Certified Foods

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Self Reliance Ukrainian American Cooperative Associ- ation, Inc., d/b/a Certified Foods and Retail Food and Drug Clerks Union, Local 1550, Affiliated with Retail Clerks International Association, AFL-CIO. Case 13-CA-9578 February 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 23, 1970, Trial Examiner Joseph I. Nach- man issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that those allegations of the complaint be dismissed. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Trial Examiner's Decision and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found that Respondent's refus- al to bargain with the Union as the designated repre- sentative of its employees in an appropriate unit' was not a violation of Section 8(a)(5) because the Union did not represent a majority of the employees therein. We do not agree. The Trial Examiner concluded that the appropriate unit consisted of at least 14 employees and that the Union had submitted only 7 valid authorization cards. The Respondent contends that the Trial Exam- iner had incorrectly excluded Russell Kurylo and failed to pass on the placement of Boden Bielynski, There is no dispute as to the appropriateness of: All full-time and regular part-time employees working at Self Reliance Corp., 2204-06 West Chicago Avenue, Chicago, Illinois, excluding the store manager, meat department employees who are members of other labor organizations, and all other supervisory employees as defined in the Act while improperly including 3 individuals (Lydia and Irene Burtniak and Debra Romanchuck) and count- ing their authorization cards, so that the Union had only 4 valid authorization cards in a unit of 13 em- ployees,2 far from a majority. The General Counsel and the Union, on the other hand, contend that Chris- tine Pylyporcz was erroneously included in the unit. As we agree with the contention that Pylyporcz should have been excluded and find no merit in the position of the Respondent as to the remaining indi- viduals noted above, we find that the unit consisted of 13 employees and that the Union was in possession of 7 valid authorization cards when it sought recogni- tion and the Respondent rejected that request. As to Irene and Lydia Burtniak and Debra Roman- chuck,' we adopt the Trial Examiner' s conclusions that they were discharged in violation of Section 8(a)(3); hence they were properly included in the unit and their cards may be considered in determining the Union's representative status. We also agree with the Trial Examiner that Kurylo is a supervisor within the meaning of the Act and is not within the unit. The record shows that he responsibly directs the activities of store employees, correcting their errors; he is in complete charge in the absence of the store manager, making job assignments, and telling employees when to report to work. He receives a weekly salary, where- as unit employees are paid on an hourly basis; and he earns more than three times as much each week as most of those who are hourly rated and twice as much as the highest earnings in the unit 4 2 Although the Respondent, in its brief, states that the unit should consist of 16 persons, we are unable to determine how it would reach that figure, as it filed no exception to the exclusion of the 2 m--at department employees who are represented by another labor organization or to the exclusion of Store Manager Pylawka as an admitted supervisor. 3 As we interpret our dissenting colleague's opinion, he declines to accept the Trial Examiner's credibility resolutions, and concludes that Debra Ro- manchuck in fact committed the transgressions of which the Respondent accused her . But the Trial Examiner likewise assumed that in fact she had done so; he concluded, nevertheless, that she was not discharged for that reason, but in order to undernune the Union We find no basis for rejecting his finding of pretext. In this connection, we note that it is immaterial that Romanchuck was "engaged in no union activity other than signing a card," if, as the Trial Examiner found, Respondent discharged her for unlawful reasons Further, the dissenting opinion appears to be reversing the Trial Examiner's finding, based on his credibility resolution , that Romanchuck was told she was discharged on Saturday, January 17. Thus, it is clear from the testimony of Romanchuck to which the dissenting opinion refers that Romanchuck was scheduled to work on Friday and Saturday of each week and did so on January 9 and 10. On Wednesday, January 14, she telephoned Respondent to report that she herself was ill and to ask that her paycheck be turned over to her mother, but Respondent said it could not do this. On Thursday, January 15, Romanchuck called to report that she could not work as scheduled on Friday, January 16, and on Saturday, January 17, she tele- phoned again, at which time she was discharged. While the Trial Examiner incorrectly states that Romanchuck was scheduled to work on January 15, this is an immaterial error which does not affect the validity of his findings. The record considered as a whole does not support the assertion that Kurylo acts as a mere conduit. In any event, even if he does transmit to unit employees instructions received from above as Respondent claims, we find that Kurylo's interests are more aligned with management than with those Continued 188 NLRB No. 95 CERTIFIED FOODS Boden Bielynski is an accountant who works each year for two periods of 5 weeks each preparing rebates to which members of the cooperative association are entitled, based on their purchases. Bielynski, who does all his work in his home, is on the payroll for only the 10 weeks he works, and is paid a flat fee of $25 per week while all other unit employees are paid on an hourly basis. The Trial Examiner made no finding with respect to Bielynski's eligibility, but Respondent contends he should be included while the General Counsel would exclude him. We find merit in the General Counsel's position and conclude that Bielyn- ski is not a regular part-time employee, as he works sporadically, and he has no significant community of interest with unit employees. Accordingly, he is ex- cluded. Christine Pylyporcz is an office secretary whose primary duties are as an office clerical in the separate, private business of her father, Association Secretary Datzko. She prepares the weekly payroll for the Respondent's employees on the basis of the time record kept at the store. However, she works only in her father's office, a few doors from the store, and has no work contact with unit employees. Though her father testified that she works 12-1/2 hours per week on a regular basis, such testimony is not supported by Respondent's payroll records for the weeks ending November 8, 1969, through April 25, 1970. Those rec- ords reveal that Pylyporcz did not perform work for Respondent between November 1, 1969, and Decem- ber 27, 1969, or from March 1 through March 28. She is credited with 12-1/2 hours per week beginning the week ending January 3, 1970, through the week end- ing February 28, 1970, and the week ending April 4 through the week ending April 18, but no credit is shown for the following week, the last covered by Respondent's records. While the number of hours worked of all unit employees is recorded each day, Pylyporcz' hours are reflected by a single 12-1/2 hour entry, which she herself makes, at the end of the week. In addition, it is clear that all unit employees are supervised by either Pylawka or Kurylo, whereas Py- lyporcz is supervised by neither. Accordingly, we find contrary to the Trial Examiner that Pylyporcz is not a regular part-time employee and she has no signifi- cant community of interest with unit employees .5 We therefore exclude her from the bargaining unit. In view of the above, we find that as of the date it demanded recognition, the Union represented a ma- jority of employees in an appropriate unit. Having considered all the circumstances, we are of the opin- ion that the Respondent, in rejecting the recognition request and engaging in the violations of Section of the rank-and-file employees and we exclude him for that reason as well s Cf. Haag Drug Company, Incorporarea 146 NLRB 798, 800 639 8(a)(1) and (3), violated Section 8(a)(5) and (1) of the Act. Further, we are persuaded that a bargaining or- der is justified to remedy the Respondent's unlawful refusal to bargain, for Respondent's unfair labor practices were of such a nature as to have a lingering, coercive effect on the employees and the use of tradi- tional remedies would seem unlikely to ensure a fair and free election. We therefore conclude that the valid, unambiguous authorization cards signed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would an election. Accordingly, we shall direct that the Respondent bargain collec- tively with the Union upon demand.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that Respondent, Self Reliance Ukrain- ian American Cooperative Association, Inc., d/b/a Certified Foods, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order: 1. Add the following as paragraph 1(d) and renum- ber 1(d) as 1(e). "(d) Refusing to bargain collectively with Retail Food and Drug Clerks Union, Local 1550, Affiliated with Retail Clerks International Association, AFL- CIO, as the exclusive representative of all full-time and regular part-time employees working at Self Reli- ance Coop., 2204-06 West Chicago Avenue, Chicago, Illinois, excluding the store manager, meat depart- ment employees who are members of other labor or- ganizations, and all other supervisory employees as defined in the Act." 2. Add the following as paragraph 2(d) renumber- ing present paragraphs 2(d) and (e) as 2(e) and (f), respectively. "(d) Upon request, bargain collectively with the Retail Food and Drug Clerks Union, Local 1550, Af- filiated with Retail Clerks International Association, AFL-CIO, as the exclusive representative of all its employees in the above-described unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All full-time and regular part-time employees working at Self Reliance Coop., 2204-06 West Chicago Avenue, Chicago, Illinois, excluding the 6 N.G.R B v. Gissel Packing Co., Inc, 395 U.S. 575; Heck's, Inc, 181 NLRB No. 129. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store manager, meat department employees who are members of other labor organizations, and all other supervisory employees as defined in the Act." 3. Add the following as the first and second indent- ed paragraphs of the Appendix attached to the Trial Examiner's Decision: WE WILL NOT refuse to bargain collectively with the Retail Food and Drug Clerks Union, Local 1550, Affiliated with Retail Clerks International Association, AFL-CIO, as the exclusive repre- sentative of all employees in the appropriate unit described below. The bargaining unit is: All full-time and regular part-time employ- ees working at Self Reliance Coop., 2204-06 West Chicago Avenue, Chicago, Illinois, ex- cluding the store manager, meat department employees who are members of other labor organizations, and all other supervisory em- ployees as defined in the Act. WE WILL bargain, upon request, with the above-named Union as the exclusive bargaining representative of all employees in the unit de- scribed above, with respect to wages, rates of pay, hours of employment, and other terms and con- ditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. 4. In footnote 32 of the Trial Examiner's Decision, substitute "20" for "10" days. CHAIRMAN MILLER, dissenting in part: One of the unfair labor practices alleged in the complaint, and found by the Trial Examiner, con- cerns Respondent's discharge of employee Debra Ro- manchuck. The correctness of the Trial Examiner's finding is especially crucial, for, if Romanchuck is found to have been discharged lawfully prior to the Union's request for recognition on January 14, the Union did not represent a majority. Despite the im- portance of the finding as to Romanchuck, the Trial Examiner has failed to resolve important credibility conflicts surrounding her discharge. See, e.g., foot- notes 17, 18, 20, 21, and 22 of the Trial Examiner's Decision. In these circumstances, I am constrained to accept, arguendo, Respondent's version of several dis- puted events. One fact not contested is that Romanchuck en- gaged in no union activity other than signing a card. On January 6, Respondent observed Romanchuck with four steaks in a bag, together with a turkey it had given her. When Respondent questioned Roman- chuck about her possession of the steaks, she paid the correct amount into the cash register. Romanchuck's version-which the Trial Examiner neither credits nor discredits-is that, when questioned, she produced a cash register receipt, countersigned by fellow employ- ee Lydia Burtmak. According to this version, Burt- niak just happened to be in the store purchasing some chewing gum, when Romanchuck asked her to attest (in advance) to her honesty. It strains my credulity to believe that Romanchuck would have gone to the trouble of having a fellow employee, not then at work, countersign her receipt. As Respondent points out, the cash in her register had, in any event, to corre- spond with her tapes. The Trial Examiner found it unnecessary to resolve this conflict. He did point out, however, that Burtniak testified on direct examina- tion that when she talked to Respondent's Supervisor Pylawka, the latter did not accuse her of lying or of trying to cover up for Romanchuck. On cross-exam- ination, however, after being confronted with her affi- davit, Burtniak admitted that Pylawka did accuse her of trying to cover up for Romanchuck. Thereafter, on January 9, Romanchuck was caught, and was reprimanded for, allowing a customer to walk out of the store without paying for $6.40 worth of meat. According to Respondent, it decided to dis- charge her that day, but permitted her to work the following day, a Saturday, because it needed her serv- ices as cashier during the weekend. At the hearing, only 3-1/2 months later, Romanchuck stated she was unable to recall whether any such incident had taken place, or whether or not she had been reprimanded for it. I cannot conceive that a 14- or 15-year-old girl would not recall in April whether in January she had engaged in, or had been reprimanded for, a particular act of dishonesty. Respondent claims it discharged Romanchuck in a telephone conversation on Monday, January 12. The Trial Examiner found Romanchuck came into the store on Wednesday, January 14, and that Supervisor Kurylo was ambiguous at that time about her work status. He also found Respondent failed to tell Ro- manchuck of her discharge until Saturday, January 17, despite having talked to her on January 15 and 16 when, according to the Trial Examiner, she called Respondent to report she could not work because of illness. Actually, Romanchuck's own testimony was not that she was scheduled to work on the 16th and 17th, but only that she called in to ask whether she could have her mother pick up her check. The Trial Examiner's conclusion that Romanchuck was sched- uled to work the 15th and 16th is not only contrary to Romanchuck's testimony but also conflicts with his finding she came in on the 14th to inquire what her hours on Friday would be. As for the occasion when Romanchuck was dis- charged, Respondent testified it referred only to her "trouble ... about the meat." Romanchuck testified supervisor Pylawka also said "now we have bigger troubles." The Trial Examiner expressly refused to CERTIFIED FOODS resolve this conflict in testimony also. With the record in its present state, I am unable to agree that the General Counsel has sustained his bur- den of proving that Romanchuck was discharged for her union activities, rather than for two successive acts of dishonesty. As I have found that Romanchuck was lawfully discharged at or about the time the Union requested recognition, I find that the Union represented less than a majority of Respondent's employees; hence, I would issue no bargaining order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I . NACHMAN, Trial Examiner: This proceeding tried before me at Chicago, Illinois, on April 28 and 29 1 with all parties present and represented by counsel, involves a com- plaint pursuant to Section 10(b) of the National Labor Rela- tions Act, as amended,' (herein the Act), alleging that Self Reliance Ukrainian American Cooperative Association, Inc., doing business as Certified Foods (herein Respon- dent), interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act; discriminatorily discharged and failed to reinstate three em- ployees; and refused to bargain with Retail Food and Drug Clerks Union, Local 1550, affiliated with Retail Clerks In- ternational Association, AFL-CIO (herein the Union), the duly designated collective-bargainin representative of its employees, in violation of Section 8(a)(1), (3), and (5) of the Act. By answer, Respondent admitted certain allegations of the complaint, but denied the commission of any unfair labor practice. For reasons hereafter stated, I find certain allegations of the complaint sustained by the evidence, and as to those allegations recommend issuance of a remedial order, but recommend dismissal of the allegation that Re- spondent unlawfully refused to bargain with the Union. At the trial full opportunity was afforded all parties to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the respective parties have been fully considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses, and the entire record in the case, I make the following: FINDINGS OF FACT I BUSINESS OF THE EMPLOYER Respondent is a corporation organized and operated for the purpose of fostering and promoting the Ukrainian cul- ture and language among persons of Ukrainian extraction presently residing in the Chicago area. Among the activities it sponsors is a camp for children where the Ukrainian language and customs are taught. To assist it in raising funds for the aforementioned purposes the Association op- erates a self-service grocery store in the Ukrainian section of Chicago under the name of Certified Foods.3 About 80 i This and all dates hereafter mentioned are 1970, unless otherwise indica- ted 2 Issued April 1, on a charge filed January 21, and served January 22 3 Certified Foods is a name used by a large group of independent grocers in the Chicago area who have banded together into a common purchasing 641 percent of the stores' customers are members of Associa- tion. The affairs of the corporation are managed by a board of directors . Joseph Datzko, secretary of the corporation is in overall charge of operations, and serves without compen- sation. He seems to be engaged in his own business which he operates from an office located three or four doors from the Certified store. Theodore Pylawka is manager of the store and is admittedly a supervisor within the meaning of the Act. The complaint also alleges that Russell Kuiylo is assistant manager of the store and a supervisor within the meaning of the Act . This is denied by Respondent. The contention is hereafter disposed of. Respondent concedes that in 1968 and 1969 sales at the store were about $554,000 a year. In each of the 2 prior years sales were in the area of $300,000. Because Respondent's sales have met the Board's jurisdictional amount for only 2 years, and then only by a small amount , and because all profits of the store are used solely for charitable purposes, Respondent contends that the Board should decline to as- sert jurisdiction in this case . Based on the Board's decision in Drexel Home, Inc., 182 NLRB No. 151,4 I find that it would effectuate the policies of the Act to assert jurisdic- tion, and so recommend.5 II THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of Events 1. Union organization Irene Burtniak began working for Respondent as a cash- ier in 1964. Although there were at least two periods when she quit Respondent to get a greater wage with other em- ployers,6 it is undisputed that she was in employee status during the period involved in this proceeding. On or about December 22, 1969, Burtniak met with Union Agents Lor- enzetti and Luesman, telling them that she wished to belong to the Union. Burtniak signed a card at that time, and the union agents gave her additional cards to be signed by other employees, explaining that this was necessary if the Union was to be the representative of the employees. Between December 22 and 31, 1969, Burtniak invited certain em- ployees to her home and there obtained their signatures to six union authorization cards, in addition to her own. On January 6 or 7, the aforementioned union representatives called at the home of Irene Burtmak, and at that time the seven signed union cards were delivered to them.? 2. The demand for recognition About noon on January 14, Union Agents Lorenzetti and and advertising organization Certain products are sold under the label "Cer- tified " 4 Cf Cornell University, 183 NLRB No 41. It is only fair to say that neither the decision in Drexel, nor in Cornell, had issued at the time of the trial, or when Respondent submitted its brief. 5 The complaint alleges and the answer admits that the Union is a labor orb¢anization within the meaning of Sec 2(5) of the Act . I so find. According to Irene Burtniak , after working for Respondent for about 6 months, she quit because Respondent would not give her a wage increase About 6 months later she was recalled by Respondent and worked until sometime in 1968, when she again quit in a dispute over wages, but was again recalled in November 1969, and except for a period of about 2 weeks that she was off because of a dispute over pay for the Thanksgiving holiday, worked until the following January 15, when her employment ceased under circumstances which the General Counsel contends was a discharge, but which Respondent contends was a voluntary quit The facts concerning her cessation of work are hereafter stated ' The findings to this point are based on the uncontradicted and credited testimony of Irene Burtniak and Ralph Lorenzetti 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luesman went to Respondent's store where they spoke to Manager Pylawka, explaining that they were there regard- ing the organization of the store employees. Pylawka stated that he had no authority in the matter, and referred the union agents to Company Secretary Datzko, explaining that the latter's office was a few doors down the street. At Datzko's office, the union agents after introducing them- selves, told Datzko that the Union represented the food store clerks in the Chicago area, that a majority of Respondent's employees had "signed up with the Union," and asked that Datzko discuss with them the industrywide contract in effect with other employers. Although the union agents had with them the seven cards signed by Respondent's employees, they did not offer them to Datzko, nor did the latter ask for any evidence that employees had in fact "signed up with the Union." Datzko replied that Respondent's operations were under the supervision of a board of directors, and that he would have to take the matter up at a board meeting scheduled for February 5, but that if the decision were left to him there would never be a union in the store. Datzko additionally commented that in a prior year another union was around, that he told them to go away and they did, and suggested that Lorenzetti and Luesman do the same thing, "and find [themselves] some- thing else to play with." Union Agent Lorenzetti then told Datzo that the Union was not "bluffing," that it did repre- sent a majority and was asking him for recognition, and that he would be well advised to "take this matter seriously." Datzko replied that he would take the matter up with his board on February 5, and that if Lorenzetti wanted to come back after that date he would be in his office. The meeting concluded on this note.8 The Union's claim of majority status and its request for recognition was renewed in a letter to Respondent from Neal D. Rosenfeld, the Union's counsel, dated January 15. The parties stipulated that Respondent received the afore- said letter on January 16. This letter, which claimed a ma- jority and demanded recognition, defined the unit as: All full-time and regular part-time employees working at Self-Reliance Co-op., 2204-06 West Chicago Ave- nue, Chicago, Illinois, excluding the store manager, meat department employees who are members of other labor organizations, and all other supervisory employ- ees as defined by the Act. By letter dated January 21, Respondent advised the Union's counsel that it doubted the Union's claim of majority status, and therefore refused to meet or bargain with it. 3. The Union's majority status Respondent's payroll for the week ending January 17, which lists 17 names, is in evidence. The list includes the names of Russell Kurylo, Boden Bielynski, Christine Pyly- porcz, Theordore Pylawka, George Bronder, and Jacob So- dowicz, but does not include the names of Lydia Burtniak and Debra Romanchuck who, the General Counsel con- tends, were discharged along with Irene Burtniak, following the Union's demand for recognition. Respondent concedes that Store Manager Pylawka is a supervisor within the 6 Based on the credited testimony of Lorenzetn Datzko admitted that Lorenzetti and Luesman discussed the Union with him but thought, although he was not certain, that the meeting was on January 13. Datzko expressed "doubt" that the union agents told him that the Union had a majority, or that they demanded recognition, and testified that the only thing they told him is that they wanted to talk to him about the employees. He admitted , howev- er, that the union agents left no doubt in his mind that they wanted to discuss unionizing the store employees. To the extent that Datzko 's testimony is in conflict with that of Lorenzetti , I credit the latter meaning of the Act. It is undisputed that Bronder and So- dowicz employed in the meat department are represented by the Butchers Union; Respondent having a contract with that Union, covering said employment. The parties are in dispute, however, as to whether Bielynski, Pylyporcz, and Kurylo are in the unit. The facts with respect to their em- ployment are as follows: Bielynski: This individual is a member of the Association who, twice a year, for a period of about 5 weeks each time, prepares rebates that members may be entitled to on their purchases from the store. He performs all his work at his home, there being no evidence that he ever comes to the store. He is paid $25 a week only for the 10 weeks of the year that he works in connection with the rebates, and his name is on the payroll only for the weeks he is so engaged. Pylyporcz: This individual is the daughter of Association Secretary Datzko, and her primary duties are as an office clerical in her father's office, which is used primarily for the conduct of his private business. Her only connection with the store is that she prepares the weekly payroll on the basis of the time record kept at the store; calling the store manag- er by telephone if she has any question regarding such re- cords. She is paid $25 weekly from the funds of the store for her services in that regard. There is no evidence that she enjoys any special status by virtue of her relationship to Datzko. Kurylo: The record shows that Kurylo is employed at a weekly salary of $167.50; just $7.50 a week less that the salary paid to Store Manager Pylawka. All other employees in the store are paid on an hourly basis, the hiest amount earned b an hourly employee during the week ending Jan- uary 17 (except for the butchers) being $86, with most earn- ing less than $50. Kurylo carries keys to the store, but testified that he only unlocked the back door to permit a delivery to be made. Kurylo claimed that, when the manag- er is away on vacation, Datzko opens the store in the morn- ing and closes it in the evenings9lie admitted that when the store manager is on vacation (which he takes at the rate of a week or IO days at a time), or absent from the store for other reasons, he is in charge, subject to close supervision by Datzko. Although Kurylo claimed the work schedules of employees were made out by Pylawka before the latter left on vacation, and that he had no authority to change them, or to make any other managerial decisions during Pylawka's absence without clearance from Datzko, I do not credit that testimony.1° Several employees, whose testimony I credit, testified that Kurylo was known to and regarded by them as the assistant manager of the store; that he frec)uently assigned them the duties they were to perform, criticized them if they failed to perform such duties properly; and that at times Ku to has called them to change their normal work schedules. And the degree to which Kurylo repri- mands employees for improper performance of duty is dem- onstrated by his admitted conduct in connection with the alleged ground meat incident involving Debra Roman- chuck, hereafter set forth in connection with her discharge. It is worthy of note in this connection that counsel for 9 Datzko made no such claim. Kurylo's testimony in that regard is not credited 10 Kurylo's demeanor while testifying was not such as to inspire confi- dence. I am convinced that he made a studied effort to play down the extent to which, with Respondent's knowledge and approval , he directed the activi- ties of the store clerks As an example, Kurylo testified that normally his hours were from 9 a.m to 6 or 6 30 p.m, claiming that he devoted 10 hours a day to sweeping the floor and putting stock on the shelves Also when asked whether he directed the clerks, what duties they should perform, Kurylo replied, "I don't tell people what to do. I ask Ted [Pylawka[ and he tells me and I tell them." How Pylawka, when away on vacation, gives such instruc- tions to Kurylo, the latter does not explain CERTIFIED FOODS Respondent in a discussion at the opening of the hearing designed to frame the contested issues, quite candidly stat- ed, . . that employees may have been told on occasion that he [Kurylo] was either acting as or was assistant to the store manager." 4. Alleged interference, restraint, and coercion During the afternoon of January 14, shortly following the conversations between Company Representative Datzko and Union Representatives Lorenzetti and Luesman, John Chorkawciw, a part-time employee, went to the store to pick up his check and was asked by Pylawka whether he [Chor- kawciw] had signed a union card. Chorkawciw at first de- nied, but then admitted that he had done so after being told by Pylawka that there was no use lying because he [Pylaw- ka] knew everyone that had signed a card and that he New Chorkawciw had done so.u The same afternoon employee Debra Romanchuck went to the store to make some purchases, and while there asked Kurylo what time she should come to work on Friday. Kurylo told Romanchuck that he did not know whether she would be able to work any more because there was some trouble with the Union, and asked if she knew anything about it. When Romanchuck replied in the negative, Kurylo told Romanchuck to report Friday as usual, and that he would then tell whether she could work.12 5. The alleged discriminatory discharges a. Irene Burtniak As above set forth, Irene Burtniak worked for Respon- dent as a cashier, on three separate occasions ; quitting twice because she did not regard the pay as sufficient, but was induced to return. Her last tour of duty was from mid- November 1969 to January 15. From the fact that Respon- dent solicited Irene Burtniak to return to work, that she was granted a wage increase early in January, and the fact that There is no evidence that Respondent regarded her work as deficient, it is reasonable to infer as I do that she was regard- ed by Respondent as a satisfactory employee. Irene Burtniak's organizational activity has been heretofore de- tailed, as has the discussion between Datzko and the union agents on January 14. When Irene Burtniak reported for work shortly before 4 p.m. an January 14, she overheard Pylawka talking on the 11 Chorkawciw testified that this conversation took place on January 14, but in his affidavit given the Board on March 11 , fixed the time as "about" January 7, and said that in response to Pylawka's inquiry he told the latter that he had signed a card and that Pylawka replied that he didn't care, that it was up to him Pylawka denied that he had any conversation of this nature with Chorkawciw, but I do not credit his denial I am convinced that Chor- kawciw was mistaken when he stated in his affidavit that this incident occur- red on January 7 1 also credit Chorkawciw that his affidavit stated the ultimate conclusion without breaking the conversation down into its two parts when he first denied and then admitted that he signed a union card Chorkawciw also testified on redirect that in the aforementioned conversa- tion Pylawka also asked him what other employees had signed union cards, and that he replied that he did not know No reference to such a statement is made in the affidavit Chorkawciw gave I therefore do not credit that asps ect of his testimony 2 Based on the credited testimony of Debra Romanchuck Kurylo admit- ted that he had a conversation with her on January 13 or 14; she asked about returning to work , and he told her there was some "trouble " He denied that he mentioned the Union , and claimed that he told Romanchuck that she would have to see Pylaka about returning to work . I do not credit his version of the facts Romanchuck did not return to work on Friday , or at any time thereafter, as hereafter set forth in connection with her discharge 643 telephone in Ukrainian , and heard him say, "She is here, andpI don't have anyone to put in her place ." For" the re- mainder of that workday 13 Pylawka had virtually nothing to say to Irene Burtniak and, according to her, appeared angry. Finishing her work for the day, and taking her cash drawer to Pylawka in his office , the latter told her, "Irene, you don't know how stupid you are." She made no reply and left for the day. When rrene Burtniak returned for work on the following day shortly before 4 .m., Pylawka called her to his office, and in an angry andpexcited manner stated: What kind of trouble you do? What do you want to do, what you try to do? You want to be union leader, you want to be union leader for the people here , come into my place. I have to live ; what are you trying to do? Burtniak made some attempt to respond , butyPylawka cut her off saying: Look, if you make bigger trouble, I call police. You go and don "t come in the store when [it] open. Go and don't come until trouble is over. Pylawka also told Irene to tell her husband that he (Pylaw- ka) wished to speak with him.14 Since that conversation, Irene Burtniak has returned to the store only as a customer." b. Debra Romanchuck This employee was a high school student who worked for Respondent as a part-time cashier after school and on Sat- urday, starting inMarch 1969, until her admitted discharge in January. Except for the two incidents hereafter referred to, Respondent makes no complaint concerning her work. The evidence is uncontradicted that Romanchuck's last day of work was Saturday, January 10. There is no dispute that she was in the store on January 14, and then had a conversa- tion with Kurylo.t6 Romanchuck was scheduled to work on January 15, 16, and 17, but was prevented from doing so by illness . On January 15 and 16, she telephoned Pylawka to report her inability to work and asked that he give her mother the paycheck for the week ending January 10, but on both occasions Pylawka refused saying he had to talk to her. On January 17, when Romanchuck again called Pylaw- ka to report her inability to work, Pylawka admittedly stat- ed that it was unnecessary for her to return to work, and when Romanchuck asked why, he replied, "Do you remem- ber the trouble we had about the meat? Well now we have 13 On January 12, 13, and 14, Irene Burtniak worked 3 hours each day, from 4 to 7 p in 14 As Pylawka's conversation with Irene Burtmak's husband related not onl' to Irene, but to their daughter Lydia as well, it hereafter is set forth 1 Based on the credited testimony of Irene Burtniak Pylawka denied that he had any telephone conversation in which he stated she is all ready here, I don't have anyone to replace her, and further denied that he accused her of wanting to be the union leader, or that he told her not to come back until the union trouble was over He admitted that at some undisclosed time he may have told her that she was so stupid she didn't know what she was doing, but claimed that he had no recollection of having made such a statement on January 14 Although he admitted having a conversation with Irene Burtniak on January 15, he had an entirely different version of what was said Accord- ing to Pylawka, when she came to the store that afternoon she started com- plaining that she was not getting sufficient hours of work and had not received a pay raise (the uncontradicted evidence is that she had received a pay raise early in January), that he told her there was nothing he could do about the hours , but that if she would talk to Datzko about the raise, he could then discuss it with the latter, that she continued to argue about these matters and finally announced that she was going to quit, and that he told her she was privileged to do so; and that he then asked her to have her husband to come to see him Based on Pylawka's testimony , Respondent contends that Irene Burtniak was not discharged, but that she quit I do not credit his version of these conversations 16 The conversation referred to is detailed in sec II, A, 4, above 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bigger troubles."17 Pylawka admitted that he meant this as a discharge of Romanchuck. Pylawka's reference to "trouble we had about the meat," is to one of two separate incidents, both of which he claims, constituted the basis for her discharge. Because most of the evidence relating to these incidents is in substantial conflict, even as to the date one of them occurred, the incidents will be related in detail with the points of conflict indicated. (1) The steak incident On Wednesday, the day before Christmas, Respondent informed all employees that they would be given a turkey. Some employees elected to take their turkey on December 24, while others decided to wait until January 6, the day before those of Ukrainian extraction celebrate Christmas. Romanchuck did not work on December 24, and hence did not get her turkey that day. According to Romanchuck, who worked on Friday, December 26, and between 6 and 7 p.m. that day, she was told by Pylawka that he was leaving the store for dinner, and that she should select the turkey to which she was entitled. In Pylawka's absence, Romanchuck selected a turkey which she put in a bag, and placed it on the checkout counter next to hers, which was not then in operation.18 According to Pylawka, upon returning from dinner he saw the bag lying on the checkout counter; asked Roman- chuck if that was the turkey she had selected and received an affirmative reply; but upon looking into the bag ob- served that it also contained four steaks, and asked Roman- chuck if she had paid for them. According to Pylawka, Romanchuck answered that she had, but when he asked for the cash register receipt, she was unable to produce it. Py- lawka claims that he immediately told Romanchuck that she would either have to pay for the steaks or return them to the meat case, and that Romanchuck thereupon, in his presence, rang up the amounts on the register and put the required amount of money in the cash drawer. Roman- chuck testified that she selected the steaks and the turkey at the same time and placed them on the checkout counter; that before Pylawka returned from dinner, Lydia Burtniak, also a high school student working in the store as a part-time cashier, came to the store to make some purchases, and that at her request Lydia rang up the steaks she purchased on the register, put the money in the cash drawer, and initialed the cash register receipt. According to Roman- chuck, she related these facts to Pylawka when he inquired about the steaks and showed him the cash register receipt with Lydia's initials on it, and that Pylawka stated that he would ask Lydia about it when he next saw her. Basically, Lydia corroborates Romanchuck. She testified not only that she was asked by Romanchuck to and did ring up the price of the steaks, put the money in the cash drawer, and initialed the cash register receipt, but that the following morning on the way to school 20 she stopped by the store to 17 Pylawka admitted that he made the first part of the statement, but denied making any reference to "bigger troubles ." I find it unnecessary to resolve the conflict 1e To this point the testimony of Romanchuck and Pylawka is in accord, except that Pylawka claims the incident occurred on Tuesday, January 6 Because I regard the date the event occurred as immaterial to the disposition of the ultimate issue , I do not resolve that conflict 19 The complaint alleges that Lydia was also discriminatorily discharged by Respondent. The facts concerning her case are hereafter set forth 20 Lydia testified that this was on Saturday , December 27, and that she attends school on Saturday As hereafter indicated Pylawka, who admits that he had a conversation with Lydia about the matter, claims that it occurred the evening of January 6, about 15 minutes after he required Lydia to pay purchase some gum ; that Pylawka asked her if she had checked out meat for Romanchuck, and that she replied that she did and had initialed the cash register receipt 21 Pylawka gave a different version of his conversation with Lydia. According to him, shortly after requiring Roman- chuck to pay for the steaks, Lydia approached him in the store and stated that she had checked out the meat pur- chased by Romanchuck , and that his reply was, "You know what you are talking about, what you try to hide, some kind of stealing over here in the store ? Debra [Romanchuck] paid for the meat by my face. Get the hell out of here." Ac- cording to Pylawka , this was his entire conversation with Lydia.22 (2) The hamburger incident Kurylo, whose supervisory status I have heretofore dis- cussed, testified that between 6 and 7 p.m., while Pylawka was away from the store for his evening meal, he observed Romanchuck check out and bag a customer's groceries; that the customer then went to the meat department where she had the butcher grind some meat to her order, and that when the customer returned to the checkout counter with the package of meat, the same went into her package with- out being rung up on the register. According to K lo, he first went to the butcher from whom he ascertained that the price of the ground beef was $6.90, and then to Roman- chuck whom he asked if she had rung up for the beef. Kurylo testified that Romanchuck claimed she rang up the beef before the customer went to the meat counter, and that he commented that she could not have done so because she had no way of knowing what the cost would be, as the meat was ground to the purchaser's order, but that he nonetheless checked the detail tape inside the register, but no such punching appeared. Kurylo admitted that he reprimanded Romanchuck by telling her, "Don't let it happen again, because you are not doing the right thing." Romanchuck does not deny that this incident occurred. - Her testimony is that she has no recollection of the matter, and that she was never reprimanded for any such incident. Kurylo also testi- fied that he regarded Romanchuck's conduct not as a mis- take, but as a deliberate act of dishonesty. He admitted that although he was convinced that the customer had not paid for the meat, he permitted her to leave the store without saying anything to her about the matter; that although he knew the name and address of the customer, no effort has been made to contact her and explain that an error was made, or to collect for the package; that although Respon- dent has a policy of requiring all cashiers to ma good on any shortages in their accounts, and that he told Roman- chuck that she would have to pay the amount involved, no effort was made to collect from her. When Pylawka returned from dinner, Kurylo reported to him in detail regarding Romanchuck's conduct regarding this incident. Pylawka directed Kurylo to discharge Roman- chuck forthwith saying, "We don't need that kind of bus- iness in the store." In reply Kurylo admittedly stated, "Well, you ought to check into it." Don't fire her that quick, we need a cashier, tomorrow is Saturday, and we will be short for the steaks Again, I find it unnecessary to make any finding as to the exact date 21 Lydia testified on direct examination that when she talked to Pylawka the latter did not accuse her of lying or of trying to cover up for Romanchuck On cross-examination, however, after being confronted with her affidavit, she admitted that Pylawka did accuse her of trying to cover up for Roman- chuck As hereafter indicated, I do not regard this inconsistency in her testimony as material to my ultimate conclusion on the main issue 22 I do not resolve credibility in this regard deeming it unnecessary to the disposition of the ultimate issue. CERTIFIED FOODS tomorrow." According to Pylawka, he relented and permit- ted Romanchuck to work Saturday, January 10. Admittedly nothing was said to her that day about the ground beef incident. Also, as I have heretofore found, Romanchuck did not work on January 15, 16, or 17, calling Pylawka each day to report that she was ill, and that neither on January 15 or 16 did Pylawka make an reference to the meat incident; such reference being may only in the telephone conversa- tion on January 17, a week after Romanchuck last work ed.23 C. Lydia Burtniak Lydia Burtniak is the daughter of Irene Burtniak, whose alleged discharge is heretofore discussed. She is a high school student, and worked for Respondent as a part-time cashier from about mid-1967 until her employment ceased on January 15. Thursday being the day on which employees are paid for their work during the preceding calender week, Lydia went to the store on January 15 to pick up her check. Lydia credibly testified that when she asked Pylawka for her check, he at first refused to give it to her and accused her of trying to bring the Union into the store . After some conversation in which Lydia professed not to understand what Pylawka was referring to, the latter gave her the check and told her that she could not thereafter work in the store because she was trying to bring the Union in, and because she had tried to cover up for Romanchuck . Since January 15, Lydia has been in the store only as a customer. 4 6. The Basil Burtniak-Pylawka Discussion There is no dispute in the evidence that following Pylawka's conversations with Irene and Lydia Burtniak, as above found, Pylawka had some discussion with Basil Burt- niak, the husband of Irene, and father of Lydia. There is substantial conflict, however, as to when this conversation took place,25 and what was said. Basil Burtniak credibly testified that in this conversation which lasted about 10 minutes, Pylawka told him that he was having trouble in the store because his wife had organized a union, and that she should not come back to the store until the trouble was over; that he didn't want Lydia working because of her contacts with Peter Jaroszenko, Lydia's boy friend who was also a part-time employee in the store; and that in his con- versation with Pylawka, the latter did not make any claim that either Irene or Lydia had quit.26 23 Pylawka testified that his conversation with Romanchuck in which the beef incident was mentioned , occurred on Monday following the Friday when she allegedly failed to charge the customer for the meat , which would be January 12, but I do not credit his testimony in this regard Rather, I credit Romanchuck that it occurred on Saturday, January 17, 1 so find because of the admission by Kurylo that he spoke with her on Tuesday, January 13, or Wednesday, January 14 (I have heretofore credited Romanchuck that the conversation was on January 14), concerning the hours she was scheduled to work on Friday, January 16, and that he told her that she might not be able to work because of some trouble, but that she should report at her usual hour and he would then let her know whether she could work . Plainly, there would have been no reason for such a discussion if, as Pylawka claims, he had therefore discharged Romanchuck on January 12 24 Pylawka denied that he had any conversation with Lydia during the week of January 12-71, and specifically denied that he ever told her that she was trying to bring the Union in, or that she could no longer work at the store I do not credit these denials 25 Basil Burtmak fixed the time of the conversation as Saturday , January 17, Pylawka fixed it at about a half-hour after his conversation with Irene Burtmak on January 15 Because I deem it immaterial when this conversation took place, I do not resolve this conflict. 26 Based on the credited testimony of Basil Burtniak According to Pylaw- B. Contentions and Conclusions 645 1. The 8(a)(1) allegations Based on the foregoing, I find and conclude that Respon- dent, violated Section 8(a)(1) of the Act, by the following acts of interference, restraint, and coercion: (a) Pylawka's inquiry of employee Chorkawciw on Janu- ary 14, as to whether the latter had signed a union card, and his statement that he knew which employees had signed cards. I find this to be coercive interrogation of Chorkawciw concerning his union activity. The fact that the employee deemed it necessary, at least initially, to deny that he had signed a card, and admitted it only after Pylawka stated that he knew who had signed cards, indicates that the employees reacted to the in g7 as coercive. See Bourne Company v. N.L.R.B., 332 F. d 47 (C.A. 2). (b) Pylawka's statements, made separately to both Irene and Lydia Burtniak, that each was responsible for bringing the Union into the store and that they could not work until the union trouble was settled. The statements were clearly calculated to restrain and coerce those and other employees from engaging in activity protected by Section 7 of the Act. (c) Kurylo's statement to Romanchuck that she might not be able to work any more because of some trouble with the Union, and his inquiry of her as to whether she knew anything about it. This was not only unlawful interrogation of Romanchuck regarding her activities in support of the Union, but was a clear threat that employees who partic- ipated in union activity would not be permitted to work. The only issue here is whether, on the facts heretofore set forth, Respondent is responsible for Kurylo's conduct. As indicated, Kurylo not only carried keys to the store, but was left in charge for a week or more at a time when Pylawka was on vacation, kept a record of hours worked by the employees for payroll purposes, assigned employees to per- form various tasks, reprimanding them if they failed to per- form such tasks properly (witness his reprimand of Romanchuck regarding the alleged hamburger incident). That Respondent may have limited Kurylo's authority to the performance of these tasks only on the express authori- zation of Pylawka is not controlling. The important fact is that any such limitation on his authority as may have exist- ed was not made known to the employees. It is not surpris- ing, therefore, that the employees looked upon and regarded Kurylo as the assistant manager of the store and one who, when he spoke, did so in the voice of management . Accord- ingly, I find and conclude that Kurylo is a supervisor within the meaning of Section 2(11) of the Act, and that Respon- dent is responsible for his conduct. International Association of Machinists, etc. v. N.L.R.B., 311 U.S. 72, 80; N.L.R.B. v. Mississippi Products, Inc., 213 F.2d 670, 672-673 (C.A. 5); Smith's Transfer Corp., 162 NLRB 143; Square Binding and Ruling Co., Inc., 146NLRB 206, 211; Birmingham Fabricat- ing Company, 140 NLRB 640. ka, the substance of the conversation was that Basil Burtmak asked whether Lydia had stolen anything from the store , that he replied she had not, but tried to hide the steak incident in which he claimed Romanchuck was in- volved, and that the young boys and girls were acting improperly in the store, and he had to keep order. Pylawka denied that the Union was mentioned in this conversation . He admitted, however, that he told Basil Burtmak to let Lydia stay home for a while. To the extent that Pylawka's testimony conflicts with the credited testimony of Basil Burtmak , I credit the latter. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The 8(a)(3) allegations a. Irene Burtniak Having credited the testimony of Irene Burtniak that she was told by Pylawka on January 15 to leave the store and not return until the union troubles were over, I must and do find and conclude that Irene Burtniak was discharged by Pylawka. I further find and conclude , upon consideration of the entire record in the case, that the discharge of Irene Burtniak was because of her assistance to and support of the Union. This conclusion is predicated upon the totality of the following factors: (a) The evidence detailed above demonstrates that Re- spondent regarded Irene Burtniak as a satisfactory em- ployyee. (b) On January 14, management ascertained that the Un- ion had organized or was attempting to organize the em- ployees, and promptly reacted by interrogating Chorkawciw and Romanchuck as to what information they had on the subject. (c) That Irene Burtniak was suspected of being respon- sible for the union activity , and that her discharge was plan- ned is indicated by the conversation Pylawka had over the telephone on January 14, in which he stated , "She is here, and I don't have anyone to put in her place." (d) The following day, apparently after arranging for re- placement, Irene Burtniak was accused of being the union leader and told to leave the store and not return until the "union trouble" is over. (e) What these facts show is that an employee whose work performance had not therefore been questioned, and whose services are obviously needed, is suddenly terminated in mid-week without prior warning or notice, hard upon dis- covery of union activity of which she is suspected of being the leader. These elements are the classic indicia of a dis- criminatorily motivated discharge . And this indicia is rein- forced by Respondent's claim which I have found unsupported by the record, that Irene Burtniak was not discharged but voluntarily quit . As the Court of Appeals for the Ninth Circuit said in Shattucick Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 993: . If he [the trier of fact) finds that the stated motive for a discharge is false, he certainly can infer that there is another motive . More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. b. Debra Romanchuck As in the case of Irene Burtniak, the evidence with respect to this employee shows that a theretofore satisfactory em- ployee is suddenly discharged in mid-workweek, without prior warning or notice, hard upon discovery of union activ- ity. Although Respondent concedes that this employee was discharged, and undertook to justify the discharge on the ground that she attempted to steal some steaks for her own use, and was guilty of an act of dishonesty in connection with the hamburger incident, I am convinced, and therefore find and conclude, that neither of those incidents, assuming that they in fact occurred, constituted the reason for Romanchuck's termination, but were pretexts seized upon in an attempt to obscure the true motive for the discharge and to give it apparent legitimacy. Whether the incident concerning the steaks occurred on December 26, as Roman- chuck testified, or on January 6, as Pylawka testified, she was permitted to work on at least both Friday and Saturday (January 9 and 10) 27 without anything being said or done concerning her alleged dishonesty. And after the hamburger incident on Friday, January 9, which Kurylo testified he regarded as an act of dishonesty on the part of Roman- chuck, as was permitted to work the following day and leave the store at the end thereof without anything being said to her regarding the matters Indeed when Romanchuck telephoned Pylawka on January 15, and again on January 16, to report her inability to work because of illness, Pylaw- ka said nothing about either the steak or hamburger inci- dents. Not until she telephoned on January 17, was there any reference to either incident. It strains credulity to be- lieve that in a retail store where employee dishonesty, par- ticularly by a cashier as Romanchuck was, is normally re- garded by management as an unpardonable offense, and for which employees are usually fired immediately after the conduct comes to management's attention, that Respon- dent would have refrained from discharging her until Janu- ary 17, had it considered her conduct as reprehensible as it now contends. The explanation for its doing so, I am con- vinced, lies in the fact that it did not regard her conduct sufficiently reprehensible to require discipline, and that the necessity for Romanchuck's discharge arose only when Re- spondent was made aware that its employees were engaging in union activity. I so find and conclude. c. Lydia Buriniak In the case of Lydia Burtniak, having credited her testi- mony that she was told by Pylawka on January 15 that because she was trying to bung the Union into the store she should leave and not return until the "union trouble" was over, I must and do find and conclude that Lydia Burtniak was discharged and that she did not voluntarily quit, as Respondent contends. That the discharge was motivated at least in part, by the fact that Lydia had engaged in union activity, is made plain by Pylawka's statement at the time he discharged her.29 3. The 8(a)(5) allegation To establish a violation of Section 8(a)(5) of the Act, it is incumbent upon the General Counsel to prove the appropri- ateness of the unit being stipulated that (1) the Union de- manded and Respondent refused recognition; (2) such refusal to grant recognition was improperly motivated; and (3) when the Union demanded recognition, it represented a 27 The payroll records show that Romanchuck worked Saturday December 27, Wednesday, Friday, and Saturday of the week ending January 3, as well as on Tuesday, Friday, and Saturday of the week ending January 10. She did not work after January 10. 28 It is of some relevance also, that although Kurylo knew the customer who was allegedly the beneficiary of Romanchuck's dishonest conduct, and where she lived, no effort was made to get her to pay for the meat nor was any effort made to require Romanchuck to pay for it, notwithstanding Res5pondent's policy of requiring employees to make good on shortages 2 Although Lydia admitted that Pylawka also told her at the time that another reason for her discharge was that she had tried to cover up the steak incident in which Debra Romanchuck was allegedly involved, this fact does not, as Respondent contends, make the discharge unlawful. In the first place, I have heretofore found that Respondent did not regard the steak incident as sufficiently serious to warrant discipline against Roinanchuck, and that she was not discharged for that reason. -Moreover, even if it be assumed that one of Pylawka's reasons for discharging Lydia was that she attempted to "cover up" for Romanchuck, another reason he gave for her discharge was that she was trying to bring the Union in It is settled that when "unlawful motivation is shown, the coexistence of what might otherwise constitute good cause for discharge is not a defense." United Engineering Company, 163 NLRB 81, 83, and the cases there cited at In. 3 CERTIFIED FOODS majonty of the unit. Assuming arguendo, that the Union's demand, whether on January 14 or 16, was in proper form, and that Respondent's refusal was unlawful under the prin- ciples of N.L.R.B. v. Gissell Packing Company, 395 U.S. 575, I must and do find and conclude that this allegation of the complaint must be dismissed because the General Counsel's proof fails to establish that the Union represented a majori- ty of the employees in the unit. The payroll for the week ending January 17, which was received in evidence by stipulation, lists 17 names. Although the name of Irene Burtmak appears on that payroll, the names of Debra Romanchuck and Lydia Burtniak do not so appear. As I have found that the two last-mentioned employees, as well as Irene Burtniak, were discriminatorily terminated during that week, it follows that both of the omitted names must be added as they remained in employee status nothwithstanding their dischar ge. Accordingly, total employment during that week was 19 . The parties are in accord that Store Manager Pylawka as a supervisor, and Bronder and Sodowicz, as meat department employees rep- resented by another union, are not in the unit. Having here- tofore found that Kurylo is a supervisor, he must also be excluded. The General Counsel would also exclude from the unit, Bielynski, who is a member of the cooperative and works at home for a period of 5 weeks each 6 months preparing refunds to which members are entitled , and Pyly- porcz, the daughter of Datzko, who works full time in her father's office , he being engaged in some independent bus- iness., and regularly prepares the weekly payroll for the store., for which she is paid by the store $25 weekly for her services in that regard . Assuming without deciding that Bielynski should be excluded from the unit , I find and con- clude, that Pylyporcz should be included in the unit. She is a regular part-time clerical employee, and it is "well settled that where, as here, there is no bargaining history and no labor organization seeks to represent them separately, office clerical employees will be included in retail store units of selling and non-sellig employees." Nitro Super Market, Inc., 161 NLRB 505,--51 2. The fact that she performs her work in a separate building some three or four doors from the store is immaterial. The fact that Pylyporcz is the daugh- ter of the secretary of Respondent 's board of directors is no reason for excluding her from the unit , there being no evi- dence that she enjoys a special status which allies her to management by virtue of her father's position. Buckeye Vil- lage Market, Inc., 175 NLRB No. 46, and the cases cited at fn. 20. Accordingly, excluding Pylawka, Bronder, Sodowicz, Kurylo, and Bielynski from the total employment of 19 shown by the January 17 payroll, the unit is composed of 14 employees. As the General Counsel proved only seven cards, it follows that the Union did not represent a majority when it demanded recognition , and there is no evidence that such a majority was thereafter acquired 30 Upon the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the 30 Having reached this conclusion it becomes unnecessary to decide wheth- er, as Respondent contends, the authorization cards signed by the employees (other than Irene Burtmak), who were between 15 and 17 years old, were of such "tender years" and insufficient maturity that they were unable to under- stand the nature and gravity of signing a union card, so that their cards should not be counted toward the Union's majority, or were invalid because some were signed at a time when intoxicants were allegedly present. 647 meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section II , B, 1, hereof, Respondent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in and is en aging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By discharging Irene and Lydia Burtniak on January 15, and Debra Romanchuck on January 17, because of their assistance to and support of the Union , Respondent dis- criminated against each of them in regard to their hire or tenure of employment, discouraging membership in a labor organization, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent's refusal to recognize and bargain with the Union as the duly designated representative of its employ- ees in an appropriate unit, was not an unfair labor practice proscribed by Section 8(aX5) of the Act, and the allegations of the complaint in that regard should be dismissed. THE REMEDY Having found that Respondent interfered with, re- strained, and coerced its employees in violation of Section 8(a)(1) of the Act, I shall recommend that it be required to cease and desist from such conduct and take certain affirm- ative action designed and found necessary to effectuate the policies of the Act. The unfair labor practices found being of the character which go to the very heart of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon employee rights is warranted, and I shall so recommend. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie, Inc., 129 NLRB 912, 915. Having also found that Respondent discriminatorily dis- charged Irene Burtniak, Lydia Burtniak, and Debra Ro- manchuck, I shall recommend that it be required to offer each of them immediate, full and unconditional reinstate- ment to their former jobs or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority and other rights, privileges, or working condi- tions, and make each of them whole for any loss of earnings suffered by reason of the discrimination against them by paying to each of them a sum of money equal to the amount she would have earned from the date of the discrimination against her, to the date of Respondent's offer to reinstate her as aforesaid, less her net earnings during that period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent be required to preserve and, upon request, make available to the authorized agents of the Board all records necessary or useful in determining compliance with the Board's order, or in computing the amount of backpay due thereunder. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in the case, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board order Self Reliance Ukrainian American Cooperative Association, Inc., d/b/a Certified Foods, its officers, agents, successors, and assigns, to: 1. Cease and desist from: (a) Coercively interrogating employees as to whether they had signed a union card, or were otherwise assisting or supporting a Union. (b) Accusing employees of being the leaders in the move- ment to assist a union to become the bargaining representa- tive of its employees. (c) Discouraging membershi in Retail Food and Drug Clerks Union, Local 1550, affiliated with Retail Clerks International Association, AFL-CIO, or any other labor organization of its employees, by discriminatonly dis- charging, or in any other manner discriminating against any employee in regard to the hire, tenure, or other terms or conditions of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer Irene Burtniak, Lydia Burtniak, and Debra Ro- manchuck immediate, full, and unconditional reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working condi- tions, and make each of them whole for any loss of earnings suffered in the manner set forth in the section hereof enti- tled "The Remedy." (b) Notify Irene Burtniak, Lydia Burtniak, and Debra Romanchuck, 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 e Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the authorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary or useful in de- termining compliance with this Recommended Order, or in computing the amount of backpay due, as herein provided. (d) Post at its retail store located at 2204-2206 West Chi- cago Avenue, "Appendix. Copies Illinois, copies said notice attached forms to be furnished by the Regional Director of Region 13 (Chicago, Illinois), shall, after being signed by an authorized repre- sentative, be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the aforesaid Regional Director, in wasting, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith 32 IT IS FURTHER RECOMMENDED that the complaint herein, to the extent that it alleges that Respondent violated Section 8(a)(5) of the Act, be dismissed. 3i In the event no exceptions are filed as provided by Sec 102.46 of the Dated By Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 32 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the aforesaid Regional Director, in wasting, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Self Reliance Ukrainian American Coo- perative Association, Inc., d/b/a Certified Foods, violated the National Labor Relations Act, and ordered us to post this notice. We intend to carry out the order of the Board, the Judgment of the court, and abide by the following: The Act gives all employees these rights To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything to interfere with you in the exercise of these rights. All our employees are free to belong to Retail Clerks Local 1550, or any other union. WE WILL NOT coercively interrogate you as to whether you have signed a union card, or are otherwise assisting or supporting a union. WE WILL NOT accuse any employee of being the leader in the movement to organize our employees. WE WILL NOT fire or otherwise discriminate against any employee because he or she joined, assisted, or supported a union. As it has been found that we violated the law when we fired Irene Burtmak, Lydia Burtmak, and Debra Roman- chuck, WE WILL offer each of them their old jobs back if the same exist and if not a substantially equivalent job, and we will make up the pay they lost, together with 6 percent interest. WE WILL notify Irene Burtniak, Lydia Burtniak, and Debra Romanchuck, if presently serving in the Armed Forces of the United States of their right to full rein- statement in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. SELF RELIANCE UKRANINIAN AMERI- CAN COOPERATIVE ASSOCIATION, INC, d/b/a CERTIFIED FOODS (Employer) (Representative) (Title) CERTIFIED FOODS 649 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions may be directed to the Board's Office, 881 This notice must remain posted for 60 consecutive days U.S. Courthouse and Federal Office Building, 219 South from the date of posting and must not be altered, defaced, Dearborn Street, Chicago , Illinois 60604, Telephone 312- or covered by any other material. 353-7572.