Whorton's Food Market

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Romayne H. Wharton , Rachel H. Whorton, Mrs. R. L. Whorton, Co-Partners, d/b/a Whorton's Food Market and Retail Clerks International Association, Local 1564, AFL-CIO and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 391, AFL-CIO. Cases 28-CA-1685, 28-CA-1725, 28-CA-1727, and 28-CA-1686 June 13, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 10, 1969, Trial Examiner Maurice Alexandre issued his Decision in the above-entitled case,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the 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 briefs, and the entire record in the case, and hereby adopts the findings,2 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, and hereby orders that Respondents, Romayne H. 'T - is 7c ase was consolidated for hearing with Case 28-RC-1797, which was thereafter severed and remanded to the Regional Director for further appropriate action . By his Order dated May 21, 1969, the Regional Director set aside the election conducted on June 12, 1968, in Case 28-RC-1797. 'We do not agree with the Trial Examiner 's conclusion that on the particular facts of this case, responsibility for the conduct of Robert and Ronald Whorton can be imputed to their parents , to support a finding of creating the impression of surveillance. Accordingly, we shall modify the Recommended Order by striking that portion referring to creating the impression of surveillance. 'The Respondent, by its unfair labor practices subsequent to the Union's attaining majority status, precluded the holding of a fair election herein, and we therefore agree with the Trial Examiner that this is an appropriate case for the issuance of a bargaining order. Whorton, Rachel H. Whorton, Mrs. R. L. Whorton , Co-Partners, d/b/a Whorton's Food Market, Las Vegas, New Mexico, their agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraph A(1) and substitute the following: "1. Unlawfully interrogating and threatening employees." 2. Delete the first indented paragraph of the notice and substitute the following: WE WILL NOT unlawfully interrogate and threaten our employees or in any other manner interfere with them in the exercise of their guaranteed statutory rights. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: On April 19, 1968,' Retail Clerks International Association, Local 1564, AFL-CIO (hereafter called Retail Clerks) filed a petition for certification as majority bargaining representative of Respondents' grocery employees. Case 28-RC-1797. On the same day, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 391, AFL-CIO (hereafter called Meat Cutters) filed a petition for certification as majority bargaining representative of Respondents' meat department employees. Case 28-RC-1796. Pursuant to consent agreements approved May 29, elections were scheduled for June 12. On April 25, the Retail Clerks and Meat Cutters each filed unfair labor practice charges alleging certain preelection misconduct by Respondents. The elections were held as scheduled with the following results: in the grocery employees unit, the vote was 6 to 5 against the Retail Clerks, and 2 ballots were challenged; in the meat department unit, the vote was one for the Meat Cutters and 4 ballots were challenged. On June 17, the Retail Clerks and the Meat Cutters each filed objections to conduct allegedly affecting the results of the respective elections. On June 25 and 26, the Retail Clerks filed additional unfair labor practice charges. On July 18, the Regional Director issued his reports on the challenged ballots. In Case 28-RC-1797, he overruled the two challenges, and the revised tally of ballots showed that the vote was 7 to 6 against the Retail Clerks. In Case 28-RC-1796, the Regional Director overruled two and sustained one of the four challenged ballots, and the revised tally of ballots showed 2 votes for the Meat Cutters and 1 vote against that union. The fourth ballot, cast by Employee Thomas A. Lujan, had been challenged by Respondents on the ground that he had quit his job. The Regional Director deferred making a decision thereon pending investigation of the Meat Cutters' unfair labor practice charge, alleging the constructive discharge of Lujan. On July 29, based on the above charges, the Regional Director issued a consolidated complaint alleging that Respondents had violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. On August 9, the Regional Director issued orders directing that hearings be held on certain of the objections filed by the two unions in Cases 28-RC-1797 and 28-RC-1796. On the 'All dates hereafter mentioned refer to 1968 unless otherwise specified. 176 NLRB No. 88 WHORTON'S FOOD MARKET same day, the Regional Director issued an order consolidating such objections for hearing with the consolidated complaint already issued, and providing that following the decision by the Trial Examiner, Cases 28-RC-1796 and 28-RC-1797 should be severed and transferred back to the Regional Director for further disposition. On August 26, the Regional Director issued a second supplemental report on the challenge to the ballot cast by Lujan in Case 28-RC-1796, in which he ordered that the ballot should be opened and counted.' On the same day, he issued an order severing Case 28-RC-1796 from the consolidated proceeding to be heard before a Trial Examiner. The consolidated proceedings were heard before me at Las Vegas, New Mexico, on September 24 through 27, 1968. The principal issues presented are whether or not Respondents engaged in unlawful interference, restraint, coercion and discrimination;' whether or not certain of the objections filed in Case 28-RC-1797 have merit and require that the election in that case be set aside;' and if so, whether or not a bargaining order should be issued against Respondents. Upon the entire record, my observation of the witnesses, and the briefs filed by the General Counsel and by Respondents, I make the following: FINDINGS AND CONCLUSIONS' 1. THE UNFAIR LABOR PRACTICES Respondents Romayne H. Whorton (hereafter referred to as Whorton) and Rachel H. Whorton (hereafter called Mrs. Whorton) are husband and wife and copartners engaged in the business of operating a retail grocery store and meat market in Las Vegas, New Mexico.' On April 8, a number of their employees met to discuss possible unionization. On April 18, certain of their employees attended a joint meeting held by the Retail Clerks and the Meat Cutters at which a number of them signed authorization cards distributed by the two unions. Others signed cards on the ensuing two days. On April 19, the said unions each filed the petitions for certification already referred to. Thereafter, Respondents engaged in some of the conduct discussed below. A. Interference, Restraint, and Coercion 1. Interrogation; threats to close the business a. The evidence (1) On April 22, Mrs. Whorton held a meeting with Employees Maestas, Sr., Vigil and Willie Flores. Her testimony as to her remarks to them is as follows: The Regional Director determined that Lujan's ballot would govern the outcome of the election; that if his vote was for the Meat Cutters, that union would have a majority irrespective of Lujan's eligibility to vote, and that only if Lujan was eligible and voted against the Meat Cutters woult that union lose the election. At the close of this case in chief, the General Counsel was permitted to strike par 8(d) of the complaint. 'Specifically, Objections 2, 5, 7, 8, It, 12, and 13 The General Counsel was permitted to strike Objection 6. No issue of commerce is presented. The complaint alleges and the answer admits facts which, I find, establish that Respondents at all times 657 A. 1 had a small booklet and the title of it was, "Loyalty", and I read it to the boys and asked them what it meant to them. Then I explained that I had received this petition from the Labor Board and I explained our situation - that we wouldn't be able to operate under those conditions. Q. Just what did you say, that's what I want to know? A. That's about what I said, that we couldn't pay out more than we took in, that we couldn't stay in business if they had that much increase in salaries and other benefits. Q. Did you, at that time, threaten to close the business? A. I told them that we couldn't stay open. Maestas, Sr., testified that Mrs. Whorton did not mention the store during the meeting. On direct examination by the General Counsel, Vigil's testimony regarding her remarks was as follows: A. Yes, she did mention if the union was to come in to the store, she would have to close it. Q. To the best of Your recollection, are those her words? A. Something similar to that. I do not recall the exact words. On cross-examination, he testified as follows: Q. (By Mr. May) At that time did Mrs. Whorton make any threats about what would happen to anyone who would join the union? A. All she mentioned was that she would have to close the store. Q. Tell us in her words what she said. A. Well, I don't recall her words exactly. Q. Isn't it a matter of fact that Mrs. Whorton said that a small operation like this, any increase in cost would require us to close it down, we couldn't make a go of it. Q. I don't recall her saying that. (2) On April 23, Mrs. Whorton held a meeting with Employees Padilla, Aragon and Robert Garza. According to Mrs. Whorton, she "talked to them the same way as [she] did with the first group" on the preceding day. Aragon testified as follows: A. Yes. She said that she couldn't afford to pay union wages and the store would have to close down. She said the books were there if we wanted to look at them. Then she told us those were the facts and what we did was up to us. Padilla testified as follows: Q. Do you remember speaking to Mrs. Whorton after Lopez's discharge? A. Yes. Q. Where was this? A. In her office. Q. Were you alone? A. No. Q. Who was with you? A. I think LeRoy Aragon and Robert Garza. Q. What did she say when she was in that office? A. She just read the little pamphlet. s s s s s material were employers engaged in commerce and in operations affecting commerce I further find that the Retail Clerks and Meat Cutters are labor organizations within the meaning of the Act. The third copartner, Mrs R L. Whorton, is Whorton's mother 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Hollis) Is that all she did? A. She said if the union went in she would close the store Q. (By Mr. Hollis) Did she say anything about destroying her. * * * * * A. I think she said, "Destroy me and you will destroy the shop." * * * * * Q. (By Mr. May) Did you ever tell Mr. and Mrs. Whorton that you signed such a card other than what you testified here today? A I didn't tell them, but they probably found out. Q. Why do you say they probably found out? A. Because when I went to the office she asked us that day why we had signed those cards. * * * * * Q. (By Mr. Hollis) In the office in the latter part of April, did Mrs. Whorton say anything to you or ask you anything about a union authorization card? \. She asked us why we signed the cards. Q. The authorization cards? A. Yes, sir. Q. This was at the same time when she mentioned the store? A. Yes, sir. Q. And what did she say about the store? A. She said she would close the store if the union came in. (3) Respondents' bookkeeper, Laura Waring, testified that she had heard Respondents discuss closing and remodeling the store, that she thought such discussions first occurred sometime in 1967, and that they were still talking about it. At one point, she testified that sometime between April and the election, she heard Whorton and Mrs. Whorton say that "it would just be necessary to close the store if the Union came in." On further interrogation, she testified that she heard them say that "they could not afford to keep the store open if the Union came in." She did not state to whom these statements were made. (4) Employee Ramon Ray Torres testified that sometime in April, Whorton told him and Employee William S. Flores, both of whom were in the meat department, that "he was not going to sign a union contract," that "he could not operate under their conditions," and that "if the union came in he was going to close for a 45-day period and remodel and open with a self-service place" with one meat cutter and one wrapper. Flores testified that Whorton told them that "if the Union came in, he might have to close the store for 45 days and convert it into self-service." Whorton denied ever having "made any threats" to close the store. He testified that on or about April 24, he made the following remarks to Flores and Torres: A. Approximately the same thing I said to - I guess I'd better answer that, I'm sorry. I told them my financial set up, what I knew and that if we were forced to join the Union, it would be impossible for us to operate, that we could not show a reasonable profit to allow us to stay in business. He further testified: Q. Did you make any threats at that time to close? A. No, sir, I never made any threats. Q. Did you ever make any statements of this type to any of the other employees of either the meat market or the grocery store? A. Not to my knowledge, sir. (5) Vigil testified that sometime in April, while he was in the back room of the store with employees Joe LeRoy Torres, Padilla and Aragon, Whorton stated to them: "If the damned union is going to come in here, I'll close the doors before they do." (6) Aragon testified that after the discharge of Lopez on April 22, Whorton told him, employees Vigil, Padilla, Patrick Thomas Garza, and possibly Joe LeRoy Torres, that "if we voted the union in he would have to close the store. If we wanted a union job like that, why didn't we go to Albuquerque." (7) Emloyee Baca testified as follows respecting remarks made to him by Whorton 2 days before the election: He called me in and told me that he didn't know if I knew what was going on, but he said that there was going to be an election held in the store and that the union was trying to take over and that if the union did go into the store, he would be forced to close. He also said that the rest of the employees thou*ht he was bluffing and that he wasn 't, that he was going to close down the store. (8) Employee Rodriguez testified on direct examination by the General Counsel that about 2 weeks before the election, Whorton asked him, "How does the union expect me to pay $300 when I am only making $200 ", and then stated that "if the union came in he would close the store." On cross-examination, he testified that Whorton then told him about the election and asked whether Rodriguez "was with him." (9) Maestas, Sr., testified that Whorton stated in his office that "he would have to close the store because he could not meet the union's demands"; that he thought the statement was made before the election; that the Respondents had discussed closing the store temporarily for remodeling off and on for 3 or 4 years, and had mentioned the subject again recently, prior to the union activities. (I0) Employee Patrick Thomas Garza testified that while he was near Whorton's office, sometime after the April 18 meeting, he overheard Whorton tell an unidentified individual that "the union would come in but it would be over his dead body." b. Concluding findings Respondents contend that Mrs. Whorton's statements were lawful because she believed in good faith that Maestas, Sr., Vigil and Willie Flores were supervisory employees; and that in any event, her statements were noncoercive. Respondents do not contend that the above three employees were in fact supervisors and, indeed, stipulated that Maestas, Sr., and Vigil were within the unit which the Retail Clerks claimed to represent. I find that all three were rank-and-file employees. Accordingly, if " any of the statements made to them were otherwise unlawful, they would not be excused even if Respondents had a good faith belief that the men were supervisors. Federal Envelope Co., 147 NLRB 1030, 1036. I reject the denial by Maestas, Sr., that the store was not mentioned at the April 22 meeting by Mrs. Whorton, who herself admitted such mention . However, I find that Vigil's testimony was inconclusive as to what she said and WHORTON'S FOOD MARKET 659 that the General Counsel has not sustained his burden of establishing a threat to close the store, if it was unionized. At most, the record establishes that she stated that Respondents could not pay out more than they took in, and that they could not remain in business if salaries and other benefits were increased to the extent anticipated from unionization (see item ( I), supra). I find that such a statement was a prediction of possible economic effect of increased costs rather than a threat of reprisal to force the employees to abandon unionization, and hence was not unlawful. Wilmington Heating Service, Inc., 173 NLRB No. 15. With respect to the April 23 meeting, Aragon corroborated Mrs. Whorton's testimony that her remarks were similar to those which she made on the preceding day. He thus contradicted the testimony of Padilla, who testified to a threat to close the store if unionized (see item (2), supra). In view of the failure of his witnesses to agree to what was said, I find that the General Counsel has not sustained his burden of establishing that a threat was made. However, I find from Padilla's uncontradicted testimony that Mrs. Whorton asked him, Aragon and Robert Garza why they had signed union authorization cards, and that Respondents thus engaged in unlawful interrogation (see item (2), supra).' In effect, she implied that she knew that they had signed, asked them to admit it, and requested an explanation . Such conduct had a coercive impact.' I find that the remarks attributed to Respondents by Waring were not threats and that, in any event her testimony fails to establish that such remarks were made in the presence of any rank-and-file employee (see item (3), supra). Accordingly, they were not unlawful. Based upon other self-contradictory testimony by Whorton and his demeanor , I do not credit his denial that he threatened employees, and credit the testimony of Torres, Flores, Vigil, and Aragon, referred to in items (4), (5), (6) and (7), supra. Such testimony, I find, establishes that Whorton unlawfully threatened to close the store if the Retail Clerks won the election . It also establishes that Whorton unlawfully threatened to convert the meat department into a self-service operation with two employees if the Meat Cutters was voted in. Although Whorton stated that he "could not operate under their conditions," i.e. the Unions's conditions, this remark did not clearly convey the impression that he could not afford higher wages and other benefits. Considered in the light of his vow not to sign a union contract and to close the store, it could be construed as a statement that he would discharge meat department employees if he was required to deal with the Meat Cutters. I further find that the remarks attributed to Whorton by Rodriguez and by Maestas, Sr., amounted to a prediction of economic consequences rather than a threat to close the store, and that the record fails to show that statement attributed to him by Garza was made in the presence of a rank-and-file employee (see items (8), (9), and (10), supra). Accordingly, I find that such statements were not unlawful. However, I find that Whorton's interrogation of Rodriguez' constituted an inquiry as to how he intended to vote in the election and was unlawful (see item (8), supra). 'Padilla's testimony regarding such interrogation was brought out on cross-examination by counsel for Respondents . I place no reliance upon Padilla's affidavit which was received in evidence. 'Such interrogation by Mrs. Whorton, although not expressly alleged in the complaint, was fully litigated at the hearing. In sum, I find that Respondents engaged in unlawful interrogation and threats, thereby committing unfair labor practices within the meaning of Section 8(a)(1). I further find that Respondents did not violate the Act by the conduct referred to in items ( 1), (2) insofar as it relates to alleged threats, (3), (8) insofar as it relates to alleged threats, (9) and (10). 2. Surveillance On June 11 , the night before the election, employees Vigil and Aragon were interviewed by a Board agent at the latter's motel room in Las Vegas. Vigil's car was parked in front of the room. That night, Robert Whorton, Respondents' son who was then a store employee, his brother Donald who had occasionally worked in the store, and employee Wells, a good friend of Robert, went for a ride in Wells' car. Robert and Wells testified that the latter had invited them to go for a drive before dinner and that they had taken Robert's 75-pound German shepherd dog along. Robert first testified that he was driving, that they happened to pass the motel, and that he recognized Vigil's car. Later, he testified that Wells was driving. Wells testified that he was driving and that it was he who first recognized Vigil's car. Robert further testified that Whorton had instructed him not to discuss union matters with store employees, especially during the 24-hour period preceding the election ; that because he felt that the same prohibition should apply to union agents, he decided to investigate the reason for the presence of Vigil's car at the motel; that he went to the motel door, which he found open; that upon seeing Vigil and Aragon, he entered the room " and asked the Board agent to identify himself; and that upon being informed by the agent that he was employed by the Board , Robert wrote the information on a piece of paper and then left with his companions. Upon arriving home, Robert informed Whorton of the incident. Robert and Wells both testified that they had not been instructed to engage in surveillance , and Whorton denied having given such instructions. The General Counsel contends that Respondents, acting through their agents Robert and Donald, engaged in unlawful surveillance of the . conference between Employees Vigil and Aragon and a Board agent. According to the General Counsel, Robert and Donald should be regarded as Respondents' agents because it is reasonable to infer that they acted on instructions from their parents. In the alternative, the General Counsel argues that because of Robert's employment at the store and its small size, his relationship to Respondents would be known to the other employees; that in view of Respondents' other unlawful pre-election, conduct, Robert should be regarded as Respondents' agent ; and that Donald should be regarded as their subagent . Respondents assert that the facts do not establish surveillance; that even if they did, the conduct shown was not directed or authorized by Respondents ; and that Respondents have found no case holding that it is an unfair labor practice to engage in surveillance of a Board agent. Although the circumstances are suspicious, the record before me is insufficient to support a finding that Robert The testimony regarding such interrogation was brought out on cross-examination by counsel for Respondents. I place no reliance upon the Rodriquez affidavit which was received in evidence. "Wells and Donald followed with the dog, but remained at the door. Robert testified that "the dog gets very excited when people leave the car and he doesn't get to go, too." 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Donald acted on instructions from Respondents. -However , I find that their conduct, whether or not engaged in with pure motives, was such as to give Vigil and Aragon the impression that their protected activities were under surveillance." In addition, Robert's and Donald's relationship to Respondents was known to the employees." In view of that relationship, Vigil and Aragon could reasonably believe that Robert and Donald were acting as their parents' agent, especially since it does not appear that Respondents disavowed their sons' conduct . In such circumstances, Respondents are chargeable with the consequences of such conduct . Piggly Wiggly El Dorado Co., 154 NLRB 445. I find that by the conduct of Robert and Donald Whorton, Respondents violated Section 8(a)(1). 3. The increase in employee benefits Between April 19, the filing date of the petitions for certification , and June 12, the date of the elections, Respondents increased the wages of some employees and began paying the Blue Cross insurance premiums of others. Respondents contend that they followed their normal practice in granting these benefits. The General Counsel contends that Respondents had no fixed or consistent policy or practice governing wage raises and payment of insurance premiums ; that they followed no timetable and had complete discretion as to whether and when to-evaluate the employees' performance and reward them; and that in view of Respondents' other unlawful conduct, it is reasonable to infer that the increased benefits were given to induce the employees to vote against unionization. Whorton testified that employees are hired on a trial basis; that if a new employee shows a willingness to work and learn, he is retained ; that as he progresses he receives wage increases; but that there are "no set time period" in which such increases are given . Mrs. Whorton testified that if a new employee was "worthy of it," he received a raise during the first 3 months of his trial period ; that he received at • least four raises during his first year and periodic raises during his second year depending on his progress; that thereafter raises were governed by the responsibility assumed by the employee , by the type of work he did, and by the amount of his earnings ; and that the older employees received fewer raises than the new ones. It thus appears that although Respondents had no fixed timetable or standards for granting merit increases, it was their practice to give such increases at fairly frequent intervals to new employees who showed promise. The record shows the following regarding the number of merit increases (wage raises and assumption of Blue Cross premium payments) given to employees between the filing of the petitions and the elections (i.e., between April 19 and June 12), and those granted during the comparable immediately preceding period (i.e. from December 9, 1967, through February 17, 1968):" Critical period Number of Merit Increases Comparable Prior Period Number of Merit Increases April 20 2 December 9, 1967 1 April 27 4 January 20, 1968 2 May 25 2 Jariuary 27 2 June 1 1 February 17 3 Between April 19 1 February ? 1 and June 12 10 9 The great preponderance of the increases consisted of $2.50 wage raises; one increase was a $5 wage raise; two of the merit increases (given on April 27) involved assumptions of Blue Cross premium payments amounting Employee Hired to a little over $20 a month each; and two increases involved wage raises in amounts not disclosed. The distribution of the increases among the employees was as follows:" Increases During Increases During Comparable Period Critical Period P. T. Garza 11-7-67 3 2 J. L. Torres 11-16-67 2 1 Aragon 1965 1 - R. Garza 9-29-66 1 - R. R. Torres 1965 or earlier 1 1 Allemand 1-11-68 1 1 Maestas, Sr. About 1960 - 1 Waring March 1965 1 Flores About 1958 1 Romero Vigil April 22 or 23 3'- 17-65 "Hendrix Mfg. Co., v. N.L.R B, 321 F.2d 100, 104 (C.A.5); N.L.R B v Prince Macaroni Mfg. Co. 329 F 2d 803, 805-806 (C.A. 1). That impression was heightened by the presence of the dog. "See, e.g. the testimony of Lujai and William S. Flores. "The data shown is based on Appendix A, attached hereto . The record contains little evidence respecting merit increases prior to December 9. 1967. "Most of the testimony relating to such benefits was given by Mrs. Whorton and is largely uncontradicted . The General Counsel asserts that WHORTON'S FOOD MARKET 661 Based upon an analysis of the foregoing increases, I am unable to conclude that the pattern of merit increases during the critical period was significantly different from that shown during the prior comparable period. The record does not show a disproportionately greater number of increases, a significant change in the amount of the increases, or any unusual acceleration of frequency of increases. Moreover, there is nothing in the record to show that the recipients of the increases were selected on a basis indicating any relationship to union activities. In these circumstances , I find that the General Counsel has failed to meet his burden of establishing that in granting the merit increases during the pertinent period, Respondents had deviated from prior practice and were unlawfully motivated. Cf. Aircraft Engineering Corp., 172 NLRB No. 218. Accordingly, the allegation relating to wage increases should be dismissed. 4. Disparagement of Board process Employee Vigil, who had been an observer for the Retail Clerks at the election, testified that on the day following the election, Whorton told him "to take a good look" at the election notice and sample ballot affixed to the door of the store office, to take it home with him, and when he "got tired of looking at it (he] could wipe [his] ass with it." Whorton denied making any disparaging remarks to Vigil concerning the Board, and testified that on the day following the election, he told Vigil "to take the election things off of the door , it was over now, to roll them up and throw them away or whatever else he wanted to do with them." The General Counsel contends that Vigil's testimony should be credited, and that the statement attributed by Vigil to Whorton constituted unlawful interference with the employees' right to select their bargaining representative, since it degraded the Board 's processes and indicated to Vigil the futility of seeking the protection of such processes. Based upon Whorton's self-contradictions and the demeanor of the two witnesses, I accord greater credence to the testimony of Vigil than to that of Whorton, and find that Whorton made the statement attributed to him. However , I find that the statement was not unlawful since it contained no threat of reprisal or promise of benefit . I do not agree that it indicated that resort to Board process was futile. Rather, the statement appears to be nothing more than a crude • and vulgar indication of triumph and satisfaction over the outcome of the election. I therefore find that it was protected by the free speech provisions of Section 8(c) of the Act. B. Discrimination Respondents received the petitions for certification on April 20. On April 22, Louie Lopez was discharged. On or about April 23, Lujan was reduced to part-time work, and on May - i1, he was told that nis services were no longer needed. The elections took place on June 12. On June 14, Joe LeRoy Torres and Baca were reduced to part-time status. On June 15 and 20, Mrs. Whorton told Baca and Torres, respectively, that she would call if she needed them, but did not do so thereafter. The alleged discrimination relating to -the four employees is discussed immediately below. 1. Louie Lopez Lopez began working in Respondents' grocery department in the latter part of 1966. On April 7, 1968, he expressed the opinion to a number of fellow employees that their pay was inadequate and invited them to meet at his home the next night to discuss the subject. Some 8 to 10 employees went to the meeting on April 8. After some discussion, it was decided that Lopez should obtain information on how the men could unionize. On April 9, he communicated with Montoya, an employee of another store, who came to Respondents ' store on the following day and told Lopez about a forthcoming meeting of the Retail Clerks at a local bank building on April 18. Lopez transmitted this information to Respondents' other employees. On April 18, representatives of the Retail Clerks and of the Meat Cutters met with a tiamber of Respondents' employees, most of whom signed union authorization cards, including Lopez. On April 19, the Retail Clerks and the Meat Cutters filed their respective petitions for certification . On the same day, employee Bachert signed a Retail Clerks card and returned it to Lopez either at Respondents' store or at Bachert's home. On April 20, employee George Lopez signed a card and returned it to Louie Lopez at the store. In their brief, Respondents defend the discharge of Lopez upon two grounds. They first contend that they had a good faith belief that he was a supervisory employee, and that it was not until July 18, i.e., some 3 months after the discharge, that the Regional Director determined that Lopez was a rank-and-file employee . They further contend that Lopez was discharged because of unsatisfactory work performance. Respondents do not claim that Lopez was in fact a supervisor. Indeed, they stipulated at the hearing that he was within the bargaining unit which the Retail Clerks claimed to represent. I find that he was a rank-and-file employee. Accordingly, if his discharge was for a reason proscribed by the Act, the discharge would not be excused even if Respondents had a good -faith belief that Lopez was a supervisor. Cf. N.L.R.B. v. Burnup & Sims, 379 U.S. 21; Federal Envelope Co., supra, 147 NLRB 1030, 1036. With regard to the claim of poor work performance'of Lopez, Respondents introduced in evidence certain figures showing the ratio of gross profit to net sales for each of 16 weeks, from January 2 through April 20, in their produce department where Lopez was employed. Mrs. Whorton testified that these profit ratios were unsatisfactory, and that Lopez was responsible because of his failure "to take care of his merchandise properly." The figures are as follows: Baca received a $2.50 wage increase on June 1. Mrs. Whorton testified that since the entry to that effect on her business records had been crossed out, it was erroneous. I credit her testimony . She further testified that Respondents began paying one-half of Robert J. Garza's Blue Cross premiums on September 16, 1967, and assumed payment of the balance beginning May 4, 1968. Garza testified that Respondents had been paying the entire premium since October 1967. The General Counsel contends, and I agree, that it is likely that Garza's personal knowledge of such a matter would be more accurate that Respondents' records which, the evidence shows, were not wholly accurate. Week Ratio 4/15to4/20 16.97% 4/8to4/13 15.60% 4/ 1 to 4/6 24.86% 3/25 to 3/30 10.64% 3/ 18 to 3/23 16.97% 3/ 11 to 3/ 16 14.86% 3/4 to 3/9 21.86% 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2/26 to 3/2 23.27% 2/ 19 to 2/24 20.90% 2/12to2/17 22.33% 2/5to2/10 21.39% 1/29to2/3 17.92% 1/22 to 1/27 20.75% 1 / 15 to 1/ 20 19.86% 1/ 8 to 1 / 13 22.96% 1/2 to 1/6 24.75% Mrs. Whorton also testified that she paid Lopez a bonus whenever the produce department earned "what it should have," i.e., that she paid him a bonus of $2.50 for any week in which the ratio was as much as 20 percent, and $5.00 for any week in which the ratio reached 25 percent. It will be seen from the above table of ratios that during the 10 weeks from January 2 through March 9, the produce department earned a profit ratio of more than 20 percent in 8 of the weeks, and a profit ratio of just under that figure in one week . However, during the 6 weeks from March I l through April 20, the profit ratio exceeded 20 percent only in one week, and was as low as 10.64 percent in one week . Assuming that the work performance by Lopez was responsible for the earnings of the produce department, the figures do show a reduction in profit ratio. But such a reduction cannot be evaluated without also considpring the fact that Lopez was promoted to the job of "manager" (a nonsupervisory job) about 5 months after he was hired; that he had worked for Respondents since the end of 1966; and that Respondents did not furnish profit ratio figures for the produce department during 1967. If the 1967 figures equaled or exceeded those during the above-mentioned 10-week period, then the reduction during the ensuing 6-week period assumes a somewhat different perspective. For where an employee has performed satisfactorily for a considerable period of time, it would seem unusual to discharge him because of a profit decrease during 5 of the 6 weeks preceding the discharge, particularly since the profit ratio during the remaining week in that period was the highest shown by the record. That being so, it was incumbent upon Respondents to go forward with evidence showing the profit ratios during 1967, inasmuch as such information was most accessible to them . Cf. M & R Investment Co., Inc., 173 NLRB No. 109. Since Respondents have failed to go forward with such evidence, their claim of poor work performance loses much of its force. At the hearing, Respondents' counsel stated that it was their position that Lopez should have been discharged 3 months earlier but that a replacement had not been found. Employee Maestas, Sr. testified that 2 months before the discharge, Mrs. Whorton complained about the poor produce department profit and asked him to investigate whether- the sales checkout clerks were making errors in the prices charged ; that after talking to the clerks and investigating the matter for 2 weeks, profits continued poor; that about a month before the discharge, he began looking for a replacement upon Mrs. Whorton's instructions but had no success; that Mrs. Whorton tried to give Lopez another chance to show improvement but profits still continued poor ; that about three weeks before the discharge, Mrs. Whorton asked him whether he had found a replacement ; that he informed her that it was difficult to find a good man; and that she told him at that time that she was going to let Lopez go. It is apparent from the profit figures and the bonuses paid to Lopez, however, that the profit ratios could not have become unsatisfactory to Respondents until a few weeks prior to his discharge, and not 3 months or even 2 months earlier . Moreover, based on his demeanor, I do not credit Maestas' testimony concerning Mrs. Whorton's alleged expression of intention to let Lopez go. In addition, although counsel for Respondents initially stated that it was their position that Lopez was discharged for poor work performance , he later added that it was their position that the discharge of Lopez was also motivated by the fact that he spent considerable time talking to a female friend who visited him at the store, and certain "rumors" that they heard about Lopez . The record contains no evidence to support either the accusation, which Lopez denied, or the rumors, and no evidence that the alleged conduct and the rumors were brought to the attention of Lopez. On the contrary, the record establishes that Mrs. Whorton referred only to poor work performance at the time she discharged Lopez. This addition of unproved reasons for discharge suggests that they were an afterthought. I find the reasons advanced by Respondents for the discharge of Lopez to be unpersuasive . On the other hand, the record establishes that Lopez instigated and was the ringleader for the union movement among the grocery employees at the store . He held an organizational meeting at his home on April 8 and openly attended the union meeting at a bank building on April 18 . In fact, Montoya went to Respondents' store on April 9 to inform Lopez of the latter meeting. Moreover, on April 20, Employee George Lopez signed a Retail Clerks authorization card and gave it to Louis Lopez at the store . Although there is no direct evidence that Respondents knew of such activity, such knowledge may be inferred . The Circle K Corp., 173 NLRB No. 107. Here, the record shows that Respondents' work force at the store consisted of some 19 employees. I also take official notice that the store is located in a small community ." Moreover, Lopez was discharged 4 days after the union meeting and 2 days (the first working day) after Respondents received the petitions for certification . I find that the small size of the store and of the community as well as the timing of the discharge furnish an adequate basis for inferring that Respondents were aware of Lopez' affiliation with the Retail Clerks. Century Lumber Company, Inc., 168 NLRB No. 36; Sperti Sunlamp Division, Cooper-Hewitt Electric Co., Inc., 162 NLRB No. 158." Considering the inadequacy and the shifting nature of the reasons given for the discharge, Respondents' awareness of the union activities of Lopez, the timing of the discharge, the fact he was given no warning of a possible discharge, and Respondents' other unlawful conduct, I find that the discharge was motivated by such union activity, and hence that it violated Section 8(a)(3,1 and (1) of the Act. 2. Thomas A. Lujan Lujan was hired as a full-time employee by Respondents in March 1966 and worked in the meat department. During January, February and March 1968, he worked about 501h hours a week, and apparently "The 1960 populations of the city and the town of Las Vegas, New Mexico (which are contiguous), were 7,790 and 6,028 respectively. World Almanac (1%9 ed.), p. 622. "in this connection, I note that the conference which a Board agent held with Employees Vigil and Aragon did not escape notice, and was brought to Respondents' attention. I further note that, as found above, Mrs. whorton asked Padilla, Aragon and Robert Garza why they had signed authorization cards, a question which led Padilla to express the view that Respondents had probably found out about their signing. WHORTON'S FOOD MARKET continued to work full-time during most of April. He testified that on,or about April 23, Whorton informed him that pursuant to his doctor 's authorization, he intended to become more active in the store, and that he accordingly would not need Lujan full-time." On direct examination, Whorton testified in response to a leading question that he so informed Lujan about the middle of May.18 On cross-examination, he testified that he received the doctor's authorization in March or April and could not explain why he waited until May to inform Lujan about part-time work. On direct examination, Whorton further testified that when he informed Lujan of the change in his status, Lujan stated that he knew the reason therefor and that matters would be straightened out; that Whorton did not know what Lujan was talking about ; and that Whorton accordingly replied, "I guess so." On cross-examination, Whorton testified that Lujan's response was: "I think I know the real reason and pretty soon the Union or somebody will have it all straightened out." In addition, Whorton admitted that he knew what Lujan was referring to. Lujan testified that Whorton's rejoinder was, "You are damn right, things are going to straighten out." Lujan then left the store but later returned to give Whorton a key. According to Lujan's testimony, he saw another employee, Romero, doing the work which Lujan had been performing. Romero testified that he began working in the store's grocery department on April 22, that he did not recall the date of his transfer to the meat department, but that he thought the change took place about a week or two after he was first hired. Employee Flores testified that Romero was working in the grocery department at the time of Lujan's change to part-time status, and that Romero immediately replaced Lujan. Thereafter, Lujan worked considerably less than 40 hours a week until the latter part of May. As already found, Whorton told Employees Flores and Torres on April 24, the day following Lujan's reduction, that he would convert the meat department into a self-service operation if the Meat Cutters won the election. According to the credited testimony of Flores, Whorton further stated that "he was going to lay [Lujan] off because he was a loud mouth and he was a trouble maker." Lujan testified that when he reported for work on the afternoon of May 29, Mrs. Whorton told him that she had needed him that morning; that he replied that she had instructed him to report in the afternoon; and that she contradicted his statement and informed him that she would not need him any more. When Mrs. Whorton was asked by Respondents' counsel whether the conversations described by Lujan took place, she testified: "My husband took care of telling him when to come in and when not to come n; ! didn't have anything to do with that." On Memorial Day, May 30, Whorton received a telephone call from one Williams, who was the owner of a meat store in Las Vegas, who resided next door to Whorton, and who has been the latter's friend for 25 years. Whorton testified that Williams told him that one of his butchers was leaving and that he needed a replacement; that Whorton responded affirmatively when Williams inquired whether Lujan was working part time; that when Williams asked whether he needed Lujan, Whorton replied that he did not but "didn't think he would go to work for him because he was tied upon with "Whorton had been very ill with mental and physical impairments since 1965, and had not worked in the store for a considerable period of time. "Whorton admitted having difficulty remembering dates of events. 663 this Union deal." Williams testified that he was informed by Whorton that Lujan was working at the store only one day a week; that the same day, in response to a note which he left at Lujan's residence, Lujan came to see Williams. at which time he offered Lujan a job; that Lujan said he could not work on Saturdays because he worked one day a week for Whorton; that he sought to persuade Lujan to accept "a steady job"; and that Lujan agreed to report for work the following day, May 31. Lujan worked for Williams on the latter date. Whorton testified that Williams called him on the same morning, and informed him that Lujan had accepted a full-time job and was then working. Lujan testified that at the end of the day, he told Williams that he "might" see him in the morning, and left. Flores testified that on a date he could not recall, presumably May 31, Whorton told him that Lujan was working for Williams full time, and instructed him to get Lujan's tools ready to be picked up by the latter; that he went to see Lujan that evening and informed him of what Whorton had said; that he also told Lujan that he could not be a member of the Meat Cutters local at Respondents' store if he worked full time for Williams; that when Lujan asked whether it would be a good idea to see Whorton, he replied in the affirmative and suggested that Lujan have a witness present during his conversation with Whorton. Lujan corroborated this testimony, adding that Torres was present during his conversation with Flores; and that although he did not recall, they might have told him that he was "lousing [his] job up with the NLRB by going to work for Williams." According to Williams, while he was eating at the Silver Spur Drive-In that night, Lujan entered and announced that he was quitting and did not intend to return to work for him. Lujan testified that he saw Williams at the Silver Spur, that the latter admitted that their agreement was for part-time work only, that Williams denied any arrangement with Whorton to fire Lujan, and that he told Williams he was not going to work for him. Whorton testified that that night, while he was getting ready to close the store, Lujan arrived with another individual and asked whether Whorton would need him the following day; that Whorton replied that he did not and that Lujan had accepted a full-time job with Williams; that Lujan then asked if he was fired; that Whorton answered that he was not fired but had quit; and that Lujan insisted that he was being fired and Whorton insisted he had quit. Lujan's version of the conversation was substantially the. same, adding that Whorton said that he had been told by Williams that Lujan was working full time for him, and that he told Whorton that he had accepted only a part-time job. Lujan has not been employed by Respondents since that time. The General. Counsel contends that Lujan was placed on part-time status and later discharged for discriminatory reasons. Respondents contend that his hours were reduced because Whorton's increased activity at the store had diminished the need for Lujan's services, and that Lujan was not discharged thereafter but rather quit his job. I agree with the General Counsel. I reject Whorton's unexplained testimony that he reduced Lujan to part-time status in mid-May and find that the event took place on or about April 23. I also reject the unconvincing explanation that Lujan's full-time services were not needed, inasmuch as employee Romero, who had lust been hired for work in the grocery 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department. then began working in the meat department. The record leaves in some doubt the exact date when Romero began his new duties . But even if he began them about a week after the change in Lujan's status, no reason appears to explain why Romero was used in the meat department if Lujan's services were not needed. Moreover, I am not persuaded that Whorton in fact believed that Lujan had quit when he told the latter on May 31 that he did not need his services . The record does not establish that Lujan had accepted full-time employment with Williams;` and, considering the contradictions in Whorton's testimony as well as his demeanor, I regard him as an unreliable witness and do not credit his testimony that he was informed by Williams that Lujan had accepted a full-time job. In this connection I note that Whorton's testimony was not corroborated by Williams. Furthermore, Lujan at no time told Whorton that he was quitting his job. On the contrary, his inquiry on the night of May 31 as to whether Whorton needed him the following day showed that he was still ready and willing to continue working for Respondents .r° Thus, Whorton 's insistence that he could no longer use Lujan because he had quit was an obvious pretext seized upon to eliminate a union proponent from the meat employees unit prior to the forthcoming election . This conclusion is buttressed by Whorton's earlier statement to Flores and Torres that he intended to lay off Lujan. The record shows that Lujan attended the organizational meeting at the home of Lopez and the union meeting at the bank building, where he signed a Retail Clerks authorization card. There is, of course, no doubt that Respondents were aware of Lujan 's union affiliation when they discharged him on May 31. It is also reasonable to infer that they were aware of such affiliation at the time they reduced him to part-time status. It is undisputed that at that time, they had knowledge, through the petitions for certification received on April 20, of the organizational activities of the store employees . On April 22, they discriminatorily discharged Lopez, and on the following day Lujan's reduction in status took place. Like Lopez, he worked in a small store in a small community where his activities, such as attending union meetings, could easily be observed." I accordingly find that the record provides an adequate basis for inferring that Respondents were aware of Lujan's union affiliation. And in view of the pretextual reasons given for Lujan's treatment and the timing of such treatment in relation to Respondents' other unfair labor practices, the record establishes a prima facie case of unlawful discrimination against Lujan which Respondents have failed to rebut. I therefore find that his reduction in status and subsequent discharge were motivated by his union affiliation, and that Respondents thereby violated Section 8(a)(3) and (1). "Among other things, Williams' attempts to persuade Lujan to accept full-time employment shows that the latter was reluctant to work full time for him . Moreover, if Lujan had wanted and accepted a full-time job with Williams, it strains credulity to believe that he would have left such employment after one day , and then seek to regain a job working only one day a week for Respondents . It is also significant that Williams did not contradict Lujan's testimony that he admitted the part -time status of Lujan's job. "In view of Whorton's assertion of an alleged belief that Lujan had accepted full-time employment with Williams Lujan apparently deemed it essential to demonstrate to Whorton that he was still available for work. It is immaterial whether Lujan may have wanted to continue working for Respondents in order to remain a member of the Meat Cutters and to be eligible to vote in the election "See In . 16, supra 3. Joe LeRoy Torres Torres was hired in November 1967 as a full-time employee at $50 a week in the grocery department. On January 20, February f7 and April 20, 1968 , respectively, he received pay increases of $2.50. Torres testified that he worked 54 hours a week until June 14 , i.e., 2 days after the election , on which date he was reduced to part-time work amounting to about 24 hours a week ; that on June 20, Mrs. Whorton informed him that business was "getting slow," that she did not require his services, that she would notify him if she needed him; and that he has not been employed by Respondents since June 20. He further testified that his address was known to Respondents. Mrs. Whorton testified that she hired Torres as a full-time employee and that he worked full time until April 20, when he was reduced to part-time work because she had too many employees." She further testified that Torres received a salary of $57.50 a week during the period between April 18 and June 12. According to her testimony, she feared that the Retail Clerks would file unfair labor practice charges if she laid off employees whom she did not need , asked her attorney what do do with all her employees, and was advised to run her business as she felt she should and to lay-off unneeded employees. Finally, she testified that she hoped that Torres would be a satisfactory employee, but that he did not fulfill her expectations. The General Counsel contends that Torres was reduced 'to part-time work on June 14 and then discharged on June 20 because he was a union adherent . Respondents assert in their brief that he was reduced to part-time status on April 20 because they had more employees than were needed, having refrained from laying some off in order to avoid unfair labor practice charges." I agree with the General Counsel. The record clearly establishes, and I find, that Torres was reduced to part-time status on June 14, and not on April 20 as testified to by Mrs. Whorton and claimed in Respondents' brief. Indeed, she admitted paying him $57.50 a week, i.e., full-time pay, as late as June 12. Such erroneous testimony on her part seriously weakens her claim that his full-time services were not needed at the time he was reduced in status on June 14 . Apparently realizing the weakness of her position, Mrs. Whorton testified that Torres was an unsatisfactory employee, thereby implying that Torres was selected for reduction in status for that reason ,. I find, however, that the claim of unsatisfactory performance is without support in the record, which shows that Torres received three pay increases . I further find that Torres was discharged on June 20, a matter not disputed by Respondents and not discussed in their brief. Although , as Torres testified, Mrs "Mrs Whorton testified : "On the first of the month, we have all the employees that we need for the first week , but we don 't need them all the time." Torres and Employee Baca admitted that business fluctuated at the store Baca testified that the store was very busy during the first week and a half of the month, slows down until about the 15th when it picks up, and decreases again until the latter part of the month "When asked at the hearing to state Respondents ' position respecting the alleged discharge of Torres, counsel for Respondents replied that Torres was a part-time employee, was never "discharged or anything", that he "just quit coming around even wanting to work or anything ," that he "would come in and check and see when [he) would be needed again. They don't need them all the time. The first two weeks of the month they need more employees more than they do the last two weeks of the month." WHORTON'S FOOD MARKET Whorton told him that business was slow at the time she let him go, Respondents have given no explanation for selecting Torres for discharge from among the allegedly surplus employees . As in the case of his reduction in status, there is no record support for an inference that his selection for discharge was motivated by unsatisfactory work performance. Although the discharge occurred after the election, its timing is not without significance. The initial count of the ballots cast in the June 12 election in the grocery unit was 6 to 5 against the Retail Clerks, with two challenged ballots . On June 17, objections to the election were filed Three days later, Torres was discharged. It is apparent that if the objections were sustained and a new election held, elimination of even one union proponent would aid in avoiding a reversal of the initial result of the voting. On the other hand, if the objections were overruled and the vote against unionization were sustained , elimination of a union adherent would obviously be useful in preventing a subsequent attempt to unionize. Torres engaged in substantially the same union activities as Lujan. For substantially the same reasons as those set forth with respect to the latter, I find that the record provides an adequate basis for inferring that Respondents were aware of Torres' union affiliation. And in view of my above conclusions respecting Respondents' failure to give a persuasive explanation for his reduction in status and discharge, as well as the timing of the discharge and the other unfair labor practices, I find that the record establishes a prima facie case of unlawful discrimination against Torres which Respondents have failed to rebut. I therefore find that the reduction in status and subsequent discharge were motivated by his union affiliation, and that Respondents thereby violated Section 8(a)(3) and (1). 4. Thomas Baca Baca worked for Respondents for a short time in 1965 or 1966, was inducted into the armed forces, and following his discharge sought reemployment from Respondents in the early spring of 1968. About a week later, he was told by Respondents that he could work at the store for a temporary period , and begun working as "stock and carryout" on May 6 on a full-time basis; i.e., about 9 hours a day, 6 days a week , until June 14. On that day, he was reduced to part-time status, and worked about 5 hours. 24 Mrs . Whorton testified that because she feared unfair labor practice charges, she had "just kept him until a time when [she] could put him on part time." At approximately noon on June 15, Mrs. Whorton told Baca that business was "too slow" and that she would call him if she needed him. Baca testified that on the same day, he "passed through the store and [he] saw a couple of other guys carrying out, new guys ." Apparently Baca was not thereafter recalled by Respondents , nor did he ever return to the store. Baca testified that he could have been reached on his aunt 's telephone, that the number was on his employment application , and that Mrs. Whorton had called him on that number at times . Mrs. Whorton testified that Baca "has no telephone." In response to an inquiry as to whether she made any effort to reach Baca, Mrs. Whorton testified that many school boys were available for part-time work at the store. The General Counsel contends that Baca was reduced "Mrs. Whorton testified that Baca was placed on part-time status on or about June 14, and then stated that the change occurred on June 22. 665 to part-time status on June 14 and constructively discharged on June 15 because of his union activities. According to the General Counsel, Respondents' knowledge of such activities should be inferred . Baca's union activities consisted of attending three union meetings after he began working on May 6: one at the home of Louie Lopez , another at a bank building, and a third at a motel.21 He did not, however , execute a union authorization card . Respondents argue that there is no showing that there was any reduction in Baca's status between April 20 and June 12, i.e., between Respondents' receipt of the petitions for certification and the election. I find that the General Counsel has failed to sustain his burden of establishing discrimination against Baca. Baca's testimony that he saw new employees performing carryout work the day he was laid off is uncontradicted, and Respondents have failed to explain that circumstance. Nevertheless, I find the record insufficient to permit the conclusion that either the layoff or Baca's reduction in status was related to union activity. For although Respondents' knowledge of Baca's union activity may be inferred, there were two important differences between his situation and that of Lopez, Lujan, and Torres. Unlike them, Baca did not execute a union authorization card . Moreover, even if he were inclined to vote for the Retail Clerks in an election, he could not do so for, being a temporary employee, he would not be included in the grocery employees bargaining unit.26 Accordingly, there was no compelling union-related reason for Respondents to rid themselves of Baca. Since the General Counsel has not made a prima facie case of unlawful discrimination against Baca, Respondents' failure to explain their treatment of Baca is not fatal. The allegation relating to Baca should be dismissed. 11. THE OBJECTIONS TO THE ELECTION IN CASE 28-RC- 179, A. Findings Respecting Each Objection 1. Based upon findings made above, I find that there is no merit to Objection 5 relating to merit increases, to so much of Objection 7 as alleged threats by Mrs. Whorton, to so much of Objection 12 as relates to Whorton's remarks concerning the election notice, and to so much of Objection 13 as relates to Baca and to Torres." There is no evidence to support, and hence no merit to, the remaining allegations in Objection 12 or to the allegation in Objection 13 relating to Bachert. 2. Based on findings made above, I further find merit to Objection 2, to so' much of Objection 7 as relates to threats by Whorton, and to Objection 11. 3. I also find merit to Objection 8, relating to a coercive sign allegedly prepared upon authorization by Respondents. The evidence relating to the sign is as follows. Employee Vigil testified that "some time before the election", he saw Employee Maestas, Jr. making a sign in the back room of the store near the freezer; that the sign was about 8 or 9 feet long; that he did not recall the exact wording of the sign but that it read "Forced to "Baca testified that he auenuea no union meetings in April. The record establishes that there was about four additional union meetings between April 24 and June 12, including some at Lopez' home. "Pacific Tide and Procelain Co.. 137 NLRB 1358, 1365, Post Houses, inc., 161 NLRB 1159, 1172 =The discrimination against Torres occurred after the election and may not be considered. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close for unfair labor practices" or "something similar to that"; that the sign remained in the back room for almost an hour; that he did not know what became of the sign; and that the sign was different from another sign which stated that the store would be closed for Memorial Day. Employee Aragon testified that while he and several other employees were working in the back room of the store before the election, he saw Maestas, Jr., making a sign; that Maestas had a "little paper" containing words which he was duplicating on the sign ; that the sign consisted of red paint on a long piece of white butcher or wrapping paper ; and that he thought Employee Padilla also saw the sign. On direct examination by the General Counsel, Aragon testified that the sign "read something like 'Forced to close unfair , by the National Labor Relations Board '." On cross-examination, Aragon testified as follows: Q. What did you actually see on that big sign? A. The word "Forced". He hadn't finished it yet. s s s s s Q. "Forced to close"? A. That's right. Q. You're sure of that? A. I'm sure. Finally, he testified that Maestas had also made a second sign stating that the store would be closed on Memorial Day. Employee Padilla testified that sometime before June 8, he saw a sign in the back room of the store ; that at the time he saw it, "nobody was making it"; that the sign was folded and the only words he saw on it was "Forced to close". On cross-examination by Respondents , he testified as follows: Q. Could this have been a sign that said Whorton's was closed for Memorial Day? A. I don't know, sir. The sign was being rolled up when I saw it. n # s s s Q. How much of the sign did you actually see, closed or forced to close? A Forced to close. s s s s s Q. Who was painting that sign incidentally? A. I think it was Junior Maestas. Q. Is that Louie Maestas, Jr.? A. Yes, sir. Q. Is he the one you referred to as the regular sign painter? A. Yes, sir. Q. Was he painting the sign at the time you saw it. A. Which sign are you referring to? Q. The sign that you were talking about that you saw on the freezer back there. A. Yes, sir. He further testified that he could not recall the date on which he saw the sign ; that it could have been around the 23rd or 30th of May, that he never saw the sign "posted"; but that in or about the period from May 26 to 30, he saw a sign on the store window reading "closed for Memorial Day." Employee Rodriguez testified that about a month before the election, in the back room of the store, he saw a sign reading, "Forced to close because of unfair demands by the National Labor Relations Board"; and that he saw Maestas, Jr., "around the sign." Employee Maestas, Jr., testified that his duties included painting signs; that during the summer of 1968, he regularly made the store signs ; that he did not paint sins on his own initiative but received instructions regarding signs from Whorton or Mrs. Whorton; that during the period between April 19 and June 12 ''e prepared three large signs stating that "Whorton's Will Be Closed Memorial Day"; and that he did not recall ever painting a sign which referred to the National Labor Relations Board . He further testified as follows: Q. Have you ever painted a sign that had the words or the word "forced" on it? A. Forced? No, not that I can recall. It might have been forced meat or forced groceries. TRIAL EXAMINER: I did not hear that last answer. THE WITNESS: Unless it was forced groceries or forced meat. Those are the kinds of signs I paint at the store. TRIAL EXAMINER: What does forced groceries mean? THE WITNESS: Nothing. TRIAL EXAMINER : Did you ever paint such a sign which said "forced groceries"? THE WITNESS: No, Sir. TRIAL EXAMINER: Why did you just now say that? THE WITNESS: Because it came out of the top of my head right now . I said unless. On cross-examination by Respondents, he gave the following testimony: Q. Do you have occasions to have a sign that might say "Forced Sale of Meat" or "Forced Reduction in Stock" or something like that? A. No. Q. When you said you might have forced groceries or forced meat, I did not quite follow that. Did you ever make some sign that said forced meat or groceries? A. No, I never did. What I meant there was it was in answer to his question had I ever used the word forced and I said no unless I would use it in relation to meat or groceries. Q. That would be in the nature of a forced sale or something? A. Yes, in that nature. Q. Did you ever make a sign which said "Forced to Close?" A. No, sir. Employee Maestas, Sr., the father of Maestas, Jr., testified that he had never seen a sign at the store containing the word "forced"; that he had heard rumors concerning a sign about "the store being closed", but that he had not been told anything further on the subject. Maestas, Jr., who was recalled as a witness, testified that he had not heard the above rumors and that his father had made no mention of the rumored sign to him. The General Counsel contends that the record establishes that sometime prior to the election, Maestas, Jr., upon instructions from Respondents , prepared a sign containing language indicating that Respondents were forced to close the store by the Board ; that in view of Respondents' threats to close the store if it was unionized, an employee who saw the sign could reasonably interpret it to mean that Respondents would be forced to close the store if ordered by the Board to bargain with the union, i.e., if the Retail Clerks won the election; and that a sign so conveying the impression that the employees might lose their jobs affected the outcome of the election. Respondents' brief does not discuss the subject of the sign. WHORTON'S FOOD MARKET 667 Vigil and Aragon both agree that prior to the election, there was a sign in the back room of the store containing at least the words "forced to close." In addition, they both testified unequivocally that they saw Maestas, Jr., painting the sign . The testimony of Padilla and Rodriguez corroborates the existence of such a sign . Moreover, the admission by Maestas, Sr., that he had heard rumors about such a sign tends to lend credence to the view, and I find, that there was such a sign . Since Maestas, Jr., was the one who prepared the store signs during the time in question, and since he did so only under orders from Respondents, it is a reasonable inference , and I find, that he painted the sign in question upon orders by Respondents, " and that the employees who saw the sign could properly so conclude. Although Maestas, Jr., denied having painted such a sign, I do not credit his testimony, which was unconvincing and given in a manner which left me with considerable doubt concerning its veracity. In view of the earlier threats to close the store made by Respondents, as found above, the sign could be construed as a renewal of that threat. Objection 8 is sustained. B. Concluding Findings The conduct alleged in the meritorious objections was both extensive and flagrant , and requires the conclusion that the grocery employees' freedom of choice was impaired, and that the election should be set aside. Ill. THE REMEDY A. I shall recommend that Respondents cease and desist from their unfair labor practices, and that they take certain affirmative action designed to effectuate the policies of the Act. B. More specifically, I shall recommend that Respondents offer to Louie Lopez, Thomas A. Lujan, and Joe LeRoy Torres immediate and full reinstatement to the positions which they held at the time of the discrimination against them or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges . I shall further recommend that Respondents make each of them whole for any loss of earnings suffered because of their discrimination against them by paying to each a sum of money equal to that which would have been paid by Respondents from the date of the discrimination against him to the date on which Respondents offer reinstatement as aforesaid, less his net earnings, if any, during the said period. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.29 C. As requested by the General Counsel, I shall also recommend the issuance of an order requiring Respondents to bargain with the Retail Clerks as the majority representative of the grocery employees at Respondents' store. In support of that request, the General Counsel urges the following considerations. The record establishes that as early as April 18, a majority of "in reaching this conclusion, I do not rely upon the Rodriguez affidavit received in evidence "The record contains some evidence that Respondents have leased the meat department to one M . L. Romero, the father of employee Bernie Romero. Such evidence does not form a sufficient basis upon which a judgment can be made as to whether in fact Respondents have ceased operation of the meat department or as to what , if any, rights Lujan may have against Respondents and/or their successors. Such issues are more properly to be decided at the compliance stage of this proceeding. Webb Tractor and Equipment Co.. 167 NLRB No. 46. such employees had executed valid authorization cards designating the Retail Clerks as their collective bargaining representative. The complaint alleges and the record establishes that between the filing of the Retail Clerks' petition for certification on April 19 and the election held on June 12, Respondents engaged in flagrant unfair labor practices in order to destroy the union's majority. Such conduct demonstrates that Respondents sought to avoid their bargaining obligation . Respondents oppose a bargaining order on the ground that, apart from the question of unfair labor practices, employees had little or no understanding of the significance of the authorization cards which they signed, and hence that the record fails to establish • that the Retail Clerks had the necessary majority. My recommendation of a bargaining order is based upon the following findings and conclusions: 1. The complaint alleges, the answer admits, and I find that the following constitutes a separate unit of Respondents' employees appropriate for the purposes of collective bargaining under the Act: All selling and nonselling employees, excluding guards, watchmen, meat department employees, and supervisors as defined in the Act. 2. At the hearing, the parties stipulated that the following 15 employees were the only employees in the above unit from April 19 through 24:3° Arcenio A. (Archie) Allemand, LeRoy Aragon, James Bachert, Patrick Thomas Garza, Robert James Garza, Louie Lopez, George Lopez, Benjamin R. Padilla, Frank R. Rodriguez, Jr., Joe LeRoy Torres, Alfonzo Vigil, Laura Waring, Dan Baker, Louis Maestas, Sr., and Louis A. Maestas, Jr. On April 18, 19 and 20, the first-named II of the above employees executed Retail Clerks authorization cards reading as follows:` RETAIL CLERKS INTERNATIONAL ASSOCIATION (Affiliated with the AFL-CIO) Authorization for Representation Desiring to enjoy the rights and benefits of collective bar- gaining I, the undersigned, employee of the Store Address Store No. (Firm Name) Employed as Dept. (Job Title) Home Address Phone hereby authorize Retail Clerks International Association, AFL-CIO, or its chartered Local Union'ito represent me forthe purposes of collective bargaining, respecting rates of pay, wages, hours of employment, or other conditions of employment, in ac- cordance with applicable law. (Date) (Signature of Employee) There is no evidence that any of those who executed such a card thereafter withdrew it. Thus, if 8 or more of the cards were valid, the Retail Clerks possessed a majority in an appropriate unit during the period between the filing of its petition and the election. There is no evidence that any statement was made to Bachert regarding the purpose of the card, which he merely took home with him, read, signed and returned to Louie Lopez on April 19. Since the card on its face clearly disclosed a purpose to designate the Retail Clerks as collective-bargaining representative, Bachert's card constituted a valid authorization. In the case of George Lopez, he was told on April 20 by Louie Looez that if he wanted to net higher wages, the The tally of ballots cast at the election recites that the "Approximate" number of eligible voters in the unit was 17 "Bachert and George Lopez signed on April 19 and 20, respectively 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union would probably help the employees, and that he was free to sign or refuse to sign an authorization card. George took the card home, read it, signed it and returned it to Louie the same day . Louie's statement amounted to a particularization of what the card itself stated - that designation of the union as bargaining representative would enable it to seek higher wages. The card was valid. The remaining nine employees signed cards at the meeting of April 18 . Of these, seven gave testimony as to what the representatives of the Retail Clerks told them respecting the purpose of the cards . In addition, such representatives, Coleman, Martinez, and Olguin, also testified. Although their respective versions of what was said differed in varying degrees, none of the testimony establishes either that the witnesses failed to understand the cards or what was said to them ." Nor does the record establish that any misrepresentation regarding the purpose of the cards was made. According to some of the witnesses, the representatives of the Retail Clerks stated that the purpose of the cards was to permit the union to represent the employees . Other witnesses testified that such representatives made reference to an election. Respondents do not contend that the employees at the April 18 meeting were told that the only purpose of the cards was to obtain an election, and the record would not support such a claim . All that the evidence does establish is that the employees were told, not only that the cards were for the purpose of enabling the Retail Clerks to represent the employees, but also that the cards could or would be used to bring about a representation election. But as the Board has consistently held, such a statement does not provide a sufficient basis in itself to violate unambiguously worded authorization cards on the theory of direct or even indirect misrepresentation . McEwen Manufacturing Co., 172 NLRB No. 99, and cases cited therein. Respondents argue that the cards were intended by the Retail Clerks, not to serve as designations of a collective bargaining representative, but only for the purpose of showing a sufficient interest to obtain an election. This assertion is predicated upon the fact that the union never requested Respondents to bargain, but immediately filed its petition for certification . This argument was expressly rejected by the Board in Henry I. Siegel, Inc., 165 NLRB No. 56. For the foregoing reasons, I find that 11 of the 15 employees in the grocery unit had signed valid authorization cards prior to, and that the Retail Clerks was a majority representative in an appropriate unit at the time of, the election." 3. I further find that Respondents ' flagrant violations of Section 8(a)(1) and (3) evidenced a purpose to destroy the Retail Clerks' majority and thus avoid their bargaining obligation . Since such conduct has precluded the holding of a free and fair election , it is necessary, in order to effectuate the policies of the Act, to remedy their violations by the issuance of a bargaining order. J. C. Penny Co. v. N.L.R. B., 384 F.2d 479, 486 (C.A. 10); HLH Products v. N.L.R.B., 396 F.2d 270 (C.A. 7), cert. denied 396 F.2d 270." In view of the foregoing recommendation, I shall recommend that the petition for certification in Case 28-RC-1797 be dismissed and that all proceedings held thereunder be vacated. CONCLUSIONS OF LAW 1. Respondents interfered with, restrained, and coerced their employees, in violation of Section 8(a)(1) of the Act, by interrogating employees as to why they had signed union authorization cards, by interrogating an employee as to his voting intentions, by threatening to close the store if the Retail Clerks won the election, by threatening to convert the meat department into a self-service operation if the Meat Cutters won the election, and by creating the impression of surveillance of employees' protected activities. 2. Respondents engaged in unlawful discrimination, in violation of Section 8(a)(3) and (1) of the Act, by discharging Louie Lopez, and by reducing to part-time status and subsequently discharging Thomas A. Lujan and Joe LeRoy Torres. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. All of Respondents' selling and nonselling employees, excluding guards, watchmen, meat department employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of • collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material hereto, Retail Clerks International Association, Local 1564, AFL-CIO, has been , and is now, the majority representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 6. Respondents did not violate the Act by any conduct not found herein to constitute an unfair labor practice. 'Although Patrick Thomas Garza did not understand the ramifications that followed his signing, he understood what the Retail Clerks representatives meant when, according to his testimony, they stated that the purpose of the cards was to obtain higher wages through the union's efforts. Like the card signed by George Lopez , Garza's card was valid. Respondents point out in their brief that beer was served during the April 18 meeting . However , there is no warrant in the record for a finding that any of the nine employees who signed cards that night was intoxicated and did not know what he was doing. "Employee Louie Maestas , Sr., testified that he had consumed an excessive quantity of peer on April 18 , that he did not recall signing a card but did remember tilling in portions of one, ana that he was not certain that the signature on a card introduced in evidence by the General Counsel was his I Althoug} I I I have doubts concerning the credibility of this testimony, it is unnecessary to determine whether or not the card should be counted, inasmuch as the Retail Clerks had a majority in any event. Cf McEwen Manufacturing Co, supra in opposing a bargaining coder, Respondents cite Shoreline Enterprises of America v N L R B, 262 F 2d 933 (C A 5), and N.L R B v. Sumner Sand & Grave! Co. 293 F 2d 754 (C A 9) Those cases are wholly inapposite RECOMMENDED ORDER Respondents, their agents, successors, and assigns, shall: A. Cease and desist from: (1) Unlawfully interrogating , threatening , and giving the impression of surveillance of, employees. (2) Unlawfully reducing the status of, discharging, or otherwise discriminating against, employees. (3) In any other manner interfering with. coercing, or restraining employees in the exercise of any r t' the rights guaranteed in Section 7 of the Act. B. Take the following affirmative action: (1) Offer to Louie Lopez, Thomas A. Lujan and Joe LeRoy Torres immediate and full reinstatement to their former or substantially equivalent positions, and make WHORTON'S FOOD MARKET 669 each whole for any loss of earnings he may have suffered by reason of Respondents' discrimination against him, in the manner set forth in the section herein entitled "The Remedy." (2) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. . (3) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Recommended Order. (4) Upon request. bargain collectively with Retail Clerks International Association, Local 1564, AFL-CIO, as the exclusive representative of all employees in the unit found appropriate herein with respect to rates of pay, wages, hours of employment and understanding is reached , embody such understanding in a written, signed agreement. iJ) rust at tneir place of business in Las Vegas, New Mexico, copies of the attached notice marked "Appendix B."3' copies of said notice, on forms provided by the Regional Director for Region 28, shall , after being duly signed by an authorized representative of the Respondents, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places' where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (6) Notify the Regional Director for Region 28, in writing, within 20 days from tits receipt of this Decision, what steps they have taken to comply herewith." It is recommended that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. It is recommended that the petition for certification in Case 28-RC-1797 be dismissed and that all proceedings ,had thereunder be vacated. It is hereby ordered that the representation proceeding in that case be, and the same hereby is, severed from the consolidated proceedings Therein, and the representation proceeding is hereby remanded to the Regional Director for Region 28 for further disposition. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Region 28, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX A Employee Hired Date of Increased Benefit Amount Patrick T. Garza 11-7-67 12-9-67 $2.50 a week Patrick T. Garza (see above) 1-20-68 2.50 Joe LeRoy Torres 11-16-67 1-20-68 2.50 Robert J. Garza 9-29-66 1-27-67 2.50 Ramon R. Torres 1965 or earlier 1-27-68 2.50, Aragon 1965 2-?-68 not shown Allemand 1-11-68 2-17-68 2.50 Patrick T. Garza (see above) 2-17-68 2.50 Joe LeRoy Torres (see above) 2-17-68 2.50 Patrick T. Garza (see above) 4-20-68 2.50 Joe LeRoy Torres (see above) 4-20-68 2.50 Maestas, Sr. about 1960 4-27-68 5.00 Waring March 1965 4-27-68 2.50 Flores about 1958 4-27-68 32.85 a month n Mrs. Whorton testified that Torres received raises similar to those given to Roberti. Garza. Flores had paid the Blue Cross premiums for about a year. On April 27, 1968, Respondents began paying them in lieu of a wage increase. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ramon R. Torres (see above) 4-27-68 Allemand (see above) 5-25-68 Patrick T. Garza (see above) 5-25-68 Romero 4-22 or 4-23-68 6-1-68 Vigil 3-7-65 Between 4-19 and 6-12-68 21 or 22 a month ill 2.50 2.50 not shown "'Like Flores, Torres had paid the Blue Cross premium for about a year, and Respondents began paying them on April 27, 1968. Mrs . Whorton testified that no other raises were shown for Torres on her records , but that they had not been brought up to date. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended we hereby notify our employees that: WE WILL NOT unlawfully interrogate, threaten, or give the impression of surveillance of, our employees, or in any other manner interfere with them in the exercise of their guaranteed statutory rights. WE WILL NOT unlawfully discriminate against Louie Lopez, Thomas A. Lujan, Joe LeRoy Torres, or any other employee. WE WILL offer to Louie Lopez, Thomas A. Lujan, and Joe LeRoy Torres immediate and full reinstatement to their old jobs and pay them for all back earnings lost as a result of the discrimination against them. WE WILL, upon request bargain collectively with Retail Clerks International Association, Local 1564, AFL-CIO, as the exclusive bargaining representative of all employees in the unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment; and if an understanding is reached, embody such understanding in a written , signed agreement . The bargaining unit is: All selling and non-selling employees, excluding guards, watchmen , meat department employees, and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of said Local 1564, or any other labor organization. Dated By ROMAYNE H. WHORTON, RACHEL H. WHORTON, MRS. R . L. WHORTON, CO-PARTNERS, d/b/a WHORTON'S FOOD MARKET (Employer) (Representative) (Title) Note: Notify any of the above-named employees if presently serving in the Armed Forces of the United States of his 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. 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, 500 Gold Avenue, Room 7011, P. O. Box 2146, Albuquerque, New Mexico, Telephone 843-2555, Extention 2556.