19. One of the allegations in the complaint was that Linda's sister, Christine Scagharini, was discriminatorily re- fused employment. Christine filled out an application at the Springfield store a few days before the store opening on April 25. At the time, Operations Director Lee Huston advised her that employees from the Fairview store were being transferred to Springfield, and that she might get a job at Fairview. Linda also spoke to Huston, asking hum if he had a job for Christine. Huston told her "probably in another store, but not in the same store because they wouldn't allow that--working in the same store if you're a relative." It was about this same time that the Company gave Constance Menard the assignment of training her sister, Jean Menard, in the Fairview store-further indica- ting that the Company had no policy against employing relatives in different stores. Then on May 17, 2 days before the second election, Linda Scaglianni asked President Paul D'Amour if he had a job for Christine, and told him that Christine had had experience as a cashier. D'Amour asked if Christine had filled out an applica- tion Linda answered that Christine had, at the Springfield store when it opened, and D'Amour "said the application could have been overlooked because of all the excitement and all that was going on with the opening of the new store." He instructed Linda (in her words), "Well, bring her in and let her fill out another one. We could see what we could do for her." In the words of Florence Dame, who overheard the conversa- tion (along with Store Manager Jules Drapeau who did not testify), D'Amour said for "her to come in and fill out another application, and that he would see what he could do for her." He did not mention in which store (Both Linda and Danie impressed me as honest witnesses ) On May 19, the day of the election, Christine went to the Chicopee Falls store and talked to Store Manager Drapeau. He told her to fill out an application. She did, and gave it to him He said, "I will give it to Paul D'Amour tonight, and we will see what we can do about it. " Later that day, when the votes were counted, it was learned that the Union had won the election in the meat department (where Linda worked) by a vote of 7 to 3 The next day was when President D'Amour revealed to Meat Manager Leduc that the Company's "research" indicated which three employees voted against the Union. Linda was not one of them. That Saturday morning, May 20, Mrs Scagharini (mother of the sisters) was in the store shopping, and asked President D'Amour if he had a job for her daughter Christine In the words of Linda Scagliarini, who overheard the conversation, D'Amour "said that he does not hire in the same family, and then she says, `Well, how about in another store9' And he said, `It's not the policy because they would go home and compare wages and their bosses." (This conversation was overheard also by employee Ingeborg Coleman, a company witness, who testified that D'Amour responded "I'm sorry, but we don't like to have two kids out of the same family ... " Both Linda Scagliarini and Ingeborg Coleman, when so testifying, impressed me as attempting to recall accurately what had been said. D'Amour, on the other hand, claimed that he first answered Mrs. Scaglrarinr, "This is the first I hear of this " Having observed his demeanor while so testifying, and having considered the contrary testimony by Linda and Mrs. Coleman, I discredit D'Amour's version as a fabrication to support his testimony, which I also discredit, that nothing was said in his conversation with Linda on May 17 about her sister Christine.) Admittedly, the Company had relatives working in different stores at that time The General Counsel contends that the Company's sudden refusal to employ Christine Scagliarini, the morning after the Union won the election in the meat department where her sister Linda worked, was part of the Company's pattern of discrimination against the union supporters I agree. Clearly, the Company had induced Christine to file the application for employment in another store, and Gerald D'Amour admitted that the Company had been "continuously hiring in the other stores." The argument in the company brief that there was no "evidence submitted that there was, in fact, any vacancy" in the Chicopee Falls meat department misses the point. Accordingly, I find that the Company's refusal on May 20 to lure Christine Scagliarini was part of its campaign to undermine the Union, and violated Section 8(a)(1) and (3) of the Act. b. Refusal to change Linda Scagliarini 's shift Linda Scagliarmi first asked President D'Amour about "going on days" on May 17, in the same conversation in which she asked him for a job for Christine. Linda credibly testified that she told D'Amour that she was going to be graduating in a couple of weeks, that she wanted to go on days, and wanted more hours. (At the time, she was working after school and on Saturdays.) D`Amour promised to "see what he could do," thereby implying that there was no company policy against BIG Y SUPERMARKETS 415 such a shift change. (As stated before, Store Manager Drapeau who overheard the conversation did not testify.) About May 30, the time of her graduation from high school, she again asked D'Amour about the shift change (In the meantime, the Umon had won the election in the meat department and D'Amour had refused to hire her sister Christine.) This time, D'Amour's response was quite different. She credibly testified, "I asked him if I could go on days, and he said it's not his policy to have people that work on nights to go on days, and he asked me if there was any other case that we had done this, and I said yes, Corrine Fleury, and he said in her case it was different," without stating how it was different. (It is undisputed that when Fleury was graduated from high school a year or two earlier, she had been working nights with Linda, and she was permitted to transfer to the day shift.) Also in the conversation with Linda, D'Amour kept saying, "I don't know what Mr. Weston [the union representative] promised you, but you're not going to get it here. " (Emphasis supplied.) During this conversation, Meat Manager Leduc and Store Manager Drapeau were in the room part of the time. Leduc credibly testified that he did not hear all the conversation, but he heard Linda ask D'Amour if she could go on days, and later heard Weston's name mentioned, "but I don't know what was said about him." The General Counsel contends that apart from the timing of President D'Amour's change in attitude, "D'Amour himself belied his motive when he brought the name of the union representative into the conversation in the context of his refusal to allow the requested transfer" The company brief contends that the General Counsel's claim of a violation "rests entirely upon a conversation that took place in late June, 1967 between her and Paul D'Amour." The undisputed testimony, however, is that this conversation (in which Linda asked a second time about going on days) was about May 30, at the time of her graduation-not a month later-and the Company ignores the credited testimony that Linda first made the request about 2 weeks earlier, on May 17, when D'Amour said he would see what he could do about it. (Apparently, the Company relies on Paul D'Amour's discredited testimony that when he talked to Linda on May 17 and asked her if she had any questions concerning the upcoming election, and repeated the question a time or two, she answered that she did not each time, and "That's all" that was said-therefore nothing about a job for Christine nor a shift change for Linda-contrary to credited testimony by General Counsel's witnesses ) Nowhere does the Company explain why, in view of its employee turnover, it would not want girls to transfer to the day shift and work full time upon graduation from high school The Company's further argument, that "The General Counsel offered no proof that there was an opening on days which the Employer filled with someone other than Miss Scagliarni," ignores D'Amour's promise to see what he could do, and also the evidence of many transfers into the meat department and between stores, and Gerald D'Amour's testimony that "we were continuously hiring in the other stores." I find from the credited testimony and all the circumstances that the Company refused to permit Linda Scaglianni to transfer from the after-school-and-Saturday shift to longer hours on a daytime shift upon her graduation from high school, in order to deny her full-time employment and thereby encourage her to quit-as she did on August 27 1 further find that the Company's actions were another part of its campaign to undermine the Union and violated Section 8(a)(1) and (3) of the Act 2 Against sister of Constance Menard Jean Menard was hired about April 26 to work in the meat department delicatessen at the Fairview store, where she was trained by her sister (Constance Menard, from the Chicopee Falls store). She worked until May 20-the same day the Company mailed its employees the above-mentioned letter about the May 19 election results and, as found above, the same day the Company discrinunatorily refused to hire Christine Scaglianni because her sister, Linda Scagliarmi, was employed (like Jean's sister, Constance) in the Chicopee Falls meat department which voted for union representation. About 5 p.m. on May 20, Fairview Store Manager Maurice LaBrecque advised Jean (without prior notice) that a girl was coming back from the Springfield store, that he would try to place Jean somewhere else in the store, that she should call him on Monday after school, and that he would "see what he could do." At that time, there were only two other employees working in the delicatessen. (Thus, the Company was laying off Jean Menard in order not to have four employees working in the delicatessen, whereas a month later, when Jean's sister Constance was transferred in-as found above, discrimina- +orily-from the Chicopee Falls meat department on June 21, there were then already three employees in the delicatessen, and Constance made the fourth. Furthermore, Jean's replace- ment in the delicatessen was not someone from the Springfield store, but was from another department inside the store- which fact is some indication that no one was returning from the Springfield store and that LaBrecque's stated reason for laying off Jean Menard was a mere pretext. Another indication is that Company's list of transfers, from its transfer book, does not show that any employee was transferred to the Springfield store and back.) When Jean Menard telephoned LaBrecque on Monday, as he had suggested, he told her "there was nothing else as yet," and told her to call him the next day. Tuesday, when she again called him, he told her he had not talked to the D'Amours yet. "I told him to call me if he heard anything," but nobody from the Company ever contacted her. (LaBrecque did not testify.) The Company offered no evidence to justify the Jean Menard layoff, at a time when the Company was continuous- ly hiring employees in the various stores, and transferring employees between departments and between stores. Further- more, the failure of the Company to recall her, instead of transferring in her sister Constance on June 21-leaving no one in the Chicopee Falls meat department to take Constance's place-confirms the Company's discriminatory motivation for laying Jean off. The General Counsel contends that "the evidence respecting Jean Menard viewed in the context of all other evidence in the case warrants the conclusion that Jean Menard was laid off because she was the sister of Constance Menard, a pro-umon employee in the Chicopee Falls meat department." I agree. There is therefore no merit to the Company's contention that the General Counsel's failure to prove that Jean herself was engaged in union activity precluded the finding of a violation of the Act. (In a footnote, the company brief states that "Note should also be made that she had failed to complete her 60 day 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial period as of that time." This clearly is a mere after- thought At no time did the Company give it as a reason for the layoff.) I find that the Company laid off Jean Menard, a sister of a union supporter in the Chicopee Falls meat department, for the same discriminatory reason it refused to hire Christine Scagharini, a sister of another union supporter in that same bargaining unit which voted for the Union. The layoff therefore violated Section 8(a)(1) and (3) of the Act E. Alleged Interrogation and Threats The General Counsel introduced testimony from only two witnesses to support the allegation that President Paul D'Amour, in a group meeting of Chicopee Falls meat depart- ment employees on May 17, "interrogated its employees by asking them whether union agents had visited them, and what the union agents had prormsed them." Employee Florence Dame was able to remember very little about what D'Amour said, and the other employee, Paul Benard, gave such contra- dictory testimony that I do not find it probative enough to base any findings on it. (I note also that the Company's two witnesses who testified about the meeting were likewise not persuasive. Employee Rita Guilbault's recollection was so poor that she testified, "I don't remember him [D'Amour] men- tioning the word `Union' at that meeting ... Like I told you before, Mr. D'Amour didn't talk about the Union at all that morning." President D'Amour, the other witness, testified positively, "I did not use the word `Union. " However, he later contradicted himself, admitting that he did.) I find that the General Counsel has failed to show by a preponderance of the evidence that the Company violated Section 8(a)(1) in this meeting. After the meeting, however, D'Amour spoke individually to most or all of the meat department employees. Employee Constance Menard credibly testified that he spoke to her alone and "said that if the Union got in that we would be actually losing money because we would be paying $5 a month in dues for the same amount of pay and that the supervisors would not be able to make our schedules out the way we wanted them and that our hours would probably be cut and we probably would not be able to get the hours we wanted." (Emphasis supplied.) When D'Amour was asked about this conversation, he impressed me as being less than candid. He testified that "I merely asked her if she had any questions with regards to this activity that was going on ... I remember asking her two or three times, `Is there anything else?' and she said, `That was it.' .. I think I remember quite clearly that that is all that happened, because she just didn't speak up " Then he answered, "Right. That is correct," to the question, "Accord- ing to your present recollection, then, you asked her three times about the same question and she answered `No' each time; and that was all?" I discredit this as a fabrication, to conceal what actually was said.) I therefore find that D'Amour, as alleged in the complaint, threatened the em- ployee "that if the Union got in .. working hours would be cut, and employees would not be able to get the working schedules they wanted," in violation of Section 8(a)(l) of the Act. On the same day, D'Amour called in another employee, Linda Scagliarini, and talked to her about 45 minutes. However, the part she remembered about what D'Amour said concerning the Union was permissible antiunion arguments and not violative of the Act. Three days later, on May 20 (the day after the election), D'Amour spoke again to employee Constance Menard. As previously discussed, Constance Menard credibly testified that "He said he knew I had voted no in the previous election, but he didn't know what was said to me to have me change my mind. (D'Amour denied that he said this to Jean Menard.) In the same conversation, D'Amour also commented that "the Union is not in yet " When this interrogation is considered in the context of (I) the threats he made to her on May 17; (2) the discriminatory transfers before and after this incident; (3) the undisputed testimony that Meat Manager Leduc advised employees Jeannine Fradet and Richard Martin that they should vote "No" in the May 19 election because he thought they were good employees and he did not want them to be transferred; (4) the evidence brought out by the company counsel upon cross-examining employee Florence Danie (that on May 17 in order to "cover" herself, because of her fear of losing her job, she deliberately made an untrue statement to D'Amour-concernmg the union strength), and (5) the evi- dence also brought out by the Company's counsel, in redirect examination of D'Amour (that before the May 19 election, Richard Martin "approached me voluntarily" and said that "this time, this [union] is not going to get one vote. We are all going to vote for the Company," and that after the election, Martin told D'Amour "he was sorry it turned out that way"-also indicating fear on Martin's part), I find that this May 20 interrogation of Constance Menard was coercive- tending to induce fear of reprisals and to restrain employees from engaging in union activity, in violation of Section 8(a)(1) of the Act. Concerning the allegation that D'Amour also told employee Richard Martin he knew how Martin voted, Martin did not testify, and both Leduc and D'Amour gave varying accounts of the exact wording of what D'Amour said. Inasmuch as any finding on this allegation would merely be cumulative, I do not deem it necessary to resolve the conflicts. (However, I specifically discredit D'Amour's testimony, at one point, that in the May 20 conversation he told Martin, "I don't know what you did. I am not supposed to know," in the following version of what he told Martin. "Well, with only three votes, you could be-you might have voted with the Union. I don't know what you did. I am not supposed to know. " [Emphasis supplied.] As in other parts of his testimony D'Amour appeared to be attempting to fabricate a defense when so testifying.) CONCLUSIONS OF LAW 1. By refusing on May 20 to hire Christine Scagliarim, by laying off Jean Menard on May 20, by refusing full-time employment to Linda Scaghanni on May 30, and by trans- ferring out of the bargaining unit Robert McHale on February 1, Joseph Kumor on April 28, Jeannine Fradet and Constance Menard on June 21, and Richard Martin on June 22, to discourage union membership and to undercut the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and (3) and Section 2(6) and (7) of the Act. 2. By making threats and engaging in coercive interroga- tion, the Company violated Section 8(axl) of the Act. BIG Y SUPERMARKETS 417 THE REMEDY Instead of confining its challenge of the Board's unit determinations to lawful litigation, the Respondent has flouted the Act in carrying out its intentions-announced a day after the Union's May 19 election victory in the Chicopee Falls meat department-to "go to all possible means to prevent this small group of seven people from trying to change the destiny of approximately 500 BIG Y employees " Thus, the Respondent has discriminated against union supporters in the bargaining unit, and their relatives, thereby contributing to virtually a complete replacement of those unit employees believed to have voted for the Union-for the purpose of undermining the Union, whether or not the Respondent's unit contentions are upheld. In view of this flagrant conduct and the flouting of the employees' rights, causing the employees to fear reprisals for engaging in union activities, I shall recommend that the Respondent be ordered to cease and desist from this and other unlawful conduct found, and to take certain affirmative action to help restore the status quo, which action I find necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. I shall recommend that the Respondent be ordered to offer employment to Christine Scagliarini, with backpay from May 20, reinstatement to Jean Menard, with backpay from May 20, reinstatement in the Chicopee Falls meat department to Linda Scagliarmi, with backpay from May 30 (when she was denied full-time employment), reinstatement in that department to Joseph Kumor, with backpay from May 8 (when the Com- pany, following his discriminatory transfer from the Chicopee Falls meat department, further changed his scheduled work- days, inducing him to quit), and transfer to or reinstatement in that department to Robert McHale, Jeannine Fradet, Con- stance Menard, and Richard Martin (who were discriminatorily transferred out), and also to Florence Danie, Paul Benard, and Dennis LaJeunesse (whom the Company determined also were union supporters-as a prerequisite for dispelling fears of reprisal and restoring the statutory rights of the employees), with backpay beginning 5 days after the date of this Decision (or, for Florence Danie, 5 days after she recovers and applies for reinstatement before 1969), if the Respondent fails to offer such reinstatement by then, The backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the Respondent's actions in sending copies of its postelection letter (announcing its intentions to withstand "this small group of seven people" in the Chicopee Falls meat department) to employees in all its stores, and inasmuch as employees from that meat department were discriminatorily transferred thereafter to other stores, I shall also recommend that the Respondent be ordered to post appropriate notices in the other stores as well, in order that the employees there will not be restrained themselves from exercising their statutory rights by the Respondent's unlawful conduct taken against employees in the Chicopee Falls store. [Recommended Order omitted from publication.]