Elder-Beerman Stores Corp.

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elder-Beerman Stores Corp . and Revosie L. Colley, John Henry Rutledge , James E. Coleman. Cases 9-CA-4205-1, 9-CA-4205-2, and 9-CA-4264 November 5, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 3, 1968, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding,' finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that the Re- spondent cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respon- dent had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has dele- gated 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.2 The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and the recommendations of the Trial Examiner, as modified herein. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees and requesting them to engage in surveillance and to act as informers regarding the union activities of other employees. We also agree that the Respondent violated Section 8(a)(3) by discharging employees Rutledge and Colley, and violated Section 8(a)(3) or alternatively 8(a)(1) by discharging employees Coleman, Bledsoe, Pollard, Cameron, and Lockett. In this connection, we are satisfied that the General Counsel has affirm- atively established unlawful motivation by prepon- derance of the credible evidence.3 We, however, find it unnecessary to adopt the Trial Examiner's ex- traneous comment that the Act's protection extends to discussing plans to engage in a slowdown. 2. The Trial Examiner found and we agree that on February 17,1967, about 2 weeks after the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union # 957, requested recognition and filed a representation petition, the Respondent's President Beerman, in a speech, promised and granted benefits to employees in violation of Section 8(a)(1) of the Act. 3. The Trial Examiner found, and the record shows, that the Respondent repeatedly instructed Supervisor Graham to engage in surveillance of employees' union activities, called him a poor super- visor, and discharged him for refusing to execute these instructions. gsed on his inference that em- ployees knew of the instructions and the reason for the discharge, the Trial Examiner found that the instructions, and the discharge for refusing to carry them out, constituted violations of Section 8(a)(1) of the Act. We find, in the circumstances of this case, that this conduct was unlawful without regard to employee knowledge. The nature and extent of the unfair labor practices committed by the Respondent clearly demonstrate that the instructions issued to Supervisor Graham were an integral part of a plan to discover the identity of employees engaged in union activity and rid the Respondent of union adherents, and the discharge of Graham was designed to enforce such instructions and thus insure the success of the plan. In the light of all the circumstances, therefore, we find that the Re- spondent's instructions to Graham to engage in surveillance4 and its discharge of Graham for refusing to carry out such instructions5 interfered with the rights of employees guaranteed by Section 7, and were violative of Section 8(a)(1) of the Act. ' As corrected by the errata dated April 5 and 12, 1968. ` The Respondent excepts to the Trial Examiner 's conduct of the hearing on the grounds that he allegedly interrupted and interfered with the Respondent 's presentation of its case, asked leading questions of witnesses, and showed bias against the Respondent . Upon careful examination of the record, we are satisfied that the Trial Examiner was concerned only with his duty under Section 102.35 of the Board's Rules and Regulations "to inquire fully into the facts... to regulate the course of the hearing . . . to call, examine, and cross-examine witnesses. " See Brewton Fashions, Inc., a Div. of Judy Bond, 145 NLRB 99, 100. We find the exception without merit. 3 Consequently, we need not decide whether and if so to what extent N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, in the 173 NLRB No. 68 circumstances here present , places upon the Respondent a burden of proof as to motivation, 4 See Cannon Electric Company, 151 NLRB 1465, 1468. We find it unnecessary in this case to determine the effect on employees ' Section 7 rights of instructions to supervisors to engage in surveillance where employees are not aware of instructions and they are neither executed nor enforced by discharge . To the extent , however, that General Engineering, Inc., etc., 131 NLRB 648, is inconsistent herewith, it is hereby overruled. 5 See Key West Coca Cola Bottling Company, 140 NLRB 1359, 1361 enfd. in part 341 F. 2d 524 (C A. 5). Cf. N.L.R.B. v. Talladega Cotton Factory, inc., 213 F. 2d 208 (C.A. 5); Better Monkey Grip Company, 115 NLRB 1120, enfd. 243 F.2d 836 (C.A. 5). ELDER-BEERMAN STORES CORP. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Elder-Beerman Stores Corp., Dayton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON ,Trial Examiner Upon a consolidated complaint against the above-captioned Respondent issued by the General Counsel of the Board,' a hearing was held in Dayton, Ohio, on November 13 and 14, 1967.1 Alleged in the complaint are certain discriminatory discharges and additional acts of coercion in violation of Section 8(a)(1) and (3) of the Act. Respondent denies all alleged violations. At the hearing the parties were afforded full opportunity to present relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. The General Counsel and Respondent submitted briefs, which have been duly considered. Upon the entire record in the cases, and from my observation of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is engaged in the retail sale of merchandise at various stores in the vicinity of Dayton, Ohio. During the year preceding issuance of the initial complaint, it had a gross volume of business valued in excess of $500,000 and a direct inflow in interstate commerce of goods and products valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union #957, herein called the Union, is a labor organization within the meaning of the Act. 1 In Cases 9 -CA-4205-1 and 4205 --2, the charges were filed on February 27 and served on March 2 ; in Case 9-CA-4264, the charge was filed on May 1 and served on May 3. The complaints thereon were issued respectively on April 24 and July 28 , and consolidated on the latter date. 2 All dates, except as specified , are in 1967. III. THE UNFAIR LABOR PRACTICES A. Supervisory Heirachy 567 The employees immediately involved consist of about 20 truck drivers and helpers employed in the loading area of Respondent's Apple Street warehouse. Under separate super- vision of Charles E. Graham, 2 or 3 shuttle drivers transport merchandise to and from stores, and the rest make deliveries of packages, appliances, and home furnishings to the cus- tomers' homes. Also at Apple Street, in the main building, are various other personnel employed in warehousing operations and in work rooms where repair and custom jobs are performed for customers. Lloyd Nicodemus, warehouse man- ager, is in overall charge of the Apple Street employees. Scott Maxwell was assistant warehouse manager in charge of the workrooms.3 Until he assumed the latter function early in 1967, he supervised the shuttle drivers. One other warehouse at Helena Street has no function in making deliveries to customers. Virgil Hank, superintendent of warehousing, super- vises both warehouses comprising as many as 200 employees. Harry Stme, vice president of operations, has charge of all 10 retail stores and other facilities of Respondent. Max Gutman, executive vice president and general manager, and Supervisor Potts (duties are not otherwise defined), as well as all of the above-mentioned supervision, were present during certain events, as will be shown. Arthur Beerman is president and chief executive. He is also "the executive head" of several other enterprises. He testified that only about 10 percent of his work is devoted to Respondent. B. Union Activity, Summary of Issues About November 1966, John H. Rutlege visited the Union in quest of representation for the drivers and obtained blank authorization cards. Thereafter, he solicited several of the Apple Street employees to sign cards, but without substantial success. In January, he resumed his organizational efforts among the drivers, stressing the argument that they had to work a "ridiculous" amount of overtime without pay. He was able to obtain signed cards from "most of the fellows." However, an agent of the Union advised him that the cards were improperly signed. In early February, a meeting was arranged and held at the union hall where certain employees signed new cards and paid union dues in the amount of $17 each. ' By telegram on February 3, as stipulated, the Union notified Respondent of claimed majority representation. On February 6, the Union filed a certification petition with the Board alleging an appropriate unit of about 20 employees, described as "all truckdrivers, helpers, and warehousemen" at the Apple Street warehouse. On February 17, President Arthur Beerman , accompanied by all management officials afore- mentioned, delivered a speech to about 20 assembled em- 3 He left Respondent's employ in November 1967. 4 The following drivers and helpers were specifically identified: Rutledge, Colley, Metcalf, Bledsoe, Coleman , Pollard, Cameron, and Lockett. Another driver, Woods, testified that he signed a card, but it is not clear that he was present on this occasion at the union hall. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in the loading area at the Apple Street warehouse. Beerman's remarks, discussed infra, are in part alleged by General Counsel as constituting unlawful promises of benefit and direct bargaining with employees. Additional allegations consist of coercive interrogation of employees by supervisors, soliciting employees to report on union activities of other employees, requesting a supervisor to engage in surveillance of union activities, and issuing instructions to discharge em- ployees sympathetic to the Union. On February 25, Respond- ent discharged Rutledge and Colley on grounds that a review of their personnel records ordered on February 17 disclosed that each was employed in violation of certain standing policies of Respondent On April 6, at a formal Board hearing in the representation proceedings, the parties stipulated that the appropriate unit comprised "all warehouse employees, including truckdrivers and helpers," and it appeared from a list submitted by Respondent that approximately 53 unit em- ployees were employed as of the payroll period ending February 5. In mid-April, President Beerman made a further speech at the Apple Street warehouse, on this occasion to all warehouse personnel, including the office help. He asked the employees to "give Elder-Beerman another chance" before they "vote for this union." By order dated April 13, the representation petition was administratively dismissed by the Regional Director for failure of the Union to produce a sufficient showing of interest among the employees in the appropriate unit. On April 25 and 26, Respondent discharged Coleman, Bledsoe, Cameron, Pollard, Lockett and Supervisor Graham allegedly for the reason that they engaged in a "slowdown" on April 25. All these discharges are alleged as unlawful.' C. Restraint and Coercion 1. Vice President Stine Joseph Rutledge worked for about 8 years at the Helena Street warehouse. In September 1966, upon his referral, his brother, John H. Rutledge, was employed at the Apple Street warehouse, notwithstanding known practices of Respondent against hiring relatives of present employees or employing persons having a police record. In early February, Joseph Rutledge was called into Stine's office, with Vice President Gutman present. He was asked by Stine whether the em- ployees (at Helena Street) had any problems, and he replied, "none." He was told that Respondent had received a telegram from the Union that morning seeking recognition on behalf of the Apple Street employees and was asked if he knew anything about it. He answered, "no." He was then asked if he would accept an assignment to work at Apple Street for the purpose of obtaining information for Respondent concerning union activities of employees. He said it was not a good idea because "the fellows" would know why he was there. Then he was asked if his brother, John, was "in on it" and would John tell him anything. He said he did not know and did not think his brother would inform him on "anything that might be going 5 At the conclusion of General Counsel 's case in chief, in the absence of any supporting evidence , the motion was granted to dismiss the allegation in the complaint that Respondent awarded bonuses to prounion employees of lesser amounts than it awarded to other employees 6 Based on credited testimony of Joseph Rutledge In effect, Stine admitted the interrogation, but denied generally that Rutledge "ever spied" for him. on down there." Finally he was requested to keep Stine informed if he "heard anything about the situation." A "couple of weeks later," Joseph Rutledge was again summoned by Stine and was given a merit raise. Stine asked hun if he heard anything concerning the Union and, receiving a negative response, remarked, "You are a poor detective."6 Charles E. Graham testified that for 2 years he had been supervisor of the drivers and helpers at Apple Street.7 Stine advised Graham of Respondent's receipt of the Union's telegram and told him to keep his eyes and ears open. Thereafter, Stine spoke to Graham virtually every day until mid-April seeking reports on the union activities of the employees. Although he agreed to do so, Graham did not give Stine the names of any employees. 8 Because of his failure to cooperate in this fashion, he was called a "poor supervisor" by Stine and Hank on several occasions. Graham described these requests, viz See if I could find a list of names. He wanted me to fraternize with them because he heard they hung out at a bar and to get in on their conversations, because me being a Negro I could get in with these guys because the majority of them were Negroes and I could be an inside man for him. It is evident that Vice President Stine approached Joseph Rutledge in the manner related above particularly because of this employee's relation to John H. Rutledge. In the context, I find that Stine acted unlawfully in interrogating Joseph Rutledge as to his existing knowledge of the union movement and in seeking to enlist him as an informer to obtain information concerning the union sentiments of employees at Apple Street It is immaterial that Joseph Rutledge was not himself in the appropriate unit or employed at the Apple Street location. The essential test is whether the conduct in question reasonably tends to restrain or coerce employees in the exercise of their Section 7 rights. 9 I so conclude, and hold that these alleged violations of Section 8(a)(1) are sustained.' 0 There is ample showing that Supervisor Graham was given repeated instructions by Vice President Stine during the union campaign to engage in surveillance of employees at Apple Street for the purpose of garnering a list of names or reporting on the identity of union adherents. He did not comply with these instructions. Elsewhere it is made clear that he was sympathetic to the representation desires of the employees. Upon all the evidence, as further shown infra, a reasonable inference may be drawn that at some time before his discharge Graham divulged to some employees the substance of these instructions "which so vitally effect their interests." The Board has held that- ... Respondent's instructions to its supervisors encroached upon protected activities, "for a disclosure to employees that management has set in motion a chain of events to ascertain and identify union adherents can clearly restrain their freedom in expressing their sentiments regarding organization." [Citing Daniel Construction Co. V. N.L.R.B., 341 F. 2d 805 (C.A.4).111 Accordingly, I find in these circumstances a violation of Section 8(a)(1). 7 During the hearing, Respondent stipulated that Graham was a supervisor. 8 Stine denied that he asked Graham for a list of union adherents. Graham is credited. 9 Joy Silk Mills, Inc v. N L. R. B., 185 F.2d 732 (C. A D. C.), cert . denied 341 U.S. 914 , Struksnes Corporation , 165 NLRB No. 102. 10 E G, Sarkes Tarzian, Inc. v. N L R B. 374 F 2d 734, 736 (C A. 7) 11 Cannon Electnc Company, 151 NLRB 1465, 1468 ELDER-BEERMAN STORES CORP. 569 2. Events of February 17 President Beerman's Speech As earlier noted, on this date Beerman made an appearance at Apple Street, together with a full supervisory retinue, to address an assembled group consisting essentially of the drivers and helpers. His remarks in detail were described by several employee witnesses for the General Counsel,12 in pertinent part as follows: The Company had received a telegram from a union that these employees wanted to be represented. He understood that 14 or 15 fellows paid a union $17 of their hard-earned money. If they could spend $17 foolishly to try to get a union in, he could spend $17,000 to keep it out, if he wanted to. He is a fair-minded man, and if they have any grievances, he has 3 telephones, is available, and can be reached at any time. It was entirely up to the employees if they wanted a union, and no one would be in jeopardy because of his feelings about a union. They do not need an outside representative. If they came straight to him instead of going to the union, he would have made things better for them. He stated, "I know that there are discrepancies in the pay rate here, and this will all be taken care of .... Of course, my hands are tied right now unless you want to write-.i13 He then proceeded to talk about benefits presently enjoyed, e.g., the insurance plan, the "baby bonus," and the retirement plan. He mentioned yearly bonuses of $550 or more for drivers with over 2 years of service, and gift certificates for those having 1 to 2 years' service. He commented that the men "look like a bunch of thugs rather than delivery truck drivers." Their uniforms were the wrong color, the wrong kind, and "not in order for going to someone's house." He wanted each driver and helper to have a new uniform immediately. "But the discrepancies in pay can't be taken care of until this business is cleared up .... An election is coming up, and I can't do anything about your raises until this is over with." Beerman also gave assurances that he did not discriminate "against the colored man," pointing out that Graham is a supervisor and that he had assistant managers at the store who are colored. He invited questions from the employees. Bledsoe said the biggest complaint among the employees was the overtime.14 They came in at 8 a.m., at times did not return from deliveries until 5 or 6 p.m., were again sent out on "specials," and "many times" were not through with their work until after 8 p.m. Beerman directly responded: "This will cease... the next time anybody asks you to take anything out after 5 o'clock, tell them to go to hell and call me." Rutledge also spoke up, describing as unfair the transfer of a driver to a different route and causing the employee to quit. Beerman then stated that-"nobody tells him how to run his company, he runs it like he sees fit." Stine and Beerman were examined by Respondent, briefly, as to the content of the speech.15 Stine testified that he could not recall anything like the statement that $17,000 would be spent to defeat the Union, and made a general denial that there were promises of benefit. Beerman testified he told the employees that the personnel department was not adhering to the minimum starting wage, that "adjustments and increases were not properly taken care of," and that "its being done now"- (explaining that by "now" he meant since his "discovery"). That morning he ordered uniforms for all drivers. He assured them that they will not have to go out again after 5 p.m., but he promised them nothing "at the time," other than-"I would take a greater interest in their area than I have probably heretofore, or something like that." To the extent that conflict exists, I accept the detailed and substantially corroborated account given by the employees, set forth hereinabove, as against the vague versions of Stine and Beerman. Other Conduct of Beerman Graham testified that, on February 17, before Beerman's speech to the employees, the following colloquy took place, in the presence of Stine, Hank, and Maxwell: Beerman: What are these black boys trying to do to me, bring in Black Power? Graham: I don't know, Mr. Beerman. What do you mean? Beerman. About this Union, most of them are black. 16 Graham: I don't know anything about it. Beerman: You should. You are black too. Graham answered that they look at him "the same way they do [Beerman] .... A businessman." After the speech, Graham overheard Beerman tell Stine and Hank that-"there were too many black boys down there, to get rid of them." Graham was about 8 feet away and no employees were within earshot.l Supervisor Graham Also following Beerman's speech, Graham spoke to John H. Rutledge in privacy. According to Rutledge, Graham inquired, "John, are you leading these fellows?" He replied, "Yes." Graham continued, "If you are leading them, and they want their jobs, tell them not to pay any attention to what Beerman said about not taking things out after 5 o'clock.... Those people buying things need them , and so use common sense.... tell those fellows to not do that until after they get the union in."18 Rutledge commented that the Union was 12 Principally by John H. Rutledge and Coleman, corroborated in material parts by Colley, Lockett , and Supervisor Graham. 13 Beerman left this statement unfinished. 14 As shown in the record , they were paid entirely on the basis of a daily rate, without regard to the number of hours worked 15 Supervisor Hank , upon a simple query, denied that Beerman in his speeches ever promised the employees benefits "if there was no union." Other employees and supervisors called by Respondent were not questioned on this subject. 16 At a later point , Graham paraphrased his testimony , i.e., that Beerman said "that since the majority of the employees were Negroes in this union, that they were trying to bring in Black Power on him." 17 Beerman nor Maxwell were questioned as to the foregoing. Stine stated a denial to the question whether Beerman ever said to him, in the presence of others, that he should get rid of union employees. Similarly, Hank testified he never heard Beerman instruct Stine to fire employees who were sympathetic to the Union. In all the circumstances, I am constrained to credit Graham. 18 Graham 's testimony , on his cross-examination, was not materially at variance 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good for the employees and would make Graham's job easier-to which Graham expressed agreement Conclusions While this question is close, I do not find as an unlawful interrogation Graham's inquiry of Rutledge as to whether he was leading the employees Graham's purpose, clearly under stood by Rutledge, was to protect the employees against possible discipline for insubordination and was not directed primarily to the subject of the Union In my opinion, Graham's conduct here, essentially sympathetic, would not reasonably tend to coerce Rutledge or the employees generally concerning their union activities 19 Respecting Beerman's conversations with Graham and those overheard by Graham, in these instances the alleged violations must be dismissed in the absence of any showing or reasonable inference that such statements of management came to the attention of employees However, the same evidence is generally relevant insofar as it reveals the motive of Respon dent with respect to the discriminatory issues, treated infra. As to Beerman's speech, despite the token phrases of neutrality, the whole setting and tenor of the talk portrayed impressive antagonism by Respondent to the organizing drive of this small group of employees President Beerman had theretofore been rarely seen at the Apple Street warehouse, more especially among the drivers and helpers in the loading area This appearance, together with an array of supervisory subordinates, including two vice presidents, could only signify to the employees a sense of deep concern and alarm of top management, for the sole and obvious reason that the Union had made a representative claim on behalf of these employees General Counsel's evidence as to the factual content of the speech was substantially uncontroverted Accordingly, I find Section 8(a)(1) violations, summarized as follows With the real question concerning representation raised by the Union's telegraphic demand , it is clear that Beerman sought to undercut the Union by bargaining directly with the employees Thus, he recognized specific grievances of the employees as to discrepancies in their rates of pay and uncompensated overtime work He admonished them for going to an outside representative and not coming straight to him Referring to his three telephones and his availability at any time, he suggested that they bring their grievances directly to him, imphedly for immediate adjustment By reasonable implication at the least, these drivers and helpers were led to believe that they were being promised present and prospective benefits to influence their defection from the Union Beerman's statements were explicit that corrections in the pay rate "will all be taken care of" and that "adjustments and increases" were being handled "now," since his discovery of the inequities Side remarks were vaguely interspersed by Beerman, for example, that because of the election "coming up" and until "this business is cleared up," he could not do anything about their raises at present In the context described, it cannot be regarded that the promises were effectively neutralized or that the employees could reasonably understand from all the remarks that these were not promises being made to discourage their desires for union representation, the dominant issue at hand Even upon the assumption that in totality the statements were clear that benefits could not be granted until after the representation question was resolved, Beerman's remarks were nonetheless coercive in that the employees were plainly being dissuaded from favoring the Union by promises of subsequent adjust ments and increases to satisfy their present grievances 20 Similarly, Beerman's order to halt the overtime after 5 p in , whether or not carried out, constituted an unlawful induce- ment directed toward a major cause of complaint which Respondent believed had prompted the employees to seek out the Union 2' D The Discharges 1 Rutledge As previously noted, John H Rutledge was hired in September 1966 as a driver at the Apple Street warehouse upon the recommendation of his brother, Joseph, an employee at the Helena Street warehouse The hiring interview was conducted by Virgil Hank, superintendent of warehousing Hank specifically questioned John and was fully informed concerning entries on his application showing a police record and a disability resulting from a back injury 22 He told Hank that the amount of lifting he could do was "very limited" and that he could drive a truck if it was not too heavy Hank finally told John he would speak to Vice President Stine and let him know Thereafter, his brother Joseph was advised by Stine and Hank that, on the basis of Joseph's good standing with the Company, John was being hired and would be retained as long as "he kept his nose clean " Thereupon bondage papers were made out for John's employment At Apple Street, Rutledge worked for 2 or 3 weeks as a shuttle driver He was then offered and he accepted a package route on which he remained until his termination On one occasion, before Christmas, a dispute arose with Graham because other drivers complained that Rutledge was not being given the heavier lifting work However, the difficulty was resolved after a meeting was arranged at which Rutledge explained to the men the circumstances of his back deficiency At various times, his work was highly commended by different supervisors It has been shown that John H Rutledge was in fact the leader among the employees in the union campaign, and that Stine sought to establish a system of surveillance, including a request of Joseph to obtain from John information concerning union activity at Apple Street At Beerman's speech of February 17, Rutledge was one of the spokesmen As Graham credibly testified, after the speech Stine told him Rutledge "seemed to be the smartest one of them and he had him figured out to be the leader " Graham said he did not know Graham also spoke to Rutledge after the speech, inquired if he was "leading these fellows," and received an affirmative reply In sum, I find that Respondent was aware of the leadership activities of Rutledge prior to his discharge 19 See Cannon Electric Company 151 NLRB 1465 1470 20 E g Eugene Yokell and Bernard Yokell Copartners d/b/a Crescent Art Linen Co 158 NLRB 447 enfd in pertinent part 414 F 2d 421 (C A 2) 21 I make no finding that the issuance of new uniforms constituted a benefit or substantial change in a condition of employment 22 In July 1954, he was convicted of burglary, placed on probation for 5 years and released after 13 months for good behavior In the 3 prior years he had 4 different operations performed on his back and received workmen s compensation during this period ELDER BEERMAN STORES CORP On February 25 (a week after the speech) John H Rutledge was discharged by Stine, in the presence of Supervisors Nicodemus and Maxwell at the Apple Street warehouse Stine said, "John, we have been doing a little review of your application, and due to your police record and back condition the company can no longer keep you under their employ ment " Rutledge protested that the Company knew about these things when he was hired. Stine said that there were certain things Rutledge did not state about his police record 21 Respondent's defense, based essentially upon testimony of conversations between high management officials, consists in substance as follows In latter December or early January, President Beerman (according to his testimony) received numerous complaints from customers concerning damaged merchandise, returns, and poor service These were particularly heavy around Christmas time, the busiest part of the selling season He spoke to Stine several times on the phone about the complaints-as it was Stine's job to be responsible for all services and personnel On these occasions, he asked Stine to let him see the employment records of all Apple Street employees whose functions related to delivery and service 24 Because of "a lack of things in a company that's busy,"- these records did not come to his office "for some time thereafter," (i e , until late February) In January and February, his attention was brought to the number of pickups or returns "in the home furnishings area " On February 17, he held the meeting at the Apple Street warehouse for the purpose of finding out what the "problems had been," and he did learn that "there were some inequities " Following his speech, he "demanded" of Stine the applications of these drivers as well as "their reference checks," which were subsequently furnished As to Rutledge, inter alia, he discover ed that this employee had a brother working for the Company in violation of a definite rule, that he had a back problem which "made him ineligible" for driving a truck, and that he had a police record He thereupon ordered the discharge Respondent's assigned grounds for Rutledge's discharge appear to me to be transparently disingenuous and artificial Much of the defensive evidence consists of vague and general ized conclusions of Beerman and Stine, of a self servicing character For example, no attempt was made by probative means to show that the volume and type of customer complaints were unusual during this Christmas season Nor is it plausible that the intercession of a company president of a large corporation and his requests for employment records of personnel would remain unheeded over a period of some 2 months Indeed, such a problem was dealt with shortly after Christmas when Superintendent Hank spoke to all warehouse employees at Apple Street 2 5 He said that each complaint would be investigated and where there was a clear cut showing of negligence, the responsible employee would be given a day 23 Later that day Rutledge discussed his discharge with a union agent Sexton at the union hall He testified that Sexton informed him that Respondent had mentioned a fugitive warrant' against Rutledge which did not appear on his application In his affidavit given to a Board agent Rutledge stated Stine told me that the company could no longer go along with my back condition and the fugitive thing the only thing I can recall is that I was arrested for speeding in Germantown Ohio in 1951 and was released to return four days later to pay my fine I didn t appear and the police picked me up two days later and I was taken back to Germantown to pay my fine ' 24 Stine described this as a passing request by Beerman 25 It would appear from the testimony that Hank s speech was not limited to the drivers and helpers but rather was made to the entire Apple Street staff, including warehouse and work shop employees 571 off without pay as a reprimand As a result, only one employee (Chambers) was given a day off in early January On February 17, Beerman "became quite vehement" about checking the records of employees The ordered search, so far as evident, was confined to the drivers and helpers at Apple Street (1 e , those employees assembled for the Beerman speech that day) In addition, special investigative requests were made of the "credit bureau and other sourcess26 for information concern ing these employees Q (By Trial Examiner) But the policy regarding cnmi nal records, that was company-wide9 A (Stine) Yes, sir Q And the policy concerning nepotism or the relative rule, that was company wide? A With some exceptions, where there has been a company purchased or something to that effect Q Yes, as already clarified 2 7 A Yes Q Do you know whether during all your tenure with the company, whether any similar review was made of any store or division of the company, or such an intensive review or complete review of records, and also engaging the credit bureau and other sources? A Well, the credit bureau and other sources are used on a day to day basis also Q Yes, but there was an additional request at that time This information, the further information that you got, for example the fugitive warrant, you got a result of specific request? A Yes No, to answer your question, I do not know of another situation exactly like this one * * * * * 28 Q (By General Counsel) What reason did you give John H Rutledge for discharging him9 A (Stine) I told Mr Rutledge that there had been a re view by other officers of the company on his application, on his back injury, which we didn't realize the full serious ness then, and that for the police record, which included a fugitive charge, which we had just become aware of, and which he didn't have on his application Q Now this fugitive matter you are talking about, that's something that happened back seven or eight years or longer ago? A I believe that's correct Q And it was just coming to your attention in February of 1967, is that correct9 A That's correct Q And that's why you fired him9 A That's why he was terminated, yes, sir 29 Substantial evidence has been described herein of the events in the union campaign among these employees, as well as 26 It was revealed for example that Respondent retained on a part time basis officers regularly employed on the Dayton police force infra 27 Elsewhere Stine testified that Respondent kept in its employ quite a few people acquired with the purchase of a company who had relatives among its existing employees As to another stated policy it was not shown that employees thus acquired who had police records were terminated 28 Earlier testimony 29 Stine did not attempt to describe the nature of the fugitive charge or to contradict Rutledge that it stemmed from a traffic violation which was cleared by his payment of a fine 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's animus and unlawful reactions thereto. From the proffered testimony of top management, it would seem that these occurrences relating to the Union were nonexistent.30 In clear fact, it was solely by reason of the Union's claim in February that President Beerman personally involved himself in depth with these drivers and helpers. On February 17, he came to Apple Street to make a speech and engage in other conduct designed to eradicate the union threat in the manner previously shown. And immediately thereafter, Respondent undertook an intensive and unprecedented investigation of these employees with the objective of finding grounds for employee terminations. The latter action supports Supervisor Graham's testimony in effect that Beerman gave instruction to "get rid of" some of these employees. Respondent thus set in motion a discriminatory process for the consequences of which it must be deemed responsible, whether or not it actually knew the union sentiments of the employee being discharged as a result of the investigation 31 But Rutledge's union leadership was indeed known to Respondent, which rendered this employee especially vulnerable As to hum, the factors of the relative rule, the police record, and the back ailment were fully revealed at hiring and long accepted by all active supervision. The dredging up in the investigation of a so-called fugitive charge serves only to show the insubstantiality of Respon- dent's defense in its seizure upon this ancient and relatively minor infraction. Finally, the point is developed by interman- agement conversation that the decisions of highly placed subordinates favoring the employment of Rutledge were superseded or revoked by President Beerman, and that this operated to imbue the discharge action with legitimacy. The proposition, factually and legally, is without ment.32 Upon all of the foregoing, I find that Rutledge was discharged for discriminatory reasons, in violation of Section 8(a)(3). 2. Colley The discharge of Colley, an Apple Street shuttle driver, was similarly effected on February 25 purportedly on orders from Beerman based upon the personnel data supplied to him pursuant to the investigation, supra. In March 1966, he was referred to Respondent by an employment agency and hired after being interviewed by Supervisors Maxwell and Graham. His application disclosed that he had had "an arrest." In September 1966, he and six other Apple Street employees were apprehended by the police. At the time, Respondent (including Vice President Stine) was aware of the circum- stances. Colley and Coleman were charged with carrying a concealed weapon and, at the trial 6 to 10 weeks later, both were convicted of a misdemeanor and given suspended 30 The observation is also noted that to an extraordinary degree Respondent 's brief has in lengthy detail misstated the evidence, for example, in repeatedly citing as evidence testimony explicitly stricken from the record, and otherwise in specifying evidence which patently does not exist Similar difficulty was encountered at the hearing at which counsel was frequently cautioned to control witnesses who were inclined to state their conclusions and mental processes in response to questions requiring specific facts. 31 E g, Signal Oil and Gas Company, 160 NLRB 644, enfd. 390 F 2d 338 (C.A. 9) 32 See, e g., N. L R. B v. Neuhoff Bros Packers, Inc, 375 F.2d 372, 376, on the applicable doctrine of respondeat superior. 33 In rebuttal at the hearing , the General Counsel sought to establish sentences of 2 months. When informed of the results, his immediate supervisor, Maxwell, told Colley it was good the charge was reduced from a felony to a misdemeanor, "because it could have meant" his job. The information was noted in the personnel files. Testimony at some length was developed by Respondent in support of the contention that Colley had a "record of drinking" while at work. A supervisor at the Van Buren store testified that "several times" he observed Colley in a "highly intoxicated" condition at the store with his truck. However, he never actually saw Colley drinking, and he reported only one incident to his superior at the store, in late January or early February. The latter, as he testified, personal- ly verified on this occasion that Colley had been drinking, and reported it to Supervisor Nicodemus at Apple Street. No attempt was made to stop Colley from driving his truck away from the Van Buren store, Nicodemus did not speak to Colley concerning the incident, and nothing was entered on his record. In one other incident during the same time period, Nicodemus smelled alcohol on Colley's breath, referred the matter to Maxwell, and Colley was sent home for the remainder of the day Colley in his testimony denied that he had been drinking on the job. Colley testified that, on February 25, in the presence of Nicodemus and Maxwell, Stine told him he was terminated because he had been arrested during the time of this employment and that this was against company policy. Colley asked why they waited some 6 months after his arrest to discharge him Stine said-"because higher authorities of the company didn't have any knowledge of his arrest." Stine testified he gave Colley two reasons. that he had been drinking on the job, and that he had been convicted of carrying a concealed weapon while he was an employee. Beerman testified that he saw "these applications" furnished him as a result of the investigation, and he noticed that a "week or two before" Colley was convicted for carrying a concealed weapon and that the reports included "some arrests on drinking." He was willing to overlook the "various minor offenses" disclosed as to other employees, but he considered it "very poor judgment used on Mr. Stine's behalf in the selection of" Rutledge and Colley, and he instructed that these two people be released. It is to be assumed that, as of February 25, Beerman's knowledge of Colley's reported drinking stemmed from oral information supplied by the supervision and not from existing entries on Colley's employment records. Also, significantly, Coleman was not then discharged for the same known misdemeanor conviction in light of the asserted company policy regarding employees with police records. Concerning the alleged strictness of the policy on police records, it is sufficient inter alia, to refer to the hiring of John H. Rutledge to show that exceptions and disparities existed.3 3 by testimony that a certain employee (Chambers) at the Apple Street warehouse had a record of felony convictions. Following discussions with the Trial Examiner , the parties were instructed to submit by stipulation after the hearing certified copies of this employee 's police record, for which an exhibit was reserved. It appears that the General Counsel, unable to arrive at a stipulation with Respondent , unilaterally (and contrary to instruction) sent to the Trial Examiner certain police material pertaining to this employee. Thereafter, Respondent strongly objected and for its part submitted to the Trial Examiner affidavits and letters to refute the implication of the General Counsel 's submission. All these posthearing documents are placed in a rejected exhibit file The Trial Examiner has entirely disregarded these submissions and deems it unnecessary to pursue the matter further. ELDER-BEERMAN STORES CORP. 573 The applicable considerations as to Colley have been definitively set forth in the discussions above relating to Rutledge. My findings, are, similarly, that the factors of Colley's conviction, drinking, and prior police record were condoned or waived and were not the true motivation for his discharge. Colley signed a union authorization card the day after he was first solicited by Rutledge. For the reasons shown, it is not crucial that Respondent's actual knowledge of his union activities be demonstrated. Respondent failed to sustain the burden of disentangling the consequences as to Colley of the discriminatory course of investigation which it adopted. However, it fairly appears from the evidence of Respondent's animus and purpose of covertly engaging in surveillance that it was intent upon learning the identity of the prounion employees. In all the circumstances, the inference is warranted that Respondent at least suspected Colley's sympathy with the Union. I conclude that Colley's discharge violated Section 8(a)(3). 3. Group discharge Supervisor Graham and five Apple Street drivers and helpers were discharged for the same reason given by Respondent, which it characterized at the hearing as a "slowdown." Numerous witnesses testified on both sides of the issue, with the factual question presented as to whether, on the morning of April 25, the dischargees were performing their work with no serious departure from the norm, or were singly or concertedly engaged in a form of misconduct significantly disruptive of their duties and of company discipline. The general background has been described relating to the organizational efforts of the delivery employees, including the factor that the representation petition was administratively dismissed on April 13. The testimony 34 was uncontradicted that, since the Union's telegram on February 3, Vice President Stine came around everyday at the Apple Street warehouse, although his appearances theretofore were "rare" or once every 2 or 3 months. Several supervisors stated in a joint affidavit. 31 "It has been clear that during the two-week period prior to April 25 that these men had built up a great deal of animosity and hostility toward the company and its management officials. These employees never directly stated the nature of their grievances to the company." On Sunday, April 23 '36 the yearly party was held at which annual bonuses were awarded by Respondent At the hearing, Respondent's counsel specifically stated3 7 that Respondent was relying, as basis for the discharges, upon knowledge it obtained that a concerted plan was formed at the bonus party that the drivers would engage in a slowdown-naming Coleman, Bledsoe, Pollard, Graham, Lockett,3 8 and Cameron; i.e., all the subsequent dischargees. On cross-examination, the question was then permitted to be put to Coleman, who denied knowledge of such a concerted plan.3 9 No evidence was actually produced to support this firmly advanced position of Respondent or to show the source of such information.40 Implied as a reason for the alleged plan for a slowdown was dissatisfaction with the bonuses received.41 Starting time for the drivers and helpers was 8 a.m.42 They had no fixed time schedule in preparing their trucks for departure. Their regular procedure was to route their deliveries from sales tickets, (sort them stop by stop according to street), write up the mamfest, load their trucks, service the trucks at a nearby gas station, and depart. The time each truck left from and returned to the warehouse varied with the number of deliveries and other factors. As earlier indicated, on their return they were at times sent out again with "specials" and were unable to complete their daily work until long after 5 p.m. Tuesday was usually "the heaviest day" in deliveries to be made. There were no rules which restricted them from talking, moving about, or fraternizing. In addition, for example, they took time during the morning for a break, or for refreshment when a concession truck stopped nearby. On Tuesday, April 25, the delivery employees first reported back to work following the bonus party. That morning there were 10 drivers and 4 helpers, most of whom arrived before starting time. 4 3 At a very early hour, management was well represented on the scene 44 Warehouse Supervisor Nicodemus testified that, about 8:00 on April 25, he was in the delivery area and found Coleman, Rutledge (sic),45 Lockett, Pollard all gathered in a group at one of the writing tables. "They were milling around and talking," first in loud and then in subdued tones for "perhaps a half hour." Up until 8:00, and right after, the "drivers were collecting and the mannerism was in a strained atmosphere." Probably about 8:00, Superintendent Hank told hum not to say anything to anyone, that he, Hank, "would handle the situation." Vice President Stine testified he was at a meeting at one of the stores 4-5 miles from the warehouse, when he received a telephone call between 8:15 and 8:30 from Nicodemus,46 who said "that the men were engaged in a slowdown, they had a hostile and belligerent attitude, that he couldn't control them." He told Nicodemus he would get down there as quickly as he could. Stine made no mention of a call from Hank. The latter testimony was given on General Counsel's examination of Stine under rule 43(b). 47 Later, when called by Respondent in presenting its defense, Stine altered his testimony. Nicodemus merely said "things were uneasy" and was just told by Stine to keep him informed. But about 8.30, Hank called and said,-"We have got real trouble.... They are not doing their jobs. There is a slowdown 34 Graham and Lockett 35 The joint affidavit (not offered in evidence) was given to a Board agent by Stine , Hank, and Nicodemus. The quoted statement was affirmed in the testimony of Nicodemus 36 On April 24, the drivers and helpers were off, although Supervisor Graham, among others, reported to work. 37 Upon questions of the Trial Examiner. 38 Lockett did not attend the bonus party. 39 Supervisor Graham was similarly questioned and he denied that he told Superintendent Hank after the bonus party "that trouble might occur." Hank was not asked to testify on this matter. 40 Respondent also alleged , but*did not establish , e.g., that at the bonus party, Bledsoe, in a loud voice, "made a lot of inflammatory remarks which seemed to tie in-." 41 Bledsoe and Lockett each received a net bonus of $209, and Coleman $110, all three were employed less than 2 years . Graham's bonus in 1967 was $520 , as compared with $650 in 1966. 42 Hereinafter , where convenient the morning hours will be shown without using the "a.m.", designation. 43 Bledsoe at 7:30 -7 40, Cameron and Pollard at 7.50, and Coleman at 8 00. 44 E.G , Nicodemus about 7:15; Hank 7 : 30, Maxwell at 7 45 Stine said he arrived about 8:50 (in conflict as described infra). 45 Discharged February 25, supra. 46 Nicodemus gave no testimony of such phone call. 47 U S. District Court Rules of Civil Procedure 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in progress." Hank also indicated that Kelley reported being told by Bledsoe that he was not to take his truck out that day, and that Bledsoe would stop him. Stine told Hank not to do anything until he got there.48 He left at 8:30 and came to the warehouse about 8:50. After speaking to Stine, Hank instruc- ted other supervision at the warehouse, e.g., Maxwell (but not Graham),-to say nothing to any of the men, "to just observe what was going on." Continuing Nicodemus' testimony,49 he described the usual procedures which the drivers follow in the morning. At the tables, they sort their sales tickets for routing (half hour), write up the manifest (15-20 minutes), and load their trucks (1h to lth hours). On April 25, when they went to load, their "movements were not nearly so fast as they ordinarily would work." Asked to be specific as to what was actually said, he responded, ".... it was more what they didn't say. These men ... had been very willing to talk to me at all times, and this morning there was a lack of talking with me." Their "faces and their actions" were unusual. He said Graham came in at 8:30, his regular reporting time,50 and immediately joined "this group." Nicodemus observed over a period of 2-2'h hours that Graham was not trying to get the men to load trucks and to carry out his other functions. But he said nothing to Graham about his work performance because he was instructed not to do so by Hank. Bledsoe was "the center of this group," and was "slow in his work " He does not recall what Lockett said but, in general, he was talking "loud and belligerent" to the other drivers. Pollard was "with the group"-which is "about the most" he could say in his case. At 9, he asked Coleman and Woods to accompany him in his personal car to pick up their trucks, which had been repaired at Fleming & Raney, a GMC dealer.5 i Coleman drove his truck back to the warehouse "at a slow pace,"52 and he was "slow in loading." Cameron was "very slowly routing his packages." Woods left the warehouse at 9.30; Kelley at 10; Lockett and Cameron at 10:30; Coleman around 11, and Bledsoe about 11:30, the last. It is particularly significant to view the testimony of the employee witnesses called by Respondent. Donald Blakely, a driver, pointedly questioned on direct, said he heard no statements at the bonus party as to what might happen the following Tuesday. At 8 on April 25, Bledsoe told him, "Well, we have sent for Beerman." At first he was busy getting his route. Later he glanced around and saw some of the fellows standing around "a little bit." Walter House, a helper assigned that day for the first time to work on Coleman's truck, testified that it seemed to him there was a little meeting at the desk by Bledsoe, Coleman, Lockett and Pollard between 7.30 48 Hank's version contained no reference to Bledsoe and Kelley, but added that he had told Stine then he "wanted to take some action " 49 Nicodemus has his office in the warehouse building . He testified he is normally in and out of the delivery area checking on orders, which consumes a total of about 35 percent of his time On April 25, he probably spent " a little more." His supervision of the drivers consists of "a general walk through " between 8 and 8 .30 On this day, he did nothing other than his normal routine duties , he did not stand and watch, except maybe "five minutes, or so " 50 Graham testified , and was well corroborated, that he arrived at 8, earlier than usual , because he had returns to write up which he could not do the previous Saturday when he had to drive a truck. 5 r Nicodemus apparently said nothing to Coleman enroute concern- ing the morning activity of the drivers. 52 Woods testified they were gone 15 or 20 minutes,-a seemingly conservative estimate in view of all time factors reasonably considered. 53 Coleman was terminated upon his return from deliveries on April 25. House also sought to imply that , while on the route, Coleman was and 8:15, although he himself was continually doing his work, and not standing and watching. He has seen employees standing around and talking before April 25, and has done so himself. He heard Bledsoe, Coleman and Lockett say they were dissatisfied with their bonus. Q. (Respondent's counsel) Did you hear anything about a boycott, or anything like that? A. No, but I did hear it later on, they had this intent.... about a day later [April 261 5 3 Paul Woods, a driver, arrived at 7 20. He said, "We were all just gathering around .... which we normally do every morning, talking and working at the same time." Coleman and Pollard told him,-"Before any trucks go out we want to see Mr. Beerman ... 54 about work conditions and the way the bonus was distributed, stuff in general that a lot of them thought they were getting a raw deal on." While Woods was there about 45 minutes all together, he saw Bledsoe engaged in loading his truck. John F. Jackson, a porter, had not been employed very long and did not know the names of the drivers. Between 8 and 8:30, he came through the delivery area and saw more than six of the men standing where they always gather every mormng to write up the manifests. He heard Graham and others say they were dissatisfied with their bonus. Richard Kelley came in at 7:30 and started to work. Bledsoe came over and told him-"there was not any trucks going out that day." He asked what was going to stop them, and Bledsoe said, "we are." Bledsoe, Pollard, Coleman, and Cameron went over to the table and started talkmg-"for about an hour." He was working inside his truck, and not watching them. As he left the truck, he could see they just stood around doing nothing. About 8 or 8:15, they key was missing from his truck parked outside. He spoke to Hank about it55 and they searched for the key It was found in the truck 20 minutes later. He departed at 10.30 and did not see Stine at all. Hank testified,56 inter alia, that between 8 and 8.10, he saw Coleman, Bledsoe, Cameron and Pollard gathered around the center table. He spoke to the men by name, e.g., "Good mormng, Mr. Coleman," and received no response-which is "unusual for this group of men." About 8:30, he noticed that Graham went to the table and joined the conversation. Kelley told him that Bledsoe said the trucks were not going out that mormng and that the key to his truck was missing. Lockett and Cameron had left the center table, but Bledsoe, Pollard and Coleman were still standing there, hands in their pockets. There was a lot of calling back and forth between Lockett and these men. Some loud language and laughter were going on and he heard a vulgar term used. As noted supra, he called Stine between 8.30 and 8:45, and Stine arrived thereafter. On two not trying to make his deliveries. For example, House repeatedly stated that they returned to the warehouse , between 6 30 and 7 p in., with half of their deliveries , whereas Coleman testified they returned at 4 30 p.m. with just 4 of more than 20 deliveries . And he heard Coleman suggest that they park the truck on Third Street and not bring it back, but he thought that was "just talk " Respondent specifically relies on such factors in the discharge, although it could not have obtained this information until after Coleman 's discharge Particularly in this line of testimony, House was unconvincing and is not credited, It is noted, inter alia, that he refused to sign a statement he gave to a Board agent and then testified he gave no affidavit to Respondent,- following which Respondent stipulated it obtained an affidavit from House. 54 He was specific that Coleman did not say -"we are not going to let any trucks out." 55 His immediate supervisor , Graham , was not consulted regarding the missing key. 56 He stated that he generally spends 15 percent of his time in the delivery department at Apple Street. ELDER-BEERMAN STORES CORP. 575 or three occasions, he observed Cameron in his area, with his hands in his pockets He was with Stine when Cameron approached and asked why they were watching him. Stine told Cameron "that he wasn't doing his job, and he should get that truck loaded, that he had spoken to hum the previous week about this .... if he wasn't happy with the job he should hit the clock." Drivers can leave as late as 12 or 1 and return (as late as) 7 or 8 at night. The employees in question did perform their work during the morning of April 25. Stine testified he arrived about 8.50. Bledsoe, Pollard and Coleman were between their trucks and not loading. Cameron and Lockett were standing with hands in pockets not doing their jobs. He heard loud and boisterous talking and laughing by the five men, but did not know what they were saying. Graham was not friendly, he did not respond when Stine said "hello." He then discussed the situation with Hank, who said the men "were out of control" and wanted to fire them immediately. Stine disagreed "at this time" and stated he "felt for the security and safety of the building and for the people in it." Questioned on cross in what way the conduct "was creating some sort of disturbance," Stine explained. It wasn't one thing, it was many things. It was a whole room full of goings on, in this morning. It wasn't the joking, or it wasn't the talking, or it wasn't the roaming through the department, it wasn't the boisterous talk alone, it was everything. It was a lot of little inconsequential things. He was concerned about safety.5 7 About 11:40, after the last truck had left, he telephoned Beerman, told him what had taken place and recommended firing. Beerman did not ask the names of the men, but said if Stine felt this was the only solution, "then for the safety of the other people in the building," they should be terminated as they came back from their routes.58 Stine immediately called "a contact" at the Dayton police station and requested that they send a repre- sentative when he began terminating these men. On examina- tion by the Trial Examiner, he changed his testimony to indicate that he actually called Detective Hatton, privately employed by Respondent when he is off duty from the Dayton police force. Another off-duty police officer (Messer) working part time for Respondent came out to the Company. He, Stine, made the decision to discharge in this instance. Before doing so, he conducted no independent investigation and did not attempt to ask any of the dischargees what they were doing on April 25, the reason for their alleged misbehav- ior, or "anything of that kind." He testified that "the happenings of the morning of the 25th were the reasons for the discharge."59 While Stine admitted that reasons for discharge and other vital information are entered in the personnel. file of each employee, these were not produced by Respondent.6 ° In the 3-month period preceding April 25, he had spoken to only "one man here" concerning the Union's attempt "to get in." Each of the dischargees had a separate terminal interview with Stine, and various other persons present.6 i The first was Supervisor Graham about 2.30 p.m.; Cameron, Lockett and Coleman as each returned to the warehouse on April 25; Bledsoe and Pollard in the morning of April 26. Graham and the employees were told the same reason for discharge quoted by Stine in his testimony under Rule 43(b): "Because of what happened this morning, and evidently you are unhappy with the company, so the company is evidently unhappy with you, and you are terminated." This version is accepted as consistent with those individually given by the dischargees, although Stine altered his testimony when later called by Respondent 62 Lockett, for example, testified that he responded "`How can a man averaging 130 to 150 stops, packages a day, be wasting time?' Plus I had had an old beat-up truck that wouldn't go over 20 miles an hour." Respondent was permitted to cross-examine each of the dischargees concerning his behavior in the morning of April 25.6 3 All in various forms denied specific questions that they stood around in small groups joking and laughing, that they worked slower than usual or were not doing their normal work that day. Bledsoe testified that, about 8 when he began his daily procedures, he saw "some of the big wheels around," naming Stine, Hank, Nicodemus, and Graham About 11.45 he was summoned back from the gas station by Haiik to put a dinette set on his truck. He said his truck was "full enough" and could not take any more. Nicodemus showed him how to load it, and it was done. However, in a half hour, he brought the dinette set back as refused by the customer, who said the instructions were to deliver it a week later. He and his helper, Pollard, made all of their 35 to 40 stops, including pickups. Coleman was a shuttle driver but was put on furniture delivery that day with House assigned as his helper. As Coleman was inexperienced on this job, Supervisor Graham had to instruct him and prepare his routing from the sales slips. After he was loaded up at 11, he had to wait at the service station because there were four trucks ahead of his to get to the gas pump. When Bledsoe was called back to the warehouse, he went along to offer help. Stine told him that Bledsc2's truck was not his business and ordered him back to his own truck. Of more than 20 deliveries of furniture, he brought back only four because he did not know where the streets were. He saw Stine at the warehouse at 8.01. Cameron testified that the whole time he was loading his truck Stine was standing "right in the middle" watching him. He asked Stine if he was doing something wrong, and Stine said, "no." He made all of his deliveries that 57 However, he did not call the police then or at any time, did nothing to follow up the trucks on the routes and, when they returned, did not check on the condition of the trucks, the merchandise, or the drivers and helpers. 58 Beerman testified that Stine called sometime between 9 50 and 10.30, and told him in effect that there was "almost an linisurrection or a revolution, over at the warehouse . . a sitdown strike or some sort of rebellion " He instructed Stine to get the people involved off the payroll 59 At the hearing Respondent purportedly relied on many addition- al incidents attributed to particular dischargees , as treated infra 60 Testimony on events of April 25 by Respondent's witnesses Walter Houck and Scott Maxwell have not been set forth Houck, in charge of bedding in the warehouse , added nothing in Respondent's favor I do not credit Maxwell, whose regular functions lay outside the delivery department,-as I find he was prone to overstatement, characterization, and assumption of detailed knowledge which I do not believe he had 61 Different combinations of Hank, Nicodemus, and Maxwell, plus a man unknown to the employees called "Meeker" (or probably Messer). Stine added a "Mr. Haines" (unidentified) at Coleman 's interview. 62 Here he testified that he used the same language with each of the men-"that due to the belligerence and hostile attitude of this morning, and due to the insubordination and the lack of respect for the warehouse supervisors , that he evidently was too unhappy to work for our company and we are just as unhappy with him. . . " While the issue of what Respondent chose to tell these men is not of critical importance , I do not credit the similar additions related by Hank, testifying after Stine . The other supervisors nor "Meeker " or "Messer" were questioned 63 Although the questions were beyond the scope of the General Counsel's direct examination 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day. He denied that at this termination interview Stine referred to his behavior on April 25 or to Stine's disappointment with his work "during the previous week.' 164 Pollard testified he worked no "differently this day than any other day." He denied that he and Bledsoe told Woods "that no trucks were going out that morning" (but he was not asked what he did tell Woods), and that he heard conversations between the drivers that morning "in which they stated they were angry and upset about their bonus." Lockett testified that he had not loaded the packages for Englewood, and Hank called him back from the service station to put them on his truck. He explained to Nicodemus he had 140 packages already, and in order to drop them off in 8 hours-"why you'd got to be humping," i.e., moving very rapidly, "and he had an old raggedy truck that is no good, and breaks." He did load and deliver these added packages. Graham testified that when he arrived at 8:00 Stine and Hank were there. Thereafter, he saw them "just standing and watching." They did not say a word to him, nor to the other employees so far as he observed. The men were performing as usual,-"just like it always was." The drivers "always holler, ... `where is what street?' and this and that information." His function was to get the men off on time, but "there wasn't never any time stipulation." After routing out Coleman, he was writing up the returns and was busy throughout the morning. Kelley, who had an out-of-town furniture route, departed earlier than usual. Stine and Hank helped turn load 65 and kept saying, "let's get Kelley out of here." Hank approached him about folding pads which were lying in a corner. Hank told him-"Get Bledsoe to fold them." Bledsoe was running into trouble preparing his route. He had to keep running upstairs to get furniture orders that should have been ready in the delivery area. Graham advised Bledsoe, "Go ahead, I'll fold them myself." Hank later "jumped" Graham- "I told you to tell that driver to fold them." Graham said, "Mr. Hank, he was running late." Hank replied, "I don't care how late. If he don't get back until 10 00 o'clock I want him to fold the pads." Conclusions As to Coleman, Pollard , Bledsoe, Cameron and Lockett, the broad issues appropriately raised are whether they were discharged for conduct which constitutes protected concerted activity under Section 8(a)(1),66 or to discourage their union membership in violation of Section 8(a)(3). As to either theory of violation, it is initially to be determined whether the grounds advanced by Respondent for the group discharge relating to the events of April 25 are substantially supported in the evidence. As shown, considerable testimony by numerous witnesses was adduced on both sides, giving rise to obvious questions of credibility. In resolving these questions, I have considered, inter alta the demeanor of the witnesses; their candor or lack thereof; their apparent interest or prejudice, the extent of contradiction or corroboration; leading questions of counsel; and the character, consistency, and inherent probabili- ty of the testimony. Concerning the pertinent events, the record does not present a conflict between the entire line of witnesses of General Counsel as opposed to that of Respon- dent. Here employee witnesses who were called by Respon- dent, as well as Supervisor Nicodemus in significant part, effectively substantiate the factual account given by the separate dischargees-which in light of the whole record I am disposed to credit. Collaterally, I have observed that a vein of dissimulation runs through much of Stine's testimony in the case. And as to Beerman, for example, it seems inordinately strange that he ostensibly remained in the background and desired no details from Stine regarding the reported "insurrec- tion" on April 25, as contrasted with his intimate personal involvement in the discharge of Rutledge and Colley. In my opinion, there is no believable evidence which would remotely justify, upon ordinary standards, a basis for fear in Respondent that the conduct of any of the dischargees posed a threat to safety of person or property.67 Indeed, the converse would appear. Despite the early determination and instruction of Stine merely to observe and refrain from speaking to these supposedly volatile miscreants, the top supervisors did not hesitate to hover over these individuals, to bring them back from the service station, to create or enlarge upon incidents, and to seek out grounds for criticism of their routine functions with no real consideration of the merits Notwithstanding these handicaps, the dischargees did perform their day's work as reasonably to be expected and in conformity with their customs in the past. There was no slowdown or other cognizable misconduct in actuality. It can hardly be disputed from Respondent's own testi- mony that a decision to discharge had been reached in the mind of management virtually at, or shortly beyond, the starting time for work of these individuals. Effectuation of the decision was only delayed, as I find, so that Respondent could build up more plausible appearing pretexts for the action. Respondent's asserted reliance, at the hearing and in its brief, upon a multiplicity of clearly fictitious grounds for the discharges discloses rather a lack of sincerity in its defenses, and additionally supplies an element in support of General Counsel's prima facie showing of unlawful motivation. From admissions of Respondent and from all the evidence, it is fairly apparent that Respondent was alerted to avert a demonstration of concerted action by employees in the delivery department prior to starting time on April 25. It is also plain that from the moment of their arrival at work on April 25, Coleman, Pollard, Bledsoe, Cameron and Lockett, as well as Graham, were singled out for surveillance on the job by the posted supervisors.68 These were in fact all the identified individuals as to whom Respondent stated that it obtained information that they had formed a concerted plan at the bonus party on April 23 to engage in a slowdown . Indeed, evidence of general identification of these individuals extends considerably prior to the bonus party. In the joint affidavit, supra, Respondent itself concedes that in the 2-week period before the bonus party, "these men had built up a great deal of animosity and hostility toward the company." The same employees were at the union hall in early February, had there signed new union authorization cards, and paid the union dues 64 Respondent 's counsel asserted that in the termination interview Stine mentioned certain incidents of the previous week involving Cameron However, when called , Stine did not so testify. 65 Denied by Stine and Hank. 66 Section 7, in part , accords employees the right "to engage in . . concerted activities for the purpose of collective bargaining or other mutual aid or protection ," and Section 8(a)(i) prohibits employers from interfering, restraining, or coercing employees "in the exercise of the rights guaranteed in section 7." 67 It is noted that Respondent's private police were summoned to be present, after the events, at the discharge interviews. 68 See, e g, N.L.R B v Yale Mfg. Co, 356 F.2d 69, 74 (C.A 1), enfg 150 NLRB 1102. ELDER-BEERMAN STORES CORP. 577 of $17 each. Findings have already been detailed as to Respondent's actions to establish a system of surveillance, its animus and coercive conduct respecting the Union , and its discriminatory discharge of the union leader, Rutledge, and of Colley. In addition, I attribute relevant significance to Beer- man's remark to Stine and Hank on February 17 that "there were too many black boys down here, to get rid of them." Respondent's argument is without substance that the union campaign was over and that it could therefore have had no discriminatory motive for discharging these employees. As earlier noted, the representation petition had been administra- tively dismissed on April 13 for failure of a showing of interest based on a larger unit than originally sought by the Union. It does not follow that such dismissal would abruptly halt the union campaign or cause the employees to abandon their adherence to the Union or desire for representation . Indeed, it could well operate to the contrary. Respondent knew that seriously felt grievances continued to exist,-despite Beerman's promise on February 17, his instruction to employees to refuse work after 5 p.m., and his broad invitation that the employees come directly to him with their grievances. Ironically, Respon- dent precipitately decided upon the discharge action on (or before) April 25 without even attempting to discuss with employees the nature of their complaints. Furthermore, unfair labor practice charges were pending since February 27, and an initial complaint herein formally issued against Respondent on April 24. At least in the period following dismissal of the petition, and at the bonus party on April 23, it is reasonably inferrable that Respondent became acutely aware or believed there was a resurgence of activity or renewal of the union effort by employees in the delivery department, and that the same individuals were involved as had earlier supported the Union . All the circumstances are substantially present to warrant a finding that Respondent decided to seize upon an opportunity on April 25 to administer a coup de grace to the continuing threat of union representation among these drivers and helpers . More especially in the full context shown, the fact that all of these employees discharged were subscribed union proponents creates a strong inference of unlawful discrimina- t1on .69 Respondent failed to demonstrate legitimate and substantial justification for the discharge .70 Accordingly, upon the entire record, it is my conclusion that Respondent terminated Coleman, Pollard, Bledsoe, Cameron and Lockett to discourage union membership and activity in violation of Section 8(a)(3).71 In relation to the "happenings" of April 25, the essential facts described above apply as well to Graham. Respondent had continued for some time to take the formal position that Graham was not a supervisor. In the complaint issued on July 28, General Counsel included Graham as an employee in the group discharge on April 25 and 26. However, as already shown , Respondent stipulated Graham's supervisory status during the course of the hearing . General Counsel's theory as to Graham was altered at this point , although it was still materially within the framework of the complaint . During the pertinent period of the discharge action, Graham was not taken into the confidence and councils of Respondent on matters which would normally concern him as the immediate supervisor of the employees involved in the purported acts of misconduct. Respondent had earlier knowledge of his lack of cooperation in its unlawful attempts to underrmne the union campaign. Particularly, he had failed to carry out repeated instructions to engage in surveillance and obtain the names of union adherents during the campaign , and so incurred the displeasure of Respondent . There are ample grounds to find that Respondent was aware or strongly suspected the fact of Graham's sympathy with the organizing aspirations of the employees. For a time preceding and on April 25, Respondent treated Graham in the same manner as it did the selected proumon employees and finally grouped him for discharge together with these employees. The true reason for Graham's discharge was his sympathetic attitude toward the Union, and as I find, in substantial part for his refusal to participate as instructed in Respondent's unlawful antiumon course of conduct. Especially in view of Respondent's known union animus and prior acts of coercion , it is reasonable to infer that the real grounds for Graham's discharge were fully registered upon the employees. It was thus demonstrated to them the extreme measures which Respondent would undertake to thwart their self-organizational rights. Notwithstanding his supervisory status, it is found , in accordance with settled precedent, that Graham's discharge violated the rights of employees under Section 8(a)(1).72 As an additional or alternative ground , I find that the discharge of Coleman, Pollard, Bledsoe, Cameron and Lockett independently violated Section 8(a)(1). It was peculiarly self-serving for Respondent to characterize as a slowdown the employee activity which it anticipated upon the asserted but unproven information it obtained from the bonus party on April 23. In fact there was no concerted plan, threat, or effectuation of an organized slowdown, nor any disruption of production or disturbance. The evidence does show, however, that before and about starting time of 8 a.m., on April 25, there were signs of an incipient effort by certain employees to engage in some kind of concerted protest to Respondent concerning their grievances. Respondent's employee witness, Woods, gave a credible summary of the contemplated activity before 8 a.m.-while "we were all just gathering around." He was then told by Coleman and Pollard that, before any trucks go out, the employees wanted to see Beerman about work conditions, the bonuses, and "stuff in general that a lot of them thought they were getting a raw deal on." These were unsophisticated employees , unassisted at this time by experi- enced advice. Their effort never reached the stage of an overt stoppage of any kind. It was abandoned at the outset quite probably because of Respondent 's presence and preparedness in force. I cannot find that Respondent was realistically expecting an organized slowdown-which is a form of misconduct well known in the cases to justify discharge .73 Consistent with the evidence , it is far more plausible, and concluded, that Respondent was anticipating some attempt at a strike or 69 E g., N L R B v Cameo Incorporated, 340 F 2d 803 (C A 5), Ertel Manufacturing Corp, 147 NLRB 312, enfd 352 F 2d 916 (C.A. 7) 70 N L R B. v Great Dane Trailers, Inc , 338 U.S. 26. 71 See O 'Keeffe Electric Co., 158 NLRB 434, 438, enfd . 391 F.2d 589 (C A. 9, 1968), State Electric Company, 157 NLRB 504, 513, Arnoldware, Inc, 129 NLRB 228, 229. 72 E.g., NLRB v Talladega Cotton Factory , Inc, 213 F 2d 208 (C A 5), General Engineering, Inc, 131 NLRB 648, 650. 73 E g , N L R B. v Blades Mfg Corp, 344 F 2d 998, 1004 (C.A 8), General Electric Company, 155 NLRB 208, 221 , Elk Lumber Company, 91 NLRB 333, 337 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted protest, and that it determined to abort any such movement and to get rid of selected individuals as the perpetrators. By its nature such contemplated activity by employees is manifestly within the protection of Section 7. The discharge of employees for the reasons based upon the belief, even if erroneous, that they were planning or engaging in a protected concerted activity violates Section 8(a)(1).74 Furthermore, as a fundamental matter, the discussions among these employees of their grievances and their consideration of a means of protest on and before April 25 constituted protected concerted activity.75 Indeed, the protection would clearly extend even to the discussion of plans to engage in a concerted slowdown, short of a real threat or actual consum- mation thereof, and so long as it remained in the area of speech and conversation.76 "Union [or concerted] activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious state if innocent employees can be discharged while engaging in it, even though [as I do not find here] the employer acts in good faith. 1177 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and to 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 engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In my opinion, a broad cease and desist order is warranted, particularly, by reason of the discriminatory discharges.? 8 It has been found that Respondent unlawfully discharged John A Rutledge, Revosie L. Colley, Coleman, Pollard, Bledsoe, Cameron, Lockett, and Graham. It will therefore be recommended that Respondent offer to these individuals immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings suffered by reason of their unlawful ternuna- tion, by payment to them of a sum of money equal to that which they normally would have earned from the date of their discharge to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to deter- mine the amounts of backpay due and the rights of reinstate- ment under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following- CONCLUSIONS OF LAW 1. Respondent is engaged in 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 discriminatorily discharging James E. Coleman, Charles Pollard, Millard Bledsoe, George Cameron, and Roosevelt Lockett, thereby discouraging membership in the Union, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By discharging the above-named employees for engaging in protected concerted activities, and by terminating the employment of Charles Graham, a supervisor, Respondent has independently interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By the foregoing, and by other acts and conduct interfering with, restraining and coercing employees, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. 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 the cases, it is recommended that Respondent, Elder-Beerman Stores Corp , Dayton, Ohio, its officers, agents, successors and assigns, shall 1 Cease and desist from. (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union #957, or in any other labor organiza- tion, by discharging employees, or in any other manner discnmrnating in regard to here or tenure of employment or any term or condition of employment (b) Discharging or otherwise disciplining employees for engaging in concerted activities protected in Section 7 of the Act. 74 Burnup and Sims, Inc., 379 U S. 21, Cusano d/b/a American Shuffleboard Co v NLRB., 190 F 2d 677 (C A. 1), N L R.B v. Sea Land Service, Inc., 356 F.2d 953 (C A 1), enfd. 146 NLRB 931 75 Indiana Gear Works, a Division of the Buehler Corporation, 156 NLRB 397, 400-401, Quaker Alloy Casting Company, 135 NLRB 805, Gibbs Corporation, 124 NLRB 1320. 76 "The Act was designed primarily to guarantee employees the right to organize and to engage in joint action calculated to further their mutual interests, and it would be inconsistent with this purpose to construe section 7 in such a way as to exclude from its protection speech supporting such joint action." Signal Oil Co v. N L R.B, 390 F 2d 338 (C.A. 9). 77 N L R B v. Burnup and Sims, Inc., 379 U.S. 21, 23. 78 N L R B v. Express Publishing Co, 312 U.S. 426, N L. R B v. Entwistle Mfg Co, 120 F 2d 532 (C.A 4) ELDER-BEERMAN STORES CORP. (c) Discharging or otherwise disciplining any supervisor because he has failed or refused to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7. (d) Coercively interrogating employees concerning union activities or sentiments, promising or granting them benefits to discourage their union membership or support, requesting or instructing employees to engage in surveillance or to act as informers regarding the union activities of other employees, bargaining directly or individually with employees in the face of a question concerning representation; or instructing any supervisor to engage in surveillance or other conduct constitut- ing coercion under Section 7. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act. (a) Offer John A. Rutledge, Revosie L. Colley, James E. Coleman, Charles Pollard, Millard Bledsoe, George Cameron, Roosevelt Lockett, and Charles Graham immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, as set forth in "The Remedy" section of the Trial Examiner's Decision (b) Notify the above-named individuals if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of the Trial Examiner's Decision. (d) Post at its Apple Street warehouse in Dayton, Ohio, copies of the notice attached hereto as "Appendix."79 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to 0 comply herewith. 79 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 80 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 579 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that. WE WILL NOT discharge or otherwise discriminate against employees in order to discourage membership or support for International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union # 957, or any other labor organization. WE WILL NOT discharge or otherwise punish any em- ployees for talking or acting together for the purpose of collective bargairng or other mutual aid or protection. WE WILL NOT discharge or otherwise punish any super- visor because he has failed or refused to spy on your union activities or engage in other conduct interfering with your rights under the National Labor Relations Act. WE WILL NOT ask you anything about a union or who is in the union or who favors the union in a manner which would coerce you regarding your rights under the Act. WE WILL NOT ask any employee to spy on other employees and report to us who joins a union or who works for it. WE WILL NOT promise or give you any benefits in order to discourage your union activities or membership. WE WILL NOT instruct any supervisor to spy on your union activities and report to us who joins a union or which employees want or favor a union. WE WILL NOT bargain directly or individually with you as employees where a union has requested us to bargain with it as your representative. WE WILL NOT in any other manner interfere with, restrain , or coerce you in the exercise of the rights guaranteed employees in the National Labor Relations Act. Since it has been found that we unlawfully fired the persons named below, WE WILL offer to give them back their jobs and seniority, and WE WILL pay them for the earnings they lost, plus 6 percent interest. JAMES E. COLEMAN CHARLES POLLARD MILLARD BLEDSOE GEORGE CAMERON ROOSEVELT LOCKETT CHARLES GRAHAM All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization of their choice, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended. ELDER- BEERMAN STORES, CORP. (Employer) i Dated By (Representative) (Title) 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE: We will notify the above-named persons if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended after discharge from the Armed Forces. 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 direct- ly with the Board's Regional Office, Room 2407 Federal Office Building 550 Main Street , Cincinnati , Ohio 45202 (Tel. No. 684-3663).