Zolan Sales of Kansas, Inc.

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zolan Sales of Kansas, Inc., Zolan Sales, Inc., d/b/a Rail Sales Soopers and Retail Store Employees Union, Local 782, affiliated with Retail Clerks International Association , AFL-CIO. Case 17-CA-3738 August 28, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On May 13, 1969, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. 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, and hereby orders that Respondent, Zolan Sales of Kansas, Inc., Zolan Sales, Inc., d/b/a Rail Sales Soopers, Kansas City, Missouri, and Kansas City, Kansas, their officers, agents, successors, and assigns, shall take the action set forth in the Trial 'While agreeing with the Trial Examiner that Respondent's refusal to recognize the Union violated Sec 8(a)(5) and ( 1), and that an order to bargain is appropriate, we do not adopt his rationale , except to the extent that it is consistent herewith We find that Respondent's extensive unfair labor practices so diminished the possibility of ensuring a fair election that employee free choice is more effectively ascertained by the use of signed authorization cards than by an election indeed, Respondent 's Sec 8(a)(1) and (3 ) violations are of such a pervasive character as to require, in the circumstances of this case , an order to bargain to repair their unlawful effect The Sinclair Company, 164 NLRB No 49, enfd 397 F 2d 157 (C A I), 395 U S 575 Since on October 14, 1968, the Union had an unquestioned majority of validly signed authorization cards, an order to bargain is appropriate See N L R B v Gissel Packing Company, 395 US 575 Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I NACHMAN, Trial Examiner This proceeding tried before me at Kansas City , Missouri , on March 17 and 18, 1969, involves a complaint ' pursuant to Section 10(b) of the National Labor Relations Act (herein the Act), which as amended alleged that Zolan Sales of Kansas, Inc., and Zolan Sales, Inc., d/b/a Rail Sales Soopers (herein Respondent or Company), interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, discriminatorily discharged two employees because of their assistance to and support of Retail Store Employees , Local 782, affiliated with Retail Clerks International Association, AFL-CIO (herein the Union ), and refused to bargain with the Union as the duly designated majority representative of its employees , in violation of Section 8(a)(1), (3), and (5) of the Act. By answer , Respondent admitted certain allegations of the complaint , but denied the commission of any unfair labor practice . For the reasons hereafter stated, I find that the credible evidence sustains the allegations of the complaint, and recommend the usual remedial order At the trial the parties were represented by counsel, and were afforded full opportunity to examine and cross-examine witnesses , to introduce relevant evidence, to argue orally on the record , and to submit briefs Oral argument was waived Briefs submitted by the parties have been duly considered. Upon the entire record in the case ,' including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT' 1. UNFAIR PRACTICES ALLEGED A. The Organizational Campaign and the Demand for Recognition In early October the Union began an organizational campaign among Respondent's employees,' and by October 14, had obtained 21 signed authorization cards Each card is regular on its face, and authorizes the Union to represent the signer for purposes of collective bargaining. No evidence was adduced, nor is there any claim, that signatures to these cards were obtained by any false or misleading representation 'Issued January 31 , 1969, upon a charge filed November 13, 1968 The General Counsel has filed with me a motion to correct the record in certain respects set forth in said motion Counsel for Respondent agrees that certain of these corrections are necessary, but objects to the remainder, claiming that some are substantive , that he does not recall the precise language used, and that while the requested changes might more accurately reflect what was intended , the reporter's transcript provides a more accurate basis for determining the actual testimony than does the memory of counsel I have checked each of the requested changes against the transcript and find that the proposed changes are not substantive, but are necessary to correctly reflect the proceedings before me Accordingly, I grant the General Counsel's motion in its entirety 'No issue of commerce or labor organization is presented The complaint alleges and the answer admits facts which establish those jurisdictional elements I find those facts to be as pleaded 'Respondent operates three retail food markets , Store No I being located in Kansas City , Missouri, and Stores No 2 and No 3 in Kansas 178 NLRB No. 42 RAIL SALES SOOPERS Early in the afternoon of October 14, the Union sent Respondent a telegram which the latter received at approximately 3.30 p.m that day. The telegram stated that the Union represented "a substantial majority" of the employees in the three stores, in an appropriate unit,' and requested a meeting at Respondent's office the following day "at which time we will prove to you our majority," and following such proof a date be set to negotiate a contract In a telephone conversation later in the afternoon of October 14, confirmed by letter of that day, the parties agreed to and did meet at Respondent's office during the afternoon of October 24 Between the inception of the Union's campaign and the meeting on October 24, certain events occurred which the General Counsel contends were violative of Section 8(a)(I) of the Act, which will now be detailed. B. Interference, Restraint , and Coercion (a) On or about October 8, several employees including specifically Carroll Arnold and Richard Henry or Richard Kendrick, were at work in the produce room of store No 3 Employee Huddleston, whose work schedule did not begin until 4 p m., and who had arrived at the store some 15 minutes early, went to the produce room and in talking to the other employees stated that they would be earning $2.28 an hour if they joined the Union, rather than $1 60 they were then being paid. Immediately after this statement Huddleston observed Store Manager Caplan, an admitted supervisor, and whom he had not previously observed, standing about 3 feet away. Caplan then stated, "That is the best way for you boys to lose your jobs, now get to work."6 In view of the testimony that Caplan was so close to Huddleston when the latter made the aforementioned statement, and that Huddleston spoke in a normal tone of voice, I find that Caplan heard Huddleston's statement, and that his remark was in response thereto (b) On October 10, employee Arnold went to Caplan's office and asked the latter if it was company policy to discharge employees who joined a union . Caplan replied that it was his understanding that employees who joined a union would be discharged Arnold then told Caplan that he had signed a card for the Union,' but did not want to lose his job. Caplan then stated that signing a card did not mean anything, but that those who joined the Union would be let go ' City, Kansas Although Store No I is separately incorporated from the other stores, the complaint alleges, the answer admits , and I find that the entire operation constitutes a single integrated enterprise 'The telegram described the unit as "All employees excluded the overall store manager, employees whose work is wholly and exclusively performed in the meat department of the store, guards and supervisors as defined in the Act " The complaint describes the unit as "All regular full-time and regular part-time employees employed by the Respondent at its three stores " excluding store managers , store co-managers, meat department employees , professional employees, guards and supervisors as defined in the Act Although the language employed by the Union in its demand differs somewhat from that of the complaint , I find and conclude that the variance is insubstantial in nature, and that the Union' s telegram constituted an appropriate demand The parties stipulated and I find and conclude, that the unit pleaded in the complaint is appropriate `These findings are based on a composite of the credited testimony of Huddleston and Arnold on this point Although Huddleston was confused as to the identity of Richard Henry and Richard Kendrick , I do not regard this as critical or as having an adverse effect on his credibility Of greater importance is the fact that Caplan, although denying that he discussed the Union with Huddleston or Arnold, did not deny that this incident occurred , or that he made the remarks which they attributed to him 239 (c) On or about October 11, Caplan called a meeting of all employees in his store. After the business of the meeting concluded, an unidentified employee asked Caplan what the Company's policy was about employees joining the Union. Caplan replied that employees who join the Union do so at their own risk.' (d) On or about October 17, Caplan engaged Huddleston in conversation, asking whether the latter had signed a card for the Union Huddleston replied that he had "° (e) On March 14, 1969, the Friday before the trial of this case began, Al Childers, comanager of store No. 3, told Arnold that he had seen the latter's affidavit, knew what was in it and knew what was going to happen in court because he had been through the same thing, and that the Union was just using the employees " C. The October 24 and October 31, Meetings12 The October 24 meeting was attended by Spangler and Miller, representing the Union, and by President Meyer Gilgus, Vice President Zolan Gilgus, Vice President and Secretary Weiner, Sales Supervisor Lindman, and Attorney Stone, representing Respondent. After some preliminary remarks, the serious discussion opened with Miller stating that the union representatives were there to prove their claimed majority status, and handed Weiner 24 authorization cards." Weiner separated the cards by stores, into three groups. After putting to one side the cards of Larry Atkins, Tom Friesner and James Rourk10 as well as the cards of Bernadean Neal and Carroll Arnold," and then checked the cards against a list of employees he had before him. Completing his check, Weiner stated, "Well, you do have a majority." Weiner then commented that it seemed unfair that the many part-time employees whom Respondent had, should have an equal voice with full-time employees as to whether there should be a union in the stores, and proceeded to check whether the hours worked by the card signers exceeded those worked by nonsigners, and on completion of the latter check stated, "Well you do have a majority, but it's a slim one." At this point, President Gilgus turned to Attorney Stone and asked "what do you recommend?'' Stone replied, "They do have a majority." 'Arnold had done so on October 8 'Based on the credited testimony of Arnold As heretofore stated, Caplan initially denied that he ever discussed the Union with Arnold However, when pressed, Caplan admitted that Arnold did come to him about signing a union card Caplan claimed that he understood that Arnold' s parents did not want him to sign a card, and that he told Arnold to discass the matter with the Union 'Based on a composite of the credited testimony of Huddleston and Arnold "Based on the credited testimony of Huddleston I do not credit Caplan' s general denial , above referred to "Based on the credited and uncontradicted testimony of Arnold Childers was not called as a witness "In addition to the foregoing allegations of interference , restraint, and coercion, the General Counsel contends that the discharges of Huddleston and Arnold which occurred on October 23, and November 8, respectively, were discriminatory The facts with respect to those discharges are hereafter set forth "The cards so tendered by Miller were those referred to in Appendix A, attached See particularly fn 4 thereof "Weiner told the Union that these three employees were mentally retarded and unable to perform specific tasks without constant supervision, and for that reason not properly includable in the unit "The first because she had given notice of her intention to quit in a few weeks because of pregnancy, and the latter because his mother did not want him to sign a card. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following this the parties discussed certain economic issues, with the Union presenting a blank copy of its form contract which contained wage rates, and these as well as certain aspects of Respondent' s business were discussed. Thereafter the discussion again turned to the allegedly retarded employees, Respondent asserting that it could not afford to employ them at rates suggested by Union, and the Union, while contending that these employees were in the unit, expressed willingness to make special arrangements to them After the discussion of these and other economic issues, the Union presented for management' s signature a form entitled "Certification of Results of Card Check " Respondent refused to sign the document, some unidentified representatives of management stating that they wished to discuss the matter further among themselves and with their attorney, and that Respondent could be trusted not to "pull anything funny." The meeting concluded with an agreement that the parties would meet again at Respondent's office on October 31. When the parties met on October 31, Weiner admittedly told the Union that Respondent doubted the Union represented an uncoerced majority in an appropriate unit, and that the Union should take the matter up with the Board. Spangler protested that after the card check on October 24, Respondent had conceded the Union's majority, and questioned Weiner's use of the term "uncoerced majority," asking "who did we coerce?" Weiner replied that Spangler did not understand, repeating,"We doubt if you have an uncoerced majority,1, 1 adding, "I doubt if I even remember who signed the cards." On this note the meeting concluded." "When asked what he meant by "uncoerced majority," Weiner stated that possibly the employees who signed cards did so under pressure from other employees or Union representatives Asked if he had any evidence to indicate that such might be a fact, Weiner answered, "No " "My findings with respect to the October 24 and 31 meetings , are based on a composite of the credited testimony of Union Agents Spangler and Miller, and those parts of the testimony of Weiner and Zolon Gilgus not inconsistant with that of Spangler and Miller Particularly , I do not credit the testimony of Weiner and Gilgus to the effect that at the meeting of October 24, the Union produced only 14 cards, that the card check disclosed that the Union did not have a majority , that Exhibit R-1 correctly reflects the results of the card check , and their denial that Respondent at any time conceded the Union's majority I do so for several reasons In the first place, there can be no question but that the Union had the 24 cards, which are in evidence , all dated and delivered to the Union prior to the meeting There is no evidence nor is it contended that the cards were signed at some other time and dated back In this state of the testimony , it strains credulity to believe that the Union would have withheld 10 cards from Respondent , particularly so when according to Weiner's own testimony , the Union lacked only one card of establishing its majority Secondly, Lmdman, Respondent's supervisor of retail sales, who attended the October 24, meeting , and for whose credibility Respondent vouched when it called him as a witness, testified that upon completion of the card check Weiner told the Union representatives , "from all indications it looks like you have a majority here " Thirdly, I find it significant that Respondent did not call either Company President Gdgus, or Attorney Stone as witnesses Its failure to do so appropriately gives rise to the inference that their testimony would not support Respondent ' s position See Halliday v United States , 315 U S 94, 99, Interstate Circuit v United States , 306 U.S. 208, 225-226, N L R B. v Reed & Prince Mfg Co , 130 F 2d 765, 768 (C A 1) And finally, Weiner admits that following the card check , the parties discussed various aspects of the Union's form contract and Respondent's business, and then set a date for a further meeting because Respondent 's representatives wished to discuss the matter further among themselves and with their attorney if, as Weiner claimed, the card check disclosed the Union's lack of majority status, I fail to understand Respondent's request for time to consider the matter further, or the need for a further meeting Weiner's response to my question seeking an explanation for that course of action - that "there was obviously D The Union's Majority Status As the Board had uniformally held, the critical date for determining the Union's majority, absent unusual circumstances, is the date the employer receives the Union's recognition demand. That date, in the instant case, is October 14, as evidenced by Respondent's letter of that date confirming the agreement to meet on October 24. The payrolls in evidence, for the workweek ending October 16, show a total of 41 persons employed as of October 14, eight of whom were admittedly supervisors, leaving 33 unit employees. Twenty of the 33 had prior to October 14, designated the Union as their bargaining representative (see Appendix A, attached) a clear majority.1e Accordingly, I find and conclude that on October 14, the Union was the duly designated majority representative in the unit, the appropriateness of which has been conceded." E. The discharges of Huddleston and Arnold 1. Huddleston Huddleston, a schoolboy stocker-bagger, worked at Store 3 from about 4 p.m. to 9 p.m., during the week, and apparently a greater number of hours on Saturdays and Sundays. The record does not show for what period Huddleston had been employed, but it appears that he was on duty when Caplan became manager of the store about mid-September That Caplan was aware of Huddleston's interest in and activity on behalf of the Union is evident not only from the incidents above referred to, but from Caplan's admission that prior to Huddleston's discharge some merit in [the Union's] having come to see us," is without meaning and is plainly a transparent attempt to avoid the impact of his admitted conduct "Even if it be assumed that October 24, the day the parties conducted the card check , was the appropriate date for testing the Union's majority status, the Union then had even a larger majority than it had on October 14 For this purpose the October 30 payroll would constitute the starting point That payroll also contained the names of 33 unit employees, and is basicly the same as the October 16 payroll, with the following adjustments At Store 1, Helen Anthoney did not appear , she having been terminated on October 15 However, Joe Williams a card signer was hired on October 17 At Store 2, the names of Garry Stein and Lincoln Young (neither being a card signer), do not appear on the October 30 payroll However, the name of Michael Blachett appears on this payroll, but as his time card shows his first day of work to have been on October 25 , he was not in employee status as of October 24 At Store 3, the October 30 payroll does not carry the names of Dave Huddleston and Dick Kendrick (both card signers) who appeared on the October 16 payroll, and the name of Stephanie Hotujak (who did not sign a card ), is added The time cards show that Hotujak's first day of employment was October 29, hence she was not in employee status on October 24 The time cards also show that Kendrick was terminated on October 21, and Huddleston on October 23 However, as I hereafter find that Huddleston was discriminatorily discharged, he remained in employee status and must be counted in determining the Union's October 24 majority status Thus, of the 33 names on the October 30, payroll the names of Blachett and Hotujak must be deleted , and the name of Huddleston must be added , making the unit complement 32 Of these 32, the names of 20 who had signed a card on or before October 23, appear on Appendix A with an asterisk To this must be added Joe Williams, whose name does not appear on Appendix A, because he was not on the October 16, payroll Thus on October 24, the Union had valid authorization cards from 21 of 32 employees. "Respondent introduced some evidence tending to show that Helen Anthoney, Joe Williams, Lincoln Young, Frank Ruis, and Fred Stein were not regular employees, and hence not within the scope of the unit as defined I find it unnecessary to consider these contentions for should all of them be resolved in accord with Respondent's contentions the Union would still have a clear majority RAIL SALES SOOPERS he was aware that the latter had been contacted by Spangler whom he knew to be a Union agent. On October 23, Caplan told Huddleston that the latter was being terminated as of the end of that day, but if business picked up and he were again needed, he would be called The parties stipulated that during the month of November, Respondent hired two stocker-sackers for work at Store 3 However, Huddleston heard nothing from Respondent until January 31, 1969, when he received a telegram offering him reinstatement to his old job at the same rate of pay and working conditions Huddleston accepted the offer and returned to work.20 2 Arnold Arnold, like Huddleston, was a schoolboy who worked at Store 3 part time during the week, and on Saturdays and Sundays. As above stated, Caplan admitted that Arnold had informed him on October 10, that he (Arnold) had signed a card for the Union. During the morning of November 4, Arnold went to the union office and complained to Spangler that the Company was requiring employees whose hours of work approached 40 in the week, to punch in on the timecard of some employee who had lesser hours, thus depriving employees of overtime pay Spangler promised to look into the matter. That afternoon, Arnold reported to work just prior to his usual 3 p.m. starting time When he attempted to punch in on his timecard, he found on it various times written in by hand. Arnold took the card to Caplan, who stated that Arnold had too many hours and he had to cut them Caplan also directed Arnold to leave work that day at 6 p m , instead of the usual store closing hour of 9 p.m. Later that afternoon, Arnold met Comanager Childers in the produce room and asked him why Caplan was in such a bad mood. Childers replied that Caplan knew that Arnold had gone to the Union about the timecards and that he was angry about it because he was really doing Arnold a favor by permitting him to work the extra hours 21 On Friday, November 8, Arnold reported for work as usual, and about 6 p.m asked Comanager Childers for permission to take the following day off, explaining that he wished to visit a close relative who was dying 22 Childers commented that Saturday was a busy day, that Arnold would be needed, and that it was too late to "Caplan testified that when he discharged Huddleston , he told the latter that "because of his attitude that I would not need him any longer " Caplan admitted that the foregoing statement was not based on personal observation , but on reports made to him by Comanager Bukovoc, and that on one occasion (the time not appearing in the record ), he told Huddleston and Arnold that he knew goods were being improperly marked , that at times they could not be located in the store when needed , and that their attitude toward the comanagers was not what was expected , and had to change Caplan further testified that on the day Huddleston was discharged he received a report from Bukovoc that Huddleston was not working, and that when he (Bukovoc) assigned work to Huddleston , the latter replied that he had worked at the store longer than Bukovoc and that he didn't have to take instructions from him, or follow his directions I do not credit Caplan Moreover, I deem it significant that Bukovoc was not called as a witness by Respondent , nor was the failure to do so explained The reasonable inference from this is that Bukovoc would not support Caplan's testimony , nor Respondent 's position in that regard Halliday v United States, supra, Interstate Circuit v United States, supra, N L R B v Reed & Prince Mfg Co, supra I so infer "Nothing herein should be construed as a finding that Respondent did in fact maintain the practice of which Arnold complained No finding with respect thereto is necessary to the disposition of the case I only find that Arnold made such a complaint to the Union 241 rearrange schedules and get a replacement, but agreed to call Caplan at home and discuss the matter with him. About a half hour later, Childers told Arnold that he had discussed the matter with Caplan, and that the latter had directed that Arnold be terminated. Childers further told Arnold that the latter was a good worker who would have no problem getting another job, but that Caplan "was mad at [Arnold] about going to the Union about timing in on other people's timecards.. ... Arnold heard nothing further from Respondent until he, like Huddleston, received a telegram on January 31, 1969, offering reinstatement, which offer he accepted, and has since been so employed 23 II. ANALYSIS AND CONTENTIONS A. The Independent 8(a)(J) Allegations I find and conclude that Respondent violated Section 8(a)(1) of the Act by the following: (a) Caplan's statement "That is the best way for you boys to lose your jobs," made as I have found, in response to Huddleston's statement to his fellow employees that under a union contract they would be earning a substantially higher rate of pay, was under the circumstances, merely another way of saying that discussion of or assistance to the Union would result in discharge (b) Caplan's statement to employees generally on October 11, that employees who joined the Union did so at their own risk, as well as his statement to Arnold that employees who joined the Union would be discharged Both were plainly threats to the job security of employees if they assisted or supported the Union (c) Caplan's interrogation of Huddleston as to whether the latter had signed a union card. In view of the fact that so far as the record shows Huddleston was the only employee interrogated, Caplan's interrogation of Huddleston could not have been for the limited purpose of determining whether the Union's demand for recognition was well founded. Moreover, there is no evidence that the interrogation was accompanied by assurances against reprisal. Sturksnes Construction Co., Inc, 165 NLRB No. 102; N.L.R B. v. Berggren & Sons, Inc., 406 F 2d 239 (C A. 8), enfg. 165 NLRB No. 52. (d) Childer's statement to Arnold that he had seen the latter's affidavit, knew what was in it , and that the Union was just using the employees. Although I have not been cited to, and my independent research has failed to reveal "Arnold admitted that he was aware of the serious illness of his relative when he reported for work about 3 p in , and that he said nothing about it until his conversation with Childers Arnold testified that he had intended to discuss the matter with Caplan, but got busy and Caplan left the store about 5 30 p in , as was usual , before he could do so "Based on the credited and for the most part, uncontradicted testimony of Arnold Respondent did not call Childers as a witness, nor in any way explain its failure to do so. The fact that the General Counsel sought to call Childers as a rebuttal witness, but was unable to do so because due to some misunderstanding counsel for Respondent had released Childers and the latter was not then available, does not diminish the fact that it was Respondent's duty to call Childers as a part of its affirmative case, and that it did not do so Again , the inference is permissable that Childers would not have supported Respondent' s contentions . Caplan testified that when Childers called him at home, the latter merely reported that Arnold was unable to come to work the following day, but that no reason was given him , and that he simply stated that he could not run the store that way, and directed Childers to terminate Arnold Caplan admitted that he had on more than occasion given employee Richard Billings time off so that he might pick up his brother at an army reserve station 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any case where the Board has considered whether an employer's statement that he knows the contents of affidavits employees furnished during the Board's investigation is coercive, it has consistently held the questioning of an employee as to whether he gave an affidavit, what information the affidavit contained, or to supply a copy thereof, was coercive and hence violative of Section 8(a)(1) of the Act See, i.e , Hilton Credit Card Corp, 137 NLRB 56; Henry I Segal Co, 143 NLRB 386; W T Grant Co, 144 NLRB 1179, Montgomery Ward and Co., 154 NLRB 1197, 1259-62 The theory of these cases is that a request of the nature indicated "interferes with the Board's efforts to secure vindication of employees' statutory rights and thus interferes with the enjoyment of such rights in violation of Section 8(a)(1)." (Henry I Segal, supra), or as stated in W T Grant, supra at 1 182 Knowledge by an employee that his employer may obtain copies of his statement serves only to inhibit that employee's willingness to give a statement at all or to disclose all matters of which he has knowledge for fear of incurring the employer's displeasure and possible reprisal. So far as inhibitory effect is concerned, there would seem to be little practical distinction between asking "What did you tell the Board agent," or saying "I know what you told the Board agent " Indeed, if any distinction does exist, the latter statement would seem to be more coercive, in the first case the employee may refuse to answer and hope that the employer may never find out what the employee disclosed, while in the latter, it is definite that the employer knows what he disclosed Accordingly, I find and conclude that Childers' statement to Arnold was coercive and hence violated Section 8(a)(1) of the Act. B. The Discharges 1. Arnold Upon the facts above stated, I am convinced and therefore find and conclude that Arnold was discharged on November 8, because of his assistance to the Union and his final act on November 4, of enlisting the Union's aid to eliminate what he regarded as Respondent's unlawful act of depriving him of overtime pay The evidence is clear, as I have found, that Caplan knew Arnold had signed a card for the Union and he told the latter that it was company policy to dismiss employees who joined the Union And when on November 4, Arnold complained to the Union that Respondent was depriving him of overtime, he was promptly told by Childers that Caplan knew that Arnold had gone to the Union about the timecards and was angry about it.2d And finally on November 8, the first time Arnold asked for time off, he was discharged, with Childers again disclosing the true motive, that Caplan was still angry because Arnold had gone to the Union about the time cards. Under these facts I can only conclude that Arnold's alleged unreliability-a charge in no way substantiated by evidence-was simply a subterfuge seized upon in an effort to obscure the true and unlawful motive for the discharge. "Respondent argues that this fact may not properly be considered because the record fails to establish how Caplan became aware of that fact The crucial question however , is not how that information came to Caplan, but rather that it did That Caplan knew it and became angry about it, not only was not denied by Caplan, but is established by the fact 2. Huddleston Huddleston, I also find and conclude, was discharged because of his assistance to the Union That Caplan was aware of and resented Huddleston's assistance to the Union from the inception of the latter's campaign, is made plain by Caplan's remark, to the effect that discussion of the Union was "the best way" to bring about a discharge. And on October 17, Caplan found it necessary to interrogate Huddleston as to whether the latter had signed a union card. Within a week thereafter, on October 23, Huddleston was discharged without warning and only with the explanation that bad business required his termination. Not only is there a complete absence of evidence that business conditions were in fact such as to require a reduction in force, but the parties stipulated that in November (the exact dates not appearing), Respondent hired two new stocker-sackers. And when there is added the fact that at the trial Respondent sought to justify the discharge of Huddleston and Arnold on the ground that they had stolen cigarettes, and engaged in other conduct, grounds which I find were not the basis for the discharges," I can only conclude that some other reason motivated Huddleston's discharge, and in light of Respondent's antipathy to Huddleston's union activity, and in context of Respondent's other unfair labor practices, the only reasonable conclusion is that the Union activity motivated the discharge As the Court of Appeals for the Ninth Circuit said in Shattuck Den Mining Corp. v. N L R B , 360 F. 2d 1018 at 1020: If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desired to conceal -an unlawful motive-at least where, as in the instant case, the surrounding facts tend to reinforce that inference. Accordingly, for the reasons stated, I find and conclude that Huddleston and Arnold were discharged in violation of Section 8(a)(3) and (1) of the Act that Childers made the statement to Arnold, a fact which Childers did not deny "Respondent's witness Billie Byrnes, who at the time of the events here involved worked as a cashier at Store 3 , but who on February 1, 1969, was promoted to assistant store manager, testified that in the latter part of September or early in October ( 1) she once discovered Huddleston using the ladies rest room, (2) that Huddleston , Arnold, and other employees hid out in the store and failed to answer repeated calls for assistance at the checkout counter, and (3) she observed Huddleston (and Arnold) on more than one occasion , taking cigarettes without paying for them Byrnes further testified that she reported each of these infractions to management immediately after she observed them I deem it unnecessary for the disposition of this case to make any finding as to whether Huddleston or Arnold did or did not engage in the conduct Byrnes attributed to them for, assuming that they did so, it is clear and I find that neither was discharged for any such reason Byrnes admitted that the restroom incident was treated by her and by management as a joke With respect to hiding out in the store , and the taking of cigarettes, those instances , if they occurred at all, took place at least 2 weeks before Huddleston's discharge, and at least a month before Arnold's discharge, and in the interim, according to Byrnes, management knew the facts It is inconceivable to me that if Respondent really regarded these incidents as a breach of duty, that it would have permitted these employees to remain in employment status as long as it did, and it certainly would not have offered them reinstatement, as it did on January 31, 1969, for in a retail store pilferage by employees is normally regarded by management as an unpardonable offense I can only conclude, therefore , that the aforementioned conduct, if it in fact occurred, played no part in Respondent's decision to discharge Huddleston or Arnold RAIL SALES SOOPERS 243 C. The Refusal- to-Bargain Allegations Where the General Counsel seeks to impose a bargaining obligation upon an employer because a majority of the employees in an appropriate unit have signed cards authorizing the Union to represent them in their employment relations, the General Counsel has the burden of proving not only the majority status of the Union, but that the employer refused the Union's bargaining demand in bad faith John P Serpa, Inc , 155 NLRB 99, 100; Aaron Brothers of California, 158 NLRB 1077, 1078-79 The criteria by which the General Counsel's contentions are to be judged in such cases, were stated by the Board in Hammond & Irving, Incorporated, 154 NLRB 1071 In that case the Board held that when the Union's claim of majority status is based on cards, an employer may reject the Union's demand for recognition and. . may insist upon a Board election as proof of [the] Union's majority if it has a reasonable basis for a bona fide doubt as to the Union's representative status in an appropriate unit. If, however, the employer has no such good faith doubt, but refuses to bargain with the majority representative of its employees because it rejects the collective-bargaining principle or desires to gain time within which to undermine the Union and dissipate its majority, such conduct constitutes a violation of Section 8(a)(5) of the Act. In determining whether the employer's action was taken to achieve either of said invalid purposes, the Board considers all the surrounding circumstances as well as direct evidence of motivation Absent such direct evidence, where extensive violations of the Act accompany the refusal to grant recognition, they evidence the employer's unlawful motive and an inference of bad faith is justified. [154 NLRB at 1073] Applying the foregoing principles to the facts of the instant case, there are a number of factors which lead me to the conclusion that the General Counsel has established by a preponderence of the evidence that Respondent rejected the Union's demand for recognition not because it had a good faith doubt of the Union's majority status, but rather because it rejected the principles of collective bargaining.36 Irvin N Rothkin, d/b/a Irv's Market, 175 NLRB No 121. The factors which, in my judgment dictate that conclusion, are- 1. On October 8, at the very inception of the Union's campaign Huddleston is told that discussion of the Union was "the best way" to lose his job, and 2 days later Arnold is told that it is company policy to discharge employees who join the Union. 2. On October 17, Huddleston is interrogated as to whether he signed a union card, and he admits that he did. On October 23, Huddleston is discriminatorily discharged. 3 On November 8, roughly a month after the Union began its campaign, Arnold, the only other employee shown by the records to have admitted to Caplan that he "indeed counsel for Respondent so concedes In his brief (pp 24-25), counsel refers to the conflict in the testimony of Union Agents Spangler and Miller on the one hand , and Company Representatives Weiner and Gilgus on the other, as to whether or not the card check established the Union's majority, and in discussing whether the subsequent refusal to bargain, under the circumstances , established Respondent's bad faith, counsel stated, "If the testimony of Miller and Spangler is believed up to this point , General Counsel has more than proved his case ." As above stated, I have resolved the conflict in the testimony to which counsel refers, by crediting Spangler and Miller signed a union card, is likewise discriminatorily discharged. 4. At the October 24, meeting after examining and checking against his records, all the cards signed by employees, Respondent's top officials not only raised no questions as these designations, but conceded the Union's majority status. Not until a week later, apparently after consulting labor counsel, did Weiner for the first time express doubt that the Union represented an uncoerced majority," but admitted that he had no evidence indicating that the Union's majority might in fact be coerced. Accordingly, I find and conclude that since October 24, Respondent, in violation of Section 8(a)(5) and (1) of the Act, refused to bargain with the Union as the duly designated majority representative of its employees in an appropriate unit. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section I, B, 1, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By discharging Huddleston on October 23, because of his activity for and assistance to the Union, and by discharging Arnold on November 8, because of his concerted activity and assistance to the Union, Respondent discriminated against Huddleston and Arnold in regard to their hire or tenure of employment, discouraging membership in the Union, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. All regular full-time and regular part-time employees employed by Respondent at its three stores in the Kansas City, Missouri, and Kansas City, Kansas, area, excluding store managers, store co-managers, meat department employees, professional employees, guards 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 6. At all times since October 14, the Union has been the duly designated collective bargaining representative of the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act 7. By failing and refusing on October 24, and at all times thereafter, to recognize and bargain with the Union as the collective bargaining representative of the employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2(6) and (7) of the Act "These are obviously words of art which Weiner would not have used except after consultation with someone versed in the field of labor relations 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and in view of the nature and extent of these and other unfair labor practices herein found, which go to the very heart of the Act, it will be recommended that Respondent be required to cease and desist from in any manner infringing upon the exercise of such employee rights. N L R B v Entwistle Mfg Co, 120 F.2d 532 (C.A 4), California Lingerie, Inc , 129 NLRB 912, 915 Having found that Respondent discriminatorily discharged Huddleston and Arnold, it will be recommended that it make each of them whole for any loss of earnings suffered by reason thereof, by paying to each a sum of money equal to the amount they respectively would have earned from the date of the discrimination to the date of reinstatement which occurred on or about February I, 1969, less his net earnings during said period Such backpay, with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716 It will also be recommended that Respondent be required to preserve and upon request make available to authorized agents of the Board, all records necessary or useful in computing the amount of backpay due the aforesaid employees. Having additionally found that on October 24, and at all times thereafter, Respondent unlawfully failed and refused to recognize and bargain with the Union as the collective bargaining representative of its employees in an appropriate unit, I shall recommend that it be required to do so upon request, and if an understanding is reached embody the same into a signed agreement RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusion of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board order Zolan Sales of Kansas, Inc , and Zolan Sales, Inc , an integrated enterprise doing business as Rail Sales Soopers, its officers, agents, successors and assigns, to 1. Cease and desist from (a) Telling employees that the best way to lose their jobs is to discuss the Union. (b) Telling employees that they join a union at their own risk. (c) Telling employees that those who join a union would be discharged. (d) Interrogating employees as to whether they had signed a union card. (e) Telling employees that its supervisors or agents had seen the affidavits which employees had furnished Board agents, and that the Union was just using them. (f) Discouraging membership in Retail Store Employees Union, Local 782, affiliated with Retail Clerks International Association, AFL-CIO, or any other labor organization of its employees, by discharging, or in any other manner discriminating against any employee in regard to his hire, tenure, or any other term or condition of employment. (g) Failing or refusing to bargain collectively with the aforesaid Union, as the exclusive collective- bargaining representative of its employees in a unit composed of all regular full-time and regular part-time employees employed at its 3 stores in Kansas City, Missouri, and Kansas City, Kansas, excluding store managers, comanagers, meat department employees, professional employees, guards and supervisors as defined in the National Labor Relations Act (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 2. Take the following affirmative action found necessary and designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Retail Store Employees Union, Local 782, affiliated with Retail Clerks International Association, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the aforesaid unit 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 into a signed contract (b) Make whole David Huddleston and Carroll Arnold, Jr , for the loss of earnings suffered by reason of the discrimination against them in the manner set forth in the section hereof entitled "The Remedy." (c) Preserve and, upon request, make available to authorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay due, as herein provided (d) Post at each of its stores in Kansas City, Missouri, and Kansas City, Kansas, copies of the attached notice marked "Appendix B."28 Copies of said notice on forms furnished by the Regional Director for Region 17 of the Board (Kansas City, Missouri), shall after being duly signed by an authorized representative 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 its employees are customarily posted, and all reasonable steps necessary to insure that said notices are not altered, defaced, or covered by any other material, shall be taken. (e) Notify the aforesaid Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith 29 "In the event this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "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 this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the aforesaid Regional Director, in writing, within 10 days from receipt of this Order , what steps it has taken to comply herewith " RAIL SALES SOOPERS APPENDIX A Unit employees on October 16 payroll and in case of card signers, the date of such signing NAME Date of Card Store No. I (if one signed) *Larry Adkins Oct. 8 Helen Anthony' Oct. 10 *Charles Brown Oct. 9 *Larry Combs Oct; 11 *Randy Dickenson Oct 9 *Tom Freisner Oct. 8 *Bernadean Neal Oct. 9 *James Roark Oct. 9 *Wihelmina Robinson Oct. 9 *BerleeStaton2 Oct; 23 William Wilcox Oct. 9 Orthell Wilson Store No. 2 *Ella Douglas Danny Griffith Oct. 9 *Ernest Hadl Oct. 10 *Charles Holmes Oct. 10 Gary Morman *Owen Meeks Oct. 10 *Frank Ruis Oct; 9 *MarySanchez Oct 10 Gary Stein Lincoln Young Store No. 3 Jim Anderson Pat Anderson *Carroll Arnold *Richard Billings Billie Byrns Oct 8 *San Ensly Oct. I 1 Eugene Hall *Rich Henry Oct. 9 Ruth Hicklin *Dave Huddleston3 Oct. 14 Dick Kendrick Oct. 9 Total employees 33 Total card signers 204 'Helen Anthony's timecards in evidence show that she initially went to work on September 30, and worked through October 15, at which time she was terminated As she was on the payroll and at work on October 14, I include her as an employee and count her card, as of October 14 'Although Berlee Staton signed a union card , she did not do so until October 23, hence I have not counted her card toward the union majority as of October 14 'Huddleston signed a card on October 14, and delivered some to Union 245 Agent Spangler about 4 p.m of that day As the Union did not have this card when it made its recognition demand , I do not count it toward the Union's majority on October 14. 'In addition to the 20 cards shown in the above schedule there was introduced in evidence a card signed by Jessie Trammel on October 9. However, her name does not appear on any of the payrolls in evidence, and the absence is unexplained Accordingly, I have disregarded her card In addition to Berlee Staton , mentioned above, and who signed a card on October 23, Joe Williams also signed a card on October 23 These two cards, the card signed by Huddleston on October 14, and the card of Jessie Trammel, which I have disregarded , plus the 20 cards signed prior to October 14, makes up the 24 cards which Union Agents Spangler and Miller, testified were given Weiner on October 24. 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: After a formal trial before a Trial Examiner of the National Labor Relations Board at which all sides had the chance to present evidence, it has been found that we violated the law and we have been ordered to post this notice to inform our employees of their rights. WE WILL NOT tell our'employees that the best way to lose their fobs is to discuss a union. WE WILL NOT tell our employees that they join a union at their own risk. WE WILL NOT tell our employees that those who join a union will be discharged. WE WILL NOT question our employees as to whether they have signed a union card. WE WILL NOT tell our employees that our supervisor or agents have seen the affidavits which our employees may furnish to agents of the Board, and that the Union was just using the employees. As it has been found that we violated the law when we fired David Huddleston and Carroll Arnold, Jr., each of whom has now been reinstated to their former jobs, WE WILL make up the pay each of them lost, together with 6-percent interest. WE WILL, upon request, bargain collectively with Retail Store Employees Union Local 782, as the exclusive collective-bargaining representative of our employees in a unit composed of all regular full-time and regular part-time employed at its three stores in Kansas City, Missouri, and Kansas City, Kansas, excluding store managers, store comanagers, meat department employees, professional employees, guards and supervisors as defined in the National Labor Relations Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding isNeached we will embody the same into a signed contract. The law gives all our employees these rights: To organize themselves To form, join, or help unions To bargai i as al group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE assure you WE WILL NOT do anything to interfere with you in the exercise of these rights. Every employee is free to become or remain a member of 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Store Employees Union Local 782, or any other This notice must remain posted for 60 consecutive days union, or not to become or remain a member of any from the date of posting and must not be altered, defaced, union . or covered by any other material. ZOLON SALES OF KANSAS, INC., AND ZOLON SALES, INC., D/B/A RAIL SALES If employees have any question concerning this notice SOOPERS or compliance with its provisions they may communicate (Employer) directly with the Board' s Regional Office, 610 Federal Dated By Building, 601 East Twelfth Street, Kansas City, Missouri (Representative) (Title) 64106, Telephone 816-374-5282.