U-Tote M of Oklahoma, Inc.

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U-Tote M of Oklahoma, Inc. and Retail Clerks Union Local #73, Retail Clerks International As- sociation, AFL-CIO. Case 16-CA-2955 June 25, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 22, 1967, Trial Examiner James V. Constantine issued his Decision in the above-en- titled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board 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 con- sidered the Trial Examiner's Decision, the excep- tions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein: 1. The Trial Examiner found, and we agree, that the Respondent engaged in numerous and flagrant violations of Section 8(a)(1) of the Act.' Such con- duct included coercive interrogation, threats of discharge to defeat unionism, unlawful expressions of the futility of the employees' selection of a union, and offers of independent contractor agree- ments in order to prevent the formation of a union. a. Interrogation: Former General Manager Yar- ton admitted that during the last week in March and shortly after the March 31 meeting with the Union at which it demanded recognition and bar- gaining, he questioned employees as to whether they had attended union meetings, how many had attended, and whether they had signed union authorization cards. On or about March 30, Ryan asked Dennis if he or anyone else had signed union cards and if Dennis had attended the union meeting on the previous evening. We find the above inter- rogation violative of Section 8(a)(1) of the Act. b. Threats of discharge: A meeting of employees was held on March 27 by Respondent. Among other things a proposed independent contractor ar- rangement, working conditions, and company pol- icy were discussed. Yarton said in substance that he would not put up with collective bargaining and that, if it became necessary to close down the stores, the stores would be operated by supervisors and persons hired off the street. This statement, we find, was designed to convey to the employees the impression that the Respondent would discharge all its employees or close its stores rather than recog- nize and bargain with a union, and thus contained an implied threat of reprisal violative of Section 8(a)(1). c. Expressions of futility: During the last week in March while Supervisor Lyle was explaining to Par- rish the antiunion motive behind the proposed inde- pendent contractor arrangement, discussed below, Lyle stated that "there isn't any organized labor in our stores, and there never will be." The evidence also reveals that while Ryan was unlawfully inter- rogating Dennis on March 30, Ryan said that he did not know how the Union would benefit Dennis, and he predicted that the Union would never be in the Respondent's organization. The only reasonable construction which the employees could place on such statements was that the Respondent would see to it that the Union was not successful and that it would be futile for the employees to bring in a union, as Respondent would never recognize it. Such expressions of futility restrain employees and interfere with their Section 7 rights in violation of Section 8(a)(1) of the Act.2 d. Proposed independent contractor arrangement: Immediately prior to the advent of the Union at the March 27 meeting, Respondent distributed to its employees copies of the independent contractor's agreement along with statements that it would not put up with collective bargaining. Shortly thereafter, Respondent made known to the em- ployees that the purpose of the said agreement was to prevent the possibility of the formation of a union. Thus, Ryan commented separately to Parrish ' In the absence of exceptions, we hereby adopt pro forma the Trial Ex- aminer's dismissal of the allegation that Respondent violated Section 8(a)( I) by creating the impression of surveillance , based upon Supervisor Ryan's comments to Parrish on April 6, that he knew Parrish and "half of the guys" were on the Union's bargaining committee. ' Better Val-11 Stores of Mansfield, Inc., 161 NLRB 762; Steward & Stevenson Services, Inc., 164 NLRB 741. 172 NLRB No. 21 U-TOTE M OF OKLAHOMA, INC. and Dennis, while attempting to solicit their signa- tures to such agreements, that its "main reason ... was to rule out [and ] prevent organized labor." In addition, Lyle expressly manifested Respondent's unlawful motive by telling Parrish during the last week in March that the purpose of the agreement was to "prevent any organized labor." In our view, Respondent's offering of independent contractor agreements to its employees prior to and after the advent of the Union for the stated aim of "pre- vent[ing] organized labor," and in an atmosphere filled with unlawful coercive overtones, con- stituted conduct necessarily tending to dissuade and discourage employees from joining together and forming a labor organization . The employees could only conclude from this extreme reorganiza- tion measure that any conduct on their part contra- ry to the announced position of the Respondent might result in unfavorable repercussions in their employment. Since the proposed independent con- tractor arrangement was a sham conceived to deter union organization , we find that the "offers" and remarks concerning the arrangement were coer- cive 3 2. The Trial Examiner also found, and we agree, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Jerry Dennis and Steven Fryar in reprisal for their union activities. Dennis was manager and Fryar assistant manager-trainee of Respondent's store 902 when discharged on May 1 , allegedly for incurring an in- ventory shortage. Pursuant to a company policy of taking at least one inventory a month in each store, an inventory shortage of $935.03 was discovered for store 902 on April 26 . General Manager Wal- ters had a second inventory taken on April 27 to verify the accuracy of the previous one, and a shortage of $969.72 was revealed. Walters discussed both inventories with Dennis and Fryar, but neither could give an explanation except that "[i]t must be an office error." Both were summari- ly discharged by Walters on May 1, allegedly for the inventory shortage. Like the Trial Examiner , we find that Dennis and Fryar were discriminatorily discharged for union membership and activity , and that the inventory shortage was a mere pretext raised by Respondent to conceal the true reason . Dennis was a known ac- tive union adherent and was instrumental in initiat- ing the union movement at Respondent's stores. 3 Cf. Conren, Inc., d/bla Great Scot Super Market, 156 NLRB 592, 600-601 , enfd . 368 F.2d 173 (C.A. 7), cert. denied 386 U.S. 974. In the absence of exceptions, we hereby adopt pro forma the Trial Examiner's 229 Thus, on March 28 he contacted Union Represen- tative Mike Nobles regarding the formation of a union. As a result of their conversation several union meetings were held on the following day. At one of these meetings Nobles handed to Dennis some union authorization cards for distribution to employees, and Dennis thereafter solicited one card other than his own. Prior to the union meeting held on the evening of March 30, Dennis visited about seven stores to invite the employees to said meet- ing. At a union meeting on April 2, Dennis was elected to the negotiating committee along with several other employees. The Respondent was fully aware of Dennis' active union participation at the time of his discharge , inasmuch as Ryan had unlaw- fully interrogated Dennis as early as March 30, at which time Dennis responded that he had attended a union meeting and had signed an authorization card. Respondent's view of Dennis' union activity was best illustrated by Ryan's further comments to Dennis in the latter part of April at a company dinner for employees that "[i]t looks like the big AFL-CIO representative is here tonight ... [and] I will tell everybody." Fryar was also a known union adherent having signed an authorization card on March 28. The Respondent had actual knowledge of his union sympathies as of the date of the Union's demand on March 31, in which all the cards, including Fryar's, were presented to Yarton, who checked each card against the personnel file. While Respondent had a policy of discharging all employees for theft, it had no such fixed policy or practice of discharging employees for inventory shortage not attributable to suspected theft. The record contains various incidents involving invento- ry shortages in which no disciplinary action was taken against the employees. Indeed, Dennis was employed as an assistant manager in a store that was found short in March, but he was not discharged, and in fact became store manager. It is also quite clear from the record that, after an in- ventory shortage is discovered, Respondent customarily attempts to determine the cause of the loss for purposes of evaluating what disciplinary ac- tion, if any, will be taken with respect to the em- ployees concerned. In the instant case no such in- vestigation was made, but rather, after a short discussion, Walters abruptly discharged Dennis and Fryar without any prior warning or notice. dismissal of the allegation that Respondent violated Section 8(a)( I) by Lyle's statement to Fryar on or about March 28 that the independent con- tractor's agreement was "to keep the Union out " 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's precipitous action in discharg- ing Dennis and Fryar allegedly for inventory shortage where it had no definite policy or practice to do so, when viewed against the background of its strong union animus, its demonstrated proclivity to engage in coercion of its employees and interfere with their Section 7 rights, and its other unlawful antiunion conduct, as well as its knowledge of Dennis' and Fryar's union sympathies, warrants the conclusion that Respondent seized upon this situa- tion as an excuse to rid itself of two known union adherents. 3. We find merit in Respondent's exceptions to the Trial Examiner's findings that Steven Parrish was discriminatorily discharged in violation of Sec- tion 8(a)(3) and (1) of the Act. Parrish was manager of Respondent's store 905 when discharged on April 13, allegedly for invento- ry shortage caused by his own admitted theft. A periodic inventory on April 4 revealed a shortage of $545.89. A second inventory taken on April 6 to check on the correctness of the earlier one showed a loss of $806.09. On April 7, Respondent's secre- tary-treasurer, Lankford, discussed the shortages with Parrish, explaining that at this point, pursuant to Respondent's policy, it would attempt to deter- mine what was causing shortages through the use of a polygraph test. Lankford further explained that the test could help in locating the specific source of the loss. In response to questions, Lankford stated that Parrish would be returned to work if he passed the test. Parrish admitted while testifying that on April 13 he told the polygraph operator he had pil- fered inventory from his store. Walters, having all these facts before him, immediately discharged Par- rish that same day. Although the timing of Parrish's discharge in relation to his union activities and the demon- strated antiunion hostility of Respondent created a suspicion of unlawful motivation, we cannot ignore that the record plainly establishes that Parrish had admitted theft and that Respondent had a definite policy and practice of discharging all employees for such conduct. In finding that Parrish was unlawfully discharged, the Trial Examiner erroneously refused to give any weight to the evidence of Parrish's ad- mitted theft and Respondent's reliance thereon. He concluded that such a defense was wholly incon- sistent with Respondent's assertion that inventory shortage motivated the discharge, viewing "inven- tory shortage" and "theft" as two unrelated grounds. Unlike the Trial Examiner, we are not willing to say in these circumstances that Respon- dent presented inconsistent and shifting defenses. On the contrary, the record establishes that the Respondent recognizes that an inventory shortage may be caused by theft or by other factors, and that when a loss occurs Respondent's normal practice is to investigate and discover the cause of the loss. In view of the above, and as it is clear that Respon- dent discharged Parrish immediately after learning of his admission of theft, we find that the General Counsel has failed to prove by a preponderance of the evidence that Respondent's decision to discharge Parrish was motivated in whole or in sub- stantial part by union animus. 4. We agree with the Trial Examiner, for the reasons stated in his Decision, that the Union represented a majority of the employees in the ap- propriate unit at all relevant times herein.4 We also find, for the reasons stated below, that Respondent refused to recognize and bargain with the Union on and after April I in violation of Section 8(a)(5) and (1) of the Act. As more fully set forth by the Trial Examiner, the Union secured signed authorization cards from a majority of the employees in the appropriate unit, and on March 31 it demanded recognition, offered to prove its majority status, and requested bargain- ing with Respondent in a bargaining unit consisting of U-Tote M and One-Stop stores in various loca- tions in Oklahoma. At that time Respondent was presented with union authorization cards, and, in the presence of the union representatives, it counted the cards and compared the names on these cards with its personnel records (U-Tote M and One-Stop) without raising any question as to the Union's majority status or the appropriateness of the unit sought. Thereafter, a series of letters was exchanged in which the Union repeated its demand for bargaining, and only then did Respondent for the first time question the Union's majority. The Respondent, however, had already embarked upon the aforementioned course of flagrant antiunion conduct. Without passing upon whether or not the Respondent was actually operating the One-Stop stores on or before March 3 1, as found by the Trial Examiner, it is clear that the appropriate unit requested was in existence at least as of April 1, when Respondent became entitled to possession of the newly acquired stores pursuant to a purchase agreement. In these circumstances, and considering particularly that the Union had made repeated de- Member Brown would find that the authorization cards of these em- ployees are valid and that they establish the Union's majority status for the reasons set forth in his separate statement in Dan Howard Mfg Co , 158 NLRB 805, 807, enforcement denied 390 F 22d 304 (C A 7) U-TOTE M OF OKLAHOMA, INC. mands for recognition and bargaining on and after March 31, we find that the Union 's demand for recognition on March 31 was of a -continuing na- ture imposing on Respondent a statutory obligation to recognize and bargain with the Union at least as of April 1, when it took possession of all stores, un- less it had a good-faith doubt of the majority status of the Union. The Respondent's widespread substantial antiu- nion conduct in violation of Section 8(a)(3) and (1), occurring both before' and after Respondent's refusal to extend recognition, clearly reveals that Respondent's failure to recognize the Union was based on its desire to gain time in which to un- dermine the Union, and clearly demonstrates that Respondent totally rejected the concept of collec- tive bargaining and was acting in bad faith to defeat the desires of the employees.' Accordingly, we find that the Respondent refused to recognize and bar- gain with the Union on and after April 1 in viola- tion of Section 8(a)(5) and (1) of the Act. 5. The Trial Examiner further found, and we agree for the reasons stated in his Decision, that Respondent violated Section 8(a)(5) of the Act by dealing directly with employees and thus bypassing the Union,' and by taking unilateral action affecting wages and other terms and conditions of employ- ment" at a time when Respondent had a duty to bargain with the Union.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, U- Tote M of Oklahoma, Inc., Tulsa, Oklahoma, its of- ficers, agents , successors , and assigns , shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. In paragraph 1(h) of the Recommended Order and in the eighth indented paragraph of the notice, add the words "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 in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959" after the word "Act." 2. In paragraph 2(b) of the Recommended Order, delete the words "Steve Parrish" between the words "Offer" and "Jerry." 3. In paragraph 2(c) of the Recommended Order, delete the words "Steve Parrish" between the words "said" and "Jerry." 231 4. In the last indented paragraph of the notice, delete the words "Steve Parrish" between the words "to" and "Jerry." ' Fabricators, Incorporated, 168 NLRB 140. " Joy Silk Mills, Inc, 85 NLRB 1263 enfd. as modified on other grounds 185 F 2d 732 (C A.D C ), cert. denied 341 U.S 914 ' On April I, Respondent, through its supervisors , distributed to all em- ployees a letter which invited them to feel free to discuss their problems and complaints directly with Respondent Furthermore , while distributing this letter and discussing the newly initiated changes in compensation and working conditions with Dennis , Yarton asked Dennis if the changes were satisfactory to him and "what more do you want?" Yarton also explained that the Respondent was attempting to ascertain employee grievances so that they could be adjusted and that the present changes were "certainly a step in the right direction " " These unilateral changes instituted on April 1 included, inter aba, a wage increase , the elimination of personal liability for inventory shortages, I day off a week, and a relief man at Respondent 's expense "Consolidated Rendering Company, dlbla Burlington Rendering Com- pany,161NLRB 1, fnl,enfd 386F2d699(CA 2) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case litigated under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, 29 U.S.C. 160(b). It was initiated by a complaint issued on June 21, 1967, by the General Counsel of the National Labor Relations Board, herein called the Board, through the acting Regional Director for Region 16 (Fort Worth, Texas), naming U-Tote M of Oklahoma, Inc., as the Respondent. That complaint is based on a charge filed on April 6, 1967, and amended June 1, 1967, by Retail Clerks Union Local #73, Retail Clerks International Association, AFL-CIO, herein called Local 73 or the Union. In substance the complaint as amended at the hearing alleges that Respondent has violated Sec- tion 8(a)(1), (3), and (5) and that such conduct af- fects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered ad- mitting some facts but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried, before me at Tulsa, Oklahoma, on July 31 and August 1 and 2, 1967. All parties were represented at and participated in the hearing, and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argument. Briefs have been received from Respondent and the General Coun- sel. At the hearing the complaint was amended by deleting the name of John Lewis as an employee il- legally discharged. This case presents the issues of whether Respon- dent (1) Coercively interrogated employees concern- ing their union membership, activities, and desires; 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Created the impression of surveillance of protected activities of employees; (3) Threatened to discharge employees who en- gaged in protected activities and promised benefits to employees for refraining from becoming or remaining members of the Union; (4) Bargained directly with employees and uni- laterally changed wages and working conditions without bargaining collectively thereon with the Union as majority representative of the employees; (5) Discharged three employees for engaging in union and other protected activity; and (6) Refused to recognize and bargain collective- ly with the Union as majority representative of the employees in an appropriate unit. Upon the entire record in this case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, an Oklahoma corporation, is en- gaged in many States in operating stores which sell food and related products at retail. Only its Oklahoma stores are involved in this proceeding. During the year preceding the issuance of the com- plaint in this case, Respondent sold and distributed products valued in excess of $500,000. During the same period Respondent received at its place of business in Oklahoma goods valued in excess of $50,000 directly from points outside the State of Oklahoma. I find that Respondent is engaged in commerce within the meanins. of Section 2(6) and (7) of the Act, and that it will effectuate the pur- poses of the Act to assert jurisdiction over Respon- dent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local 73 is a labor organization within the mean- ing of Section 2(5) of the Act. III. GENERAL COUNSEL'S VERSION OF THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion On March 30, 1967,' Respondent called two meetings of all employees of One-Stop Stores, a chain of retail food stores which Respondent had just acquired. About 23 employees attended. Su- pervisors Holland, Walters, and Melcher were present. Walters stated that One-Stop Stores were being sold and Melcher said that Respondent had bought the One-Stop Stores. 1. Interrogation After the March 31 meeting with Union Representative Nobles, at which the Union de- manded recognition, "and possibly before," General Manager Yarton questioned employees whether they attended union meetings . In the last week of March he also asked employees whether they signed union cards and how many employees had attended the union meeting of March 30. 2. Promises of benefit and unilateral changes On April 1, the day after the Union demanded and was denied recognition , General Manager Yar- ton put in effect , at the direction of Vice President Lankford, certain policy changes in all Respon- dent's stores. One such change abolished the rela- tionship of independent contractor between Respondent and the store manager . An indepen- dent contractor, according to General Manager Yarton, is "more or less like a franchise" holder. Such a relationship had been introduced in Respon- dent's Tulsa, Oklahoma, area 2 or 3 weeks before March 31. Copies of proposed independent con- tracts were distributed to employees at the meeting of March 29, mentioned above. See General Coun- sel's Exhibits 42 and 43 for such copies. At this meeting of March 29, Yarton told employees, in response to their questions, they would continue to work 7 days a week. Yarton also made other changes on April 1, without bargaining or consult- ing the Union thereon. See General Counsel's Ex- hibit 44. He passed out copies thereof to em- ployees. 3. Interference, restraint, and coercion On March 29, Steven Fryar received from Super- visor Frank Lyle a copy of an individual contract. See General Counsel's Exhibit 42. Lyle asked Fryar to read it, think it over, sign it, and return it to Lyle. The next day Fryar asked Lyle the purpose of the contract. In a "kidding manner" Lyle replied, "This is to keep the Union out." Employee Tommy Henry was also present at the time. Nevertheless, Fryar signed the contract and gave it to Lyle. Since this statement was made in jest, it is not coercive, and I so find. Reynolds Motors, Inc., 167 NLRB 318, 318. On March 28, Supervisor Ryan tolde employee Parrish that the independent contractor's agree- ment was designed "to prevent organized labor and to help ... you guys get more money and sort of be on your own." About April 2, Supervisor Frank Lyle discussed the individual contractor 's agreement (G.C. Exh. 43) with Parrish. In their conversation, Lyle said that the contracts were not worth the paper they were written on, and that basically they were in- tended ( a) to "bring the closest thing to" granting a ' All dates mentioned hereafter refer to 1967 except where otherwise noted U-TOTE M OF OKLAHOMA, INC. 233 franchise "but yet we have control over you," and (b) "to prevent organized labor." Continuing, Lyle remarked, "There isn't any organized labor in our stores, and there never will be." A notice dated January 18 called for a meeting of employees on January 23 (G.C. Exh. 48). At that meeting General Manager Yarton familiarized em- ployees with "the Company and the company poli- cies." A second meeting of employees was held on March 27. General Manager Yarton and Super- visors Ryan and Lyle attended on behalf of Respon- dent. Among other things the independent contrac- tor's agreement (G.C. Exh. 43) and the question of a day off were discussed. In addition, Yarton said he would try to settle grievances with a spokesman selected by the employees, but that he was a com- pany man and "would not put up with collective bargaining." Continuing, Yarton said that, "if necessary, if we closed the stores down he [Yarton] would have George Ryan to operate one and Bon- nie Ryan to operate one and he would operate one, and if he had to, he could get Niggers [sic] off the street to get these stores open." Finally, when an employee mentioned that One-Stop Stores, which Respondent was taking over on April 1, had a 6-day week, Yarton asserted that all employees after April 1 would be on a 7-day week. B. The Discharges General Manager Yarton testified that it was Respondent's policy to discharge an employee who "has a shortage or if he is a thief," and that he fired Orlan White for an inventory shortage and Grady Busby for being a thief. Charles Endicott was discharged for an inventory shortage, but his assistant was not discharged. However, discharges in such situations are not mandatory but are left to the discretion of the general manager. Such em- ployees are in charge of a store and are designated as managers or assistant managers. Each employee works alone. No contention is advanced that they are supervisors under Section 2(11) of the Act. I find that store managers and assistant managers are employees under Section 2(3) of the Act. When a shortage occurs generally the manager is charged with and is liable for 55 percent and the assistant manager for 45 percent thereof. Similarly, overages2 in inventory are generally credited to the manager and assistant manager in the same propor- tions; i.e., overages are added to a store's inventory for the following month. No one has ever been discharged for an overage. General Manager Ben M. Walters, Jr., testified that he discharged Jerry Dennis on May 1, Steven Fryar3 on May 1, and Steve Parrish on April 13, "based upon the facts that I had before me of an inventory shortage," and, when questioned as to "were there any other factors that went into the consideration of his discharge," answered "No, sir, none whatsoever." Walters told Fryar that Fryar was discharged for an inventory shortage. 1. The discharges of Jerry Dennis and Steven Fryar as described by General Manager Walters Dennis and Fryar worked at Respondent's store at 3711 South Harvard, Tulsa, Oklahoma. It is Store 902. Inventories taken of the store showed that the store was short $372 on March 1,4 $935.03 on April 26, and $969.72 on April 27, and was $15.84 over on March 14. There is no standard figure on inventory shortages determining when an employee should be discharged, but the matter is left to the general manager's discretion. Dennis and Fryar were replaced by Elmer Smith and Albert Kirk. Inventories taken while the latter two worked at this same store disclosed that the store was short $509.36 on May 30 and $167.21 on June 1. In April and May, the inventory crew consisted of George Ryan, a supervisor, Bonnie Ryan, his wife, and Jerry Lyle, the wife of another supervisor. Bonnie Ryan does no other work for Respondent. Inventories are taken at least once a month in each store. General Manager Walters had the inventory of April 27 taken to check on the accuracy of that of April 26. Then he discussed both inventories with Dennis and Fryar, but neither gave an explanation other than to assert "it must be an office error." The inventory sheets for April 26 and 27 are in evidence as Respondent's Exhibits 2 and 3. At Store 901 an inventory shortage of $657.04 was discovered on February 23. Jack Fuller, the store manager at that time, was not discharged and he is still employed by Respondent. Store 903 was over $17.23 on December 26, 1966, $27.21 on the January inventory, and $44.06 on the March inven- tory, and was short $19.02 on the February inven- tory, $913.75 on the April inventory, $669.63 on the May inventory, and $291.84 in June. The store manager, Steven Cox, was discharged "because of a confession that he made that he had taken $500." General Manager Walters testified that a distinction exists between a theft and a shortage, and repeated that Cox "was discharged upon a confession that he made that he had stolen $500." At Store 904 inventory sheets disclosed a shortage of $313.73 on May 29 and an overage of $464 on June 6. Its manager, Bill Ratliff, was discharged because he had an inventory shortage of approximately $2,000, according to General ' An overage is the amount of merchandise in the store over and above the amount charged to the store by the office records. 3 Dennis was manager and Fryar assistant manager of Store 902 ' Dennis was charged for 45 percent of this and Orlan White, who was the store 's manager on March I, was charged for 55 percent 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager Walters. However, the $2,000 figure is probably incorrect as it is based on the May 29 shortage and the June 6 overage. The parties stipu- lated that Ratliff quit, and was not discharged, shortly after an inventory was taken showing a shortage. 2. The discharge of Steve Parrish a. The version of General Manager Walters General Manager Walters discharged Steve Par- rish , manager of Store 905, on April 13 "for inven- tory shortage." Inventory sheets show that Parrish was short $545.89 on April 4 and $806.09 on April 6. See Respondent's Exhibits 4 and 5. The second inventory was made to check on the correctness of the first one. Then General Manager Walters discussed the shortage with Parrish but the latter "had no reasonable explanation." Other employees discharged by General Manager Walters for inventory shortages are James Williams and Mike Gilbhar, but these occurred within 45 days of August 1, i.e., after Parrish's discharge. However, Walters finally stated that Gilbhar was discharged for confessing to stealing. Store 906 was $616.33 over on April 25 and $251 over on May 23. The overage resulted because $405 in keys physically present in the store had not been charged to it. General Manager Walters also discharged two re- lief men for shortages about 2 years ago, but they were not U-tote M employees. This apparently oc- curred at One-Stop Stores, where Walters had been general manager for 20 years prior to the time that Respondent purchased those stores. At the hearing, I excluded Respondent's evidence that Parrish admitted to Jackson Jones , a lie detec- tor operator, that Parrish agreed with employee Lewis to split cash overages, that Parrish and Lewis had purloined groceries and other items, and that Parrish had made illegal sales of Icees in unauthorized cups . This ruling was made because (1) Walters at no time contended that anything other than an inventory shortage (as distinguished from theft) was the cause of the discharge and (2) Walters told Parrish that the discharge was prompted solely by an inventory shortage. How- ever, this evidence may become relevant in deter- mining, at the compliance stage of this proceeding, whether, if such misconduct occurred, it will bar reinstatement or affect any backpay which may be due. b. Parrish's version of his discharge Following the March 27 meeting, Parrish discussed the formation of a union with fellow em- ployees Jerry Dennis, Bill Ratliff, Steven Cox, Jack Foley, Bill Garrett, and Johnny Lewis. Then on March 28, Parrish and Lewis called Union Representative Nobles, who told them to set up a meeting of employees for March 29. A meeting of employees was held on March 29 by the Union. Addressing them, Nobles told them a majority of employees would have to sign cards to authorize the Union to represent them. Nobles also gave Parrish some cards. Parrish then distributed these cards to employees. Another union meeting of employees was held on March 30. Employees were notified of it by Parrish and Jerry Dennis. On the day following his inventory, Parrish was "dismissed" and directed to see Vice President Lankford the next morning. Parrish did so. Among other things Lankford said, "You guys were getting along real fine until I got up here and all of a sud- den everything blows up in my face. I don't un- derstand it. We had plans of giving you guys a Christmas bonus, a raise, and everything.... If you want another inventory, we will definitely give it to you." Upon Parrish's requesting another inventory, Lankford had one taken the next afternoon. Following this second inventory, i.e., on or about April 7, Lankford told Parrish to take a polygraph, or lie detector, test and, if he passed it, Parrish would be given another, but not the same, store. In addition, Lankford said that "we never fire any- body for shortages, not unless it is some ridiculous amount like $1,000 or better." In the same conver- sation Lankford said that he had heard of Parrish from Supervisor Yarton or Ryan, who was thinking of promoting Parrish to "supervisor to break in new stores"; that "we think an awful lot of you and ... we sure don't want to lose you." Finally, if Parrish passed lie detector tests, Lankford agreed, at Par- rish's request, to place Parrish in a store near the University of Tulsa because Parrish planned to at- tend night school there, "providing that you [Par- rish] will quiet down on the Union and we also might even help you go through college." About April 6, Supervisor Ryan mentioned to Parrish that he, Ryan, could not see "how on earth we could come up $500 short in the store" and that he, Ryan, knew that Parrish and "half of the guys" are on the Union's bargaining committee. 3. The discharge of Jerry Dennis as recited by him On April 2, the Union held a meeting at which the employees elected a negotiating committee to deal with Respondent. Jerry Dennis and Steve Par- rish were among those so elected. Dennis visited seven stores where he invited em- ployees to the union meeting of March 30, and he also distributed one union authorization card to an employee. In addition, his father made some ar- rangements for Dennis to meet Union Representa- tive Nobles when Dennis and others decided they wanted a union at the stores. Dennis attended the March 27 meeting of em- ployees. On March 30, Supervisor George Ryan spoke to him. When Ryan asked him if he had signed a union card or had been to the union meet- U-TOTE M OF OKLAHOMA, INC. 235 ing the night before , Dennis replied that he had. Ryan asked to see a card but Dennis replied he had none . Then Ryan stated he had a card in his car and asked if everybody had signed cards. Dennis answered that he guessed that they had. To this Ryan replied that he could not understand what good this would do to Dennis and that he, Ryan, "didn't predict that the Union would be-ever in the U-Tote M organization." A day or two later Ryan asked Dennis if he would sign an independent contractor agreement (G.C. Exh. 43), explaining that such agreement gave Dennis a "lot more liber- ties with the store" and its "main reason ... was to rule- out organized labor." On April 1, General Manager Yarton told Dennis that Respondent had adopted a "new system" which he wrote down and then explained. See General Counsel's Exhibit 44. Effective that day, said Yarton, Respondent had adopted "the One- Stop" system, so that Dennis would have I day off each week. Continuing, Yarton said that Dennis "will get a little more raise" and "will not have to stand liable for your inventory or any of your shortages." Yarton added that "we are trying to get together what you guys have been raising so much can about and ... I think we have worked out a solution for both parties where they will be satisfied with it." Dennis was discharged by General Manager Wal- ters in the presence of Supervisor Lyle. The reason given was "inventory shortage." Previously, in March , at a time when Dennis was assistant manager and Orlan White was manager, this store had been about $400 short. Although White had to pay for this by deductions from his paychecks, Dennis was neither asked to contribute the usual 45 percent nor otherwise reprimanded except to be required to take a polygraph test. About April 29 or 30, the Company held a dinner for its employees at a motel . While Dennis was seated at a table with other employees , Super- visor Ryan told him, "It looks like the big AFL-CIO representative is here tonight .... I will tell everybody." C. The Refusal To Bargain As a result of the two meetings with employees Union Representative Nobles had obtained 32 authorization cards; so he mailed a demand for recognition on March 31 . (G.C. Exh . 2) Then, ac- companied by Ted Helms and Don Cook, Nobles brought the cards on May 31 to the U-Tote M of- fice. At the office the union representatives met Respondent's President Melcher, Vice President Lankford, and General Manager Yarton. Although demand was there made for recognition , it was de- nied. Melcher said that he had attorneys on retainer, so that he would talk to them and then let Nobles know. However, Melcher did not raise any questions about the cards submitted by the Union. In addition, Melcher asked Nobles to submit to him by mail a list of benefits which Nobles expected to obtain for the employees . By letter dated April 3, Nobles mailed such a list . See General Counsel's Exhibit 4. Respondent replied to the March 31 and April 3 letters of Nobles (G.C. Exh. 2 and 4) by stating it entertained a good-faith doubt of majority and sug- gested that a petition for an election be filed. (G.C. Exhs. 5 and 6 ) By letter dated April 7, Nobles notified Melcher of employee "petitions" and in- sisted on immediate recognition based on "majority status." (G.C. Exh. 7) On April 10, Respondent again denied "recognition based on cards and peti- tions" and reiterated its demand for a "democratic election." (G.C. Exh. 8.) 1. The appropriate unit The parties have agreed that at least 60 em- ployees comprised the unit which the Union sought to represent on March 31. (See (G.C. Exh.21, Exh. 21, which contains 61 names. The inclusion of Bon- nie M. Ryan in the unit is disputed by the General Counsel.) And they further stipulated that said unit is appropriate for the purposes of collective bar- gaining. Bonnie Ryan is on an inventory team which visits stores to take inventories thereof. Her husband, a supervisor, and Mrs. Lyle, the wife of another su- pervisor, are the other persons on this team. In ad- dition, Mrs. Ryan picked up the cash deposits from the store of employee Dennis when her husband, Supervisor Ryan, did not do so. 2. The Union 's majority Charles Endicott signed a union authorization card (G.C. Exh. 41) at a union meeting on March 29, at the request of Union Representative Nobles. After asking Endicott to read the card, No- bles told him that he, Nobles, "would take a majori- ty of these cards to the Company to show them they had a representation," and that "an outsider like a priest or rabbi would have a card check." Nobles added that after this the Union would bar- gain for a contract. Endicott read his card before subscribing. Henry Brown signed a union authorization card (G.C. Exh. 9) on March 31 at the request of one Ted Helms, a representative and agent of the Union. Helms made no promises to induce Brown to sign. Mrs. Thelma Brown signed a union authorization card (G.C. Exh. 10) on March 31, at the request of Ted Helms, who told her "it would be used to form a union." In reply to Brown's question if "it [the card] would better the working conditions ," Helms answered "Yes ... it would be better pay and everything." Steve Fryar signed a union authorization card (G.C. Exh . 11) on March 28 , at a union meeting over which Union Secretary-Treasurer Charles No- 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bles presided. Nobles stated to prospective signers at the meeting that "these cards were used for representation by the Union." Steven Cox signed a union authorization card (G.C. Exh. 12) on March 29. Union Representative Nobles told Cox, before the card was signed, that "it would be the Retail Clerks" and "it would make us a member of the Retail Clerks." However, the card had been actually presented to Cox previously by an employee at a Broken Arrow, Oklahoma, store of Respondent. Alfred Acord, age 16, signed a union authoriza- tion card (G.C.Exh. 13) at the request of Johnny Lewis on March 30. Steve Parrish signed a union authorization card (G.C. Exh. 14) at the request of Union Representa- tive Nobles on March 30. Nobles told him "in order for us to bring a union in, we would have to have fifty-one percent or better majority of our cards signed, authorization cards," and Nobles would then present them to the Company with a letter requesting recognition; that the Company could have an impartial person check the signatures on the cards against the payroll. Elmer Smith was also present at the time. Parrish also distributed union authorization cards to employees of Respondent. He gave one card (G.C. Exh. 15) on March 29 to Jack Foley "to give to Gene Herrera." That night Herrera brought the signed card to Parrish, who told Herrera that "we had to get a majority of all cards Qigned ... and No- bles would take the cards . . . and present them to the Company. And that this was not binding [Her- rera ] in any way [but] this was just a card authoriz- ing the Union to represent [Herrera] in collective bargaining." Jerry Dennis signed a union authorization card (G.C. Exh. 16) on March 29 at the request of Union Representative Nobles who told him that it was "an authorization to represent us in belonging to the Union ... that we would have to have a majority of fifty-one percent before we would have representation ... that ... after he [Nobles] had fifty-one percent, [he] would give notice to the Company that he was representing us to join the Union." Bill Ratliff was present at the time. Dennis gave a card (G.C. Exh. 16[) on March 30 to Thomas J. Ryan. In handing Ryan the card, Dennis said "Here is a card that you will be represented by the Union if you sign it," and that 51 percent "had to be down before we could get representation from the Union." Thereupon, Ryan signed it. Another person who signed a union authorization card (G.C. Exh. 18) is Jack Foley, who subscribed on March 29. He received it from Steve Parrish with whom he had a discussion. Foley "figured" that "it would be a forty hour week" after listening to Parrish say that "if we got the Union in we would get better hours or less hours" because "the Union could help us out with some of our hours," whereas "acting alone a guy couldn't get anywhere." Elmer Smith signed a union authorization card (G.C. Exh . 19) on March 30, at a union meeting held at the Ramada Inn. He had previously be- longed to a Retail Clerks union . Prior to signing, Union Representative Nobles told those at the meeting the Union could "represent [ employees] to the Company, or have an election ... " It was voted by the employees attending the meeting to sign the cards in order to have the Union represent them and have Nobles present the cards to the Company rather than have an election. Lester Williams signed a union authorization card (G.C. Exh. 20) on March 31 , at the request of Union Representative Helms. In soliciting Williams, Helms said that the Union would represent the em- ployees "to make better wages," that it would be able to get better wages and working conditions for Williams, and that the purpose of the card was "to represent [the employees and] present these cards to ... the owner." William Ratliff signed a union authorization card (G.C. Exh. 22) on March 29, at the request of Union Representative Nobles at the union office. Nobles told him that a "majority of authorization cards" was needed "to represent the Union," and that when such cards were presented to the Com- pany it "would have to negotiate with us." Charles Nobles is the Union's secretary-treasurer. As a result of a conversation with employee Jerry Dennis on March 28, a morning and afternoon meeting were scheduled for employees on March 29 at the Union 's office in Tulsa, Oklahoma. At the afternoon meeting employees Bill Garrett and John Lewis signed authorization cards (G.C. Exhs. 23 and 24 ) upon the solicitation of Nobles. At each of the above two meetings Nobles told employees "that there were a number of ways that the Union would come in to a store ; that among those was the card check or a voluntary recognition ... or election"; that "to have a card check or a voluntary recognition " the Union needed at least 51 percent of the employees "signed up in an ap- propriate unit"; that he could not "guarantee a set raise" if the Union "went in "; that he could not guarantee an election ; and that the employees should read the cards before signing them. Another meeting of employees was held at the union office on March 30. Nobles repeated at this meeting his remarks set forth in the preceding para- graph which he made on March 29 . At this meeting 12 employees signed authorization cards . (See G.C. Exhs. 26-37.) Nobles also obtained signed authorization cards from Virgil Clay, Tom Atkinson , and Robert John- son. (G .C. Exhs. 38, 39, and 40 ) on March 31. One of the Union's business agents is Ted Helms. He engaged in the campaign to organize Respon- dent's employees. On March 31 , he signed up Mike Gilbhar (G.C. Exh . 46), to whom Helms said "this card would help bring the Union in ." Helms also told Gilbhar that "we had to have a majority of U-TOTE M OF OKLAHOMA, INC. 237 these cards signed before we could bring the Union in." It was stipulated that Helms is a union agent and representative. 3. The Union's demand for recognition On March 31, Charles M. Yarton was general manager of U-Tote M of Oklahoma, Inc. At or about 5 p.m. on that date (the transcript incorrectly reads "March the 21st") he was visited by Union Representatives Charles Nobles, Ted Helms, and Don Cook. Company Supervisors Melcher and Lankford were also present at the time . The Union demanded and Respondent denied recognition. The union men presented a number of signed union authorization cards to Yarton . After counting and reading them Yarton wrote down on a piece of paper the name of each signer . Following this he returned the cards to one of the union representa- tives . Melcher commented that "it looks like you have a lot of cards there." Lankford and Melcher declined to look at the cards. Soon thereafter Yar- ton checked the above list of signers , which he had just prepared from the cards he read, with the payroll and found that such subscribers were em- ployees of either One-Stop Stores or U-Tote M stores. IV. RESPONDENT 'S EVIDENCE As noted above, part of the General Counsel's case was adduced through some of Responden's su- pervisors. Those features of the General Counsel's case favorable to Respondent may be regarded as evidence on Respondent's behalf. Respondent also introduced evidence in support of its position that no unfair labor practices were committed. That evidence follows. A. The Testimony of W. A. Lankford Lankford is Respondent's treasurer and secreta- ry, and is assistant to President Melcher in the area of operations, finance , and accounting. He is also vice president of a corporation, not otherwise identified in the record, which is the parent of Respondent. About April 5, Lankford spoke to Steve Parrish following a shortage discovered in Parrish 's store the day before . Parrish was suspended on April 4. After discussing this shortage , Parrish accepted Lankford's offer to conduct another inventory if Parrish so desired. Accordingly, the inventory was repeated on the next day, April 6, only to disclose "a little larger" shortage . On April 7, Parrish in- formed Lankford, in response to the latter's question, that he was "satisfied with the inventory." Thereupon, Lankford told Parrish that it was com- pany policy to give a polygraph test "to try to determine where the shortages were coming from," but that this did not reflect on the honesty of Par- rish. Lankford also said that Parrish would be put back to work if he passed the test, but at another store. In the previous January or February, Lank- ford told Parrish that General Manager Yarton con- sidered Parrish a "very fine employee" and that he could possibly become a supervisor in time. At no time did Lankford tell Parrish that U-Tote M never fired anybody for inventory shortages. In the conversation of April 7, Parrish mentioned that he desired to attend the University of Tulsa and asked to be assigned to a store near there. Lankford promised this on condition that Parrish pass the polygraph test and also on condition that such a store be available. But Lankford did not say such an assignment was dependent upon Parrish's quieting down on union activity; in fact Lankford never discussed the Union with Parrish or any other employee. B. The Testimony of Ralph Cooley Employee Cooley and employee Jerry Adams prepared and circulated a petition stating that Respondent's employees did not want a union. Several employees signed it . On June 15, it was notarized and presented to Respondent ..Cooley sent a copy to the Union . I excluded this petition (Resp. Exh. 1) because it was ineffectual to affect the Union's majority on March 31. He once signed a union authorization card but withdrew it later because he "transferred allegiance " from the Union to the Company. C. The Testimony of LeRoy Melcher By a written agreement consummated on March 3, Respondent acquired the 18 Tulsa, Oklahoma, stores of Oklahoma One-Stop Stores, Inc. (Resp. Exh. 6). Pursuant thereto, possession of such stores was to be delivered to Respondent on April 1 (Item 7, Resp. Exh. 6), but Respondent actually "took over" the One-Stop Stores before April 1. On March 30, Melcher spoke to the store managers and assistant managers of U-Tote M and One-Stop Stores in two sessions about 1 hour apart. At each meeting he made the same remarks. First he told them that U-Tote M was purchasing the One-Stop Stores. Then he asked for questions and answered those propounded to him. Among other things, he assured them, in answering some questions, that "they could stay the way they had been operating." However, Melcher then and there decided to place U-Tote M stores "on the same basis as the One-Stop Stores." At the hearing Melcher testified that, following the takeover of the One-Stop Stores, it was "essen- tial that you operate on one system or the other," and outlined the reasons therefor. Thus, he ex- plained that only one pay system was practical, although U-Tote M and One-Stop had different systems prior to April 1. But, on April 1, at his direction all the stores were placed on the same ba- sis. Thus, he decided to continue with the One-Stop 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD system and instructed his supervisors to so inform U-Tote M and One-Stop employees thereof orally and by a form letter. That letter is in evidence as General Counsel's Exhibit 3. Further, Melcher testified that General Counsel's Exhibit 44 "pretty well expresses" the One-Stop system which was put into effect on April 1. (The transcript, p. 405,1. 24, erroneously refers to G.C. Exh. 4 rather than 44.) After April 1, Respondent also changed the frequency of paydays, so that the employees were paid semimonthly rather than weekly, as had been the case prior to April 1. In view of the fewer paydays, Respondent informed employees, on March 30, when it told them of the change in pay periods, that they could draw against their paycheck or wages. Finally, Melcher testified that he had no knowledge of any union organizing drives on or be- fore March 30. It was not until just before noon on March 31 that he became aware of union activities at the stores, when at that time General Manager Yarton advised him of a union meeting the night before. V. CONCLUDING FINDINGS AND DISCUSSIONS A. As to Interference, Restraint, and Coercion In the last week of March, General Manager Yar- ton asked some employees whether they signed union cards and how many employees had attended a union meeting. And shortly after March 31, he asked some employees whether they had attended union meetings. I find that this interrogation is coercive within the meaning of Section 8(a)(1) of the Act. In addition, General Manager Yarton, about April 1, abolished proposals to make the store managers independent contractors. But I find that such proposals had been initiated prior to the ad- vent of the Union. Hence, I find it was proper to discontinue these direct dealings with employees after the Respondent became obligated to recog- nize and bargain with the Union as majority representative of the employees. However, Yarton also made other changes in wages and working con- ditions on April 1, as outlined in General Counsel's Exhibit 44, and also changed the pay period from weekly to semimonthly, without consulting or bar- gaining with the Union thereon. I find that this is a failure to bargain with the Union at a time when it enjoyed majority status and thus contravenes Sec- tion 8(a)(5) and, derivatively, 8(a)(1) of the Act. About March 28, Supervisor Ryan told employee Parrish that the independent contractor's agree- ment was intended "to prevent organized labor." The remainder of Ryan's remarks about this agree- ment are not coercive, and I so find. Then on or about April 2, Supervisor Lyle told Parrish that such contracts were not worth the paper they were written on and were prepared "to prevent or- ganized labor." Lyle's other references to these contracts are not coercive, and I so find. However, Ryan's and Lyle's describing the contracts as a means of preventing organized labor takes on a coercive aspect, so that I find that they transgress Section 8(a)(1) of the Act. At the same time, i.e., about April 2, Lyle also told Parrish that "there isn't any organized labor in our stores, and there never will be." While standing alone this may be innocuous, I find that it is coer- cive when considered with the accompanying state- ment that the contracts were devised to defeat unionization of the stores. Hence, I find that Lyle's said statement contravenes Section 8(a)(1) of the Act. Cf. The Great Atlantic & Pacific Tea Company, Inc., 167 NLRB 776. A meeting of employees was held on or about March 27 by Respondent. Among other things, General Manager Yarton discussed working condi- tions with employees. Since the record is barren as to employer knowledge of union activity at this time, I find that such discussion, except as herein noted below, did not transgress the Act. However, Yarton also at this meeting of March 27 said he would not put up with collective bargain- ing and that, if it became necessary to close down the stores, such stores would be operated by super- visors and persons hired "off the street." I find that this statement reasonably connotes, and was in- tended to convey the impression, that Respondent would close the stores rather than recognize a union . Further, I find the statements set forth in this paragraph are coercive and violate Section 8(a)(1) of the Act. To the extent that Respondent's evidence is not consonant with such findings, I do not credit the same. On or about March 30, Supervisor George Ryan asked employee Jerry Dennis if Dennis had signed a union card or had been to the union meeting the night before. I find this is coercive interrogation, since no legitimate reason is disclosed warranting the solicitation of such information. When Dennis answered both questions in the affirmative, Ryan asked if everyone had signed cards. This too con- stitutes coercive interrogation. Continuing, Ryan stated that he did not know how this would benefit Dennis and added that he predicted that the Union would never be "in the U-Tote M organization." When assessed with the other coercive language of Ryan made contemporaneously, I find that this last remark is coercive in that it implies that it would be futile for employees of Respondent to have a union. A day or two later, in requesting Dennis to sign an independent contractor agreement, Supervisor Ryan commented that its "main reason ... was to rule out organized labor." I find that this is coer- cive. About April 1, General Manager Yarton told em- ployee Dennis about changes in compensation and working conditions, and also that Respondent was trying to ascertain what the employee grievances were so as to adjust the same if possible. Since the U-TOTE M OF OKLAHOMA, INC. Union had attained majority status on March 31, I find that Yarton 's conduct on April 1 amounted to unilateral dealings with employees and thus bypassed the Union. Accordingly, I find that they violate Section 8(a)(5) and (1) of the Act. Insofar as Respondent 's evidence is inconsistent with the foregoing, I do not credit it. B. As to the Discharge of Steve Parrish Parrish was active in the union movement and, with employee Lewis, was instrumental in inducing Union Representative Nobles in organizing Respon- dent's stores. It is not necessary to repeat here the specific acts which Parrish performed on behalf of the Union, as they are recited in the analysis of Par- rish's evidence above. It is sufficient to point out that I credit Parrish as to his description of his ac- tivities for the Union. Further, I find that Parrish was dismissed on April 13, by General Manager Walters and that Walters assigned "inventory shortage" as the reason therefor, and that in fact Parrish's store was short $545.89 on April 4 and $806.09 on April 6. Of course, I find that an inven- tory shortage constitutes a lawful ground for discharging an employee and that if Parrish was ter- minated for an inventory shortage his dismissal was lawful. Nevertheless, I find that Parrish was actually discharged for his union activity and that the reason given to him was a pretext to disguise the true reason. This ultimate conclusion is based on the en- tire record and the following subsidiary facts, which I also find. 1. "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their em- ployees under the Act; but such purpose may be established by circumstantial evidence." Corrie Cor- poration v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). See N.L.R.B. v. Putnam Tool Company, 290 F.2d 663, 664 (C.A. 6). Therefore, it is not uncommon for an employer to point to an employee 's short- comings as the reason for a discriminatory discharge. 2. As found above , Parrish was active in the union movement among Respondent 's employees. This in itself means nothing ; but it may be con- sidered in ascertaining the true cause for a discharge. "Obviously, the discharge of a leading union advocate is a most effective method of un- dermining a union .... .. N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). 3. Respondent had knowledge of Parrish's union activity. Thus, Vice President Lankford, 2 days after the inventory shortage , mentioned to Parrish that "everything" blew up in Lankford's face. I find "everything," among other things, meant Parrish's union activities. And on April 7, Supervisor Ryan told Parrish that he knew that Parrish was a member of the Union's negotiating committee. I credit Parrish on both of these conversations and 239 do not accept Respondent's evidence to the extent that it collides therewith. 4. Respondent entertained union hostility, as found above in connection with the 8(a)(1) viola- tions . Nevertheless, union animus , without more, is not sufficient to brand a termination of employ- ment as illegal. N.L.R.B. v. Howard Quarries, Inc., 362 F.2d 236 (C.A. 8). But it is a factor which may be evaluated in determining the real reason for an employee's discharge. N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). 5. Although other employees had in the past suf- fered inventory shortages, all of them had not been discharged therefor. In fact, Respondent's officers testified it was a discretionary matter whether an employee would be discharged for an inventory shortage. Admittedly, Parrish was a good employee and Respondent was considering promoting him. It is difficult to understand why Parrish was fired for an inventory shortage when other employees in similar situations were retained and were allowed to make good on the shortages by deductions from their wages, and when he was considered a good employee, unless he was discriminated against for his union activity. The discharge of two employees for inventory shortages just before the hearing herein is not helpful on this issue, for those discharges occurred long after Parrish was ter- minated. These employees are James Williams and Mike Gilbhar. More in point are company past practices. But those practices demonstrate that em- ployees often were retained following inventory shortages. No contrary result is required because Parrish may have caused the inventory shortage by theft. This is because Parrish was never accused of steal- ing and also because at the hearing herein Respon- dent's officers insisted Parrish was discharged only for an inventory shortage and for no other reason. Hence, the fact that other employees uniformly had been discharged in the past for theft is of no con- sequence in determining company policy on inven- tory shortages. Of course, if Parrish did purloin, as now contended by Respondent, it will affect his reinstatement and backpay at the compliance stage of the proceeding. 6. It is sufficient to establish the illegality of the discharge to show that union activity was the motivating or substantial reason for the discharge. N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7); N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). I find that union activity was a substantial reason for the discharge of Parrish, and that his inventory shortage "alone would not have led to the discharge." N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2). 7. Parrish was abruptly suspended on the day following his inventory shortage and was discharged a few days later . In the intervening time, i.e., on the day following the suspension, Vice President Lank- 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ford expressed antiunion sentiments to Parrish and indicated that Parrish led the union movement. This warrants the inference , which I draw, that Par- rish was discharged for union activity which "sud- denly blows up in my [ Lankford 's] face." Further, I credit Parrish that Lankford told him that Respon- dent did not fire anyone for shortages " unless they amounted to $1,000 or more." C. The Discharge of Jerry Dennis Dennis was also active in the union movement. I credit his account of his union activities as set forth elsewhere above. They need not be reiterated here. And I find that Respondent had knowledge that Dennis was involved in the union movement, for I credit Dennis that ( 1) responding to Supervisor Ryan's questions on about March 30, Dennis an- swered that he had attended a union meeting the night before and that he guessed everyone had signed a card at that meeting , and (2) on April 29 or 30, at a company dinner for employees at the Saratoga Motel , Supervisor Ryan referred to Dennis as " It looks like the big AFL-CIO represen- tative is here tonight .... I will tell everybody." Although I find that the statement of Ryan in (2), above, demonstrates that Respondent was aware of the union activities of Dennis prior to his discharge, I find that it is not coercive and, therefore , does not violate Section 8(a)(1) of the Act. Further, I find that General Manager Walters fired Dennis on May 1, giving as the reason therefor "an inventory shortage." And I find that Dennis was short $935.03 on April 26 and $969.72 on April 27, and that such shortages constitute cause for the lawful discharge of Dennis . But I find that the real reason for the discharge is the union activity of Dennis, and that the reason given to him, i.e., an inventory shortage , is a pretext to conceal the true reason. In finding that the reason given for the discharge of Dennis, i.e., inventory shortage , is a pretext, I have taken into consideration his union activity and Respondent's union hostility , as well as the lack of a policy or practice to discharge all employees whose stores disclose an inventory shortage. In- deed, the employees succeeding Dennis, i.e., Elmer Smith and Albert Kirk, were short $509.36 on May 30 and $167.21 on June 1, yet no disciplinary ac- tion was taken against them . And when a store in which Dennis was employed as assistant manager was found short in March about $400 (Orlan White being the manager ), neither Dennis nor White was discharged and only White was required to make good on this . White had to pay 55 percent of the shortage through payroll deductions, but Dennis was not held accountable for any of the shortage although , according to Respondent 's evidence, assistant managers were accountable for 45 percent of an inventory shortage in his store. Further, I find that Dennis was summarily discharged without being granted an opportunity to pay the inventory shortage attributed to him, not- withstanding that other employees had been af- forded such an opportunity under identical circum- stances. And, finally, I find significant not only the absence of a policy to discharge for an inventory shortage, but also the failure to notify employees, either in writing or orally, that they risked loss of employment by inventory shortages. Failure to warn has probative value . Dunclick, Inc., 159 NLRB 10; N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (C.A. 8). The abrupt discharge of Dennis warrants the in- ference-and I draw it-that his union activity, rather than the inventory shortage , was the motivat- ing or substantial reason for his discharge. It is therefore not conclusive that his inventory shortage may also have entered into the deliberations result- ing in his discharge . N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). Accordingly, I find that Dennis was discharged for engaging in union activity. D. The Discharge of Steven Fryar Fryar was employed as a trainee in Store 901. (See G.C. Exh. 21.) However, the record discloses no significant union activity by Fryar other than signing a union authorization card. (G.C. Exh. 11.) On May 1, Fryar was discharged for an inventory shortage and was so informed by General Manager Walters . But I find , with some hesitation, that Fryar was discharged for his union membership and that the reason given him , i.e., an inventory shortage, is a pretext to cloak the true reason. In concluding that Fryar was discharged for sign- ing a union card, I have relied on the facts found above that Respondent was hostile to the Union; that it committed violations of the Act during this period , including the discharge of two (Parrish and Dennis ) strong union adherents ; that as a trainee Fryar was not responsible for the inventory shortage ; that Fryar was abruptly discharged; that Respondent had no set or fixed policy of discharg- ing employees for inventory shortages ; and that other employees suffering inventory shortages were not always discharged therefor. A troublesome factor in this connection is the absence of direct evidence that Respondent had knowledge that Fryar signed a union authorization card. But this is not fatal to a finding that Fryar was actually discharged for signing the card . This is partly because the dismissal occurred abruptly. "The abruptness of a discharge and its timing are persuasive evidence as to motivation ." N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829 . Then, again, I find that the permissible reason , i.e., an inventory shortage, would not alone have led to Fryar's discharge. N.L.R.B. v. L.E. Farrell Company, 360 F.2d 205, 208 (C.A. 2). And the arbitrary attitude of discharging of a new employee may be con- sidered in determining motive for a discharge. U-TOTE M OF OKLAHOMA, INC. N.L.R.B. v. Firedoor Corporation of America, 291 F.2d 328, 332 (C.A. 2), cert. denied 368 U.S. 921. Finally, I have relied on the fact that a false reason was given to Fryar for his discharge, for I do not credit Respondent's evidence that Fryar was discharged for an inventory shortage. Giving a false reason, when coupled with union animus, is some evidence that a discriminatory motive underlay the discharge. N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1). E. The Refusal To Recognize and Bargain with Local 73 1. The appropriate unit The appropriate unit consists of all employees employed by Respondent in its retail stores located in Tulsa, Broken Arrow, and Bixby, Oklahoma, ex- cluding office clerical employees, guards, profes- sional employees, and supervisors as defined in the Act; and I so find. Dispute exists as to whether Bon- nie Ryan should be included in the unit. On this segment of the case, I find that Bonnie's principal duty is to assist in the taking of inventories. And I further find that such function is one performed in the interest of management because it protects the Employer's property by constant oversight. Also, I find that she works with supervisors in conducting inventories. Hence, I find a lack of community of interest between Bonnie and the store managers and assistant managers . Accordingly, I find that Bonnie Ryan should be excluded from the unit. But I do not find, as contended by the General Counsel, that Bonnie "is employed by her spouse," a super- visor. Adam D. Goettl and Gust Goettl, d/b/a Inter- national Metal Products Co., 107 NLRB 65, upon which the General Counsel relies, has recently been modified by the Board to exclude as employees under Section 2(3) only spouses of substantial stockholders or principal officers. Foam Rubber City #2 of Florida, Inc. d/bla Scandia 167 NLRB 623, 624. There is no evidence that Bonnie's husband is a stockholder or officer of Respondent. 2. The Union's majority It has been agreed that not more than 61 persons were employed in the appropriate unit on March 31, 1967, when the Union submitted its demand for recognition. (See G.C. Exh. 21.) But Bonnie Ryan has been found not to be part of the unit. Hence, I find that 60 employees on March 31 composed the unit. And I further find that the Union had 32 cards (G.C. Exhs. 9 to 20, 22 to 41, and 46) in its posses- sion and proffered them to Respondent on the oc- casion of its demand on March 31. Patently, 32 cards constitute a majority in a unit consisting of 60. Such majority imposes upon Respondent a statu- tory obligation to recognize and bargain with the Union unless (a) the majority is tainted by cards 241 which were improperly obtained, or (b) Respon- dent in good faith questioned that majority, even though in fact a majority existed. On issues (a) and (b), above, the burden rests upon the General Counsel. Hence, he must establish that the majority was validly obtained and that the Employer had no reasonable basis for doubting that majority. It is my opinion, and I find, that the General Counsel has established by a fair preponderance of the evidence that the cards were properly obtained, that no misrepresentations were made, that the sub- scribers were not misled by misrepresentations if made, and that no coercion was used to obtain signatures. Sandy's Stores, Inc., 163 NLRB 728. Respondent contends that the card of employee Alfred Acord is invalid because he was 16 when he signed it. Acord became 16 on August 13, 1966. While it is manifest that he was a minor at the time, I find that this alone does not destroy the validity of his card. Further, I find that Acord comprehended what he was signing and that no improper methods were used to induce him to sign. Hence, I find that Acord's card should be counted in computing the number of valid cards on March 31. In addition, Respondent attacks the cards of em- ployees Thelma Brown (G.C. Exh. 10) and Lester Williams (G.C. Exh. 20) on the ground they "were obtained by serious misrepresentations." (See Resp. Br., p. 2.) However, I find that these two cards are valid. Brown testified (and I find) that she asked Union Representative and Agent Ted Helms "if it would better the working conditions" and that Helms replied, "Yes ... there would be better pay and everything." I find that Helms neither guaran- teed nor promised higher wages to induce Brown to sign ; at most, I find that Helms did no more than state what were the aims of the Union, and that it is permissible for a union to outline its objectives in soliciting authorization cards. Hence, I find no reprehensible misrepresentation by Helms un- dermining the validity of Brown's card. Similar considerations dispose of the assault on the authorization card of Lester Williams. (See G.C. Exh. 20.) Thus I find that Union Representa- tive Helms told Williams that the card "was sup- posed to ... have a better representation of the store ... the Union was going to represent us to make better wages, and so forth and so on, and a few more things ... if it went union the Union would be able to get better wages ... and working conditions." But I find that Helms also told Wil- liams that the purpose of the card was "the Union would represent us-present these cards to the store ... to the owner, and so forth and so on." Hence, I find that Helms did no more than an- nounce union goals and did not guarantee or promise higher wages. Accordingly, I find that the card of Williams has not been tainted nor in- validated by misrepresentations. Koehler's Wholesale Restaurant Supply, 139 NLRB 945. 354-126 O-LT - 73 - pt. 1 - 17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent's doubt of majority Even-if the Union enjoyed an actual majority on March 31, Respondent is excused from recognizing the Union if Respondent in good faith questioned the Union's majority. On this issue the burden is on the General Counsel to show that Respondent did not display good faith in doubting the majority. I find that the General Counsel has carried this bur- den. Upon this aspect of the case , I find that Respon- dent, on March 31, was presented with 32 cards, that Respondent in the presence of union represen- tatives compared the names and signatures on these cards with its payroll records, that Respondent found that the names on the cards matched those on its records, that the Union was then and there informed of such correspondence between the cards and Respondent's records , and that Respon- dent did not on that occasion question the Union's majority. Hence , I find that the General Counsel has established the absence of a reasonable founda- tion for questioning the Union 's majority status. In addition, I find that Respondent's unfair labor prac- tices, occurring on and before March 31, demon- strates a want of good faith in doubting the majori- ty. Madison Brass Works Inc. & Surf, Inc. v. N.L.R.B., 381 F.2d 854 (C.A. 7). It is true , and I find, that on April 3 (G.C. Exh. 5), April 6 (G.C. Exh. 6), and April 10 (G.C. Exh. 8), Respondent wrote letters to the Union among other things questioning the Union's majority; but these letters offer no facts overcoming the General Counsel's prima facie case found to be established in the preceding paragraph. Accordingly, the Respondent should be required to recognize and bargain with the Union unless the latter's demand for recognition is defective. 4. The Union's demand for recognition It is undisputed, and I find, that, on March 31, the Union requested recognition from Respondent for a unit consisting of "all employees , both full- time and part-time, working in the U-Tote M stores and One-Stop Stores, which you have recently purchased, located in Tulsa, Broken Arrow, and Bixby, Oklahoma, but excluding supervisors, guards, and watchmen as defined in the National Labor Relations Act ...." (See G.C. Exh. 2.) While this demand does not exclude office clerical employees and professional employees , I find that it was not necessary to specifically mention them in the list of employees excluded. This is because the record fails to disclose any office clericals and professionals working "in" the stores, so that Respondent was put on notice that only those per- sons working in the stores were sought to be represented . Hence, I find that failure to exclude office clericals and professionals in the demand does not render it nugatory or otherwise affect its validity. A question arises whether the appropriate unit existed on March 31, for Respondent was not enti- tled until April 1 to possession of the One-Stop Stores, which it purchased by an agreement ex- ecuted on March 3, 1967. See Item 7 of Respon- dent's Exhibit 6. However, I find that said April 1 was merely the closing date provided in said agree- ment, that Respondent actually commenced operat- ing the One-Stop Stores shortly after March 3 and before March 31, that Respondent was actually operating the One-Stop Stores on March 31, and that Respondent purchased said stores on March 3. Accordingly, I find that the appropriate unit was in existence on March 31, for Respondent on that day was operating not only its own stores but those acquired and purchased from One-Stop Stores by an agreement dated March 3. It follows that the de- mand for recognition on March 31 referred to the appropriate unit and that such unit was in existence on that day. V1. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in sec- tion V, above, found to amount to unfair labor practices, occurring in connection with its opera- tions described -in section I, above , have a close, in- timate, 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 of commerce. VII. THE REMEDY Having found that Respondent has engaged in certain conduct prohibited by Section 8(a)(1), (3), and (5) of the Act, I shall recommend that the Na- tional Labor Relations Board order it to cease and desist therefrom and to take specific affirmative ac- tion, as set forth below , designed to effectuate the policies of the Act. Since the discharges of Parrish, Dennis, and Fryar go "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4)), I shall recommend that the relief pro- vided in the Board 's Order be broad enough to prevent further infringement of the Act in any manner. As Respondent has discriminated against Parrish, Dennis, and Fryar with respect to their employ- ment, I shall further recommend that it be required to offer each of them immediate and full reinstate- ment to his former position or one substantially equivalent thereto without prejudice to their seniority and other rights and privileges previously enjoyed by each , and to make each whole for any loss of earnings he may have suffered by reason of his discharge . In making them whole Respondent shall pay to each a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of rein- U-TOTE M OF OKLAHOMA, INC. statement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay shall be computed on a quar- terly basis in the manner provided in F. W. Wool- worth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent cal- culated according to the method set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to ascertain whatever backpay may be due. Upon the basis of the forf employment of Steve Parrish, Jerry Dennis, and Steven Fryar, thereby discouraging membership in Local #73, a labor or- ganization, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (I) of the Act. 4. By engaging in the conduct set forth in this paragraph Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) coercively interrogating employees concerning their and other employees' union mem- bership, activities, and desires; (b) dealing directly with employees and unilaterally changing wages and working conditions of employees without con- sulting or bargaining with Local 73 thereon; (c) of- fering employees independent contractor agree- ments in order to prevent them from organizing; (d) threatening to close its stores rather than recog- nize a union ; and (e) telling employees there will never be any union or organized labor in its stores. 5. All employees employed by Respondent in its retail stores located in Tulsa, Broken Arrow, and Bixby, Oklahoma, excluding office clerical em- ployees, guards, professional employees, and super- visors as defined in the Act, constitute a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. On or about March 31, 1967, and at all material times thereafter, Local #73 represented a majority, and has been the exclusive bargaining representative, of all the employees in the aforesaid appropriate unit for purposes of collective bargain- ing within the meaning of Section 9(a) of the Act; and Respondent was on that date, and has been since, legally obligated to recognize and bargain with Local 73 as such. 7. By refusing to recognize and bargain collec- tively with Local 73 in regard to the employees in said appropriate unit on and since March 31, 1967, by dealing directly with employees, and by uni- laterally changing wages and working conditions of employees in said unit on and since April 1, 1967, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The above-described unfair labor practices af- fect commerce within the meaning of Section 2(6) and (7) of the Act. 243 9. Respondent has not committed any other un- fair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize or bargain with Local #73 as the exclusive bargaining representative of all the employees in the above-mentioned ap- propriate unit. (b) Discouraging membership in Local #73, or any other labor organization, by discharging em- ployees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (c) Coercively interrogating employees concern- ing their and other employees' union membership, activities, and desires. (d) Dealing directly with, and unilaterally chang- ing wages and working conditions of, employees in the above-described appropriate bargaining unit without consulting or bargaining with Local #73 thereon so long as said Local #73 represents a majority of said employees. (e) Offering employees independent contractor agreements in order to prevent them from organiz- ing or joining any labor organization. (f) Threatening to close its stores rather than recognize a union. (g) Telling employees there will never be any union or organized labor in its stores. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights vouchsafed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain with Local #73 as the exclusive representative of all em- ployees in the aforesaid appropriate unit and, if an understanding is reached, embody such understand- ing in a written, signed agreement. (b) Offer Steve Parrish, Jerry Dennis, and Steven Fryar each immediate and full reinstatement to his former position or one substantially equivalent thereto, without prejudice to his seniori- ty and other rights and privileges enjoyed by each, and make each whole for any loss of pay he may have suffered by reason of his discharge, with in- terest thereon at the rate of 6 percent. (c) Notify said Steve Parrish, Jerry Dennis, and Steven Fryar, 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. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and, upon reasonable request, make available to the Board or its agents, for ex- amination and copying, all payroll records and re- ports and all other records necessary to ascertain the amount of backpay due under the terms of this Recommended Order. (e) Post at its retail stores in Tulsa , Broken Ar- row, and Bixby, Oklahoma, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 16, after being duly signed by Respondent's duly authorized representative , shall be posted by it immediately upon receipt thereof, and be main- tained 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 16, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. " 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 Ap- peals 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 said Regional Director, 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to recognize or bargain collectively with Retail Clerks Union Local # 73, Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT discourage membership in said Local #73, or any other labor organization, by discharging employees or otherwise dis- criminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT coercively ask employees about their union activities, sympathies, and desires, or those of other employees. WE WILL NOT deal directly with employees or change wages or working conditions of em- ployees in the bargaining unit described below without consulting or bargaining with said Local #73 as long as it represents a majority of said employees. WE WILL NOT offer employees independent contractor agreements in order to prevent them from organizing or joining any labor or- ganization. WE WILL NOT threaten to close our stores rather than recognize a union. WE WILL NOT tell employees there will never be any union or organized labor in our stores. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Sec- tion 7 of the Act. WE WILL, upon request, recognize and bar- gain collectively with said Local #73 as the ex- clusive bargaining representative of all em- ployees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a written , signed agreement. The bargaining unit is: All employees employed in our retail stores located in Tulsa, Broken Arrow, and Bixby, Oklahoma, excluding office clerical employees , guards, professional employees, any supervisors as defined in the Act. WE WILL offer to Steve Parrish, Jerry Dennis, and Steven Fryar immediate and full reinstatement each to his former position or one substantially equivalent thereto , without prejudice to his seniority and other rights and privileges enjoyed by each . We will also pay each whatever loss of pay he may have suf- fered as a result of his discharge by us, with in- terest at 6 percent per annum. All our employees are free to become or remain, or refrain from becoming or remaining , members of said Local #73 or any other labor organization. U-TOTE M OF OKLAHOMA, INC. (Employer Dated By (Representative ) (Title) Note : We will notify the above-mentioned em- ployees 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. U-TOTE M OF OKLAHOMA, INC. 245 This notice must remain posted for 60 consecu- communicate directly with the Board's Regional tive days from the date of posting and must not be Office, Room 8A24, Federal Office Building, 819 altered, defaced, or covered by any other material . Taylor Street, Fort Worth, Texas 76102, Telephone If employees have any question concerning this 334-2921. notice or compliance with its provisions, they may