Sunshine Food Markets, Inc.

SUNSHINE FOOD MARKETS, INC. 497 Sunshine Food Markets, Inc. and American Bakery and Confectionery Workers' International Union, AFL-CIO. Case 18-CA-2565 February 13, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 21, 1968, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and with the additional reasoning set forth below, hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. We agree with the Trial Examiner that the Respondent had knowledge of Berniece McMahon's union activities, and that these activities were the motivating reason for the reduction in McMahon's hours of work and her subsequent discharge by the Respondent on February 2, 1968. Although the Respondent does not except to this finding of knowledge, we have nevertheless carefully examined the record support for the finding, because it was based on inference rather than direct evidence. McMahon signed a union authorization card, and she attended'' the weekly meetings conducted by the Union, including the meeting held at the Labor Temple on September 12, 1967. Moreover, like the other employees found by the Trial Examiner to have been the objects of the Respondent's 'The Respondent excepts to certain of the Trial Examiner ' s credibility findings. It is the Board's established policy, however , not to overrule a Trial Examiner's credibility resolutions unless, as is not the case here, the preponderance of! all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3). discrimination, McMahon was a member of the Union's organizing committee and she participated in contacting and soliciting other employees to join the Union. Upon the record as a whole, we find that the Respondent had knowledge of the union activities of its employees almost as soon as the organizing campaign was underway. The credited testimony of employees Neil Thie, George Tague, and George Tyler, reveals that the Respondent was fully aware of the identity of those its supervisory and managerial officials characterized as "ringleaders" of the Union. Indeed, other members of the Union's organizing committee were singled out by the Respondent and subjected to unlawful interrogation, threats of retribution and reprisal and solicitations to report on the union activities of their fellow-employees. Under these circumstances, we find in agreement with the Trial Examiner that the record contains the requisite evidence of the Respondent's knowledge of McMahon's union activities, and we adopt the findings that her reduction in hours and ultimate discharge violated Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of -the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Sunshine Food Markets, Inc., Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION ROBERT COHN, Trial Examiner: This case, heard at Sioux Falls, South Dakota, on June 26 through 28, 1968, pursuant to a charge filed March 1, 1968 (amended May 8, 1968), and a complaint issued May 24, 1968, presents the following issues for decision: (1) whether Sunshine Food Markets, Inc. (herein called the Respondent or Company), violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (herein called the Act), when it terminated three of its employees; (2) whether the Respondent violated Section 8(a)(1) of the Act through conduct of its supervisors and agents which allegedly interfered with, restrained, and coerced the employees in the exercise of rights guaranteed in Section 7 of the Act. Upon the entire record,' including my observation of the demeanor of the witnesses, and after full consideration of the posthearing briefs filed by counsel for the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material, a South Dakota corporation with its principal office and 'The following inaccuracies in the transcript are deemed worthy of correction [omitted from publication]. 174 NLRB No. 76 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place of business located in Sioux Falls, South Dakota, where it is engaged in the-retail sale of food products. During the annual period preceding the issuance of the complaint, Respondent's gross volume of business exceeded $500,000. Also, during said period, Respondent received goods directly from sources outside the State of South Dakota valued in excess of $50,000. Upon these facts, I find, as the Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED American Bakery and Confectionery Workers' International Union (AFL-CIO), herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background As previously noted, the Respondent is engaged in the retail food business, operating some 15 retail stores in Sioux Falls and surrounding cities. In addition to the stores, the Respondent owns and operates in Sioux Falls a complex containing a- grocery warehouse, a produce warehouse, a bakery and kitchen, and a frozen food section from which the stores are , supplied. The Company's offices are also maintained there. It is the approximate 95 employees employed at the compex - as distinguished from retail store employees - with which we are concerned in the instant matter. In June 19671 several of the employees contacted a representative of the Union, and an organizational campaign ensued. By September, the Union had apparently secured enough support to file a petition for an election with the Board (Case 18-RC-7271). Pursuant to a decision of the Regional Director on October 6, an election among the employees was held on November 2, in which 40 votes were cast for the Union, 44 against, with 5 challenged ballots.3 There is no question but that the Respondent openly opposed the organizational efforts of its employees, as was, of course, its legally protected right. However, the General Counsel contends that some of, the acts and conduct of Respondent's agents overstepped the legal limits; accordingly, we come now to a consideration of the evidence adduced on the issues. B. The Alleged Discriminatory Discharge of Neil Thie This employee worked for the Company on two occasions: the first was on a part-time basis in 1958 or _ 1959; he returned to work full time in May 1964 until his discharge on December 29. He commenced working during his second tenure as a receiver in the grocery 'All dates hereinafter refer to the calendar year 1967 unless otherwise indicated. - 'Subsequently, three of the challenged ballots were resolved and a certificate of the results of the election was issued indicating that the Union failed to receive a majority of the valid votes cast. warehouse, which entailed the placing of merchandise received from trucks or railroad cars into its proper place in the warehouse. After about 6 months, he was transferred to the job of shipper in the same warehouse. This position consisted principally of "pulling" merchandise from bins or "holes" pursuant to orders from the stores and marking the price thereon. He was one of five employees engaged in this function under the supervision of one Donald Asbra. During this second period of employment, his rate of pay increased from $1.50 per hour to $2.55 per hour. Thie first became involved in union activities on September 9 when he went to a union meeting at the Labor Temple in Sioux Falls. There he signed an authorization card and discussed the union affairs with fellow employees. Another meeting was held at the same place on September 12, shortly after work about 5 p.m. It was decided at that meeting that the employees attending would split into two groups and visit other employees at their homes in an effort to secure the latter to attend a second meeting that same evening about 10 p.m. at a local hotel. Neil Thie left the second meeting early because he was notified that his brother, Dean Thie, a produce buyer and conceded supervisor of Respondent, wished to see him at Neil's home. Dean Thie, who is an older brother of Neil, asked the latter if he had heard anything about the employees trying to organize a union at Respondent, and his brother answered in the negative. Dean opined that it would be a mistake for the employees to have a union because to do so would mean they would lose a lot of overtime and a Christmas bonus. He asked Neil to let him know if the latter heard anything about union activities in the plant ' Several weeks later, in October, Dean Thie visited his brother's house again and confronted the latter with the statement that "you lied to me the other night You did know something was going on." Neil agreed that he did but asserted that he would not squeal on his fellow employees Dean Thie advised his brother that the Company "had him pegged" as a ringleader in the warehouse and that he better get "squared away." He advised Neil again that the employees would lose money and overtime pay if a union came in the plant and that no matter how well an employee did his job, "you can always find something wrong with what somebody is doing, nobody is perfect." I find the foregoing interrogation and threats of economic retribution to employees conditioned upon the latter's selection of the Union as their bargaining representative to be a clear violation of Section 8(a)(1) of the Act Also, as alleged in the complaint, I find the statement that the Respondent knew that Neil Thie was a leader of the Union to create an' impression of surveillance of employees' union activities.5 'The foregoing findings are based upon the testimony of Neil Thie which I credit vis-a-vis the testimony of his brother. In addition to demeanor considerations, the latter attempted to veil the significance of the visit to his brother's house, and contradicted himself in the process Thus, on direct examination he testified that his discussion concerned "dissatisfaction in the company," and that the word "union" was never mentioned However, on cross-examination he admitted that he used the word "activity" and that one of the reasons he visited his brother was to find out what was causing the union activity . Also, on direct examination he testified that he first heard of the union activity subsequent to the first visit to his brother' s house and prior to the second visit (discussed infra) whereas, as noted, on cross-examination he conceded learning of the union activity prior to the first visit 'See N L.R B v Hendrix Manufacturing Company, Inc., 321 F 2d 100, SUNSHINE FOOD MARKETS, INC. 499 One day in October while at work Neil Thie was called into the g^ffice of executive vice president, Max Gerken. No one else was present. Gerken commenced the conversation by stating that it made no difference to him whether Thie was for or against the Union, but that he (Gerken) had some 16 or 17 copies of union contracts all of which provided for less working hours than the Respondent was presently working and that "it would be kind of a mistake to be for the Union." Gerken also mentioned that the Company was working on a different insurance plan for employees but could not do anything about it as long as "this was going on." Finally, he mentioned that no one would lose his job as long as they did it right, pointing out particularly that one employee would not lose his job so long as "he kept cooking his turkeys all right...." 6 Gerken testified that he called in Neil Thie to talk with him because Dean Thie "was a little distrubed about the fact that [his brother] might be taking some activity beyond that that was necessary to do his job." Gerken' told Neil Thie that he did not care whether he was for or against the Union but that he wanted him to stop talking union on company time. Gerken was not interrogated concerning the matter of the union contracts, and I credit Neil Thie's testimony in this regard, as hereinabove set forth. While Gerken denied that he threatened Thie with any loss of benefits if he supported the Union, I find that in the context of the interview, such reference to shorter hours in the union contracts constituted an implied threat that if the employees selected the Union as their collective-bargaining representative, the proximate result of such action would be a lessening of remuneration to the Respondent's employees and therefore an economic deprivation for their engaging in activities on behalf of 'the Union. Accordingly, I conclude that such conduct by an official of the Company in the sanctum of his office to an employee, constituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act, as alleged. Neil The was discharged on December 29. The reason therefore, according to the testimony of Personnel Manager Jenson, was because of "inaccuracy and . general attitude." The inaccuracy related to the mistakes in the marking of prices on the cartons by the shipper preparatory to shipment to the retail stores Each of the five shippers had his own colored marker for use in marking the prices so that any mistakes could be traced to the correct source. Thie testified that from time to time Foreman Asbra would caution the shippers to watch the prices but that he was never singled out for warning at any time prior to his discharge. He further testified that only on one occasion did Asbra speak to him individually in a reprimanding manner but this had to do with an apparent conflict between Thie and the receivers concerning putting in 7 (C.A. 5). In its brief (p. 12), the Respondent sought to minimize the import of Clean Thie's statements by considering them in isolation and based upon a brother-to-brother relationship rather than supervisor-employee relationship The Respondent also points out that there is no evidence that Neil Thie repeated the conversation of his brother to any other employee I find these contentions to be without merit See, e g , American Freightways Co., Inc, 124 NLRB 146, 147; cf Lexington Metal Products Company, Division of Ferro Manufacturing Corporation. 166 NLRB No. 106 6This was doubtlessly a reference to George Tague, one of the alleged discriminatees in this case, who worked in the kitchen, as discussed in more detail, infra merchandise in the wrong place. Asbra, a witness for Respondent, testified that he had occasion to warn Neil Thie both in a group and individually concerning inaccuracies in his work. However, he testified as to only one occasion when he criticized Thie about errors in marking, and this occurred at least a month prior to the termination. On that occasion, which took place not in an office but "in the neighborhood of the juice line," Asbra simply approached Thie and told him that the marking errors had to be corrected and Thie replied, according to Asbra, that "he would help correct it." This type of admonition could hardly be fairly interpreted as a warning that retention of Thie's job was immediately in danger if the mistakes were not rectified. Asbra testified that he assumed his position as supervisor of shipping in May, and that he observed the inaccuracies in marking at that time but "did not pay much attention to it."' It was not until October that Asbra commenced paying more attention to the mistakes because, as he testified, "I was getting more familiar with the operation and the office had started asking on the mistakes." However, Asbra candidly acknowledged that the number and frequency of the mistakes varied only up to 8 or 10 for all five shippers, and that he could not definitely state that there were more such mistakes on October, November, or December than there had been earlier. With respect to the ratio of mistakes to number of cartons marked, Asbra appeared less candid. After much "tugging" on cross-examination, he ventured that an individual shipper would mark at least 300 in a week.' As regards Neil Thie's "attitude," the Respondent contended that Thie did not work amiably and cooperatively with his fellow employees. In support of this contention, Respondent offered the testimony of Scholten, a receiver in the grocery warehouse. As previously noted, it was the job of the receivers to place the merchandise in holes or bins to be subsequently secured by the shippers for delivery to the retail stores. Scholten testified that there were frequent and continual complaints registered by the shippers respecting the manner in which the receivers did their jobs - that it was "great sport among the shippers to ridicule the receivers." Thus, Scholten further testified, his "relationship was terrible with all the shippp rs . . . [and] . Neil Thie was as mean as any of them." On one occasion which took place about 6 weeks after Scholten commenced working at Respondent's (in August), he had occasion to complain to the shipper's foreman, Donald Asbra, concerning the antics: of the shippers. However, the account in the record appears to place the onus more on a shipper named Dale Hammerstrom than Neil Thie; in any event, this one complaint reflected in the record is not only remote in time from the discharge but the testimony of Scholten as a whole reflects that there was a continual vendetta existing between the receivers on one hand and the shippers on the other without singling out any particular individual involved. In sum, I conclude that the General Counsel proved a prima facie case of discrimination violative of Section 8(a)(3) by showing that. (1) Neil Thie was engaged in conduct protected by Section 7; (2) the Company knew that he was an active adherent of the Union, and was 'He was aware of the inaccuracies because the office sent to him boxtops which had been inaccurately marked. 'Neil Thie testified undeniedly that he would mark between 600 and 1,000 cases a day. 500 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD opposed to the organizational efforts of its employees, including a statement by an agent of Respondent that the Company would seek to rid itself of the leaders in the campaign; and (3) Thie was thereafter discharged shortly after the election without warning or notification that a termination was contemplated.' The burden then shifted to the employer "to establish that it was motivated by legitimate objectives. "'0 Proof of errors in connection with the work, or inability to cooperate with fellow employees, would normally fulfill and satisfy the employer's burden. However, I have found that the evidence does not sustain the Respondent's contention that Thie's derelictions were any more numerous or serious than those of his fellow employees. Moreover, his relatively long tenure of employment and raise in wage rate during such employment testify to his being a relatively satisfactory employee. Under these circumstances, in the light of Respondent officials' threats and intimidatory remarks respecting their employees' organizational rights I conclude that the stated motive is false. Moreover, I may - and do - infer that the actual or real motive "is one that the employer desires to conceal - an unlawful motive ."" of discrimination to discourage membership in a labor organization. Accordingly, I find and conclude that by terminating Neil Thie on December 29, Respondent violated Section 8(a)(3) and (1) of the Act. C. The Alleged Discrimination Respecting George Tague This employee commenced working for Respondent in 1964. He started at the bottom of the ladder, cleaning floors in the kitchen and bakery area. However, shortly thereafter he was promoted to the job of mixer and scaler of bread products which he retained for about a year and a half. In June 1966, he was again promoted to become a manager of a restaurant which the Respondent maintained in one of its stores. At that time, substantially all of the food that was served in Respondent's store restaurants was prepared in the store itself and Tague, was principally a cook or chef. However, about 6 months later, the Respondent opened in the complex what was known as a central kitchen, in which substantially all of the food destined to be served in the store restaurants was prepared. Tague worked in the central kitchen from that time until his discharge on November 17. Since one of Respondent's defenses to the alleged discriminatory discharge of Tague is that he was a supervisor within the meaning of Section 2(11) of the Act, and therefore not entitled to the protection of Section 7, I first turn to the evidence respecting that issue. Tague was one of approximately six employees in the kitchen - two male and four female. His principal function was the preparation of soups, gravies, roast beef, and turkey, and the other male was primarily a dishwasher. The women prepared salads, vegetables, and the like. The women, as well as some of Respondent's officials, referred to Tague as a supervisor. However, the record is devoid of any substantial evidence that he exercised any of the functions 'See, e.g., United States Rubber Company v. N L:R.B , 384 F 2d 660, 662 (C A. 5), where the court stated. 'Perhaps most damning is the fact that both Brewster and' Morales were summarily discharged after reports of their misconduct without being given any opportunity to explain or give their versions of the incidents." "N.L.R B v. Great Dane Traders, Inc., 388 U.S 26 (1967) "See Shattuck Denn Mining Corporation v. N L R.B, 362 F 2d 466, 470 (C.A. 9) of a supervisor as that term is defined in Section 2(11). Thus, in the first instance, it appears that the jobs of the employees in the kitchen were of a substantially routine character which were repeated daily. That is to say, one of the ladies, Bee Mason, took the orders from the stores by telephone on each afternoon, from which she made up a worksheet for the following day. The employees performed substantially the same job functions each day, in preparation of the food items. Accordingly, there was little or no occasion for Tague to direct or assign work to the individuals in the kitchen, and if on occasion he needed assistance, he would simply request that one or the other ladies help him on a temporary basis. Although the officials of Respondent insisted that Tague had authority to effectively recommend hiring or firing of employees, there is no evidence that this ever occurred and I deem these statements, under the circumstances, to be essentially self-serving Clearly, the evidence fails to show that Tague engaged in any duties in connection with his work in the kitchen which required the use of independent judgment as respects his relationship with the other employees. There is no evidence that he disciplined them, or adjusted their grievanrces, or allowed them time off, or otherwise exercised the use of independent judgment in connection with directing them in their work. I find appropriate to the instant case the following comment of the Court of Appeals for the Fourth Circuit in N.L R.B. v. Southern Bleachery & Print Works, Inc, 257 F.2d 235, 239 (1958), cert. denied 359 U.S. 911: It is equally clear, however, that the employer cannot make a supervisor out of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions. The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title. It is a question of fact in every case as to whether the individual is merely a superior workman or lead man who exercises the control of a skilled worker over less capable employees, or is a supervisor who shares the power of management.. . In Precision Fabricators v. N.L.R.B., 204 F.2d 567, 569 (C.A. 2, 1953), the court, in referring to a leadman, said: We will assume that he was the room "boss" or "leadman," but the discretion given him appears to be "routine" in the natural sense of that word As Judge Magruder said in N.L.R.B v. Quincy Steel Casting Co., 1 Cir., 200 F.2d 293, 296: "The legislative history of Sec. 2(11) tends to support the Board's view that certain employees with minor supervisory duties, such as straw bosses and leadmen, were not intended to be excluded from the coverage of the Act." Accordingly, I find that at all times that he worked in the central kitchen up until his termination on November 17, Tague was an employee entitled to the protection of Section 7 of the Act.' 2 "In its brief, Respondent argues strenuously that Tague should be considered an incredible witness on the basis of his answer to the following question Q Who told these four or five women what to do? A Lester Holvaldt, mainly. Paul Henline occasionally came in and gave them different jobs and directed a little but, but mainly Lester Holvaldt and when he wasn't there Bee Mason was mainly in charge of the women and myself (Tr p 150) Respondent would interpret the answer to mean that Tague considered Bee Mason to be "in charge of" himself However, under all the SUNSHINE FOOD MARKETS, INC. 501 With respect to union activities, Tague attended the first union meeting at the Labor Temple in September where he signed an authorization card. Subsequently, he attended other union meetings and was among those half-a-dozen employees comprising the organizing committee." It will be recalled that on October 3 a hearing was scheduled upon the Union's petition for an election. At the hearing., substantially all facts were stipulated by the Parties including a stipulation that Tague was a supervisor and therefore not entitled to vote." Subsequently, about 2 weeks before the election, Tague was called into the office of Vice President Gerken. Both participants agree that the conversation was friendly and rather lengthy, and that Gerken was, in general, complimentary of Tague's work record with the Company. Gerken laid stress, however, on his belief that Tague was capable of doing better work if he would direct his attention more to his job than to the union activity he was engaged in.15 Tague was concerned as to his right to vote in the election in view of the fact that the Company had apparently listed him as a supervisor on the eligibility list. According to Tague, Gerken acknowledged that this was a mistake - that the records had not been changed since Tague had` been manager of the restaurant - and promised to have the situation rectified. Gerken, in his testimony, stated that he told Tague that he would investigate the matter and see if he could be eligible to vote, but that he "couldn't promise him if he could vote." In any event, it is clear from subsequent events that Tague left the meeting under the distinct impression that Gerken promised to arrange matters to enable Tague to cast an unchallenged ballot in the election. On November 2, the election was held as scheduled, and Tague sought to cast his ballot along with the other employees. However, his ballot was challenged, presumably because he was listed as a supervisor. Tague was concededly upset when he returned to the kitchen and made some derogatory remarks about Gerken, accusing the latter of welshing on his promise to enable Tague to vote an unchallenged ballot. Also, according to the testimony of the two women who were in the kitchen at the time,16 that if things did not go his way "there was going to be bloodshed ... [and] Bee better not come back in the kitchen, . . ." Lester Holvaldt, supervisor of the Company's restaurants and also, as above noted, possessing a supervisory responsibility respecting the work in the kitchen, was present when Tague returned and heard his comments aforesaid. He testified that he saw circumstances, including Tague's demeanor on the witness stand, I am convinced that he meant that Bee Mason was mainly in charge of the women and that he also shared to some extent in this responsibility. However, as I have found, I do not believe that the evidence sustains the contention that he was a supervisor of the women within the contemplation of the statute, but rather that Holvaldt was the supervisor responsible for the kitchen employees. "Also on the committee , among others , were Neil Thie and Berniece McMahon "In my consideration of Tague's supervisory status, I took into account this stipulation. However, inasmuch as the issue was not litigated in the representation case and the status was arrived at upon agreement of the parties, I gave it little probative weight "On a Saturday morning prior to the interview, Gerken had met with approximately 20 employees of the complex, at the instance of Bee Mason, where he heard some complaints to the effect that the employees were being harassed by union talk and wanted to know what their rights were in the matter. Tague was among those named as a chief solicitor on behalf of the Union. Gerken advised that the employees "had every right io do and say as they pleased so far as they stuck to the truth " Paul Henline, superintendent of the bakery, across the floor ("the kitchen is in conjunction with the bakery") and told the latter that "we ought to send George home." Henline said, "Fine, go ahead and send him home."" That evening Fran Ackerman reported the day's happenings to Bee Mason by telephone. The following morning at work, the latter arranged for a meeting among the female employees of the kitchen and president of the Company, George Sercl. Mason, as spokesman for the women, told Sercl that as a result of Tague's activities the previous day the girls were afraid to work with him. Sercl assuaged their emotions, told them to return to work and not to worry - that he would see that something was done, and that they need not be afraid.1s Following the conversation with Sercl, the women returned to work." Sercl testified that following the conversation with the women, he called in Vice President Gerken and advised him of the situation . He directed Gerken to terminate Tague. Gerken naturally agreed with his superior, but assertedly advised that it could not be accomplished immediately - that he would have to make some arrangements for someone, possibly Holvaldt, to take over the operation, and that this would take little time. Gerken telephoned Tague's home the following Sunday and left word for the latter to report to his office at 7 o'clock the following morning. Tague complied. According to the testimony of Tague, which I credit, Gerken was quite upset, particularly regarding the report that Tague had called him a liar. He requested that Tague retract that statement. Tague refused to do so, claiming that Gerken had, in fact, promised to make it possible for him to vote in the election, and that he reneged on this promise. Gerken then told Tague that he could not allow the latter to return to the kitchen because the ladies were afraid of him -' that he had acted like "a regular wild man after the election." Tague denied this. About this time, Supervisors Holvaldt and Henline came into Gerken's office, and the latter suggested that they place Tague in the warehouse for a couple of weeks, but Gerken claimed that this was not possible. "because they were the strongest group in the Union campaign." Gerken suggested that Tague clock in and then leave the premises and come back at the normal checkout time and punch out. However, Tague refused to do this, claiming that it would not "be right" to receive pay and not work, "These were Fran Ackerman and Ila Stoakes , Bee Mason was not present in the kitchen at the time because she acted as an observer for the Company at the electron and was still at the polling place Gladys Runin, the other female employee in the kitchen at the time, did not testify "Tague denied that he had been "sent home," stating that he left early that day according to a previous arrangement with Holvaldt to take off the next day - Friday - for a hunting trip. Although Tague denied making some of the statements attributed to him by the women relating to threats of bloodshed and/or to Bee Mason, he conceded being upset and angry with Gerken for having assertedly doublecrossed him However, I deem it unnecessary to resolve this particular credibility issue because I would find for the General Counsel on the ultimate issue of discrimination even assuming the validity of the Respondent's witnesses, which assumption I will make for the purpose of discussion "The foregoing findings are based upon the testimony of Mason and Ackerman. Stoakes had difficulty with her recollection of the event Sercl testified that he told the women that he would get rid of Tague, "but give me a week or so to work it out" However, as neither of the women corroborated this statement , I do not credit Sercl's testimony in this respect. "It is to be recalled that Tague did not work that day, having made a previous arrangement with Holvaldt to take the day off to go on a hunting trip. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so he took the day off without pay. Gerken told him not to return to work until he was further advised. That afternoon Gerken called him at his house and told him to report to work the following morning as usual. During that conversation, according to Tague's testimony, Gerken stated: "I don't know what you wanted a Union for in the first place." Tague worked in the kitchen for the following 2 weeks, without incident. On Friday, November 17, he was called into Personnel Director Jenson's office, in the presence of Superintendent Paul Henline. Jenson advised that Holvaldt, supervisor of Respondent's restaurants, wanted to get out from under the strain of administrative and supervisory work and return to the kitchen where he could do more cooking; that this would eliminate Tague's job and therefore he was given 2 weeks' severence pay. No other job was offered to Tague, nor did he request any other work there. He asked for and received from Jenson a letter of recommendation which was complimentary respecting his work habits and qualifications regarding-food preparation (G C. Exh. 2). Analysis and Concluding Findings as to Tague It may be legitimately contended that Tague's conduct in the kitchen following the election, as reported to management shortly thereafter, provided a sound basis for his termination. But our inquiry does not end there since it is well settled that even though sufficient grounds may have existed to warrant discharge, if it was union activity which actually triggered the action, a violation of the Act resulted. The principle was well stated by the Court of Appeals for the Second Circuit in N.L.R.B. v Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 enfg. 133 NLRB 911• The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their 'union activities. The fact that the employer had ample reason for discharging them is of no moment. It was free to- discharge them for any reason good or bad, so long as it did not discharge, them for their union activity. And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated-by union ,activity, the discharges were violative of the Act. We have under consideration here an instance of an employee who was, in the eyes of management, concededly well thought of, competent, and satisfactory as respects his work habits and qualifications until it became known that he was one of the leaders in the union movement.20 Respondent's antipathy towards the organizational campaign has already been set forth in the section of this Decision dealing with the discharge of Neil Thie and will not be reiterated here. However, it will be recalled that in a conversation between Thie and Vice President Gerken the latter stated that as long as one fellow was "cooking his turkeys all right, he wouldn't lose his job " I find unpersuasive the asserted reason for the discharge Tague's conduct following the election - since, it seems to me, if Respondent's management were seriously concerned about future violence in the kitchen it would never have allowed Tague to return and work there for 2 "Respondent introduced in the record some evidence that during the fall of 1967, there were some complaints from the restaurants respecting the gravies which Tague made It appeared that they were too pasty. However this was easily and quickly rectified and clearly did not enter into the decision to discharge him more weeks. If it were truthfully fearful as to the personal safety of the women or damage to the property, Respondent would certainly have preferred to give him 2 weeks' vacation with pay rather than risk these consequences. The fact that it did not to do _so lends support to my conclusion that management realized that Tague's conduct was simply a short-lived, emotional outburst from having his ballot challenged and that the women's reaction was likewise an emotional one which would calm down in a few days. This is exactly what happened, as evidenced by the fact that all parties worked together without incident for the remaining 2 weeks. That union activity constituted a significant element in the decision to terminate is further indicated, in my view, by the undenied statement, during the Monday morning meeting following the election attributed to Vice President Gerken, that Tague could not be transferred to the warehouse "because they were the strongest group in the Union campaign." Finally, I am convinced that were Respondent not seeking to rid itself of an active union adherent, it would have, at least, offered this otherwise competent employee an opportunity to work in another location or indeed return to the management of one of its restaurants, a job which he was admittedly competent to perform. , Accordingly, I find that by terminating Tague on November 17 Respondent discriminated against an employee with respect to his tenure of employment in order to discourage membership in a labor organization, in violation of Section 8(a)(3) and (I) of the Act. D. The Alleged Discrimination as Respects Berniece McMahon This employee worked for the Company on two occasions: The first period of employment was from 1958 to 1959 after which she left for pregnancy. She returned to work for the Company in 1960 and worked continuously from that time until her termination on February 2, 1968. For approximately 2 years following her reemployment in 1960, she worked in Respondent's delicatessen kitchen; thereafter she was transferred to the bakery where she was employed for the remaining period of her tenure with Respondent. In the bakery, she performed at one time or another substantially all jobs which were endemic to women employees. These included wrapping, dropping cakes, greasing pans, making cookies, running the roll icing machine, and the like. However, for a substantial period prior to her termination, she became skilled in the decorating of cakes and spent a majority of her time at that occupation. Indeed, she was the only employee of Respondent who was competent to perform that function. Accordingly, during the period shortly before December 12, she spent most of her working day performing the decorating function, and, following that, she would complete the working day by performing other jobs in the bakery as she was needed. On December 12, Superintendent Henline advised McMahon that when she was through, decorating she could go home. McMahon inquired whether he meant just her or all of the first-shift employees (since it was customary, as previously noted, for her to work at other jobs subsequent to decorating). Henlin said he just meant her and from that time hence she was to go home when she was through decorating cakes. McMahon opined that she doubted that would "work out" because on some days there would not be very many hours of work. Henline agreed McMahon inquired whether she would receive a i SUNSHINE FOOD MARKETS, INC. 503 higher rate per hour and Henhne responded that he would talk that natter over with Personnel Director Jenson. On February 2, 1968, McMahon was called into Jenson's office where she was told by the latter, in the presence of Henline, that inasmuch as the Respondent was not making as many decorated cakes as previously, it was costing more than it was worth and that Respondent was "losing money on it." McMahon expressed some doubt as to the accuracy of that statement but Jenson advised that the Respondent was contemplating the elimination of "cake decorating anyway for a little while to see, for a few months, to see what the volume might be then." McMahon inquired whether he was trying to tell her that there was no other work for her, to which he responded "that is right." McMahon advised that she had been with the Company longer than many of the other female employees and that she had performed about every job in the bakery and that there had never been any complaints about her work, to which Jenson responded that there simply wasn't anything else for her and that he was not "any happier about the situation than [she] was but right now there wasn't anything." The foregoing findings are based upon the ' credited testimony of McMahon, which was not denied W either Jenson or Henline. Jenson brought out at the exit interview that one of the reasons that the cost of decorating cakes had risen was because McMahon had applied for and was commencing to draw partial unemployment compensation since her reduction in hours in December. This was not denied by McMahon. With respect to her union activities, the record shows that she attended the union meetings in September, hereinabove described, where she signed a union card and was elected to the organizing committee. However, there is no evidence that any management official ever spoke with her respecting her union membership or activities. Analysis and Concluding Findings Respecting Berniece McMahon Although there is no direct evidence of company knowledge respecting Berniece McMahon's union activities, I find, based upon statements of Respondent's agents and supervisors hereinabove adverted to, that at least by the time of the election the Respondent was aware of who among its employees were leaders in the union movement. Such statements also indicated, of course, Respondent's animus respecting the union campaign and its willingness to utilize fortuitous events as a pretext for ridding itself of the union leaders. I am convinced that this is what occurred in Berniece McMahonn's case. Thus we have a case of an employee with long tenure of employment with the Company whose competency in practically all aspects of bakery work was not questioned. She was assertedly terminated from Respondent's employment because of the unprofitability of the particular line of work in which she was primarily occupied.21 The question becomes, then, whether in the light of all surrounding circumstances, it would be a reasonable inference that McMahon would have been retained as an employee by the Respondent had it not been for her prominence in union affairs. In this regard, the undenied history of McMahon's competence in performing practically all other jobs in the bakery becomes quite significant. Respondent defends on this point by asserting that it was uneconomical for it to retain McMahon to perform these other jobs at an hourly rate of $2. 10 per hour whereas the female employees whom it did employ during the first several months of 1968 (see G. C. Exh. 3) were hired at a rate of $1.60 or $1.80 per hour. However, this position is not persuasive under the circumstances of this case for at least two reasons. (1) No inquiry was ever made of McMahon as to whether she was interested in continuing to work for Respondent at a lower rate rather than being laid off; and (2) Personnel Director Jenson acknowledged that most of the employees of Respondent had been with the Company for a long time, that he considered this an asset since it was quite expensive to train new employees.22 Under these circumstances, the economics of hiring new, inexperienced employees in preference to an employee with 7 or 8 years' experience becomes highly questionable. Accordingly, I conclude and find that by.reducing the work hours of McMahon on December 12 and by terminating her on February 2, as aforesaid, the Respondent discriminated to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. E. Additional Allegations of Violation of Section 8(a)(1) 1. The profit-sharing plan The complaint, as amended at the hearing, alleges as violative of Section 8(a)(1) of the Act , a provision in the Respondent' s profit-sharing plan which, in essence, excludes from participation in the plan any employee of the Respondent who shall have selected another person or organization "to bargain with the Company for and in'his or their behalf, regarding wages, hours and conditions of employment, where such person, persons , or organization has been recognized by the Company as the ' bargaining agent for such employee or employees or certified as such bargaining agent by any agency of the Federal Government or the State of South Dakota."23 The record shows that the plan was in effect at all times material herein , and that, indeed , there was at least one or more meetings held by company officials with the employees it September for the purpose of explaining the plan.24 Employee Shirley Buchmiller testified that a meeting of employees was held in the company offices about September 15 in which Vice President Gerken spoke. In explaining the plan, Gerken stated that he did not think that employees would want to jeopardize their pension or insurance, at which point Buchmiller inquired, "what do you mean jeopardize it, how could they jeopardize it?" Gerken replied, "if they would have any organization come in and negotiate for them."25 "Since this assertion of economic unprofitability of cake decorating was not attacked by the General Counsel, I assume its veracity for the purpose of this discussion As far as the record shows , the Respondent had not resumed the business of cake decoration since McMahon was terminated 12The Company maintains on-the-job training programs which run for a matter of 3 to 6 months "See G. C Exh. 4, pp 1-2. "President Sercl testified that he had heard "that there was union activity going, on and they were saying that this trust, profit-sharing trust is no good, they would never get a dime out of it and that we were just kidding them and when we got ready to take the money out of it, we would. And I decided probably I should explain that trust to them." "This finding is based upon the credited testimony of Buchmiller Gerken did not deny making the statement, and it is corroborated in essence by the testimony of Neil Thie who testified that Gerken pointed out that "the profit-sharing program could be lost if we as employees did something wrong... " 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The profit-sharing and retirement plan of Respondent extant in the instant case is clearly a term or condition of employment, and, indeed a valuable one as Respondent's president assured the employees. It is perhaps trite to state that discrimination with respect to a term or condition of employment to discourage membership in labor organization is proscribed by Section 8(a)(3) and (1) of the Act. It necessarily follows, as the Board previously held26 that the "mere maintenance and continuance of the provision in the plan making nonunion representation one of the qualifications for eligibility to participate therein, itself tends to interfere with, restrain, and coerce employees, who are otherwise eligible, in the exercise of their self-organizational rights guaranteed in Section 7 of the Act."27 By the threat implicit in Gerken's statement to employees as testified to by Buchmiller and Thie, that the plan would be jeopardized by having an organization "come in and negotiate for them," constitutes an additional violation of Section 8(a)(1) of the Act. 2. The alleged threat by LaVerne Mettler The complaint alleges as an additional violation of Section 8(a)(1) of the Act an alleged threat by one LaVerne Mettler to an employee who was a union supporter. The Respondent contends that La Verne Mettler was not a person for whom Respondent was responsible, i.e., he was not a supervisor or agent of Respondent, and therefore it was not liable for any remarks allegedly made by such person. I agree with Respondent. Mettler was a working foreman in the bakery department, which consisted of approximately 38 employees under the supervision of Superintendent Henline, a conceded supervisor. Mettler was more or less in charge of six men constituting the "bread shift " They were dough mixers, a machine operator, and two men who worked on the ovens. Mettler spent substantially all of his time performing manual work and received his instructions via worksheet from Henline. Mettler had limited authority to change the worksheet, but only as respects the time sequence of production. He had no authority to hire or fire or make recommendations respecting these matters nor does the record reflect that he adjusted grievances of employees or made other independent judgments regarding the attributes of supervision set forth in Section 2(11) of the Act. It appears that General Counsel's contention respecting the supervisory status of Mettler rests primarily on the following two factors: (1) That he was paid on a salary-plus-commission basis unlike the other employees on the crew with whom he worked, and therefore did not have to punch a timeclock as they did; and (2) that on one occasion he recommended a wage increase for his friend George Tyler which the latter ultimately received. However, I do not believe that these indicia, considered in the context of all other factors bearing on the issue, devolve upon Mettler the independence of judgment required of a supervisor as defined in the statute. The method of pay, while normally a factor to be considered among others, is not even mentioned in the definition, and the wage recommendation (on behalf of a friend) was the sole one which Mettler ever attempted. In sum, I conceive Mettler's position to be somewhat akin to that of Tague in the kitchen. The latter was apparently "in charge of' "Jim O'Donnell Inc, 123 NLRB 1639, 1643. "Accord- Melville Confections, Inc, 142 NLRB 1334, 1338; see also Firestone Synthetic Fibers Co , 157 NLRB 1014. the group of employees there as was Mettler as respects the bread shift. However, in my judgment, the record does not reflect that either possessed the quality of independence of judgment required by the Act. I therefore will recommend that the complaint be dismissed insofar as it alleges a violation based upon the conduct of LaVerne Mettler. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the interstate operations of Respondent, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following CONCLUSIONS OF LAW 1. Sunshine Food Markets, Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Bakery and Confectionery Workers' International Union (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against employees in order to discourage union membership among its employees, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except to the extent that violations of the Act have been specifically found, as set forth above, the General Counsel has failed to establish by preponderance of the evidence the remaining allegations of the complaint herein, and it will be recommended that the complaint be, to that extent, dismissed. THE REMEDY Having found that Respondent has engaged in unfair. labor practices violative of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because the clearly coercive and discriminatory treatment of the alleged discriminatees in this case by Respondent goes to the heart of the Act, and indicates its purpose to defeat the exercise by employees of rights guaranteed in Section 7 of the Act, I am convinced that a cease-and-desist order coextensive with the guarantees of Section 7 is warranted and necessary to prevent other unfair labor practices potentially related to those found herein. I shall therefore recommend that Respondent be required to cease and desist from in any other manner infringing upon employees' Section 7 rights. My Recommended Order will require that Respondent offer the alleged discriminatees herein immediate and full reinstatement to his (or her) former or substantially SUNSHINE FOOD MARKETS, INC. equivalent position without prejudice to his (or her) seniority or other rights and privileges and that each be made whole for any and all losses he (or she) may have suffered by reason of the discrimination against them including any loss in wages which may have resulted from the diminution in working hours suffered by McMahon from December 12 until her termination on February 2, 1968 Any backpay shall be computed in accordance with the formula set forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the entire record, the findings of fact and conclusions of law, and pursuant to Section 10(c), I hereby issue the following. RECOMMENDED ORDER The Respondent , Sunshine Food Markets, Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Threatening employees with loss of hours of work, Christmas bonuses, or other benefits or privileges should they select the American Bakery and Corifpz tionery Workers' International Union (AFL-CIO), or any other labor organization, as their bargaining representative. (b) Conditioning participation in any profit-sharing plan to employees who are not represented by any labor organization for collective bargaining purposes. (c) Creating the impression of surveillance of employees' union activities by telling employees that the Company knows who the union leaders are (d) Coercively interrogating employees concerning their union activities. (e) Advising employees that the Respondent would discharge employees who are leading union adherents. (f) Discouraging membership in American Bakery and Confectionery Workers' International Union (AFL-CIO), by reducing the number of hours to be worked, discharging, or in any other manner discriminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. (g) In any other manner interfering with , restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer George Tague, Neil Thie, and Berniece McMahon immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make each whole for all losses they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify each of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Amend the "Sunshine Profit-Sharing and Retirement Plan" by eliminating therefrom the requirement that eligibility for participation therein be conditioned upon whether a collective-bargaining representative has been selected by any employee or group of employees, or recognized by the Company as the bargaining agent for such employee or group of employees. 505 (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its warehouse and office facility in Sioux Falls, South Dakota, copies of the attached notice marked "Appendix.' 121 Copies of said notice, on forms provided by the Regional Director for Region 18, of the Board (Minneapolis, Minnesota) after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.21 IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found hereinabove. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 18, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in American Bakery Confectionery Workers' International Union (AFL-CIO), or any other labor organization, by discharging, or in any other manner discriminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. WE WILL NOT threaten employees with loss of hours of work, Christmas bonuses, or any other benefits or privileges should they select the above-named Union, or any other labor organization, as their collective-bargaining representative. WE WILL NOT condition the participation in any profit-sharing plan to employees who are not represented by any labor organization for collective bargaining purposes. WE WILL NOT create the impression of surveillance of employees' union activities by telling employees that the Company knows who the union leaders are. WE WILL NOT coercively interrogate employees concerning their union activities. WE WILL NOT advise employees that the Company will discharge employees who are leaders on behalf of the Union. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights of self-organization, to form labor organizations, to join or assist American Bakery and Confectionery Workers' International Union (AFL-CIO), or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer George Tague, Neil Thie, and Berniece McMahon immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges and make each of them whole for any losses they may have suffered by reason of our discrimination against them. WE WILL notify George Tague, Neil Thie, and Berniece McMahon 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, as amended, after discharge from the Armed Forces. WE WILL amend our profit-sharing plan , known as Sunshine Profit-sharing and Retirement Plan, by striking from the definition of eligible participants in article 2, paragiaph 2.1, thereof the last two complete sentences. All our employees are free to become or remain, or refrain from becoming or remaining, members of American Bakery and Confectionery Workers' International Union (AFL-CIO), or any other labor organization. Dated By SUNSHINE FOOD MARKETS, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-334-5181.