Super Valu Stores, Inc.

SUPER VALU STORES, INC. Super Valu Stores, Inc. and K's Super Valu of Peoria, Inc. and Retail Clerks Union Local 563, Retail Clerks International Association, AFL-CIO and The United Retail Workers Union , Party to Contract. Case 38-CA-563 June 30, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On April 30, 1969, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Respondents, and the Charging Party filed exceptions to the Decision and supporting briefs, and the Respondents filed an answering 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner with the following modifications: The Trial Examiner found that Respondent Super Valu did not violate Section 8(a)(2) of the Act by recognizing the United Retail Workers Union as the collective-bargaining representative of Respondent's Lake Street store employees, for the reason that, in the Trial Examiner's view, these employees were an accretion to existing contract unit. In light of this conclusion, the Trial Examiner further found that Respondent did not act unlawfully by applying its contract with the URW to these employees; by informing the employees that they had to join the URW, as a condition of employment, within 30 days; and by directing employees to talk to a URW representative on company time in a company furnished office. As we find that the Lake, Street store employees were not an accretion to the pre-existing unit, we conclude that Respondent, by its actions noted above, violated Section 8(a)(2) and (1) of the Act. 'In adopting the Trial Examiner's conclusion that employee Simpson was discharged for engaging in union activities, we do not rely upon the finding that Simpson , at the time of his discharge , had failed to sign an application for membership in the URW. 899 Respondent Super Valu has for some years owned and operated several grocery stores in the Peoria, Illinois, area. It purchased its first store in this locality in 1963 and the employees there were represented by the Retail Clerks prior to the purchase and continued to be represented by the Clerks after the store was taken over by Super Valu. In 1964, Respondent purchased five new stores and the employees in these stores, both before and after the sale, were represented by the URW in a single unit. By the fall of 1966, when the current contract between Super Valu and the URW was executed,' the store whose employees had been represented by the Retail Clerks and one of the URW-represented stores had closed. A fifth store was opened in late 1966 and the employees hired to staff that store were brought under the contract by agreement of the parties. The Lake Street store was purchased by Super Valu from Respondent K's early in October 1968. One month prior to the purchase an election had been held among the employees in this store which resulted in 13 votes being cast for the Retail Clerks, 2 votes for the URW, and 18 votes for "no union." The Board thereafter issued a Certification of Results of Election. Each of the Super Valu stores has a store manager who is responsible for the day-to-day operation of the store. This store manager is under the supervision of a district manager whose jurisdiction includes the six stores discussed above and a seventh store located in Kankakee, Illinois. Hiring is done locally, and while the store manager must obtain the approval of the district manager before hiring or firing, the store manager's recommendations in this regard are normally accepted. The store manager represents Super Valu in the adjustment of grievances at the first step in the grievance procedure, and sets the work and vacation schedules for his store. He has the authority to grant overtime and time-off. The store manager orders merchandise from the Super Valu warehouse and from suppliers approved by the district manager, and determines the level of inventory required. The prices at which merchandise is sold are fixed by the district manager who is also responsible for the advertising of the stores. Each store has its own profit and loss statement and its own bank account and is individually evaluated by Super Valu. Paychecks emanate from the Minneapolis headquarters and personnel and accounting records are kept there. During 1968, there were 27 permanent transfers of employees from one store to another within the five stores covered by the contract. Most of these transfers involved promotions. The record does not 'The contract does not cover meat department employees. These employees are represented by another union which has a contract with Super Valu covering the other stores and which had an identical contract with Super Valu's predecessor covering the meat department employees at the Lake Street store Super Valu assumed this latter contract after purchasing the Lake Street store. 177 NLRB No. 63 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reveal that any temporary transfers were effected during that period. In the four months between Super Valu's acquisition of the Lake Street store and the date of the hearing, one supervisor and one rank-and-file employee have been transferred from that store. Both transfers occurred after charges had been filed in the instant case. In view of the local autonomy of the Lake Street store and the considerable authority exercised by the store manager, particularly with respect to labor relations matters and employment conditions, and the infrequent interchange with employees at other stores, we conclude that the Lake Street store is a separate, economic unit and not an accretion to the existing contract unit.' Accordingly, we find that Respondent Super Valu by recognizing the United Retail Workers Union as the exclusive bargaining representative of the Lake Street store employees at a time when that union did not represent a majority of those employees, violated Section 8(a)(2) of the Act. Super Valu further violated the Act by extending the union-security clause and other provisions of its contract with the URW to the Lake Street store employees, by informing employees that they had to join the URW, within 30 days as a condition of employment, and by directing employees to talk to the URW on company time in a company furnished office. We shall order that Super Valu withdraw and withhold recognition from URW as the collective-bargaining representative of the Lake Street store employees and that Super Valu cease giving effect to its contract with URW as applied to the Lake Street store employees. However, nothing in our order shall require Super Valu to vary or abandon any wage, hours, or other substantive features of its relations with the Lake Street store employees established in the performance of its contract with URW. Since Respondent Super Valu engaged in coercive conduct to force the Lake Street store employees to join URW, we shall order that Super Valu reimburse those employees, past and present, for all dues and other monies illegally exacted from them by or on behalf of URW pursuant to the contract. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondents, Super Valu Stores, Inc., Peoria, Illinois, and K's Super Valu of Peoria, Inc., Peoria, Illinois, their officers, agents, successors and assigns shall take the action set forth in the Trial Examiner's Recommended Order as so modified: See Warehouse Markers, Inc. 174 NLRB No 70 1. Reletter paragraphs B, 1, (a), (b), and (c), as paragraphs B, 1, (e), (f), and (g) and add the following as new paragraphs B, 1, (a), (b), (c), and (d): "(a) Recognizing URW as the exclusive bargaining representative of Super Valu's Lake Street store employees unless and until the National Labor Relations Board shall certify URW as such representative. "(b) Maintaining or giving any force or effect to its contract with URW with respect to the Lake Street store employees; provided, however, that nothing in this Order shall require Super Valu to vary or abandon any wage, or other substantive feature of its relations with its Lake Street store employees which have been established in the performance of the said contract. "(c) Encouraging membership in URW, or in any other labor organization, by conditioning the hire or tenure of employment or any term or condition of employment of its Lake Street store employees upon membership in, or dues payments to, any such labor organization , except as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. "(d) In any other manner unlawfully assisting URW or any other labor organization in obtaining employee membership therein." 2. Reletter paragraph B, 2, (a) as paragraph B, 2, (c), and paragraphs B, 2, (b) and (c) as paragraphs B, 2, (e) and (f), and add the following as new paragraphs B, 2, (a), (b), and (d). "(a) Withdraw and withhold all recognition from the URW as the exclusive bargaining representative of its Lake Street store employees unless and until URW has been duly certified as such representative by the National Labor Relations Board. "(b) Reimburse all of its former and present Lake Street store employees for dues and other moneys unlawfully exacted under its contract with URW, together with interest at the rate of 6 percent per annum, computed in the manner set forth in Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142. "(d) 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 or useful in checking compliance with this Order." 3. Insert the following as the first four indented paragraphs of the Appendix: WE WILL NOT recognize URW as the exclusive representative of our Lake Street store employees unless and until it has been certified as such representative by the National Labor Relations Board. WE WILL NOT apply our contract with the URW to our Lake Street store employees. However , we are not required to change or abandon any wages or other terms or conditions of employment which we have given to our Lake Street store employees under said contract. WE WILL NOT unlawfully assist URW or any other union. SUPER VALU STORES, INC. 901 WE WILL reimburse our Lake Street store employees, former and present, for dues and other moneys unlawfully exacted under our contract with the URW. TRIAL EXAMINER ' S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This case, heard in Peoria, Illinois , March 4 and 5, 1969, pursuant to a charge filed October 23, 1968,' and a complaint issued December 19, presents primarily the question whether the employees in a grocery supermarket which Respondent Super Valu Stores, Inc. ("Super Valu"), purchased from Respondent K's Super Valu of Peoria, Inc. ("K's"), constituted an "accretion" to a bargaining unit composed of Super Valu's five other stores in the Peoria area. Other questions presented concern allegations of discrimination by Super Valu, and allegations of interference with Section 7 rights by both Respondents. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel, Respondents, and the Party to the Contract, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS AND THE LABOR ORGANIZATIONS INVOLVED K's, an Illinois corporation engaged at Peoria in the operation of retail grocery stores, annually sells and distributes products valued in excess of $500 ,000, and annually receives directly from outside the State goods and materials valued in excess of $50,000. Super Valu, a Delaware corporation with headquarters at Minneapolis, Minnesota, operates retail grocery stores in various locations, including a group of stores in Peoria. The annual value of the products it sells and distributes exceeds $500,000, and it annually receives in Peoria, directly from outside the State, goods and materials valued in excess of $50 ,000. Each of the Respondents is therefore an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, herein called Retail Clerks, and the Party to the Contract, herein called URW, are labor organizations within the meaning of Section 2 (5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Outline of Events For some years prior to the events here in question Super Valu had owned and operated several grocery stores in Peoria and its immediate vicinity . Some other stores in the area such as, for example, one of the stores owned by K's, situated at the corner of Lake and Knoxville Streets, were not owned by Super Valu , but were permitted to use its name, purchased goods from its warehouse , and were joined with it in common advertising . There was no corporate relationship between Super Valu and these "franchise stores" such as K's, and their labor relations were entirely separate . Super Valu had a contract with URW, which was the certified representative of the employers in the unit consisting of the Super Valu stores. The franchise stores, such as K's, were independent of this All dates herein refer to the year 1968 unless otherwise indicated bargaining unit , and, so far as appears, each such store was a separate unit. In the summer of 1968 the Retail Clerks filed a petition for certification claiming to represent K's employees at its Lake and Knoxville store . The URW intervened in the proceeding. In the election held September 6, Retail Clerks received 13 votes, URW 2 votes, and "no union" 18 votes. Some of the issues in the instant case concern allegations of unlawful conduct in the period surrounding the election. Early in October K's sold the store in question to Super Valu. The sale involved no "break " in the continuous operation of the store, or in the employment of rank-and-file or supervisory employees. Super Valu was therefore a successor to K's at that store. One was not, however, the "alter ego" of the other. The two corporations are separate and distinct, with only a normal "business" relationship, not a "family" relationship. After acquiring the new store , Super Valu proceeded to make immediately applicable at that store the contract which it had with URW covering the other Super Valu stores in the area. This conduct is alleged to violate Section 8(a)(1) and (2) of the Act. Finally, Super Valu after it acquired the store allegedly discriminated against three employees because of their support of the Retail Clerks and unlawfully interrogated employees concerning their union membership, activities, and desires . We shall discuss the alleged violations in chronological order. B. Interference, Restraint, and Coercion Relating to the Election Several employees testified to conversations with Store Manager Joe Gray before and shortly after the election in which he made statements alleged to violate the Act. Gray remained as store manager for a few weeks after Super Valu purchased the store, and then was transferred to another Super Valu store in the area. General Counsel adduced testimony that prior to the election Gray ( 1) told employee Kizziah that, "if the union came in," the employees would have to work harder, would have shorter break periods, "and there would be no more messing around"; (2) told employee Johnson that Gray knew how everyone was going to vote in the election; (3) told employees Wisner and Stuckwisch that "if the union got in the doors would have to be closed because Mr. K could not afford to pay union wages"; and (4) told Wisner that "Mr. K had been going to give us all a raise until this union thing came up, and now he was going to have to wait until it was over to see how it came out." General Counsel also adduced testimony that in the days immediately following the election Gray on separate occasions (1) told employees Leach and Wisner that he and Mr . K (the then owner) had "figured out" how every employee had voted in the election ; (2) told employees Brownell and Rubenich, separately , that he knew how the employee to whom he was speaking had voted ; (3) told employee Sarah Hendricks that he and the owner knew that Hendricks had urged certain employees "to join the union," and, when Hendricks denied the charge, said "we know better;" and (4) told employee Betty Rubenich that he knew how employee Knott had voted "and that woman was going to go." Gray admitted telling Leach that he knew how she had voted, but indicated that in her case this was common knowledge . He did not remember discussing the subject with other employees. He also testified that he did not threaten that the store would be closed or that the 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees would suffer if "the union" came in, but that he did state that the employees could get a raise only if the store made more money, which in turn depended on their working harder. The then owner of the store, Wilbur Korsmeyer, testified that in mid-August when he received notice that an election would be held, he told his supervisors, including Gray, not to discuss the election with any of the employees. I credit the testimony of Kizziah, Johnson, Wisner, Stuckwisch, Leach, Brownell , and Hendricks, summarized above, which establishes that K's, acting through Gray, committed numerous infringements of employee rights, particularly by threats of reprisal if the store became organized and by creating the impression of surveillance. The complaint also alleges that K's violated the Act by paying election observers for URW for time devoted to the election while declining to pay observers for the Retail Clerks for similar time. Although employee Karen Brownell, a URW observer at the election, testified that she was paid for the time, I am satisfied from the testimony of Wilbur Korsmeyer and from the timecard and earnings record relating to Brownell that she was in error in this respect. I therefore would dismiss this allegation. C. Recognition of the UR W At the time Super Valu acquired the store in question, URW and Super Valu had a 3-year contract, effective September 25, 1966, which by its terms applied to the employees (with specified exclusions) in the stores in Peoria and Pekin.' Immediately prior to the acquisition, Super Valu operated five stores under that contract, three in Peoria and two in Pekin . Included in the contract was a clause requiring employees covered thereby to become members of the URW "on or after the 31st day following the beginning of such employment." Super Valu, even before the purchase was completed, and at all times thereafter, has taken the position that its contract with the URW became applicable to the employees at the store in question as soon as Super Valu acquired it. Little purpose would be served in detailing the various manifestations of this position, including a prepurchase meeting at which a supervisor told the employees they would be covered by the contract, and later "encouragement" of membership by directing employees during working hours to go to the store office to see URW representatives who were there for the purpose of obtaining applications for union membership as required by the contract . Counsel for both sides conceded that the legality or illegality of Super Valu's conduct turned on whether by operation of law the contract became applicable to the employees in the store, or, to use the term of art, whether it was an "accretion" to the preexisting unit. As Judge Prettyman recently stated, "to define and draw a line as a factual matter between an `accretion' and a `separate economic unit' is often a task of delicacy depending upon many factors." Local 919, Retail Clerks International Association [Super Markets General Corp.] v. N.L.R.B., 416 F.2d 1118 (C.A.D.C.). Recent Board decisions attest the "delicacy" of the task. Note the opposite results in successive cases, Shop 'n Save Co., Inc., 174 NLRB No. 156, and Mott's Shop-Rite of Meriden, Inc., 174 NLRB No. 157; and see also the 'The current Rand McNally atlas shows that Peoria, a city of 127,000, is 10 miles from Pekin, a city of 30,000 closely divided decision in Warehouse Markets, Inc., 174 NLRB No. 70. As the decision in each case turns on the ultimate assessment by the final reviewing authority of all the factors in the case, I believe I can best discharge my function as the original arbiter by listing all the factors that appear to me to be relevant, and by drawing my own conclusion therefrom. The underlying facts are not in dispute. In 1963 Super Valu purchased a Peoria store from K's known as the Second Street store. At this time Super Valu had no other stores in the area. The employees at the Second Street store, both before and after its acquisition by Super Valu, were represented by the Retail Clerks. This store, however, closed in 1966. Meanwhile, in 1964, Super Valu acquired five stores in the area from another company, and the employees in these stores were represented by URW, which had a single contract covering these stores. At the time Super Valu executed its current contract (September 1966 through September 1969) with URW, the contract covered four stores, as not only the Second Street store but one of the other group had closed. A fifth store, located in Pekin, was opened later in 1966, and the employees hired for that store were brought under the contract under the principle of accretion, apparently without contest. The instant case involves a sixth store, located in Peoria, and differing from the previous acquisition in that this was a going concern rather than a new facility. Each of the stores has a store manager who is responsible for the day-by-day operation of his store, but who is subject to supervision by the district manager whose territory embraces these six stores plus a seventh in Kankakee, Illinois. The store managers hire and fire subject to the approval of the district manager which is ordinarily forthcoming. The store managers order merchandise from the Super Valu warehouse or, in the case of a few commodities, from suppliers approved by the district manager. Similarly store managers may call only certain approved establishments if repair services are required . The store manager represents Super Valu in the adjustment of grievances at the first step in the grievance procedure, and sets the work and vacation schedules for his store. Each store has its own profit and loss statement and its own bank account. Funds are banked in Peoria but are transferred weekly to the Super Valu's Minneapolis headquarters. Paychecks emanate from Minneapolis, and personnel and accounting records are maintained there. The prices at which the stores sell merchandise are fixed by the district manager, who is also responsible for the advertising of the stores. The supplying of uniforms and aprons is also handled by the district manager. During 1968, there were 27 transfers of employees from one store to another within the five stores covered by the contract. In the 4 months between Super Valu's acquisition of K's Lake and Knoxville store and the date of the hearing, one rank-and-file employee and one supervisor had been transferred from that store to other stores in the area. The contract between URW and Super Valu did not cover meat department employees. Those employees were represented by another labor organization which had a contract with Super Valu covering the other five stores, and which had had an identical contract with K's covering the store in question. According to the testimony of Kenneth Martinsen , the manager of labor relations for the entire Super Valu chain, Super Valu took over the meat department labor contract at the Lake and Knoxville store as a "successor employer ," whereas when it opened the SUPER VALU STORES, INC. 903 fifth store some years before it had added the meat department employees in that store to the preexisting four-store unit by "accretion." Pressed as to why he regarded the two matters differently, Martinsen explained that in the earlier instance , unlike that involved in acquiring the Lake and Knoxville store, there had been no preexisting contract. The normal considerations favoring and opposing "accretion" are present in this case. The principle of self-determination suggests that the employees in this store who recently rejected the URW by an overwhelming vote should not be brought against their will under the aegis of that union. On the other hand, if the employees of any one of the other stores in the chain are equally opposed to the URW, they are nevertheless bound to it under principles of majority rule. Cf. the majority and dissenting opinions in Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146. Considerations of stability seem to favor accretion, for the newly acquired store will apparently be operated in a fashion indistinguishable from that of the other five stores already in a single unit, and employee transfers from store to store appear to be sufficiently frequent (the 27 transfers in 1968 actually mean 54 changes, as each transfer is out of one store and into another) as to raise significant problems of seniority and of transfer from one union to another or to no union if the new store is not added to the unit . But this consideration is not unique on this record , and may reflect nothing more than reexamination of principles which were already the subject of reexamination (and of differing views) in Sav-On Drugs, Inc., 138 NLRB 1032. Possibly a difference of approach is indicated if the issue is whether a petitioning union may be granted a single store unit rather than whether an existing multistore unit should be expanded by accretion. In Warehouse Markets, Inc., 174 NLRB No. 70, the Board adopted a decision of Regional Director Meter in which he noted that "the factors considered in determining these two questions are very similar." In that case the Board, by a divided vote, found "no accretion" on facts closely analogous to those in this case, but not identical . In that case the store in question was owned by a separate corporation , a circumstance absent here . Also in that case in the 9 months between the opening of the new store and the date of the Regional Director's decision there had been only two or three occasions in which employees from that store had been interchanged with employees of other stores in the chain. I see little purpose to be served in prolonging this discussion . I lean to the view that in the long run it is sounder policy to view the instant case as one of accretion, and hence find no violation in Super Valu's applying its URW contract to the employees at this store. See in addition to the cases cited above Weis Markets. Inc., 142 NLRB 708, 710; Meyer Supermarkets, Inc., 142 NLRB 513; The Pep Boys, 172 NLRB No. 23.' 'I find the Board's decisions in Purity Food Stores, Inc.. 160 NLRB 651, Frisch's Big Boy Ill-Mar, Inc., 147 NLRB 551, and Davis Cafeteria. Inc, 160 NLRB 1141, distinguishable on their facts . Mindful of the Board's strictures (Insurance Agents' International Union (Prudential Ins. Co ), 119 NLRB 768, 773, Iowa Beef Packers, Inc. 144 NLRB 615, 616), I am, of course, not influenced by the fact that the orders in those cases were denied enforcement (376 F.2d 497 (C.A. 1), 356 F.2d 895 (C.A. 7), 396 F.2d 18 (C.A. 5)), or by the fact that the Board 's petition for certiorari in the Purity case was denied, 389 U.S. 959 Even more distinguishable on its basic facts, of course, is Appleton Electric Co., 120 NLRB 451, 127 NLRB 1509, 129 NLRB 1347, although certain of the considerations which moved the Seventh Circuit to set that order aside (296 F.2d 202, 206-207) might appear applicable. D. The Resurgence of the Retail Clerks and Alleged Violations Relating Thereto After Super Valu started operating the store in question, a number of employees there signed cards indicating a desire to be represented by the Retail Clerks. The complaint alleges four violations in this regard: the discharges of employees Karen Brownell and John Simpson, allegedly for activity on behalf of the Retail Clerks, a reduction in the work hours of employee Mary Knott for the same reason, and alleged unlawful interrogation by Mel Williams, the manager of the bakery department. According to the testimony of several employees, Williams showed an inordinate interest in ascertaining who was distributing cards on behalf of the Retail Clerks. Employee Kizziah testified that on October 29 Williams asked her "who was the checker who gave [Kizziah her] card for the other union." According to Kizziah, she either did not reply or replied that she did not know, and Williams then asked another employee, Mary Knott, if she knew "who the checker was that was handing out the cards," to which Knott replied in the negative. Employee Johnson testified that on October 31 she heard Williams ask the night baker if the latter knew who "was passing out that other union's cards," and heard the reply that it was one of the checkers. (In point of fact, the checker in question, Mary Robb Leach, was subsequently transferred, involuntarily, to another store, but the complaint alleges no violation with respect thereto, although a charge was filed naming Leach as a discriminatee.) Williams recalled asking the night baker for what union the cards were being circulated, but denied asking the identity of the person involved. Williams also denied ever asking anyone else about the circulation of the cards for the Retail Clerks, stating that his inquiry of the night baker was "the one and only occasion that I ever expressed any interest [in that topic] whatsoever." I credit the disinterested testimony of Kizziah and Johnson over that of Williams in this regard, and find that, by Williams' repeated inquiries of employees as to the identity of the employee distributing cards on behalf of the Retail Clerks, Super Valu violated Section 8(a)(1) of the Act. Turning to the alleged discriminations, Knott's case must be dismissed for failure of proof. She was unable to testify because of injuries, and, while the record establishes her support of the Retail Clerks and a sharp reduction in her hours of work at a time coinciding with the resurgence of that union 's organizing activity, it also establishes that she was the newest employee in the bakery department. Williams testified that there was a need to economize on labor in that department, and Knott's reduction in hours lasted for only 2 days, when absences followed by a resignation in the department led to her being called back to full-time work. The complaint as to her must therefore be dismissed. Indeed, General Counsel in his brief apparently abandons the Knott matter. Although a closer question is presented as to whether the discharge of Karen Brownell was for union activity, I find that in her case also the General Counsel failed to sustain his burden of proof. Brownell signed a Retail Clerks card on October 24, the same day on which the original unfair labor practice charge was served on Super Valu, and she was discharged October 26. However, according to employee Johnson, a witness for General Counsel, it was on October 23 that District Manager Dale Thorpe told her that he was "going to have to let someone 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD go" from the bakery, and that Karen Brownell was "not worth her salt." (Brownell had also signed a card for the Retail Clerks the preceding May, but had acted as an observer for the URW in the September election.) According to Brownell, when Bakery Manager Williams laid her off on October 26 he gave her no reason except that he had orders to do so. About 1 week later she went to see District Manager Thorpe, who said she had received too many personal telephone calls and did not do her work. The following Tuesday, October 29, Thorpe offered to put her back to work, but she declined as she had obtained another job. Williams denied telling Brownell that he had orders to let her go. According to Williams, he and Thorpe had reached a decision some days before to reduce the employee complement in the bakery department, and they considered Brownell the least competent. One difficulty in the case is that Williams followed store seniority in selecting Knott for reduction of hours, but ignored it in selecting Brownell for discharge, and adhered to the latter decision even after a junior employee, Kizziah, offered to quit so that Brownell could remain. Also, according to Kizziah, Williams spoke to her on three different occasions concerning Brownell's layoff, first telling her that he was going to lay Knott and Brownell off until business picked up, later saying he "had orders" to let Brownell go, and finally - several days after the layoff - attributing it to excessive use of the telephone. Williams' testimony that he decided Brownell was too slow and that he selected her for discharge for that reason is not altogether convincing, but the burden of proof is on General Counsel, and on this record I lean to the view that he has established only suspicious circumstances. Brownell was not particularly noted for her support of the Retail Clerks, and there is some evidence that the decision to discharge her predated her signing a card. She had spoken in support of the Retail Clerks in recent informal discussions with employees, but apparently not more so than others not discharged or laid off. Also, the record establishes that Super Valu has effected a substantial reduction in the number of employees in the bakery department at this store. On balance, I would dismiss Brownell's case as not proved. I reach a contrary conclusion with respect to the discharge on October 26, 1968, of John Simpson, a sack boy. Simpson late in October obtained Retail Clerks cards from Mary Leach, and spoke to several of his fellow employees in an effort to persuade them to sign the cards. He was discharged at the end of the week in which he engaged in this activity. At the end of November, after the filing of an unfair labor practice alleging discrimination against Simpson, Thorpe, the local district manager, offered Simpson his job back, stating (according to Simpson) that "the Minneapolis office put a little pressure on," but Simpson declined the offer. Thorpe testified that he did not use the -word "pressure," but recalled telling Simpson that Thorpe had received a call from Minneapolis. According to Thorpe, the Minneapolis office had noted that Simpson's name was off the payroll but it had received no separation notice regarding him. Left unexplained by Thorpe's version is why this circumstance should have led to an offer to reinstate Simpson. But all this, of course, is after the event, and sheds little, if any, light on the question whether Simpson was discharged for cause or for union activity. According to Thorpe, Simpson was discharged because he was unable to work Thursday nights, because he was "very slow in returning from carryouts," and because his work "was inadequate as far as putting frozen food up." Thorpe testified that in the 2 weeks which elapsed between Super Valu's acquisition of the store and the discharge, he had observed Simpson on one occasion standing idle for I or 2 minutes with merchandise in front of him which he should have been loading. This occurred over a week before Simpson's discharge. Thorpe further testified that when Store Manager Gray asked that Simpson be let go because he could not work Thursday nights, Thorpe agreed because "with my observation of this man, our organization would be better off without his services." The testimony of both Thorpe and Simpson establishes that a few days after Simpson's discharge (which occurred on October 26, 1968) he saw Thorpe at the store and asked why he had been discharged. Thorpe testified that he gave Simpson the reasons outlined above; Simpson testified that Thorpe disclaimed the Thursday matter as "not the real reason." Both witnesses agreed that Simpson said he should have been warned if his work was at fault. According to Simpson, Thorpe simply responded that this was the manager's job. Thorpe testified that he told Simpson to return the next Friday at 5 p.m. and that Thorpe would "see what I can do about putting you back to work." Simpson "did not remember" any such suggestion by Thorpe and did not appear on the Friday evening in question, but obtained other employment late in November. Store Manager Gray testified that Simpson would be "sitting down in the bottle area lots of times" when he was supposed to be stacking bottles, and that he also said he could not work Thursday nights. Simpson himself testified that he never refused to work Thursday nights but had expressed a preference not to work those hours because of his school schedule. Originally Simpson, like the other sack boys, worked only three nights a week, but on one occasion he took on a fourth night (Thursdays), substituting for another employee who "had some conflictions," and thereafter he was regularly scheduled for four nights. After Simpson explained his problem to Store Manager Gray, the latter posted a schedule which did not include Thursday work for Simpson, but shortly thereafter Simpson was discharged. The various grounds urged by Super Valu to explain the discharge of Simpson do not withstand scrutiny. The suggestion that he was slow returning from carryouts apparently has been abandoned. No evidence was adduced in support of Thorpe's assertion to that effect, and several checkers testified that they had no complaint to make against Simpson. Thorpe's single observation of him as being idle for a minute or two scarcely seems to call for the supreme penalty, especially as I have some difficulty in crediting Thorpe's testimony that although he gets into the stores "quite often," Simpson was the only sack boy he ever observed standing around for a minute or two and not working. In any event there is affirmative testimony from Stuckwisch, another sack boy who was senior to Simpson, that Simpson was given the preferred assignment of putting away frozen foods because the supervisor said Simpson did a better job than Stuckwisch. Also, according to Thorpe, it was Store Manager Gray who suggested to Thorpe that Simpson be discharged, and Gray's expressed reason was only the boy's "refusal" to work Thursday nights. Gray also testified that he found Simpson sitting down in the back room when he should have been stacking bottles, but this also was not mentioned to Thorpe as a ground for discharge. The apparent immediate cause of the discharge was Simpson's reluctance to work Thursday nights. But SUPER VALU STORES, INC. Simpson worked as many nights as any of the other boys, and indeed had only had the added Thursday assignments because he substituted for another boy on one such night. Under the circumstances it seems odd , to say the least, that he rather than some junior employee (of whom there were several among the sackers) should have been let go for what appears to have been a common aversion to the Thursday night assignment. All of the foregoing, of course, while it casts some doubt on the assigned reasons for Simpson's discharge does not establish affirmatively that the real cause was some statutorily protected activity. But cf. Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9); Betts Baking Co. v. N.L.R. B., 380 F.2d 199, 205 (C.A. 10). The record does establish that Simpson was active in distributing cards for the Retail Clerks, a matter which could scarcely remain secret in a store of only 40 employees. See Hesmer Foods, Inc., 161 NLRB 485, 490, 491, enfd. November 17, 1967 (C.A. 7, No. 16306), cert. denied 391 U.S. 905; Angwell Curtain Company, Inc. v. N.L.R. B., 192 F. 2d 899, 903 (C. A. 7); N. L. R. B. v. Joseph Antell, Inc., 358 F.2d 880 (C.A. 1). Also, Simpson had failed to sign an application for membership in the URW by the time he was discharged. In this state of the record the following testimony of Rose Wisner, one of the checkers, acquires considerable significance. Wisner was a comparatively disinterested witness, although she had been an observer for the Retail Clerks in the September election . She impressed me as testifying carefully and accurately, and in several other respects her testimony was fully corroborated. In the particular matter referred to below , her testimony was not corroborated by Joe and Dan Gray (the store manager and his assistant), but I regard her as a truthful witness, who would not and did not fabricate the following account: Q. Do you recall being present at a conversation between Joe Gray and Danny Gray regarding John Simpson? A. Yes, sir. Q. When did this conversation take place, if you recall? A. I believe it was November 7th. Q. Where did it take place? A. In the break room. Q. About what time of day was it? A. I am not sure . I believe it was in the afternoon. Q. Was anyone there other than the three of you I have mentioned? A. I don't remember. Q. Will you tell the Trial Examiner what was said in this conversation and who said it? A. Joe was talking to Danny, and he said, Joe said, "It is just like that thing that happened with Simpson. The other night Simpson was going out the door and Dale came up to me and said, `See that guy going out the door there?' " And Joe said, "I said yes." And he said that Mr. Thorpe asked him, "Have you got any gripes about him?" And Joe said "I said `No, he does his work all right. The only thing is, I have asked him to work Thursday nights and he doesn't like to work Thursday nights.' " Joe said Mr. Thorpe said "That's good enough . Get rid of him." Joe said he said "What?" Joe said Thorpe said, "Get rid of him." So that after John had been fired, John came back in the store and talked to Mr. Thorpe. 905 Q. Is this part of the same conversation that you are telling us about? A. Yes. Q. Who said this? A. Joe was telling this. Q. Go ahead. A. And he said, Joe said, "I went to Thorpe and told him `We need another boy; we are short because of Simpson being fired. We need another boy. Do you want me to call Simpson back or do you want me to hire a new boy?' " He said Mr. Thorpe said, "Hire a new boy." Q. Do you know if thereafter a new boy was hired? A. Yes, sir. Q. When? A. I believe it was the same evening. In the light of the entire record I find that Simpson's support of the Retail Clerks was a substantial cause of his discharge, and that Super Valu accordingly violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. By threatening reprisals if the employees chose a union to represent them and by telling employees that management knew how they had voted or would vote in the election, K's engaged in unfair labor and practices affecting commerce within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 2. By inquiring among employees as to the identity of the employees distributing cards on behalf of the Retail Clerks, Super Valu engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(1) and (7) of the Act. 3. By discharging John Simpson for his support of the Retail Clerks, Super Valu engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(3) and (1) and' 2(6) and (7) of the Act. 4. Super Valu did not commit an unfair labor practice in recognizing the URW as the representative of the employees in the newly acquired store and in applying the existing contract with URW to the employees in that store. THE REMEDY I shall recommend an order directing each Respondent to cease and desist from its unfair labor practices. I shall further recommend that Super Valu make Simpson whole for the period between his discharge and his refusal of reinstatement, under the formulas set forth in Crossett Lumber Co., 8 NLRB 440, and Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as K's no longer owns the store in question and no longer employs the superior guilty of the unfair labor practices, I see no purpose to be served in requiring any notice to be posted at the other locations operated by K's. I shall, of course, recommend that a notice be posted by Super Valu, but this may be limited to the violations occurring after it took over the store. The prior violations had to do with K's antiunion conduct and are not relevant to the existing situation in which the employees have a bargaining representative.' Had I not dismissed the allegation of unlawful assistance to URW, i.e., but for my holding that the new store is an accretion to the Super Valu bargaining unit, I would have ordered not only that Super Valu cease recognizing the URW at this location, but also that it refund the dues and 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, upon the foregoing findings and conclusions and upon the entire record , I recommend, pursuant to Section 10(c) of the Act, issuance of the following: be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." ORDER A. Respondent K's Super Valu of Peoria, Inc., its officers, agents, successors, and assigns, shall cease and desist from: 1. Threatening employees with reprisal if they select a union as their bargaining representative. 2. Giving employees the impression that their union activities are under surveillance. 3. In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. B. Respondent Super Valu Stores, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to their union activity or that of fellow employees. (b) Discharging or otherwise discriminating against any employee because of his activity on behalf of any labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make John Simpson whole in the manner set forth in the portion of the Trial Examiner's Decision entitled "The Remedy" for losses suffered as the result of his discharge in October 1968. (b) Post at its store at Lake and Knoxville Streets, Peoria, Illinois, copies of the attached notice marked "Appendix."` Copies of said notice, on forms provided by the Officer-in-charge for Subregion 38, after being duly signed by its representative, shall be posted by Respondent, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall initiation fees the employees paid pursuant to the union-security agreement I call this to the Board's attention in the event it disagrees with the accretion holding '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 Officer-in-charge for Subregion 38, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE WILL pay John Simpson for wages he lost between his discharge in October 1968, and his refusal of our offer to reinstate him in December of that year. WE WILL NOT take or threaten to take any action against any employee for engaging in activity on behalf of any labor organization. WE WILL NOT question our employees concerning their activity, or that of fellow employees in support of any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. SUPER VALU STORES, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Subregional Office, 4th Floor, Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 309-673-9061, Extension 282.