Progressive Cafeterias, Inc.

PROGRESSIVE CAFETERIAS Progressive Cafeterias, Inc. and Local No. 21, United Bakery Workers, affiliated with Retail, Wholesale and Department Store Union, AFL-CIO. Case 9-CA-4624 May 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On January 8, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. She also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of such allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as 'Respondent has requested oral argument. This request is hereby denied because the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 'Respondent has excepted to some of the Trial Examiners credibility determinations alleging that the Trial Examiner was biased and prejudiced. After a careful review of the record, we conclude that the credibility findings are not contrary to the clear preponderance of all relevant evidence and we find no basis for disturbing them. Standard Dry Wall Products Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Respondent also accuses the Trial Examiner of having exhibited extreme personal bias against Respondent in several other ways. Having carefully examined the record, however, we conclude that these claims are without any real basis or support. On the contrary, the record shows that the Trial Examiner displayed fairness to, and patience with, Respondent's Counsel and that she conducted the hearing in a judicial manner and made a thorough appraisal of all the facts. We also specifically reject Respondent's contention in its brief that the Trial Examiner prejudged the credibility of persons who might have, but did not, appear as witnesses. 83 modified herein, and hereby orders that Respondent, Progressive Cafeterias, Inc., Charleston, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(b), and reletter the following paragraphs accordingly: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 2. Add the following as the second indented paragraph of the notice: WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner : This case was tried before me at Charleston, West Virginia, on June 20 and 21, and August 27 and 28, 1968, upon a complaint issued against Respondent, Progressive Cafeterias , Inc., on April 30, 1968 . The complaint was based upon a charge filed on February 13, 1968 , by Local No. 21, United Bakery Workers, affiliated with Retail, Wholesale and Department Store Union , AFL-CIO, herein called the Union, and alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (1) by permitting certain of its employees , between December 1, 1967, and February 2, 1968 , to use its business premises to plan and solicit revocations of union dues checkoff authorizations and union representation authorizations from employees during working time ; (2) by assigning more arduous working assignments to employees Ursula Derringer and Gisela Forbes in January 1968 because of their union sympathies, memberships and activities; and (3) by the termination of employment of employee Derringer on or about January 22, 1968, because of her union sympathies, membership , and activities. Respondent filed an answer, denying that it had engaged in any of the unfair labor practices alleged. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce relevant evidence . Toward the end of the second day of the hearing , under circumstances hereinafter described, and adjournment was granted to permit the General Counsel to amend the complaint . The hearing was resumed on August 27 and concluded on August 28 after Respondent's counsel and representatives walked out of the hearing, as described infra, and after the testimony of the General Counsel's last witness was completed and the General Counsel rested his case.' 'A telegraphic request by Respondent for special permission to appeal 176 NLRB No. 9 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequent to the closing of the hearing, Respondent filed various motions before the Board and/or the Trial Examiner which have been denied. These motions and the action of the Board and/or the Trial Examiner thereon are summarized below. On October 28, 1968, counsel for the General Counsel and for Respondent filed briefs which have been carefully considered. In its brief Respondent had renewed and expanded upon the motions previously made. For the reasons hereinafter stated , these motions are again denied. Upon the entire record in this case and from my observation of the demeanor of the witnesses as they testified, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF RESPONDENT The complaint issued on April 30, 1968, alleges, and Respondent's answer admits, that Respondent is an Illinois corporation engaged in the enterprise of rendering cafeteria and food services to industrial plants throughout the United States ; that during the 12-month period preceding the issuance of the complaint, which is a representative period , Respondent had a direct inflow, in interstate commerce , of goods and products valued in excess of $50,000, which it purchased and caused to be shipped directly to its cafeteria operations located in West Virginia from points outside that State . Respondent's answer also admits, as alleged in the complaint, that at all times material herein Respondent is, and has been, an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. On the basis of these admitted facts , I find that Respondent is an employer within the meaning of Section 2(2) of the Act, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11, THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. RESPONDENT'S VARIOUS MOTIONS TO DISMISS AND/OR TO REOPEN THE HEARING from a ruling of the Trial Examiner, dated August 27, 1968, and various motions and papers (excluding briefs) filed subsequent to the closing of the hearing on August 28 have been placed in a folder labeled "Trial Examiner's Exhibits" and are identified therein as follows : Respondent's telegraphic request to Board for special permission to appeal, "T.E.3", Respondent's amended request for special permission to appeal, dated August 30, 1968, "T.E.4"; telegraphic order of Board , dated September 3, 1968, denying request for special permission to appeal, "T.E.5"; Respondent's motion to reopen record , filed September 6, 1968, "T.E.6"; letter dated September 9, 1968, from Chief Trial Examiner to Respondent's counsel, "T.E.7"; letter dated September 12, 1968, from Respondent's counsel to Chief Trial Examiner, "T.E.8"; telegraphic order of Trial Examiner, dated October 1, 1968, denying motion to reopen record, "T.E.9"; Respondent's second motion to reopen record, dated October 4, 1968, "T. E.10", Trial Examiner's order, dated October 7, 1968, denying Respondent's second motion to reopen record , "T E. I 1". A. Respondent's Motion to Dismiss the Complaint because of the General Counsel's Failure to Name Union Carbide Corporation as a Party Respondent Although failing to mention the matter at the commencement of the hearing when the Trial Examiner requested counsel to give their views as to the issues involved in this case, counsel for Respondent, on the second day of the hearing, and after the General Counsel and the Union had concluded their direct examination of the alleged discriminatee, Derringer, moved to dismiss the complaint on the ground that another party, Union Carbide Corporation (herein called Carbide) had not been joined in the complaint as a necessary party. The motion was made on the basis of testimony indicating that Respondent operated its cafeteria business upon the property of Carbide which owned everything on the premises except the food in the freezer and refrigerator; that Carbide had hired several summer students to work in the cafeteria for the summer of 1967;' that article IX, section 4, of the collective-bargaining agreement between the Union and Respondent provided that Carbide "shall have the prerogative . . . to accept or reject any . employee [of Respondent] for work on [Carbide's] premises on the basis of security, health, morals, safety or other reasons as determined by [Carbide]"; and that a letter dated April 22, 1968, from M. A. Goldman, Superintendent of Office and Material Services at Carbide to the Board attorney who was then investigating the charge against Respondent, states inter alia, that although Carbide had nothing to do with having Derringer discharged, it had "no reason to doubt that it was warranted and would object to her being reemployed."' Despite the General Counsel's contention that the letter should not be construed as indicating that Carbide would object to the reinstatement of Derringer or do anything to prevent Respondent from complying with a Board order requiring Respondent to reinstate Derringer should Respondent be found to have violated the statute, the Trial Examiner was then of the view that if Derringer's discharge were found to be discriminatorily motivated, Carbide should be joined as a party Respondent in order that an effective reinstatement remedy could be provided.' The Trial Examiner announced that the hearing was being adjourned until July 16 to give the General Counsel an opportunity, if he wished, to bring in Carbide as an additional party. The Trial Examiner stated: "If the General Counsel fails by that time to amend the complaint in order to bring in this additional party, in the absence of any compelling reasons shown to me in the meantime why I should not do so, I at this time would be inclined to grant the Respondent's motion to dismiss." On July 7, counsel for the General Counsel, Gravitt, requested a postponement of the hearing to August 20 due to the fact that he was entering a hospital for immediate surgery. This postponement was granted without opposition. A further postponement to August 27 for the reopened hearing was granted, without opposition, at the 'Summer students are expressly excluded from the bargaining unit under the collective bargaining contract between the Union and the Respondent, and they are not involved in any of the alleged unfair labor practices. 'A copy of this letter was in the hands of Respondent's counsel, who called it to the Trial Examiner's attention and introduced it in evidence in connection with his motion to dismiss. 'In his brief, the General Counsel has moved to correct an error in the transcript of record on page 280, line 23, by changing "part of Respondent" to "party Respondent." This motion, being unopposed and in accordance with the recollection of the Trial Examiner , is hereby granted. PROGRESSIVE CAFETERIAS request of Respondent's counsel. On August 7, the General Counsel (John R. McGill acting for and on behalf of Cassius B. Gravitt, counsel for the General Counsel) moved to amend the complaint (1) by adding Carbide's name as a "Party in Interest" in the caption of the complaint; (2) by adding to paragraph 2 of the complaint the following subparagraph (d): At all times material herein, there has been in effect a written agreement between Respondent and Carbide which agreement provides that employees of Respondent shall be subject to an investigation and approval by Carbide and that the said employees shall also be subject to all rules and regulations which are in force by Carbide at any time for the purposes of safety, security and protection. and also by adding to paragraph 2, a subparagraph (e) setting forth the provision of the collective-bargaining agreement between Respondent and the Union hereinabove referred to.' The motion to amend was granted by the Trial Examiner on August 9. Thereafter Carbide on August 16, acting through its counsel, Jack P. Simpson, filed with the Board a "Request for Special Permission to Appeal from Trial Examiner' s Ruling." The Board, by telegram dated August 26, denied this request but stated that Carbide "may renew its position before the Trial Examiner after resumption of hearing." At the reopened hearing on August 27, Carbide, through its attorney, Jack P. Simpson, appeared and moved to strike that part of the complaint which added Carbide as a party in interest. He stated that Carbide had "no interest in these proceedings" and would "abide by the outcome." He asserted: "We are not in the position of the Employer nor do we want to be and we have no objections, if a violation is found on Progressive's part, of their rehiring the discriminatee." He reiterated this position several times during the lengthy argument on his motion to strike. In explanation of a letter written by him to the Board's Regional Director on July 9 in which he said, inter alia, that if Derringer "violated independent regulations of Union Carbide of sufficient gravity that Union Carbide would normally exclude from its premises, Union Carbide would have to exclude her," Simpson stated that "violations of [Carbide's] security regulations . are not grounds for Progressive to take action, it will be Carbide's actions independently." In response to a contention by Respondent's counsel, Keiler, that the final straw in Respondent's decision to discharge Derringer was her appearance at the plant on January 19 carrying a large handbag in violation of both Carbide's and Respondent's rules, Simpson stated that Carbide has no regulation forbidding the carrying of large handbags and that Carbide has not charged Derringer with a violation of any of its rules. Simpson read into the record what he stated, and the General Counsel stipulated, was from paragraph 10 of the contract between Respondent and Carbide, which reads as follows: .All personnel engaged in the performance of the Cafeteria service shall be fully trained and highly proficient at their appointed tasks, and shall be 'In its brief to the Trial Examiner filed on October 28, 1968, Respondent moves to dismiss the complaint for the further reason that the General Counsel failed to amend the complaint by July 16, the date originally set by the Trial Examiner . This motion is denied To have dismissed the complaint for that reason , under the circumstances outlined above , would, in the view of the Trial Examiner, have been prejudicial error. 85 obtained and compensated (including all taxes and contributions measured by wages, salaries and other remunerations) by Caterer [Progressive] and shall at all times be under the exclusive and direct control of the Caterer, except that prior to employment they shall be subject to an investigation and approval by the Company [Carbide]. Said employees shall, prior to the performing of services in the operation of the Cafeteria and from time to time thereafter as designated by the Company, submit themselves to a physician designated by the Company for the purpose of determining their freedom from disease, the cost of such examination shall be borne by the Company. Any employee who the physician conducting such an examination shall determine not free from disease shall not be employed by the Caterer in this service. The Caterer and Caterer's employees shall be subject to all rules and regulations which are enforced by the Company at any time for the purposes of safety, security and protection. Simpson pointed out that under the contract, Carbide does not, in fact, have the broad right to accept or reject Respondent's employees described in the Union's contract with Respondent. Respondent's counsel, while not joining in the stipulation respecting the authenticity of the quoted provision of the contract between Carbide and Respondent, did not then and does not now contend that Simpson's reading of the contract was inaccurate. In these circumstances, I accept Simpson's statement regarding Carbide's contract with Respondent, to which the General Counsel stipulated, as an accurate recital of the pertinent contract provision. After duly considering the arguments of all counsel, the Trial Examiner granted Carbide's motion to strike its name from the complaint as a party in interest. Respondent's counsel conceded that Carbide in fact had nothing to do with Derringer's discharge. Other than to argue that despite Carbide's present assurances, it could change its mind in the future and prevent Respondent from fully complying with a remedial order, Respondent has not demonstrated how Respondent could possibly be prejudiced by the Trial Examiner' s ruling .6 Under the principles stated by the Supreme Court in Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 14, and in accordance with the provisions of Rule 65 (d) of the Federal Rules of Civil Procedure, any remedial order issued herein will be binding on those having knowledge of the order and identified with Respondent in interest or in privity with Respondent. The Trial Examiner has directed that a copy of the Recommended Order be served upon Carbide and, under the circumstances of this case, Carbide would appear bound by such order under the above cited authorities. But, in any event, if Carbide should attempt to prevent Respondent from complying with the Recommended Order, the General Counsel is not without means of then taking action to insure compliance with any 'Although, in my view, the record does not establish that Respondent and Carbide are joint employers of the employees covered by the unit certified by the Board as appropriate - as Respondent contended on the second day of the hearing and thereafter - I would nevertheless be of the view that Carbide, even if it were a joint employer, is not a necessary party to this proceeding in which it has been established that only Respondent took the action which is alleged to be in violation of the statute and Carbide has expressly stated on the record that it will not oppose compliance by Respondent with any remedial order . Indeed , even if more than one person is responsible for wrongful conduct, an action may properly be maintained against one, some, or all of these engaging in the 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board order against Respondent.' B. Respondent Walks out of the Hearing After the Trial Examiner Denies his Motion to Adjourn the Hearing Pending Attempted Appeal to Board and Ruling of Board When the Trial Examiner announced at the hearing that she was granting Carbide's motion to strike its name from the complaint as a party in interest, Respondent's counsel announced that he would request special permission from the Board to appeal from the Trial Examiner's ruling and requested an adjournment of the hearing for this purpose. The Trial Examiner agreed to adjourn the hearing only from about 3 p.m. on August 27 until 9 a.m. the following morning and for the dual purpose of providing the parties an opportunity, requested by them, to discuss a proposed settlement of the case and to permit Respondent's counsel to send to the Board a telegraphic request for permission to appeal. She made it clear at that time that if the case was not settled (as it was not), the hearing would proceed on the following morning. Counsel for Respondent thereupon stated: "Let me say for the record now that I will not be here at 9 o'clock tomorrow morning . If you want to make a summary judgment from that then you may but I will not be here at 9 o'clock tomorrow morning." Respondent's counsel did, however, appear at the hearing on the following morning, presented to the Trial Examiner a copy of his telegraphic request to the Board and moved that the hearing be adjourned until the Board should grant or deny his request for permission to appeal. The Trial Examiner again denied the motion to adjourn, whereupon Respondent's counsel walked out of the hearing. The testimony was then completed, a date was set for the filing of briefs and the hearing was closed. C. The Board Denies Respondent's Request for Special Permission to Appeal from the Trial Examiner's Ruling On September 3, 1968, Respondent filed with the Board an amended request for Special Permission to Appeal from a Ruling by the Trial Examiner and Points in Authority. On the same day the Board, by telegram, denied Respondent's request for special permission to appeal and stated that "Respondent may renew its position in any exceptions filed to the Trial Examiner's Decision." D. Respondent's First Motion to Reopen the Record On September 6, 1968, Respondent filed with the office of the Trial Examiners a motion to reopen the record (1) "to adduce essential and previously unavailable evidence with respect to Board jurisdiction" and (2) to permit Respondent "to cross-examine alleged discriminatee wrongful conduct. Restatement of the Law, Torts, Ch. 44, Sec. 882. Although the Board, in its discretion, may dismiss a complaint against one of several joint employers where others of those joint employers have refused to permit reinstatement of a discrimmatorily discharged employee (Bell Oil and Gas Co, I NLRB 562, 588), no such situation exists here. 'In addition to a court decree enforcing a Board order against Respondent, which the Trial Examiner believes would be binding upon Carbide, other alternatives exist, such as an independent unfair labor practice charge against Carbide based upon its action in preventing compliance by Respondent or proceedings under Sec. 12 of the Act. Contrary to Respondent's argument, the limitations proviso to Sec. 10(b) of the Act could not start running against Carbide until and unless Carbide takes somelaction which could be considered an unfair labor practice Ursula Derringer and to adduce testimony in defense of the charges contained in the complaint." The Trial Examiner was on vacation at the time this motion was filed, but after her return she issued an order on October 1, 1968 denying the motion to reopen because, with respect to item (1), Respondent did not state the additional evidence which it sought to adduce or describe it with sufficient particularity to permit the Trial Examiner to determine whether, if presented, the evidence would be material or essential, or whether, if credited, it would require a different result and because, with respect to item (2), Respondent had been given full opportunity at the hearing to examine and cross-examine witnesses, including Ursula Derringer, and to adduce testimony in defense of the allegations in the complaint and had not stated good cause for failing to complete any defense it may have had. E. Respondent's Second Motion to Reopen the Record On October 4, 1968, Respondent filed with the Trial Examiner a second motion to reopen the record, alleging as reason therefor that about December 31, 1967, prior to the occurrence of any of the unfair labor practices alleged, Respondent was "legally dissolved" and ceased to exist; and that its business, since about January 1, 1968, has been operated by The Macke Company of West Virginia. Respondent further alleged that since Macke was not joined in the complaint, the complaint should be d ism issed. On October 7, 1968, the Trial Examiner issued an order denying the motion to reopen for the following reasons: 1. Following the issuance on April 30, 1968, of a complaint against the Respondent, Progressive Cafeterias, Inc., said Respondent, acting by and through its present counsel, filed an answer on May 8, 1968, expressly admitting, as alleged in the complaint, that it "is an Illinois Corporation" and an "employer" engaged in commerce within the meaning of Section 2, subsections (2), (6) and (7) of the National Labor Relations Act. 2. On June 20, 1968, the first day of the hearing in this case, the same Respondent, which now alleges that it does not exist, appeared by its present counsel and participated in the hearing on that and succeeding days, not once suggesting that it was merely a phantom without legal existence. 3. Respondent, through its same counsel, explained in an opening statement at the commencement of the hearing that Respondent "is solely owned" by Macke and upon several occasions at the hearing Respondent's counsel or a witness referred to Macke and Macke's wholly owned Progressive Cafeterias, Inc., interchangeably as one and the same enterprise. Respondent's counsel, Keiler, in his opening statement in defense of the unfair labor practice charges against Respondent, stated "that Macke Company has had no unfair labor charges issued against it in any of its corporate enterprises throughout the country; and in this very case, there was a consent election, ... Macke didn't try to stall anything - ." Thereafter, when the witness, Forbes, testified that she was employed by Macke Company, she explained that she meant Progressive Cafeterias.[' ] 'The latter finding, which Respondent in its brief to the Trial Examiner states is inaccurate, is supported by the following testimony of Forbes: PROGRESSIVE CAFETERIAS 87 4. Gladys S. Hutchinson , called by the General Counsel under Rule 43(b) as a managing agent of Respondent, testified without contradiction that she is unit manager of Progressive Cafeterias , Inc., at the location ivolved in this case , that she is responsible for the operation of that cafeteria, that she has authority to hire and discharge employees and that she did, in fact, discharge the employee alleged in the complaint to have been discriminatorily discharged.[' ] 5. Respondent has not shown why the evidence it now seeks to adduce was "previously unavailable" as it alleges and why such evidence could not have been introduced at the hearing in this case. 6. Respondent's motion is apparently based on the alleged fact that it ceased to exist as a corporate entity about December 31, 1967; but Respondent's admissions in its pleadings and at the hearing as well as the testimony adduced show that it continued to exist as an employer and as a going business enterprise . "It is the employing industry that is sought to be regulated and brought within the corrective and remedial provision of the Act in the interest of industrial peace ." (N.L.R.B. v. Colten , 105 F.2d 179, 183 (C.A. 6)),• and the employing industry is not relieved of liability for any unfair labor practices it may have engaged in merely because its status as a corporation may have been dissolved or because it may have changed form (Southport Petroleum Co. v. N.L.R.B., 315 U.S. 100). Moreover , should an order issue against Respondent after a decision on the merits of this case, such order would be binding on all persons in active concert or participation with Respondent who received actual notice of the order (Regal Knitwear Company v. N.L.R.B., 324 U. S. 9) and the Trial Examiner does not anticipate that Macke or any other person will seek to preclude Respondent from complying with a remedial order should such an order be issued. Respondent has renewed its motion in its brief to the Trial Examiner . For the reasons stated above, this motion is again denied. F. Respondent's Recital in its Brief of Testimony it Failed to Adduce at the Hearing In its brief Respondent summarizes in some detail testimony pertaining to the merits of the unfair labor practice charges which , it asserts, its witnesses would give if now permitted to testify. Respondent states that this testimony should be received "to rectify the denial of Respondent's rights to due process." I shall treat this as a further motion to reopen the record for the purpose of adducing additional evidence regarding the unfair labor practices alleged in the complaint . This motion is again denied for the reasons stated in response to Respondent's Q. Where are you employed? A. Macke Company. Q. What's the name of it? TRIAL EXAMINER : Employed by whom? THE WITNESS : Macke Company , Cafeteria. TRIAL EXAMINER: Macke Cafeteria? MR. GRAVIrr: That's Progressive Cafeterias. Q. (By Mr. Gravitt): Are you employed by them? A. Yes, sir. 'In addition, it is noted that in an affidavit given by Hutchinson on April 5, 1968, to a Board agent investigating the charge , she stated ; "I am the Unit Manager of Unit 53, Progressive Cafeterias, Inc., located at the South Charleston Plant of Union Carbide . I have been employed there in that position since November 15, 1967." first motion to reopen the record, namely, that Respondent was given full opportunity at the hearing to examine and cross-examine witnesses and to adduce testimony in defense of the allegations in the complaint and has not stated good cause for failing to complete any defense it may have had. IV. THE UNFAIR LABOR PRACTICES ALLEGED The complaint alleges and the General Counsel contends that Respondent violated Section 8(a)(1) and (3) of the Act (1) by assigning more arduous work to Union Steward Ursula Derringer and her sister, Gisela Forbes, in January 1968 because of their union membership and activities; (2) by discriminatorily discharging Derringer on January 22, 1968; and (3) by permitting certain employees, during working hours between December 1967 and February 1968, to plan and solicit revocations of union dues checkoff authorizations and representation authorizations from the employees. Since all of these charges are related to the principal issue, whether Derringer's discharge was discriminatorily motivated, they will be considered together below in a recitation of the evidentiary facts. A. The Evidentiary Facts Ursula Derringer, whose alleged discriminatory discharge is here involved, worked for Respondent from October 1965 until her discharge on January 22, 1968. Prior to a representation election on January 22, 1967 and the Union's certification on February 1, 1967, Derringer was chairman of the Union' s organizing committee. She was a union observer at the election and thereafter served as chairman of the employee bargaining committee during the contract negotiations. She, along with the other two employee members of the bargaining committee - Norma Lemon and Delores Henson - and the Union's Regional Director, G. A. Hughes, signed a 3 year collective- bargaining agreement with Respondent on July 31, 1967. Subsequent to the Union's certification, at a joint meeting of the Union membership for employees of Respondent's Bell Unit and its Unit 53 at Union Carbide Technical Center in South Charleston, where Derringer worked, Derringer was elected financial secretary of the Union and shop steward at Unit 53." She was serving in those capacities at the time of her discharge. Prior to November 15, 1967, when Gladys Hutchinson became the new unit manager at the cafeteria, Derringer had no difficulty in the handling of grievances for employees. There had been no need to file any written grievances because, as Derringer testified , management always found time to sit down and settle problems as they arose and after an oral discussion. Hutchinson had worked for The Macke Company enterprises, of which Respondent was a wholly owned subsidiary, for about 9 years prior to being assigned to the Unit 53 cafeteria in South Charleston as its unit manager. She had 14 employees under her there. It was the largest cafeteria Respondent had and she regarded her manager's position there as a promotion. She had authority to hire "The Union members present at first elected Derringer's sister , Gisela Forbes, as the shop steward at Unit 53 but when the employees there (who had been absent from the union meeting) learned of this action, they caused another meeting to be held and selected Derringer instead of Forbes as their shop steward. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and fire employees and was responsible for the operation of the cafeteria. Immediately above her in the management hierarchy was District Manager Funderburk who had about six other cafeterias in addition to the South Charleston one under his general supervision. The relations between Hutchinson and Derringer apparently began to deteriorate about December 1, 1967. These relations, culminating in Derringer 's discharge on January 22, 1968, can, I believe, best be understood by a recital, in chronological order where possible, of the incidents preceding the discharge. Early in the morning of December 1 , Hutchinson called a meeting of all her employees at which she explained what she expected of them and what they could expect of her. She also explained Respondent's policies and rules and regulations and told them that she "was a stickler for regulations" and that everyone would be expected to follow them "to a `T'." She told the employees that there was too much horseplay going on in the cafeteria and that she was going to give out some new work schedules. She invited the employees to come and talk with her about any problems they had. A number of the employees did thereafter come to Hutchinson's office from time to time and talk to her. One of the first was Union Steward Derringer. According to Hutchinson, during the afternoon of December 1 and before Hutchinson had learned that Derringer was the Union's steward at the cafeteria, Derringer came to her office to talk and left Hutchinson with the impression that Derringer was attempting to take over her job of operating the cafeteria." Although Hutchinson testified that Derringer told her that if she , Hutchinson, would run the cafeteria the way Derringer wanted it run , the two of them would get along fine, I am satisfied that Hutchinson meant only to characterize Derringer 's advice and not to indicate that Derringer had used that blunt language. In her statement given to the Board agent investigating the charges which had been filed, Hutchinson does not mention the statement attributed to Derringer in Hutchinson 's testimony and instead purports to describe advice given by Derringer against allowing certain people to run the cafeteria, and statements made by Derringer as to what was wrong with the operation of the cafeteria and what should be done about it . According to Hutchinson, she thanked Derringer and told her that she , Hutchinson, would be running the cafeteria." Derringer emphatically denied making any statement of the nature about which Hutchinson testified. She placed the date of her first meeting with Hutchinson as on or about December 4 or 5 when Derringer went to Hutchinson 's office to complain about the slowness of the helper on Derringer 's meat line. However well intentioned Derringer's statements to Hutchinson may have been at their first meeting , it seems clear that Hutchinson considered them as an unwarranted interference with Hutchinson's management of the cafeteria. On one occasion, about December 4, Hutchinson watched Derringer from her office window for 10 minutes as Derringer was drinking a cup of coffee and talking to employees Forbes and Henson (both union members) "Hutchinson testified that after November 15 she read the union contract which she found in her desk and learned what were the duties of a union steward but she did not state when she learned that Derringer was the steward. "Hutchinson's sworn statement, made in the presence of one of Respondent's counsel, was received in evidence at the request of the General Counsel, without objection by Respondent. while they were making sandwiches. Hutchinson came out of her office and asked Derringer: "Ursula, can't you find some work to do?" Derringer then returned to her work station. As Hutchinson testifed, Respondent has placed a coffee cart in its cafeteria because it wants its employees to feel free to have a cup of coffee when they have a few minutes to spare. There was no set time as to when they could drink coffee or as to how long they should take. Hutchinson, however, felt that 10 minutes was an excessive amount of time for drinking coffee. Both Derringer and Forbes credibly testified that they observed employees Hager and Lemon take frequent coffee breaks and drink coffee in the office with Hutchinson or the cashier or office girl, Catherine Peck. Forbes testifed that Hager sometimes stayed in the office as long as 10 or 15 minutes at a time while drinking coffee but that Hutchinson would give Forbes a "hateful" look if Forbes, even started to drink a cup of coffee. On or about December 6, as Hutchinson testified, Derringer came to the office door and announced to Hutchinson that she was going to be forced to file a grievance against Hutchinson for discriminating against union employees. Derringer did file such a grivance but at a later date , as shown below. On or about December 12, Derringer presented to Hutchinson a written grievance protesting as unjust the discharge of a union member, Judy Taylor, on December ll. When receiving the grievance, Hutchinson merely looked at Derringer and said "Huh." Hutchinson later returned the grievance to Derringer with an explanation written thereon as to the reasons for Taylor's discharge. On or about December 22, Hutchinson found Derringer sitting in a corner behind a reserved section of the cafeteria smoking a cigarette . Hutchinson testified that posted rules forbid smoking except during the employees' lunch time but that Hutchinson had never objected to the employees taking a quick smoke at other times in the rest room . Hutchinson said nothing to Derringer about observing her smoking in the cafeteria on December 22. About January 1, 1968, Hutchinson started keeping notes on the activities of Derringer and other employees under her . Derringer also recorded notes from time to time in a little black book which she kept in the pocket of her uniform and Hutchinson observed her writing in it upon one occasion. Derringer recorded , among other things, the time when employees left their work station and how long they were gone . It is not clear from the record whether Derringer told Hutchinson about this booklet on December 6, the date mentioned in Hutchinson's affidavit, or at a later date, perhaps about January 8 when employee Francis Hager reported to Hutchinson that Derringer had been watching her for an hour. Hager, as Hutchinson testified , was a frequent visitor to Hutchinson's office." In late December or early January, she came to Hutchinson to inquire about how she should proceed to draw up a petition for the signature of employees desiring to withdraw from the Union. Hutchinson told Hager that she could not discuss the matter with Hager. Hutchinson observed Hager talking to other employees out in the cafeteria between December 1, 1967, and February 2, 1968, on numerous occasions during working time . (She estimated that this occurred between once and 12 times a day.) But, as Hutchinson explained, there are no rules and regulations against employees talking to each other. She testified that she "Derringer estimated that Hager was in Hutchinson 's office about 10 PROGRESSIVE CAFETERIAS kept no record of these occasions so long as the talking did not interfere with the employees' work. Nevertheless, on January 4, 1968, when Hutchinson observed Derringer talking to the bus boy while following him around as he was working in the dining room, she called Derringer into her office and warned her not to harass employees and interfere with their duties. In the early part of January, Hutchinson posted on the inside door to the toilet a note requesting employees to bring in smaller handbags or face the embarrassment of having their bags checked by Hutchinson. On a Wednesday, January 3, Derringer went to Hutchinson's office and asked: "Mrs. Hutchinson, would it be all right with you if I keep on bringing my pocketbook which I have right now and you checking it every night?" Hutchinson replied: "No, let's be fair and get a smaller one and you keep your big one outside if you want to and bring a smaller one in if you think it's necessary and don't let's check it every night; but since today's Wednesday, you have 2 more days left in this week, why don't you buy one over the weekend and bring one in Monday."" Derringer did buy a small pocketbook that weekend and brought it to work on the following Monday. On or about January 8 employees Hager and Lemon brought to Hutchinson a letter signed by several employees, including Hager and Lemon, stating that they wanted to withdraw from the Union and have their union dues checkoff discontinued. They asked Hutchinson to send the letter to Respondent's home office and Hutchinson did so.16 On January 11, Hutchinson handed out new work schedules to all the employees as she had stated earlier that she would do. In making out these new schedules, Hutchinson testified that she increased the duties of those employees who she "felt had too much time on their hands." In her affidavit she stated, "In fact, it seemed that everyone in the place was doing too much loafing and that's why I made out the schedules." Among those employees who had their work loads increased were Derringer and her sister, Forbes, also a union member.16 At that time one employee, Marion Riffle, was transferred to another unit of Respondent' s cafeterias and her work was divided between Forbes and Derringer. Both Derringer and Forbes complained to Hutchinson that they could not do all the work on their new schedules. She told both to try. Later, after both continued to complain to times a day. "My finding that the above described conversation with Hutchinson occurred on January 3 is based upon Derringer's testimony that it occurred on a Wednesday in early January and prior to the time new work schedules were handed out. It is established by the record that the new work schedules were handed out on Thursday , January 11 , and that Derringer, because of her little boy's illness and hospitalization , was not at work on the following Monday, January 15 . This finding as to the date is also consistent with Forbes' testimony that her sister was the first employee to get a new small pocketbook and that Derringer had explained to Forbes that she wanted no trouble with Hutchinson about the matter. It is also consistent with Union Representative Hughes' testimony that Derringer called him in the first part of January about the handbag requirement and complained that the union employees were required to carry smaller purses while the other girls were still carrying their bigger ones. "Hutchinson at first testified that on the same morning she saw these employees give Derringer what Hutchinson assumed to be a copy of the same document which Hutchinson had received, then later changed her testimony to say that she had not seen this but that her office girl, Catherine Peck , had informed Hutchinson that the document had been given to Derringer during the latter 's "noon hour" and that Peck had been asked to be a witness to the presentation. 89 Hutchinson and also complained to Funderburk, some changes were made, relieving them of some but not all of their increased work loads. Several days after the new schedules were handed out, Forbes called Hutchinson's attention to the fact that the other girls had finished their work by 3 p.m. while she was half killing herself to, finish by 3:30 p.m., the regular quitting time. Hutchinson replied, "You can do it."" On Thursday evening, January 11, when Derringer went home, she found her little boy very ill. According to her credited testimony, she immediately informed Hutchinson by telephone that because of her child's illness she would be unable to report for work the next day. The following day her child's condition became worse and he was rushed to a hospital and was still hospitalized on the following Monday morning. Derringer stayed with her child throughout this period and on Monday morning, while at the hospital, called Hutchinson to report that she was still unable to come to work on account of her son' s illness. Hutchinson replied that Derringer should have called a little sooner so that she could put someone else in Derringer's working area and asked Derringer to be sure to call Hutchinson early when she planned to return to work so that Hutchinson could make appropriate arrangements with a substitute worker. She thanked Derringer for calling.'8 Derringer returned to work either on Wednesday, January 17 (according to Derringer's testimony) or on January 16 (according to Hutchinson's testimony). I do not find it necessary to resolve this conflict, for either witness could have made an honest mistake in her testimony in this respect and the precise date is not vital to any issue in this case. On Thursday, January 18, Derringer presented to Hutchinson her second written grievance. This grievance charged Respondent with discriminating against union members. On the next morning, Friday, January 19, when Derringer came to work and started checking the uniforms in her locker, she discovered a can of salmon hidden beneath one of the uniforms. She immediately showed this to her sister, Forbes, and after the two had consulted together about what they considered an obvious attempt by someone to frame Derringer, Derringer reported the matter by telephone to Union Representative Hughes. Upon his advice, Derringer sought out Hutchinson and showed her what was under the uniforms in the locker.19 Derringer refused to touch the can. She stated that someone was trying to frame her. Forbes "Derringer testified that union committee member Delores Henson requested Derringer to speak to Funderburk about her new schedule but no other evidence regarding Henson's new schedule was adduced. "Forbes, after telling Hutchinson that she was going to resign from the Union, on April 16, 1968, signed a paper which Hager had prepared, stating that she no longer wished to be represented by the Union or have her dues deducted from her paycheck. Since then, according to Forbes' undenied and credited testimony, she has been able to spend more time at the coffee cart, can wear an ornamental ring which Hutchinson had previously forbidden her to wear, and has been carrying a bigger pocketbook . A few weeks before the hearing in this case , she had been transferred to work as vegetable cook, a better paying job. "Hutchinson's testimony, while not constituting a specific denial that Derringer called about her son 's illness in the evening of January 11, appears to indicate that Derringer did not call Hutchinson until the afternoon of Monday, January 15, and that "this was one of the straws that led up to her discharge ." I am satisfied that Derringer's account, given in convincing detail, reflects substantially what happened. "In its brief Respondent suggests that Derringer may have staged the incident. But aside from the inherent unlikelihood of such a scheme, 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' suggested that fingerprints be taken but Hutchinson said that too many people's prints could legally be on the can. There was some discussion about who had keys to Derringer's locker. Hutchinson remarked that only she herself and Derringer had a key to the locker and Derringer stated that only Hutchinson had the key to the stockroom where cans of salmon were kept . 30 Derringer asked Hutchinson, "Mrs. Hutchinson , what do you have against me or my work? If you have, please tell me; and if I don't do my job right, tell me and I will try to do better."" Hutchinson replied that she had no complaint about Derringer's work but that she felt that Derringer was hanging around like a big cat with paws ready to put on her. Hutchinson placed the can of salmon in a plastic bag and took it upstairs . When Derringer asked Hutchinson what she was going to do about the incident, Hutchinson replied, "Nothing." She asked Derringer and Forbes to tell no one about it and to forget it. When Forbes talked with District Manager Funderburk, who was then in the cafeteria, about the salmon incident and suggested that the police be called, he told her to forget it and not mention it to anyone.22 Hutchinson testified that she had scheduled her first inspection of the lockers for the day of the salmon can incident but that no one except herself knew of the planned inspection until after Derringer showed her the salmon can and she, Hutchinson , went upstairs and told District Manager Funderburk, who had come in for breakfast, about the incident and remarked to him that it "was strange that this had happened on the day [she] had the locker inspection scheduled." Hutchinson postponed the planned inspection because, as she explained, "The whole incident just sort of floored me." According to Hutchinson, she decided on January 19 to discharge Derringer but, because of Derringer 's length of service with Respondent, she waited until Monday, January 22, to talk over her decision with Funderburk before actually discharging Derringer. Funderburk, after having breakfast at the cafeteria on Friday, had apparently left for the day. I told her that she had been warned on four separate occasions about harassing employees and interfering with their work, that she had been warned once by Mrs. Crowe and Mrs. Hauser [apparently former unit managers] together. She had been warned once by Mr. Funderburk and she had been warned on two separate Hughes' credible testimony that Derringer was weeping as she told hun about the matter and Hutchinson 's testimony that Derringer appeared upset as she told Hutchinson about it, is inconsistent with any such theory. I have no hesitancy in rejecting this suggestion by Respondent's counsel. "The key to the stockroom was kept in Hutchinson 's office but, as she testified, she permitted all employees to borrow it for the purpose of getting things out of the stockroom. "The above quotation is from Derringer's testimony. Hutchinson testified that although she could not place the date, Derringer did tell Hutchinson that if she, Derringer, did anything wrong, that Hutchinson should tell her and she would correct it and do the best she could. "The findings regarding the salmon incident are based upon a composite and, for the most part, undisputed testimony of Hutchinson, Derringer, Forbes and Hughes. Hutchinson testified that she was not sure whether this occurred on January 19 or at an earlier date . Although at one point Derringer's testimony could be interpreted as placing the incident as occurring on the morning after her return from her son 's illness, she later testified positively that it occurred on Friday , the 19th. This would appear consistent with Hughes' testimony that Derringer called him about the matter a day or two before her discharge . The finding that Hutchinson compared Derringer with a big cat is based upon the mutually corroborative testimony of Derringer and Forbes. occasions by me. She had disregarded these, and we were dismissing her. According to Hutchinson, Derringer said "Thank you" and walked out after signing a receipt for her wages, which were paid in cash.23 Derringer gave a different account of the discharge interview. She testified: Mrs. Hutchinson opened up and said, "We decided that you don't see everything our way; we can't see it your way. You have been warned by Mrs. Crowe, Mrs. Hauser, Mr. Funderburk and myself not to discuss any union business on Company time and we will have to let you go. Here's your money up to today, please, will you sign. Derringer thereupon signed a receipt for the money, said "Thank you, Mrs. Hutchinson" and left. Union Representative Hughes' testimony regarding the reasons assigned by Respondent on January 30, 1968, at a hearing on the grievance filed because of the discharge is consistent with Derringer's version of the reasons assigned to her. Hughes credibly testified that Funderburk stated at this meeting that Derringer was discharged "because she discussed too much union business on Company time." 26 I am convinced that this was also the reasons assigned to Derringer on January 22 and that the discharge interview occurred substantially as testified to by her.25 Although Hutchinson testified that she knew Derringer had been talking about the Union at work, she did not at the hearing assign this factor as a reason for Derringer's discharge. She testified that Derringer's recent absence on the occasion of the illness and hospitalization of her small son without proper notification to Hutchinson, was one of the straws in her decision. She did not testify as to what was the last straw but in her affidavit she stated that the final straw was Derringer's appearance at work on January 19 carrying her large handbag (about 18 inches long and about 6 inches high), and Respondent's counsel, Keiler, in his opening statement at the hearing mentioned this as "the straw that broke the camel 's back."26 Even assuming - despite the fact that there is no testimony to that effect - that Derringer did bring her larger handbag to work on January 19, I am convinced that such a factor had nothing to do with Hutchinson's decision to discharge "Hutchinson 's testimony regarding this interview is not entirely consistent with her affidavit given the Board agent on April 5, 1968. In the affidavit she states that she told Derringer that she had "been warned on four separate occasions about harassing the other employees and dirregarding Company rules." (Emphasis supplied.) "In attacking Hughes' credibility, Respondent points out that Hughes first placed the grievance meeting as occurring in February or March but later placed it as on January 30 after reviewing his appointment book during a recess; that he did not testify accurately as to Funderburk's first name; that he at first incorrectly identified Hutchinson 's position; and that while at first mentioning Lemon as one of the employee representatives t present at the grievance meeting, he later stated that he did not know for sure whether she was present . I do not regard any of these matters as affecting Hughes' credibility on the essential issues. He impressed me as a sincere and honest man and I credit his version of the reasons assigned by Funderburk at that meeting for Derringer 's discharge. "In her affidavit, Hutchinson states that there was no mention of the Union at the time of Derringer's discharge. She added, however: "The Union contract states that union business will not be conducted on Company time. Girls in the past had complained to me about her talking union business while on Company time." Hutchinson's characterization of the union contract provision is not accurate . It merely provides: "All meetings pertaining to grievances will be held at such time not to interfere with the orderly and efficient operation of the unit." "Hutchinson's only testimony regarding handbags was in response to the PROGRESSIVE CAFETERIAS her. There is no evidence that Hutchinson mentioned Derringer's handbag to her on that day, the date of the salmon can incident, even though Derringer specifically requested Hutchinson to let her know if she was doing anything Hutchinson disapproved of. Furthermore, in neither of Hutchinson 's versions of the discharge interview with Derringer does she mention the subject of handbags. It is noted, in addition , that Hutchinson's notice to the employees requesting that they carry smaller handbags had apprised them of no consequences for failure to comply with the requirement other than the possibility that they might be subjected to the embarrassment of having their handbags checked . Moreover, as Forbes credibly testified , a number of the employees were again carrying large handbags prior to the hearing without anything being said to them about it. It is not clear from Hutchinson's testimony just what other alleged offenses , if any, Hutchinson meant to assign as reasons for discharging Derringer , but she apparently meant to include all those specific complaints about which she testified and which have been summarized above, namely : the fact that Derringer on December 4 had taken 10 minutes to drink a cup of coffee; the fact that on December 22 she smoked a cigarette in an area where smoking was forbidden (an event apparently not considered sufficiently serious for Hutchinson to mention to Derringer at that time ); the fact that Hutchinson once observed Derringer writing in a little black book during working time; the fact that on January 8 (the day Hager and Lemon presented Hutchinson with the union membership and checkoff authorization withdrawal letter), Hager complained to Hutchinson that Derringer had been watching her for an hour; and the fact that on January 4 Hutchinson had observed Derringer away from her work station talking to the bus boy - an incident causing Hutchinson to warn Derringer on that date against harassing employees in general , though there was no evidence that the bus boy ever complained of being harassed. B. Analysis and Conclusions First, I shall consider the General Counsel 's contention that Respondent violated the statute by permitting Francis Hager and other employees , between December 1, 1967, and February 2, 1968, to plan and solicit union membership and dues checkoff authorization revocations from other employees during working time. Although Hutchinson conceded that she saw Hager talking to other employees out in the cafeteria during working time on one to a dozen times a day during this period and that Hager in late December or early January had come to her for advice about how to draw up a petition for the signature of employees wishing to withdraw from the Union, she denied knowing that Hager or anyone else was soliciting revocations during working time. Indeed , the record does not establish that they did this during working time. This allegation of the complaint must therefore be dismissed. Next, I turn to the General Counsel 's contention that Respondent gave more arduous work assignments to Derringer and Forbes on and after January 11, 1968 because of their union sympathies, memberships and General Counsel's question whether she ever told Derringer that her handbag was too large . Hutchinson replied that she did; that the handbag was in fact too large - though no regulations specified what would be considered too large ; and that Hutchinson had asked all employees, not just Derringer, to bring smaller handbags to work. 91 activities. There is no question but that as a result of the rescheduling of work assignments on January 11, both Derringer and Forbes were given additional duties and had to work harder thereafter to complete their assigned tasks. Hutchinson acknowledged that she knew prior to January 1l which of her employees belonged to the Union and which did not but testified that their union membership was not a consideration in her decision to increase the duties of any employee. If, as she stated in her affidavit, "everyone in the place was doing too much loafing," it would seem only fair that all should have had their duties increased when work was rescheduled and one of the employees was transferred to another unit. However, while others were finishing their tasks 30 minutes early, Derringer and Forbes had to work hard until quitting time . Derringer was even required to work overtime without extra pay one day when Hutchinson accused her of using work time while talking to District Manager Funderburk . A fair appraisal of all the evidence convinces me and I find that Derringer and Forbes were assigned more arduous duties on and after January 11 because of their continued allegiance to the Union. Let us now turn to the General Counsel' s contention that Respondent was motivated by unlawful considerations in discharging Derringer on January 22. Derringer was an active and agressive union steward who did not hesitate to tell Hutchinson about her own as well as other employees' grievances. She had been able to settle grievances with Respondent's previous unit managers after informal discussions with them but had found it necessary twice to file formal written grievances with the new unit manager, Hutchinson . The latter, I am convinced, resented these actions by Derringer - which were clearly protected concerted and union activites - and considered them as an interference with Hutchinson's operation of the cafeteria. The spearheading of an antiunion movement by employees Hager and Lemon at about the time Hutchinson took over the operation of the cafeteria and their frequent visits to Hutchinson's office tended to cause some friction between them and Derringer , but instead of attempting to reconcile these factions, Hutchinson, proceeded to help Hager and Lemon discourage continued support of the Union, first by making work more arduous and less pleasant for Derringer and her sister , and finally by discharging Derringer. Hutchinson conceded that Derringer 's work was not unsatisfactory and that she was a good worker so long as she was kept busy. Due to her little boy's illness, Derringer worked only 3 or 4 days between January 11, when the new heavy work schedule was given her and January 19 when Hutchinson decided to discharge her, and there can be no doubt that she was kept busy on those days. The record as a whole leaves me with no doubt but that Hutchinson , in making her decision to discharge Derringer , was motivated by a determination to rid the cafeteria of its most ardent and aggressive union member. Derringer on January 18 had filed a written grievance charging Hutchinson with discrimination against union members. This, I believe, was the final determining factor in Hutchinson 's decision. On January 19, when Derringer discovered the can of salmon in her locker and asked Hutchinson to please tell her what she had against Derringer or her work , Hutchinson had replied that she had nothing against Derringer's work but felt that Derringer was hanging around her like a big cat ready to place her paws on Hutchinson . The analogy to a big cat, I infer, was a reference to Derringer's diligence as a union steward in protecting herself and other employees against 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what Derringer considered discriminatory treatment of union members, as evidenced in part by Derringer's filing of the grievance on the preceding day." Moreover, the shifting positions asserted by Hutchinson as to the reasons she assigned to Derringer for her discharge, and the specious nature of some of the reasons asserted by Hutchinson in her testimony shown supra, make it clear that these reasons were mere pretexts. I am convinced and find that Respondent terminated Derringer's employment on January 22 because of her union membership and activities and for the purpose of discouraging membership in the Union. CONCLUSIONS OF LAW 1. Ey imposing more arduous working conditions upon employees Derringer and Forbes because of their membership in and support of the Union , Respondent has discriminated in regard to their terms and conditions of employment, in violation of Section 8(a)(3) and (1) of the Act. 2. By discharging Ursula Derringer because of her union membership and activities, Respondent has discriminated against her to discourage membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The General Counsel has not established by a preponderance of the evidence that Respondent violated the Act by permitting employees during working time to plan and solicit revocations of union dues checkoff and union representation authorizations , as alleged in the complaint. THE REMEDY It having been found that Respondent has engaged in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act, my Recommended Order will require that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To remedy the discriminatory discharge of Derringer, my Recommended Order will require that Respondent offer her reinstatement to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay suffered by reason of the discrimination against her. Such backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Progressive Cafeterias, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Imposing more arduous working conditions upon employees because of their membership or activities in behalf of Local No. 21, United Bakery Workers, affiliated with Retail, Wholesale and Department Store Union, AFL-CIO. (b) Discharging or otherwise discriminating in regard to the hire or tenure of employment of or any term or condition of employment of any employee because of his union membership or activities. (c) In any other manner interfering with , restraining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Ursula Derringer reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole in the manner described in the portion of the Trial Examiner 's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against her. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary or helpful in analyzing the amount of backpay due under the terms of this Order. (c) Post at its Unit 53 Cafeteria located at the Union Carbide Technical Center in South Charleston, West Virginia, copies of the attached notice marked "Appendix." " Copies of such notice, on forms to be provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith." IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges that Respondent violated the Act by permitting certain employees during working hours to plan and solicit revocations of union checkoff authorizations and representation authorizations. "The General Counsel urged at the hearing, and Union Representative Hughes asserted at a grievance meeting following Derringer 's discharge, that Respondent sought on January 19 to frame her and thereby provide an ostensible excuse for discharging her, by having the can of salmon placed in her locker that morning , and that this plan was frustrated when Derringer discovered the can before Hutchinson began her scheduled inspection of lockers . I do not regard it as necessary, however, to attempt to allocate responsibility for this obvious attempt to entrap Derringer or to speculate on Hutchinson's or Funderburk's reasons for declining to make any effort to investigate the matter. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words, "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 1:0 days from the date of this Order , what steps Respondent has taken to comply herewith." PROGRESSIVE CAFETERIAS 93 APPENDIX NOTICE To ALL EMPLOYEES We are posting this notice in compliance with the Recommended Order of a Trial Examiner of the National Labor Relations Board who , after a hearing in which all parties had an opportunity to present their evidence, found that we had violated the law. We hereby notify our employees that: WE WILL offer to Ursula Derringer immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges previously enjoyed, and give her whatever backpay she has lost because of her discharge on January 22, 1968. WE WILL NOT by rescheduling work assignments or in any other way impose more arduous working conditions upon any employees because of their membership in, sympathy for or activities in behalf of Local No. 21, United Bakery Workers , affiliated with Retail , Wholesale and Department Store Union, AFL-CIO. WE WILL NOT in any other way interfere with our employees' right, guaranteed under the law, to join or assist the Union, to present grievances, to bargain through the Union , to act together for their mutual aid or protection, or to refuse to do any of these things. Dated By PROGRESSIVE CAFETERIAS, INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone 513-684-3663.