Valley Markets, Inc.

VALLEY MARKETS, INC. Valley Markets, Inc. and General Drivers and Ware- house Employees, Local Union No. 581, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 18-CA-2909 July 20, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On, November 13; 1970, Trial Examiner Phil Saunders issued' his Decision in the above-entitled proceeding, 'finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair 'labor practices alleged in the complaint and recommended that 'these - allegations be dismissed. Thereafter, the General Counsel filed exceptions and a supporting brief and`the Respondent filed its answer to the General Counsel's exceptions 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 and briefs, the motion, and the entire-record in the case, and hereby adopts ' the findings, conclusions, and recommenda- tions of, the Trial Examiner.i . ORDER Pursuant to Section. 10(c) of the National Labor Relations Act, as amended, the National Labor Relations-Board adopts asits Order the Recommend- ed-Order of the Trial Examiner and hereby orders that the Respondent, Valley Markets, Inc., Grand Forks, North Dakota, -its, officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 MEMBER JENKINS,'dissenting: I would find that Martha Kraemer's union activities were a significant factor in Respondent's decision to t In adopting the recommendation of the Trial Examiner dismissing the allegation of `the complaint that Respondent discriminatorily discharged Martha Kraemer, we-do so on the ground that the General Counsel has failed to meet the burden imposed upon him of establishing this allegation 192 NLRB No. 23 125 discharge her on January 13, 1970, and thereby discriminated against her in violation of Section 8(a)(3) and (1) of the Act. Martha Kraemer was one of the Kraemer family whose brother Fred was an assistant business agent for a Laborer's local and a, part-time helper' for the Teamsters. Fred's wife, Patricia Kraemer, Martha's sister-in-law, was employed in Respondent's store No. 2, down the street from store No. 3 where Martha worked as a checker. As more fully appears in the Trial Examiner's Decision, the Union made its appearance in store No. 2 in the fall of 1970 when employees Weaver and Block, at store No. 2, asked Patricia Kraemer to have her husband arrange a meeting with representatives of the Teamsters. Such a meeting was held on November 25 at the home of Fred Kraemer. It was attended by the above named employees and a-few others. Martha Kraemer was the sole employee present from store No. 3. It was decided at this gathering to hold an organizational meeting after the first of the year at which membership application cards would. be dis- tributed. This meeting took place on January 13 at the Teamsters hall. Following the meeting at the Kraemer home, Martha Kraemer talked to half or more of her fellow employees at store No. 3 about the Union, and later, during the first 2 weeks in January, solicited their attendance, at the meeting on the evening of Tuesday, January 13. During the days immediately preceding and following this meeting Respondent's supervisors, as the Trial Examiner found, engaged in -numerous activities in violation of the Act with the intention of thwarting the organization of its employees. Thus, on Monday, January 12, the day before the union meeting and the day prior to Kraemer's discharge, Restad, manager of store No, 2, together with Lloyd Corbit, assistant manager of store No. 3, asked Weaver and Block what they had .heard about the Union; on the same day Hugo Magnuson, Respon- dent's, secretary-treasurer who had his office at store No. 3 and who was Kraemer's immediate supervisor, asked employee, Marek if "anyone in particular" had broached the subject to her. On January 15, Magnu- son, asked Block- if anyone had approached him concerning the Union. Restad told Weaver that the employees would lose hours of work if the Union came in; at the same time he asked employee Server if she,was for or against the Union and told her that he had information from Magnuson that if the Union succeeded in organizing the employees Respondent would-sell the business. by a preponderance of the credible evidence. 2 In footnote 10 of the Trial Examiner's Decision, substitute "20" for "10" days. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner bases his dismissal of the complaint as to -.Kraemer largely on the ground that Respondent "had no specific, prior knowledge" (TXD, Sec. III, • last par.); or "actual or direct knowledge" (ri(b)-of her individual union activities. The contention of the General Counsel is' that knowledge of Martha K raemer's union activities need not be direct, butmay"be reasonably inferred from the above , conversations and that, in any event, Respon- dent knew her to be one ofthe Kraemer family whose brother and sister-in-law were known to be strong union supporters, and that Respondent's decision to discharge her was influenced by the family relation- ship. Moreover, asthe Trial Examiner'found, Respon- dent encouraged employees to engage in surveillance of the dnion' activities of employees. Notably, employ- ee- Robert Belim, -a personal friend and associate of Restad, testified that as early- as January I Restad asked him if there had yet been a union meeting and told him to -"keep ` (your) eyes and ears open -for, union activity." During' the next 2 or 3 weeks Behm had 8 or 10 conversations with Restad `in `which the two men- "exchanged information concerning the progress of the Union's organizing drive. In these conversations Restad asked Behm who was for and who against the Union. : ' ` On January 12, the day before-the union organiza- tionmeeting, Fred Kraemer came to store No. 2, as he did at various times, and while there invited Behnt to the meeting the, next night. Weaver testified that he overheard a part of this conversation and that shortly thereafter, in the coffeeroom,-he overheardBehm tell Restad'that Fr_edKraemer had justinvited him to the meeting. The Trial Examiner, though he does not discredit Weaver's testimony, - at , the 'same time seemingly does not, accept, it, stating only that it was not- confirmed by Restad or mentioned by . •Behm. Restad',was • not, called -as a witness.- Behr, was questioned as to his conversation with . Kraemer, which he admitted having, but was not asked if he reported it to Restad. The Trial Examiner credited the testimony of Weaver on all other matters, and I see no reason for not crediting his-uncontradicted testimony that `he .heard Behm inform t Restad of the union meeting. That Respondent did know- about .the meeting; is demonstrated by Behm's further uncon- tradicted testimony to a conversation between him and Restad on the morning after the meeting when Behm was punching in. Restad, who was standing at the,timeclock, asked Behm if he-had heard what took place at the meeting. Clearly, it is, a resonable inference, and one which_ I draw, contrary to the Trial Examiner, that Respon- dent believed, prior to discharging her, that Martha Kraemer, like the,other Kr'aemers, was active in the Union's organization of Respondent's business.. This inference is strengthened by a conversation, between Magnuson and Patricia Kraemer,, following Martha's discharge, hereafter related. The Discharge Martha Kraemer came to work in the fall of 1969. In November 1969, probably prior, to the meeting on the 25th at Fred Kraemer's home, Magnuson, on Corbit's demand, called- Martha to his office and-criticized her work in various particulars, as is fully set forth in,the Trial Examiner's Decision, attributing her` shortcom- ings in part to her working Friday, and Saturday nights at a tavern. When Kraemer told, him, that she had already quit her night job, Magnuson, decided only to reprimand her.-From this time forth, her work, so far as this record reveals, was not again criticized: On the contrary, Magnuson testified thatit improved over the "following- few weeks; -. and' Patricia, Kraemer testified without - contradiction ' t h a t ` about" a week before Martha was discharged,, `'while ',Patricia was having a cup of. coffee with Corbit and Restad, the two assistant store, managers, discussed. ,;the general inefficiency of the checkers m store No. 3 and Corbit stated that, while previously Martha had,been coming to_'work "real tired and worn out," she now,-seemed "full of energy and pep,"and "seemed to' be doing` a lot better." During the early afternoon of'Saturday, January 10, 1970, Corbit observed Kraemer close the bar to the aisle' leading to her cash register, apparently _ to get change, and directed three customers' waiting in s line to an adjacent checker. Corbit went to the cash register, raised-the bar, and apologized to t e'three in line for the closing, of the aisle' He did not speak` to Kraemer nor she ' to him.` Kraemer continued" her checking the remainder of the day,. and "during the following Monday and Tuesday. Later - on . Saturday, Corbit` reported the incident to Magnuson and demanded that he discharge Kraemer. According to Magnuson, he thought the' matter'ove'r and decided that night,,to do so. He did not, however, communicate any such decision either to Corbit or Kraemer, until Tuesday- evening at the, end of Kraemer's shift, after she_hadworked, 2 whole days, and, after Respondent had became .apprised _of_ the union -meeting the night before. He- gave, as a reason for his delay, while testifying, that on Monday, ,as mayor of the town, he,,,was,, occupied with municipal duties, although he visited storeNo. 3 to supply it with money for the cash registers. Corbit testified that he, looked- for-Magnuson on Monday because he was "very much Qupset" about Kraemer and demanded, a decision ,of "what [Magnuson] was going to do." On Tuesday, Magnu- son put in-a full day on the job, among'other things, meeting in the morning with his- store supervisors, VALLEY MARKETS, INC. 127 including ,Corbit,_ at store No. 2, after which he and Corbit had coffee and chatted a while, returning then to store No. 3. I consider it noteworthy that neither Magnuson-nor Corbit on this occasion, or at any time during the day, brought up the subject of Kraemer in spite of Corbit's professed determination to get an immediate decision from Magnuson to discharge her. I considerit improbable that if Magnuson had made up his mind the previous Saturday night to discharge Kraemer, he could not have found some way of communicating his decision either to Kraemer or Corbitbefore Tuesday evening. At `5' o'clock Tuesday evening, at the end of Kraemer's shift, he called her to the office and discharged her, When she asked the reason he told her that he was reorganizing his business. He admitted while testifying that this was untrue, but that he wished to spare her, feelings. This was in sharp contrast with the assorted and specific reasons given her 6 weeks previously when Magnuson, according to his testimony,-had started to discharge her, changing his mind when"it appeared she had discontinued her night work." We see no reason to believe that Kraemefs sensitivity was greater on January 13 than itwas on November 25. Ignored by the Trial Examiner in his decision is the undisputed testimony of Patricia Kraemer that on January 15, 2-days after-Martha Kraemer's discharge, and a.payday,-when; Magnuson handed out paychecks to employeeslhe asked them what grievances they had, going-on to say that there was-no place in his stores for a union. When he handed Patricia her paycheck, he called her attention-to the fact that it reflected a raise of 20 cents an hour. He volunteered that the raise was "not a- bribe," 3' and asked her if she was satisfied with her job. Before 'she could answer, "shaking and pointing his finger,at me," he warned her that there was no room in his business for a union. He then asked, if ,she :had seen Martha Kraemer. When she. did not reply, hessaid, "Well, it was a case where we had to fire her."- When she still remained silent, Magnuson Concluded-by warning that if Martha brought charges against Respondent, Respondent would "make it i oiigh on her.' As'the General Counsel points out in his brief, Magnuson, in this revealing conversation, managed to sandwich strictures against the Union's organization, of Respondent's business between an award of a benefit to Patricia Kraemer on the one hand, and- a threat- of reprisal against Martha Kraemer on the-,other,-,thus relating each to the other. His , remarks concerning Kraemer seems to me additionally,persuasive that Respondent knew of her union activity, and his realization that Respondent was vulnerable to a charge of unfair labor practices. Finally, f do not give the weight the Trial Examiner does to the fact that at store No. 2 Respondent did not_ discharge Patricia Kraemer, Weaver, or Block who were also active in the Union. Regardless of the progress of the Union at store No. 2, where most of the employees were union supporters, the discharge of the Union's most active supporter at store No. 3, where only a part of the employees were interested, might well insulate that store from union organiza- tion. For these reasons I would find that by discharging Martha Kraemer on January 13, 1970, Respondent discriminated against her because of her union activities, in violation of Section 8(a)(3) and (1) of the Act. 3 There is no evidence known of a general pay raise at this time, although Block, one of the earliest proponents of the Union , received one. ' TRIAL EXAMINER'S DECISION STATEMENT OF TIM CASE Plat. SAUNDERS, Trial Examiner: On January 16, 1970,' General Drivers and Warehouse Employees, Local Union No. 581, International' Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, filed a charge alleging that Valley Markets, Inc., hereafter called the Respondent, Company, or Valley Markets, had violated Section 8(a)(1) and (3)'of the Act. The charge was subsequently amended on June 24. Pursuant to the original and amended charge a complaint was issued on June 26. The Respondent's answer denied the supervisory status of one individual and the unfair labor practices alleged in the complaint. At, the trial parties were afforded full opportunity to introduce relevant evidence, to examine -and cross-examine witnesses, to argue orally on, the record, and to submit briefs. Both the General Counsel and the Company filed briefs. Upon the entire record in the case and from my observation of the witnesses, I hereby make the following: 2 FINDINGs OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a North Dakota corporation having its principal office and places of business at Grand Forks, North Dakota, where it is engaged in the retail grocery business. During the past calendar year, which period is representative of its operations at all times material hereto, Respondent had gross sales in excess of $4 million and purchased goods from points directly outside the State of North Dakota which were valued in excess of $50,000. By virtue of its operations as described above, Respon- dent is now, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. i All dates are 1970 unless specifically stated otherwise. 2 All credibility resolutions made herein based on a composite evaluation of the demeanor of the witnesses and the probabilities of the evidence as a whole. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES Valley Markets 'is engaged in the retail `sale of groceries from its three Grand Forks stores, which operate under the "Piggly Wiggly" trade name. The three stores comprising Valley Markets are sometimes referred to as store No. 1, store No. 2, and store No. 3. Essentially all the events connected with this proceeding occurred at or related to stores Nos. 2 and 3. In late October ' 1969, employees Ronald Weaver and Richard Block contacted Patricia Kraemer and mentioned to her .their interest in attempting to set up a union meeting. These two employees were aware that Patricia Kraemer's husband, Fred Kraemer, had some prior or present contacts with at least one of the unions in the vicinity of Grand Forks.3 After being so contacted, Patricia Kraemer then spoke to her husband, and aftercontinued interest was again displayed in November 1969, Fred Kraemer contacted the Union's business representative, Arvin Kvasager, and a meeting was set up for November 25, 1969. This meeting was held -in Fred Kraemer's, home and Kvasager spoke to the group of employees all of whom were from store No. 2 with the exception of Martha Kraemer from store No. 3. At this organizational meeting Kvasager went into organizing procedures, employees' rights,,and agreements which the Union had at other stores. Some cards were signed at this first meeting, and others distributed. Fred Kraemer made reference in his testimony, to a certain committee that supposedly was setup right after their first meeting. for the purpose of getting cards signed and stated that Weaver, Block, Martha and Patricia Kraemer, and, one, other person were on this committee. However, there is no evidence from any other witness to show such a committee existed, and no evidence from anyone to show, that this committee ever acted to carry out its function. Following the November organizational meeting, Martha Kraemer returned to store No. 3 and spoke with employees in this store in an effort to interest them in the Union. She recalled one occasion while speaking with another employ- ee concerning the Union when Supervisor Lloyd Corbit walked through the coffeeroom and stared at her in an unusual manner. She also talked or reported to Fred Kraemer quite often. A second, union meeting ,as scheduled for January 13, and' when Martha Kraemer learned of 1 this meeting she contacted employees and attempted to secure their interest in attending the same. The complaint alleges that Amos Restad is a supervisor within the meaning of the Act and the Respondent's answer denied this status but the 'Company did not seriously dispute'Restad's supervisory capacity at the trial before me. This record, shows that Restad is the „assistant store manager at store No. 2 and in performance of his duties makes assignments of work, directs and assigns overtime, 8 Fred Kraemer is a senior law student at the University of North Dakota in Grand Forks, and currently is the assistant business agent for Laborers Local 580, and also has worked for sometime as a part-time helper for the Teamsters. Patricia Kraemer is the Respondent's head prepares and implements the weekly work schedules, if and when necessary makes corrections on employee timecards, and on, occasions decides, if employees can have time off from their work. I find that Amos Restad is a supervisor within the meaning of the Act. It is alleged that at various times in Januarys there were certain instances of illegal interrogations, threats, and, surveillance on the part of management, The ^ credited evidence in this respect reveals the following: On or about January 12, Supervisor Amos Restad„ and Lloyd Corbin asked employees. Ronald Weaver and Richard Block if they, had heard any talk or rumors about the Union and inquired as to the type of rumors they had heard; during the middle of. January, Hugo Magnuson, the Respondent's secretary and- treasurer, inquired of Ronald Weaver if he had been approached by the Union; on or about January; l6, Restad told Weaver that the store would lose money and hours by going 'union-Weaver testified that on this occasion Supervisor Restad was referring to a union contract°with the Piggly Wiggly store in Fargo;,on,orabout,January 1, Restad asked employee Rober Behm- if he knew whether there, had been .a union ,meeting, and told him to keep his eyes and ears open; on January 15, Hugo Magnuson Asked Richard Block if he had heard any talk about the Union and,if anyone had approached him about the Union; ,on or about January 16, Restad told Block that if the Union came in his time would be cut,to 40 hours and as a result he would lose -money; on or about January 13, Hugo Magnuson asked Marie Marek if she knew anything about the Union and inquired if anyone in particular had approached her; and on or about January 17, Restad, asked employee ' Martha Server. what she thought, about the' Union, inquired, if, she was for or against the Union, and then told Server he had information from Hugo Magnuson that if, the Union were successful ,in organizing the Company would, sell out, and also told her that upon unionization certain employees would lose money because they could not then work so many hours. The foregoing conduct and statements attributed to , the Respondent are not instances of objective inquiry asto the propriety of recognizing a labor'organization, and neither do they amount to=the exercise of free speech under Section 8(e) of the Act. Rather they include attempts to-inquire into desires of employees by asking them if they 'were for or against the Union, what, they thought of the ,Union, had anyone approached them, further interrogations on various occasions about possible rumors and ,,activities . of the Union, threatening employees with loss of hours or earnings and the closing of the business or selling out if the Union organized, and _encouraging employees to engage in surveillance of union ' activities. The above constitute violations of Section 8(aXl) of the Act I so find. Amos Restad did not testify in the trial before me, and therefore all statements attributed to him stand undenied and, in fact, the Company openly, admits- the 8(aX1) statements attributed to management by witnesses 'for the General Counsel. bookkeeper at store No. 2, and the only alleged 8(aX3) in this proceeding, Martha .Kraemer, is a sister to' Fred Kraemer and worked in store No. 3 prior to her discharge on January 13. VALLEY MARKETS, INC. 129 Throughout his brief, the General Counsel points to background incidents and testimony reflected in this record, and whereby it is argued that the Company evidenced continual hostility and that such overall factors must also bear on the discharge here in question. Specifically, the General Counsel points to a situation on January 15, when Magnuson himself handed out some of the paychecks, and while doing so asked certain employees if they had any grievances and if they were satisfied working at the store. He then went on to tell these employees that in his small business there was no room for a union as there might be in a larger operation. At a meeting of -Employees on January 17, Hugo Magnuson according to the testimony of Patricia Kraemer told those assembled the following: "Hugo mentioned that he thought everyone had heard of the union rumors about his store going union, and he also said that it was a federally-protected activity and we had the freedom to talk about the Union in the store so long as it didn't interfere with the customers. And then he went on to say that in his small business that there was no room for a union and that in a larger concern maybe a union would be very helpful. And " then he showed us this authorization card, read it to us," and said `I suppose a few of you people have already signed a card like this.' And then he went on to say that we could not sign this authorization card on company time, or coffee breaks, don't sign it on store time at all." - By the way of additional background, this time presented by the Respondent, it was shown that in the past Hugo Magnuson, as mayor of Grand Forks, has appointed union representatives to governmental bodies and-had also paid for advertising in union publications. The General Counsel points out that Arvin Kvasage, the °Charging Party herein, had not been reappointed by Magnuson to the housing authority when his term expired in July. However, Kvasager's testimony did not indicate whether or not he wanted or would accept a second appointment. The crux of this case is whether or not the Respondent discriminatorily discharged Martha Kraemer. The Compa- ny maintains they experienced some difficulty with Kraemer in the performance of her work due to'her attitude or conduct, attendance, tardiness, till 'inaccuracies, lan- guage, and her part-time employment elsewhere. Martha Kraemer was first employed by the Respondent in August or September of 1968 as a checker in store No. 3. At the-time she was hired, Hugo Magnuson called Martha's sister in law, Patricia Kraemer, at store No. 2 asking what kind of an employee she would make, and Pat Kraemer recommended Martha for employment. Because of some prior difficulties, as reflected in this record, meat market manager and assistant manager of store No. 3, Lloyd Corbit, objected to her employment. But nevertheless, she was hired and shortly after entering the Respondent's employ-was transferred to the office as the third girl, but a few months thereafter was transferred back to the position of checking 4 at which she remained until her discharge on January 13. /' Martha Kraemer testified and admitted that in Novem- ber 1969, Hugo Magnuson talked to her concerning her work. On this occasion they went to the produce room of the store where Garfield Bosnian and Corbit were also present. Magnuson told I; rraemer, among other complaints, that they knew she had a part-time job and it was affecting her work because she was getting too tired. Magnuson also told her he could not have an employee of his working in a place like where she was working; namely, a bar in Ardoch, North Dakota. Magnuson then told Martha Kraemer that she would have to quit working in the bar or it would result in her discharge. At some point in this conversation she began to cry and told Magnuson she needed the money and would have to work more hours. Magnuson finally decided to keep her on and she was then given more hours of work on Saturdays. Magnuson stated that Kraemer's work improved for a few weeks following this November meeting with her. Patricia Kraemer testified that, approximately a week before Martha was discharged she was present in the coffee room of store No. 2 with Lloyd Corbit and Amos Restad, and on this occasion Corbit was talking about how bad the checkers were at store No. 3 and then stated that Martha Kraemer had been coming to work real tired and worn out, but that lately she had been full of energy and seemed to be doing a lot better. Patricia Kraemer then^said she was glad to hear this because Martha was her sister-in-law. Lloyd Corbit testified that on Saturday, January 10, he observed Kraemer temporarily close her checkout stall while customers were in line so she could get more change for her till even though she had been told todo this during the slack times. Corbit also stated that around noon on this same day, he noticed Kraemer close the bar to her checkout stall or counter while customers were still'in line, and she then informed the customers they would have to go to another checkout stand. Corbit immediately went over, to Kraemer's stand, lifted the bar up, and apologized to The customers waiting in line. Corbit explained that you always keep the checkout counter open until all customers are through checking out. Corbit went on to testify ,that this incident made him extremely angry, and later in the day he contacted Magnuson and told him, "God damn it, Hugo, this has" got to be it," and he then related the circumstances surrounding the events of that morning and urged Magnuson to discharge Martha Kraemer. Hugo Magnuson stated that it was clear to him that Corbit was very upset, and on that Saturday night he reached the conclusion to terminate her after the complaint and conversation with Corbit. Since the store is not open on Sunday, Magnuson had decided to discharge Kraemer the following Monday, but due to city functions as mayor and other matters in Alexanderia, Minnesota, he Was unable to terminate Kraemer until the following day, Tuesday. At the end of the working day on January 13, Magnuson told Martha Kraemer that he was reorganizing the stores and he felt she would be happier elsewhere. He had her check prepared, plus 2 weeks severance pay. Kraemer asked Magnuson why she was being terminated and was again informed that it was because they were reorganizing the stores. Kraemer asked if he would give her a good 4 Respondent's witnesses testified that Martha Kraemer was made the designated had to be at their checkout station at all times. number one checker at this time, and which meant that the person so 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendation, and he replied that he would. Magnuson ,stated that whenever it is necessary to discharge employees he always tell them the same thing-reorganizing the store and not being happy together-to make it as easy as possible, and the 'specific reason or reasons for the discharge have already been gone into, with Kraemer in the meeting with her in November, as aforementioned. It is the position of General Counsel that Martha Kraemer was the initial "spear carrier" for the Union in store No. 3 as she was the only one from this store who attended the first organizational meeting. The General Counsel also mentions the family relationships involved between Fred, Patricia, and Martha Kraemer, and argues that the Respondent's hostility to the Union was vented in the very week that Martha Kraemer was discharged. In his conclusions the General Counsel summarizes as follows: Counsellor the General Counsel contends the record herein fails to disclose a credible defense to the discharge of Martha Kraemer. Because the Respondent offered various pretexts to explain the reason for her discharge and in view of her involvement with the organizing campaign, the Respondent's knowledge of her and her family's connection with the campaign, the extreme hostility of the Respondent to the unionization of its stores, the timing -of her discharge and Corbit's statement a week prior to the discharge, the Trial Examiner can and should infer that the real reason for Martha Kraemer's discharge was her involvement and connection with the union organizing campaign." In efforts to establish company knowledge of Martha Kraemer's union activities prior to her discharge, the General Counsel relies to some extent on certain 8(a)(1) conduct by the Company previously set forth and found violative, herein. However, in these respects it must be pointed out and noted that such interrogations and conduct in no way disclosed Kraemer's identity with the Union. The General Counsel also mentions an incident wherein Fred Kraemer came into store No. 2 on January 12 and invited Robert, Behm to_the union meeting scheduled for January 13. Ronald Weaver testified he heard some of this conversation and shortly thereafter went into the coffee- room where he then overheard Behm telling Supervisor Amos Restad that Fred Kraemer had just invited him to the union meeting. There is no confirmation of the above by Restad as he .did not testify at the hearing, and the "other witness for the General Counsel best suited to state whether he informed Restad that Fred Kraemer had invited him to the union meeting would be, of course, Behm himself. However, Behm gave no such testimony but merely stated that Kraemer had invited him to the meeting, and Behm did not testify that he then passed on this information to Restad. - The second incident relied on by the General Counsel to establish company knowledge is Martha Kraemer's testi- mony that Lloyd Corbit walked in the coffeeroom unexpectedly while she was conversing with another employee about the Union. Martha admitted that Corbit did not stop nor did he say anything, but testified his facial expression showed disapproval. Corbit denied that this incident happened, and Martha also admitted that she never spoke about the Union directly in front of management. She further stated that at the 'time Corbit walked by he was 3 or 4 feet from her and, in fact, she had stopped talking. From my observation of'Martha Kraemer and listening to her as a witness, it was readily noticeable she has an extremely soft voice , and even if this incident and conversation happened I would have considerable doubts if anyone just walking by could have ,accidentally overheard what she was saying even if she had continued talking. There is absolutely no foundation for any assumptions that the Company gained union knowledge at the time when Martha Kraemer was contacting employees in an effort to get them to attend the second union meeting on January 13. She even admitted on ,cross -examination that no one from management was around on these occasions. The total or exact extent of Martha -Kraemer's union activities cannot be fully determined by, this record, but it appears she mainly attended the first union meeting and then tried to get fellow employees at , store No., 3 interested in the Union and attend the second meeting. No one ever gave Martha any union authorization ,cards, to have signed and this fact is also admitted in her testimony. This record is , also completely devoid of 'any serious contention or testimony to the effect that the Company had any knowledge whatsoever that Martha Kraemer was.the only employee from store No. 3 at ,the initial meeting,of the Union in November. In the final analysis of this stage of the case , there is no reliable or credited testimony that the Company had, any actual or direct knowledge of Martha Kraemer's; activity for the Union prior to her termination. Against a solid array of substantial credible testimonial evidence supporting Respondent's contention that Martha Kraemer was terminated for cause as indicated previously herein, there is a dearth of evidenceto support the theory of General Counsel-who, of course carries the burden,,of proof here-that Kraemer was dismissed because, of her union membership, sympathy, or activities, or to discourage union, membership. It is of course obvious that mere union membership and activities do not -insulate an employee from discharge for other reasons. Union membership and activities is not a shield behind which a discharged employee can take .refugeand claim discrimination. The burden remains upon .the General Counsel to prove that the reason for the discharge was the employer's anti-union hostility.^An employer is not obliged to treat a union member differently or with , greater deference- than,.4ny of his other employees . Poor performance, misconduct, and insubordination, for example, do, not have to, , be tolerated merely because the offenders are among the plant's most active union supporters. An- employer's stated , oppostion to unionization is, not in itself ,sufficient evidence to sustain a finding that;an employee was discharged because of discrimination against ,,a union" [N.L.RB..V. Bangor Plastics, ,Inc.,,392 F.2d 772, 777 (C.A. 6).] This record adequately reflects that Kraemer's conduct on January 10, when she closed the ,bar to her stall or, till while customers were still in line waiting to be checked out, angered Corbit to such an extent he urged most strongly to Magnuson that Kraemer would have ' to be terminated, and VALLEY MARKETS, INC. 131 a recommendation' to which Hugo Magnuson acceded. Corbit testified that for-his services he is paid both a salary and a bonus, .and then--went on to state that the way Kraemer was working-and treating customers, "she was taking money out of my pocket because she wasn't doing us any good, probably losing, customers, not handling them properly, and tome this istaking money out of my pocket." Under such circumstances it appears to me that Corbit had a, very legitimate reason to, be angered when he viewed Kraemer's shut, down checkout counter on a busy Saturday morning. Roth Hugo Magnuson and Lloyd Corbit also gave testimony indicating prior complaints on Kraemer's, work. Magnuson stated that he spoke to, her several times,about her work.5 In" the spring of 1969, Corbit spoke to Kraemer about coming in late and not filling her money change makers `and in the late `summer of -1969, he ^ talked to Kraemer about her language among the younger girls, not staying at"her till-or]stall, not getting to work on time, and taking time off when she was suppose to be at work., It seems to me `this testimony 'by' Magnuson and ^ Corbit of prior complaints against Kraemer is also'further substanti- ated by the fact'that iii `November 1969, probably even before the initial union organizing-meeting, Magnuson was on the threshold, of terminating Kraemer when he called her-into'the produce room `of the store, as aforestated., On this-occasion Magnuson Icompiained to'her about telling dirty stories to customers; closing her till down, not being careful enough iii handlingumoney, not being courteous to customers, working part-time in a bar, and not-having her heart in the job at the stbie. It seems to me this November complaint session with Kraemer is most significant in that it highlighted and pinpointed the numerous difficulties store'-official`s were having with her and in all probability before any possible'union activity on the-part of Kraemer., Martha Kraemer denied telling -stories or jokes to customers; but- another checker 'at store' No. 3, Connie Paulson; gave reliable,testimony that on occasions she had overheard Martha' telling -dirty stories' to older men. Regardless of''whether-or not other checkers told stones or whether - cerfain -'customers may have found Kraemer's stories somewhat entertaining, is relatively unimportant so long as -this =particular' type of conduct by Martha' was deemed offensive and improper` by management. There `is considerable=testimony in this record bearing on certain aspects as=to possible deficiencies pointing 'to Martha Kraemer's till operations,. Store No. 3 has six till&or cash- registers and there are-generally two full-time checkers and six part- iine- checkers. Martha always worked on till number 4. This, record shows that the initial desire for a union sprung: from some alleged money shortage at one of the stores and, in these respects,'according to,tlie testimony by ' Ronald Weaver, he and Richard Block did not like the manner in ' which -this matter was being' handled by management. Weaver ,stated„ `There, was suppose to knave been a-money shortage atthestore and we were all suppose to take,a,lie detector test, we Were not asked to, but were 5 Hugo Magnuson takes charge''of the office at store No: 3 so he was in a position to constantlyrobserve Kraemer. 6 The checkers are suppose to refill their change makers during the slow part of` each 'day, and are not suppose to run out of change when checking out customers because this requires a trip to the officer just told to do it, and we did not like the idea of just being told and there were other such incidents in the store that occurred." I point out the above to show that any and all references ,to till operations or money shortages must have been considered by many as extremely serious, and evidence that this subject matter was not just brought up over-night by the Respondent to merely hang or base discharges on. The Company produced testimony through Patricia June, bookkeeper in Store No. 3, to the effect that occasionally a part-time checker will take over a till which had not been ' read or totaled out following the operation of it by a full-time checker, but testified in the case of Martha Kraemer her till was totaled out before any part-time -help took over from her, and went on to state that she had received instructions from Hugo Magnuson to,check out or read Martha's till at the end of each day. June testified that most, checkers are usually "pretty close" when,they, are checked out. Connie Paulson, also a checker at store No. 3, testified that after Christmas 1969 Martha's till was "quite abit-off," and that Martha was worried as Magnuson "had already given her , a last chance once before." Paulson further testified thatfor some time.management had been checking each till at. 5 p.m. and before any part-time help took over the tills, because- the tills were not checking out right, and stated, it was,wabsolutely, mandatory for them-to,read or check out Martha Kraemer's till upon instructions- from Magnuson. Paulson related that "once-in-awhile" tills will check out over or short, but usually within a few dollars. Magnuson mentioned in his testimony that he often talked to the checkers about the operations of their tills as it was important they be accurate. From August 1969 until her discharge, i `Kraemer was short in her till operations approximately. 41 days during this period and her largest amount was,$45.65 in August 1969,,and on January 13, the day of her -discharge she had a shortage of_$14.65.8 On the basis of this record, it, is impossible to make a comprehen- sive comparison on the shortages of Kraemer in relation- ship with'all the other checkers,.but for purposes here there is a sufficient showing which, does reveal that management had an adequate basisfor being concerned with Martha's till operations and had justification in complaining about her carelessness in handling money when Magnuson called the aforementioned November conference with Kraemer. ' Martha Kraemer admitted thatshe was'absent from work now and, then because of illness but -stated she called in each time, and also admitted that she had been late-to work on occasions and that actually her morning reporting time was changed at the end of 1969, so she could then get to work at a later time without being tardy. - ' From this record, I am unable to place any emphasis or to draw any meaningful implications, from the, family relationships o€1 the Kraemers as -suggested by the General Counsel. While Martha quite frequently contacted her brother, Fred Kraemer,'- about the Union, following the November organizational meeting, she did so by telephone T The exact day or date of the November 1969 conference with Kraemer is not given, but the first organizational meeting was not held until November 25, 1969. 8 See Resp. Exh. 4. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Fred himself was only in store No. 2 on one or two occasions and there is no proof that he ever was physically present in store No. 3 where Martha worked . In passing, it is noted that at the time of the trial before me Patricia Kraemer was still employed by the Company as the head bookkeeper, and it appears from this record that Patricia was probably as interested and as active for the Union as Martha, and even permitted the Union to use her home for their first meeting. In concluding it is further noted in passing that the two employees who originally instigated the entire movement for, the possible advent of the, Union were Richard Block and Ronald Weaver, and they are both still , with the Company. If by indirect means the Respondent had acquired any 'knowledge of Martha Kraemer 's union activities, then it is not too unreasonable to assume that by similar means the Company, in all probability, would also have'-gained knowledge of the union activities of Block, Weaver, and Patricia Kraemer. There have been some tendencies in the past to automatically look with considerable skepticism at any employer who assigns more than one or two reasons for a discharge. The argument and theory being that in such situations the employer has actually no defense-and is merely hoping that one of his many reasons will hold up. In the instant case the Company has given numerous defenses for the termination in question, but, unlike some other cases and circumstances, I have found here a stjficient basis for each separate defense presented by the Company, and,the sum total of their reasons adding up to a justifiable discharge. In -the final analysis, the Respondent has. shown its decision to terminate was based on sufficient reasons, and this record further shows that the Company had no specific prior knowledge of Martha Kraemer's individual union activities. I find that it has not been established by substantial credible evidence,' as required, that Respondent discharged Martha because of her union membership, sympathy, activities, or support, or in order to discourage union membership. This, the measure and limit of theissue, here, has simply not been proved. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning, of-Section 8(a)(1) of the Act, my Recommended-Order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. As I have found that Respondent did not discriminatorily discharge Martha Kraemer, , I shall recommend that this 8(aX3)-allegation in- the complaint be dismissed. Upon -the basis of the above findings of fact and the entire 'record in this case, I make the following: CONCLUSION OF LAW 1. Respondent is an employer engaged in commerce within meaning of Section 2(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 interrogating certain of its employees, by encouraging surveillance, and by threatening them with closing and loss of certain benefits, Respondent , has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(axl). RECOMMENDED ORDER Upon the-basis of the above findings of fact, conclusions of law, and the, entire record in thecase, I recommend that Respondent its officers, agents, successors, and -assigns, shall: 1. Cease and desist from: (a) Threatening employees -with loss- of hours or pay and selling out the business. - (b) Interrogating employees ,;to ascertain if they had been' contacted, if they were for or against the Union, who had approached them, and what rumors,and activities they had heardabout or,engaged in. (c), Encouraging its employees to engage in surveillance. (d) In any other like or related , manner interfering with, restraining,or coercing its employees in-the exercise of their rights to self-organization, to form labor organizations,, to join or assist the Union named herein, or, any other labor organization, to bargain -collectively through representa- tives of their own choosing, and to engage in any, other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from anyor all such activities. 2. Take the following affirmative , action which, is necessary to effectuate the policies of the Act: (a) Post at its three stores in Grand Forks, North, Dakota, copies of the attached notice marked"Appendix."9-Copies of said notice, on forms provided by the Regional Director for - Region 18, shall after being duly, signed by , the Respondent's authorized representatives, be posted by the Respondent immediately upon receipt , thereof and main- tained by it for 60 consecutive days , thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable, steps shall be taken by the Respondent to ,insure that said notices are not altered,,defaced, or coveredby any other material. (b) Notify the, Regional Director for Region 18, in writing, within 20 days-from the date of the receipt of this Decision, what steps ithas taken to comply herewith.10 I- FURTHER RECOMMEND that the , allegation in the complaint , that Martha Kraemer was , discharged in violation of Section 8(aX3) of the Act be dismissed. s In the event no exceptions are filed as provided by_ Sec. 102.46 of the Rules and Regulations of the National -Labor `Relations ' Board, the findings, conclusions, recommendations and Recommended Order , herein shall,- as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusionsand order, and all objections thereto shall' be deemed ' waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words- in the notice reading- "Posted by Order of the National Labor Relations -Board" shall- be changed to read -"Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations. Board." , - io In the event that this Recommended Order be, adopted by the Board, this provision shall-be modified to-read : "Notify said Regional Director, in writing, within 10 days from the-date of this Order, what steps the Respondent has taken to comply herewith.- VALLEY MARKETS, INC. 133 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT directly or indirectly threaten employ- ees with loss of hours or pay, nor will we threaten to sell out or close the stores because of their union activities. WE WILL NOT interrogate employees to ascertain if they'have been contacted by union people. WE. WILL NOT interrogate employees to ascertain if they are for or against the Union, who, had spoken to them, nor will we ask or inquire what union rumors and activities they have heard about or participated in. WE WILL NOT encourage our employees to engage in the surveillance of union meetings and activities. WE WILT. NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist General Drivers and Warehouse Employees, Local Union No. 581, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware-' housemen and Helpers of America, or any other labor organization to bargain through-representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. VALLEY MARKETS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. , Any questions concerning, this notice or compliance.with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South . Fourth Minneapolis, Minneso- ta 55401, Telephone 612-725-2611.