Dodson IGA Foodliner

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dodson's Market, Inc. d/b/a Dodson IGA Foodliner and Retail Clerks International Association, Local Union No. 240. Case 19-CA-4920 November 16, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 29, 1971, Trial Examiner Allen Sinsheim- er, Jr., issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respon- dent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. 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 proceeding to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. We agree with the Trial Examiner that the Respon- dent's change of its operations in the contracting for nongrocery items was motivated in part by the Union's demand letter of August 14, 1970, and was violative of Section 8(a)(1). We also agree with the Trial Examiner that as a result of this 8(a)(1) violation by the Respondent a pattern was established and followed by the Respondent which resulted in (1) the reassignment of employee Van Etten in violation of Section 8(a)(1); (2) the discharge of employees Gerber and Kremer in violation of Section 8(a)(3); and (3) the reduction in the hours of work of the women employees in violation of Section 8(a)(1) and (3) of the Act. We find further that the change in the Respon- dent's nongrocery suppliers caused changes in the employees' terms and conditions of employment; by their changing suppliers without bargaining with the Union about the effect of the changes on employees, Respondent violated Section 8(a)(5) of the Act. We, however, do not agree fully with the Trial Examiner that the sole cause of the reduction of hours for the women employees (checkers) was Respondent's receipt of the Union's letter of August 14. As set forth below, we find that employee Vander Yacht was removed from her position as produce clerk and assigned as a checker in retaliation for her union activities. The reassignment of Vander Yacht because of her union activities and the reassignment of Van Etten because of Respondent's change in its nongrocery contracting operation led to an excess of employees employed in the position of checker which resulted in the reduction of their hours. Both of these factors, in our opinion, contributed to the illegal reduction of hours and the discharges of employees Gerber and Kremer, all of which were part of Respondent's campaign to destroy the Union's organizational efforts and to adversely interfere with the employees' rights under the Act. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by removing employee Vander Yacht from her position in charge of its produce department following the Union's demand letter to Respondent.' We find further that Respondent's reassignment of Vander Yacht from produce clerk to the position of checker was also motivated by its knowledge of Vander Yacht's union activities and was in retaliation for her union activities, all in violation of Section 8(a)(1). We agree with the Trial Examiner that the initial discharges of employees Gerber and Kremer were violative of Section 8(a)(3) and (1) of the Act, but our agreement is based on the reason given by him as modified above. We agree with the Trial Examiner, and for the reasons stated by him, that the Respondent's stated reason to the employees that he could not grant any wage increases because "his hands were tied, by the Union" was in violation of Section 8(a)(1). Though, as stated above, we agree with the Trial Examiner's finding that the reduction in the hours of work of the women employees constituted a violation of Section 8(a)(1) and (3) of the Act, we do not agree with his reasons for not recommending a backpay order. While the record discloses that the Respondent possibly made a small economic gain as a result of his change in the method of contracting for nongrocery items, we have found further that the reduction in the hours of work of the employees was motivated by and was a part of the Respondent's overall campaign to defeat the union organizational efforts of its employ- 1 The evidence shows that on August 14, the date the Respondent at her home in which five of Dodson's employees and union received the Union's letter demanding recognition, the Respondent was representatives had participated . At this meeting five employees signed aware of the fact that Vander Yacht had had a meeting, prior to August 14, union authorization cards. 194 NLRB No. 22 DODSON IGA FOODLINER 193 ees. And, in any event, even under the Trial Examiner's reasoning, a violation of the Act occurred and a remedy is necessary. Accordingly, we shall order backpay for these employees. The General Counsel excepts to the Trial Examin- er's failure to find an 8(a)(1) violation by Dodson's statement to boxboys Sanderson and Leibrant on August 16. We find merit in this exception. Dodson, on August 16, after informing the two boxboys that their wages had been previously increased and that in fact they were now being paid higher than union wages, concluded the conversation by telling them that "if the store went into the Union or became a union shop their wages would be frozen at $1.65" and to "think it over." Dodson did not deny making this statement. Contrary to the Trial Examiner, we conclude that this statement by Dodson, which was made subsequent to the Union's demand, clearly was coercive in that Dodson implied that selection of the Union would adversely affect their earnings. Accord- ingly, we find this statement of Dodson to be a violation of Section 8(a)(1) of the Act. The General Counsel further excepts to the Trial Examiner's failure to find that employee Vander Yacht was constructively discharged within the meaning of Section 8(a)(3) and (1) of the Act. We also find merit in this exception. The Trial Examiner, after relating the facts concern- ing the employer-employee relationship that existed between Dodson and Vander Yacht both before and subsequent to Dodson's knowledge that Vander Yacht was the leading union activist, concluded on the basis of the record evidence that the General Counsel had failed to establish a constructive dis- charge of Vander Yacht by Respondent. We disagree. For the reasons set forth below, we find that Vander Yacht was constructively discharged by the Respon- dent in violation of Section 8(a)(3) and (1) of the Act. The record discloses that Vander Yacht, prior to August 14, was a valued and trusted employee. After August 14, at which time Dodson became aware of Vander Yacht's role in seeking union representation,2 there occurred a series of acts by Dodson that can only be construed as an effort to force Vander Yacht to resign her position. In this respect, following Vander Yacht's reduction from produce clerk to checker, Dodson began close surveillance of her activities, to the extent of openly following her about the store, timing her with a clock on the performance of inconsequential tasks, and making entries in a 2 Dodson contended that he had never formed an opinion after receiving the union letter as to which employees were behind the Union's attempt to organize his employees. This contention is refuted by the credited testimony of Respondent's witness Kern, whom Dodson visited on the afternoon of August 14. Kern testified that on that date Dodson told him that the employees had signed cards at Vander Yacht's house. Employee Sanderson credibly -testified that on the evening of August 14 notebook purporting to document her failure to observe the rules of "proper behavior." During this period, Dodson also abandoned his former practice of personally delivering to Vander Yacht her weekly paychecks and, after withholding them, belatedly affixed two such checks to a bulletin board behind a hallway door in the store. Further, Dodson intensified his harassment of Vander Yacht by denying her request to trade 'shifts with another employee, although he had freely allowed such trades in the past, and by scolding her in the presence of outsiders for purported infractions of company rules. Significant, moreover, is the thinly veiled threat to get rid of Vander Yacht which was made by Dodson to another employee. Thus, Dodson told Van Etten that he "should have gotten rid of" Vander Yacht the previous summer and further, looking to the future, that "one of us has to go."- These remarks were immediately passed along to Vander Yacht. Dodson's effort to compel Vander Yacht's depar- ture bore fruit. According to her uncontroverted testimony, Vander Yacht, who had never suffered a nervous condition in the 5-year history of her employment with the Respondent, was compelled to seek medical treatment for a "bad case of the shingles." Her doctor attributed the condition to Dodson's harassment and advised her to quit. Finally, on November 2, 1970, less than 3 months after Vander Yacht's union activities became known to Dodson and after the latter began harassing her, Vander Yacht turned in her store coat and marking pencils and announced that she was through. Based upon the foregoing we find that Respondent constructively discharged employee Carol Vander Yacht in violation of Section 8(a)(3) and (1) of the Act in reprisal for her union activities.3 We have previous- ly found, in agreement with the Trial Examiner, that the reassignment of Carol Vander Yacht from her duties as produce clerk to that of checker was in violation of Section 8(a)(1). Accordingly, we shall order the Respondent to reinstate Carol Vander Yacht to her former job of produce clerk or, if that job no longer exists, to a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed. In addition, the Res- pondent shall make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by paying to her a sum of money equal to that she normally would have earned from the date of her discharge to the date on which she is offered Dodson mentioned Vander Yacht's name in connection with the receipt of the Union's letter. Another witness, Janice Hetterley, a customer, testified that Dodson told her he resented Vander Yacht as the person who had forced people to sign union cards. 3 Holly Bra of California, Inc., 164 NLRB 1112, 1123, Tennessee Packers, Inc., 143 NLRB 494, enfd. 339 F.2d 203 (C.A. 6). 194 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD reinstatement, as aforesaid, less her net earnings during said period; the loss of pay may be computed in accordance with the formula and method pre- scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and include interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall similarly make whole those employees who suffered losses as a result of Respondent's discriminatory reduction of their hours. We amend the Trial Examiner's Conclusions of Law by adding thereto the following to be numbered as Conclusion 9 and by renumbering the Trial Examiner's Conclusion 9 as 10: 9. By discriminatorily terminating the employ- ment of Carol Vander Yacht by constructively discharging her on November 2, 1970, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, Dodson's Market, Inc. d/b/a Dodson IGA Foodliner, Everson, Wash- ington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified below. 1. We amend the Trial Examiner's recommended Order by inserting the following as paragraphs 2(a) and (b) and by relettering the subsequent paragraphs accordingly: "(a) Offer to employee Carol Vander Yacht imme- diate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for any losses suffered by reason of the discrimination against her. "(b) Make whole those employees whose hours were discriminatorily reduced for any loss of earnings they may have sustained as a result of the discrimination practiced against them." 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL upon request bargain collectively in good faith with the Retail Clerks International Association, Local Union No. 240, as the exclusive representative of all of the employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms or conditions of employment and, if an understanding is ' reached, embody such under- standing in a signed agreement. The bargaining unit is: All the Respondent's grocery employees, excluding meat department employees, office clerical employees, confidential employees, guards, and supervisors as defined in the Act. WE WILL make whole those employees who suffered losses as a result of our reduction of their hours. WE WILL offer to Carol Vander Yacht immedi- ate and full reinstatement to the job she held prior to her discriminatory transfer or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of her termination on November 2, 1970. WE WILL NOT change the working assignments, schedules, or hours of our employees without notifying Retail Clerks International Association, Local Union No. 240, and giving it an opportunity to bargain collectively about such proposed changes. WE WILL NOT inform employees that no wage increases can be granted while a union matter is pending. WE WILL NOT discourage membership in Retail Clerks International Association, Local Union No. 240, or in any other labor organization of our employees by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization of our employees, to bargain collectively , through representatives of their own choosing, or to engage in other concerted activities for the purpose of mutual aid, or to refrain from any or all such activities, except to the extent such DODSON IGA FOODLINER 195 right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. DODSON'S MARKET, INC. D/B/A DODSON IGA FOODLINER (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, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206- 583-7473. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding was heard at Bellingham, Washington on January 19, 20, and 21, 1971 and reopened for limited additional hearing at Seattle, Washington, on March 24, 1971. The complaint issued October 15, 1970,1 alleges violations of Section 8(a)(1), (3), and (5) of the Act.2 A timely answer to said complaint was filed by Dodson's Market, Inc., d/b/a Dodson IGA Foodliner, herein called Respondent. The questions presented are (1) whether Respondent violated Section 8(a)(1) of the Act in a number of claimed respects; (2) whether Respondent violated Section 8(a)(3) of the Act by terminating Iris Gerber and Irene Kremen, reducing the hours of work of employees and constructively discharging Carol Vander Yacht; and (3) whether Respondent violated Section 8(a)(5) of the Act by failing to bargain with the Union as representative of its employees in an appropriate unit-which includes the issue of whether the Union represented a majority of employees; finally (4) whether Respondent's conduct was such as to require the issuance of a bargaining order even in the absence of a violation of Section 8(a)(5). Upon the entire record including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent-Employer, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Washington corporation engaged in the 1 The original charge was filed August 20, 1970, an amended charge on August 26, 1970, and a second amended charge on September 4, 1970. 2 Amendments to the complaint were made and granted at the hearing. retail sale of grocery items at its store in Everson, Washington. During the past fiscal year which included a 4- month shutdown caused by a major fire, Respondent's gross business volume was approximately $348,000. Based on a projection of representative monthly volume, its business volume for the 1970-71 fiscal year will exceed $500,000. Respondent annually purchases goods valued in excess of $50,000 from businesses located within the State of Washington which in turn purchase said goods from outside the State of Washington. I find that Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits and I find that Retail Clerks International Association, Local Union No. 240 , herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Initial union organization and request for recognition Except for a meatcutter employed by Respondent after Labor Day 1970, which resulted in an agreement with a local of the Meatcutters Union, the Respondent has not been represented by a labor organization. In the beginning of August, employee Carol Vander Yacht, who had bebome dissatisfied with working conditions, contacted union Secretary-Treasurer William Lewis. Following this Vander Yacht canvassed employees and arranged for' a meeting with Lewis at her home on the evening of August 12, which was attended by employees Jean Van Etten, Iris Gerber, Irene Kremen, and Mary Wortley. These five constituted a majority of Dodson's employees who according to the General Counsel would number seven and according to Respondent would number nine.3 After discussing possible benefits of unionization, Lewis passed out authorization cards which the five employees signed after reading.4 The next day Lewis sent a letter by registered mail to Respondent in which he stated that the Union had received authorizations from a majority and requested recognition of the Union and an early meeting to discuss signing a contract. The letter was received by Leland Dodson, the owner of Respondent, sometime between noon and 2:00 on Friday August 14. 2. Time of Respondent's change on August 14 in its contracting for drugs and hardware According to Leland Dodson, the owner of Respondent, he had contemplated for some time changing his supplier of certain drug and hardware items called nonfood items from a firm called American Wholesale Grocery to Merchants Supply Company. Prior to a fire at the store in 1969, these items had been furnished by Merchants Supply Company. 3 The number in the unit will be considered in detail hereafter. 4 Contentions as to their validity will be considered post. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the fire, American Wholesale Company became the supplier and offered a 5 percent discount provided Respondent would take care of the ordering and stocking of such products. Accordingly from November 1969 to August 14, 1970, these were furnished by American Wholesale. Employee Jean Van Etten did the ordering and along with other employees the stocking of items when furnished by American Wholesale. Dodson testified that he had been dissatisfied with American Wholesale Service for at'least the preceding 4 months. Other witnesses including Leo Kern, the Bellingham manager of American Whole- sale, suggested the principal source of dissatisfaction with it had come about from a recent move of American's warehouse from Bellevue to Kent, Washington, which had created problems in effecting deliveries to Respondent's store. Dodson testified that 2 or 3 weeks before August 14 he had talked to Henry Hawkins, a representative of Merchants Supply who was at his store, and told Hawkins that it was costing Respondent too much money in labor to have the orders written out and put on the shelves, that they were getting entirely too much buildup of inventory and having to return too many goods. Dodson testified, "I felt that I would be better off to go back with them." Dodson then said that Hawkins reaction was that they would be glad to have us back and they always wanted us back but that Hawkins said, "Leland you have caught me right when we have a bunch of people on vacation." According to Dodson, Hawkins then said, "If you demand it well come in now." Hawkins then said, "It would be an accommoda- tion if you would let this go a few weeks until we can get our force straightened out." Dodson said, "That I agree to." Dodson stated it was his custom to go to Bellingham on Friday and pay American Wholesale for the week's supplies, that he usually picked up some fish and chickens and occasionally went out to Merchants Supply, who at the time was supplying him with other merchandise. According to Dodson on Friday morning, August 14, he went to town in his usual manner, stopped at American Wholesale, paid them their check, and went down to Merchants Supply. He didn't remember what he got, he thought he picked up something and he went down to see "if I could get it" and while in there, according to Dodson, "they told me they were ready to service me." Dodson testified he then said, "Fine, have Don pick up our order next week." Dodson said that he (Don Peterson) then came in on the following Tuesday and picked up the order. According to Dodson, "We have been getting our supplies that way ever since." Dodson further stated that on the morning of August 14, when he happened to go into Merchants Supply, he spoke with Mr. Sandvig and Mr. Zabel. He placed the time as a little before noon, "very close to the noon hour." Dodson testified he returned from town between 1 and 2 p.m. The foregoing would place the order and change from American to Merchants Supply on the morning of Friday, August 14 prior to the receipt of the letter from the Union. However, there is in the record no specific or definite corroboration of Dodson's testimony that he went to American and Merchants on the morning of August 14.5 On the contrary there is testimony from Respondent witness Kern that Dodson normally came to American in the afternoons on Friday. Kern finally testified as set forth hereafter that he thought Dodson was there in the afternoon on August 14. Sandvig and Zabel were unable to place the time on August 14. In addition, there is testimony from General Counsel's witnesses that Dodson was away from his office for a lengthy period on the afternoon of August 14 after receiving the letter. Dodson admits being away from the office but said he went to visit and talk with his son and then had his dinner. There are also substantial variances or conflicts between the testimony of Merchants Supply personnel or officials and Dodson's testimony that he had asked Merchants Supply to take over some weeks before August 14 from American and that Merchants Supply had told him on the 14th that they "were ready" to take over. As to the time of Dodson's visits to American and Merchants on August 14, as to his whereabouts throughout the day, and as to who initiated the return to Merchants, the record reflects the following additional evidence: Henry Hawkins was called by Respondent and testified that he had made a number of attempts as salesman during the summer to persuade Dodson to assume full service with Merchants Supply. He did not confirm Dodson's statement that he and Dodson had made a commitment to resume service well in advance of August 14. On the contrary Hawkins said he learned of Respondent's resumption of business through other persons at Merchants Supply and did not make such arrangements himself. According to Respondent witness Edward Sandvig, the coowner and president of Merchants Supply, Dodson came to his office on the 14th. Sandvig could not recall whether it was before or after lunch. Sandvig testified "Leland said he wanted to resume full line service with us. That he was not satisfied with his nonfoods operation, that he had been getting through American Wholesale Grocery. I assured him we would be most happy to do it." This latter indicates Dodson initiated the request to Merchants on August 14, rather than Merchants stating they "were ready" to handle Dodson's business. Sandvig said- that he had needled Dodson "at every opportunity" to get his business back but did not state that any formal arrangement had been made prior to August 14. Leo Kern of American Wholesale testified that Dodson customarily came to his office on Fridays from 3 to 3:30 p.m. Kern said that on one of the days that he (Dodson) was in my office, Dodson told him about the union letter and "he said that he was a little upset that no one had brought anything up to him and talked to him about it. It was a shock to him, this is how I took it." Kern was asked by the General Counsel: Q. Did he bring up Carol Vander Yacht's name on the day he brought up this letter that he received from the Union? A. It's very possible he did. Q. What, if anything, can you recall him saying about Carol Vander Yacht? 5 I note General Counsel witness Carol Vander Yacht testified Dodson he was at American and Merchants shortly before noon and returned had been out of the store in the morning and returned before noon . This between I and 2,p.m. does not indicate where Dodson was and conflicts with his testimony that DODSON IGA FOODLINER 197 A. I believe the meeting was at her house. Q. He told you there had been a meeting at her house? A. Yes. Kern was asked by the General Counsel whether at the time Dodson told him he received the Umon's letter Dodson said when he had received it. Kern first answered that he didn't remember Dodson telling him when he got it. Kern testified, "I believed he said he got the letter. I don't remember him saying that he got it this morning, this afternoon or when." Kern was then asked whether he had any reason to believe Dodson had received the letter the day "he brought it up." Kern answered, "It's possible that he got it that day, he brought it up. I am fairly sure that he probably did come in the day that he got the letter." Kern was asked: Q. Was it on that day he told you he wanted to quit your service? A. No, I don't believe so. Kern then said, ". . . Well, it was sometime in there I think he wanted to, I think he wanted to quit before that anyway but he. ." Kern was then asked: ' Q. (Interrupting) He gave you his formal notice he was quitting on the day he came in and told you about getting the union letter. Is that correct? A. I can't, I really can't understand that. I'm sure that he told me now that he was quitting, he was dissatisfied. Now, as I stated before, I don't know if it was the day he got the letter or not. I don't know. I don't get his mail, sir. Q. I understand that. I'm asking you whether or not, on the same day that he came in and told you, "I got a letter from the union," and told you about the meeting at Carol Vander Yacht's house, where they signed cards. Was that the same day that he formally notified you that he was quitting? A. I believe so. I think it was. Dodson, testifying later in the hearing on examination by Respondent counsel, stated that he had told a Merchant Supply salesman, Don Peterson "at different times the fact that it looked like we would be back with them. American wasn't getting our deliveries straightened out. Too often they were long in getting there and they were short too many items." Dodson added that he and his son Orran on the night of August 13 had discussed the matter and agreed, 6 7 Orran was a witness but did not testify as to this subject. On examination under 43(b) Dodson testified Q After you read the union's letter, what was the first thing you can recall doing? A. Well, I went down and mentioned it to Miss Kremen, and went out and got in the car and went down and gave the letter to my boy and went and had dinner, that was something like 2, 2:30 in the afternoon. I am not very punctual as to what time I eat. [Emphasis supplied.] Q What did you do after you finished eating lunch? A. I went back to the store Subsequently when called as a witness by Respondent, Dodson testified on examination by the Trial Examiner he left the store and went to his son's home a block away to discuss the letter. Dodson said: " . . He'd been down having his lunch or droner, and I went in the house and we sat there and talked and discussed it for some time, and he come on up to the store and I stopped off at the restaurant to eat." Dodson was then asked: TRIAL EXAMINER: Just a minute, about what time did you leave the store to go to your son's house? THE WITNESS: I would say about probably 2:15, 2:30, . . We would have to discontinue with American ..." Dodson said they reached a final decision, "That we were definitely going to change and we were going to change right away" to Merchants .6 On examination by Respon- dent, Dodson testified as to the conversation at Sandvig's office, "Mr. Sandvig told me `we have wanted your account back since we lost it.' " According to Dodson, Sandvig said, "we will service that and get out there and give you service if I have to come but there myself. He said, `I'm just not going to wait any longer.' " When the foregoing is coupled with the testimony (in detail) hereafter as to changing Carol Vander Yacht's duties so that she no longer performed produce work, it becomes apparent that, of all the witnesses called by the Respondent and the General Counsel, only Dodson supports his version as to the time of effecting the change from American to Merchants on August 14. The witnesses not only include those witnesses of the General Counsel, Vander Yacht and Gerber, who saw Dodson absent a substantial time during the afternoon, (which Dodson admitted) 7 but they include as set forth several witnesses for the Respondent, namely, Hawkins, Sandvig, and particularly Kern. In connection with the Vander Yacht incident as will appear, they include not only Vander Yacht but also Respondent's witness, Christiansen, whose testi- mony was indefinite. It appears unlikely that the receipt of the Union's letter and the change from American to Merchants on August 14 (as well as the change in Vander Yacht's duties) would be coincidental. When this is coupled with the inability of Respondent to adduce corroboration from any of its witnesses of either the time of change or who initiated the change at the time it occurred or of certain other significant parts of Dodson's testimony (supra) concerning conversa- tions with American and Merchants officials and represent- atives, I conclude and find that Dodson's testimony as to the time of effectuation of the change is not to be credited and that the change occurred after the receipt of the letter on August 14. In so doing I am not making any finding that there was no economic basis or warrant for the change. The record as a whole, which will be analyzed hereafter, might possibly support such a change as effected by the Respondent on the basis of business operations. However, it is clear that, although this change was evidently a matter in contemplation, no definite decision to make the change somewhere in there. TRIAL EXAMINER. What tune did you leave his house to go to eat? THE WITNESS : Well, time goes by pretty fast. I don't know, we was there about 15, 25, 30 minutes. I didn't time it. We talked about that, talked about other things. It was quite a shock to me. I have always felt that our group was very close together, and I have taken quite an interest in the help to explain to them how the business is run, also things would cost more if it's run this way than another, and when this came this way without saying anything to me about it, it was a shock. It really was. TRIAL EXAMINER: All right, now about what time did you eat your dinner or lunch as you call it at the restaurant? THE WITNESS: I'd say somewhere close to 4 o'clock. I visit with the folks over there at the restaurant. I'm hardly over there less than an hour and a half. [Emphasis supplied.] TRIAL EXAMINER: You returned to the store about what time? THE WITNESS: I'm guessing at this for I don't know, but I would say somewhere in the neighborhood of 4:30 to 5.00. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was made until the arrival of the Union, and the Union's letter in effect accelerated or precipitated the change from American to Merchants as to the drug and hardware items. What the effects of such conduct may be herein will be considered furtherpost.8 Evidence was adduced by Respondent with respect to the economic necessity to change operations in order to reduce costs. This consisted principally of an analysis of labor cost as a percentage of sales. A compilation prepared by Orran Dodson who testified with respect thereto reflected the following rates of labor costs to sales for months of July through December 1970: July - 5.3% August - 7.5% September - 6.4% October - 7.5% November - 7.9% December - 5.6% Orran Dodson also testified that the changeover to Merchants and subsequent layoffs or reductions in hours were intended to bring labor costs within an "acceptance" range stated by him to be 6 percent. The General Counsel contends that these figures may not prove the matters set forth without producing all of the pertinent business books and records of the Respondent, citing Welcome - American Fertilizer Co., 169 NLRB 862, 870. The General Counsel also 'argues that the foregoing are "inconclusive of anything." With respect to the General Counsel's conten- tion that as evidentiary matter the data may not be con- sidered, the Board has held otherwise. See Roman Cleanser Company, 188 NLRB No. 136, citing cases: However, the argument of the General Counsel with respect to the inconclusiveness of the figures is pertinent. These figures reflect an up-and-down pattern in labor costs as against sales at the times set forth. They do not reflect comparable costs for other periods or years, nor do they show the total sales figures involved during the specified months or any time which would bear on the ultimate matter of profit or loss. Finally they cannot be viewed in isolation without regard to business and employment conditions throughout the area. Even assuming the data may be arguably of some evidentiary value, I do not consider such to be decisive on the issue of the cost-sales-profit relationship. On the other hand I do not consider the data meaningless. Evidence was also induced that upon the return of Mrs. Dodson (who had been off work) there was less need for nonfamily employees. Further the record does reflect that upon reduction in total working hours after August 14, Respondent was still able to conduct its business. This latter will be considered more fully hereafter. However, the foregoing economic aspects do not change the finding and conclusion as to the time that Respondent in fact decided to and did change from American to Merchants, nor that such was precipitated or accelerated by the Union's advent and its letter. The complaint alleges that Respondent commencing on August 15 made the following unilateral change in working conditions: "(a) rearranged its employees working sched- ules without first consulting with employees as had been the traditional practice." While I find no evidence in support of any traditional practice of consulting employees prior to a change, the matter of when and how the changes in assignment and/or schedules occurred was thoroughly litigated during the hearing both in connection with the aforesaid allegation and also in connection with the allegations of violations of Section 8(a)(5) and derivative 8(a)(1). Accordingly, I find that the changes in operations which occurred as a result of the Union's letter and which brought about changes in Van Etten's assignments and other persons' assignments and schedules (and also the terminations of Gerber and Kremen post) were violative of Section 8(a)(1) of the Act .9 3. Replacement of Vander Yacht as produce clerk For almost 5 years Carol Vander Yacht had the responsibility at Respondent's store of ordering, unloading, pricing, and displaying produce. According to Leland Dodson, about the middle of July 1970 Arnie Christiansen was hired with the thought that he could assist Vander Yacht in that department and give her advice as to display, pricing, and other aspects since he had extensive produce experience. Dodson said when Christiansen was hired, it was with the understanding that he would be taking part- time work as he couldn't stay too long, since he planned to go on a missionary or evangelistic trip. It is clear that until Vander Yacht took her vacation from the end of July until the beginning of August she was in charge of the produce department. On July 25, she filled out the order list, on July 28 she gave the produce man the order, and on July 29 she prepared another order. During the week ending August 8 while Vander Yacht was on vacation, Christiansen ordered the produce. According to Vander Yacht when she returned to work the next week, she was primarily responsible for preparing the orders although she consulted with Christian- sen as to sale items. As she had done before, Vander Yacht gave an order to the produce man on Tuesday, August 11, and prepared one on Wednesday, August 12. Vander Yacht was scheduled to be off on the 13th. Dodson testified that "about August 11" he told Vander Yacht that Christiansen was "in charge of the produce and that would take the heavy work off her, that she was not physically able to do the heavy work that was to be done, it is really not a woman's job." Vander Yacht denied that any such conversation had ever taken place but said that when Christiansen was hired it was with the understanding that he would help her in the produce department. Dodson was asked by the Trial Examiner and testified: THE WITNESS: And if I remember right, it was while she was still on vacation that I told him that he would take over and have complete control of the produce from then on. 8 One immediate effect was to change the duties of Jean Van Etten who 9 Subsequently I am finding that by effecting these changes Respondent had handled the ordering and some stocking from American After the also violated Section 8(a)(5) of the Act I am also finding certain specified change she worked more as a checker violations of Section 8(a)(3) were a consequence thereof. DODSON IGA FOODLINER 199 TRIAL EXAMINER: Who ordered it after she came back from her vacation? THE WITNESS: Now, that I don't know. I'm not back there when the produce is being ordered. TRIAL EXAMINER: Did you tell Mrs. Vander Yacht that Mr. Christiansen would have complete charge? THE WITNESS: I told her after she got back from her vacation, but I don't know what day it was. TRIAL EXAMINER: What did you tell her? THE WITNESS: I told her that Arnie was going to be, going to have control of the produce, and that she would not have to do the heavy work for produce no more. TRIAL EXAMINER: Did you tell her who would handle the orders? THE WITNESS: No. I presumed that that was enough, but I did not just come out and say don't you order anything else, for honestly, our relationships there in the store had been the most friendly and agreeable to one another and to have to spell out every little thing, I just haven't done it. Arnie Christiansen called as a witness by Respondent testified that Vander Yacht either did the ordering the week ending August 14 or worked with him on the ordering during this period. It is evident from his testimony that he had not been told at that point that he was supposed to take over, nor did he testify specifically that he was so told to take over or when.10 However, it is evident that as of the following week Christiansen performed all the functions of the produce department including the ordering and that Vander Yacht was out entirely. Vander Yacht testified that when she came to perform the produce order preparation on Saturday August 15, she saw Christiansen preparing the order and that Christiansen thereafter took over all ordering except for occasions when he called on Vander Yacht to assist in some particular task. The General Counsel contends that further proof that Dodson had no intention prior to August 14 of removing Vander Yacht from the produce department was evidenced by two factors: First that he did not give Christiansen a raise until sometime in the week following the letter, which ended August 22. During that week Christiansen received a 50-cent-per-hour increase. The General Counsel argues that the only plausible basis for giving the increase was recognition of Christiansen's having taken over the produce department completely and that this supports Vander Yacht's account rather than Dodson's of when Christiansen took complete charge. The contention evidently is that the raise would have been granted the week in which Christiansen, took over, rather than delay a week. Second the General Counsel also referred to Dodson's conversation (post) with Iris Gerber about 6:30 p.m. on August 14 in which, according to Gerber, whose testimony I credit, Dodson said "there were going to be some changes made" to Christiansen testified in response to a question by the Trial Examiner as to "who ordered after Carol's vacation?" THE WITNESS' I'm quite sure that I started to order, and if I recall right, I wouldn't be positive, but I felt that Carol was a little hurt over this, and I don't recall for sure if I completely stopped or I Just helped her, but I didn't want to cause any problems, but as far as I remember, I ordered after Carol came back, or we ordered together, in the produce and drug ordering and "that he would pull Jean and Carol up front to check." The General Counsel argues that by the use of future tense" Dodson, as of 6:30 p.m., August 14, still considered Vander Yacht to be the produce clerk. I note also the testimony of Respondent witness Kern set forth, supra, which I credit that Dodson apparently indicated to Kern on August 14 that he knew the union meeting had been at Carol Vander Yacht's house.12 There is also the testimony of employee Gerald Sanderson, discussed more fully hereafter, that on the evening of August 14 Dodson mentioned Vander Yacht's name saying she had been "working too hard and that she was dust overdoing herself." Sanderson said at that time or on Sunday, August 16, Dodson told him he thought "Vander Yacht had taken drastic steps in this" (evidently referring to the Union) "without knowing what would come out of it." Dodson did not deny this and I credit Sanderson's testimony. Further supporting the conclusion, that Vander Yacht's work was changed after the union meeting at her house and after the letter was received is the finding above that the change from American to Mer- chants occurred after the receipt of the union letter. Here again I am not finding that there was no warrant for a change. There is testimony by Dodson and Kern that the operation of the produce department needed improvement. Kern testified he had commented upon the inadequacies of the produce department a number of times. However, this does not negate the fact that although there may have been a desire to improve the produce department the change with respect thereto did not come about until the Respondent received the letter from the Union and that this precipitated or accelerated any change that might otherwise have occurred.13 I accordingly find that Vander Yacht was removed from the charge of the produce department following and because of the union letter and that Respondent thereby violated Section 8(a)(1) of the Act.14 However, at this point I am not making any finding concerning the allegations with respect to a constructive discharge as to Carol Vander Yacht, which will be considered hereafter. 4. The termination of Iris Gerber According to employee Iris Gerber, about 6:30 p.m. on August 14, Dodson after returning to the store told her: A. He said, "You asked for tomorrow off, didn't you?" and I said "Yes," as we were walking back and when we got back there he said there were going to be some changes made and he went on to tell me that he was changing produce and drug situations in the store, I really don't remember what, and that he would pull Jean and Carol up front to check and that he wouldn't be needing me anymore because business had dropped off and that if he did need me he would call. Gerber then was asked if Dodson said anything about receiving a letter from the Union and testified: I'm not positive. 11 Dodson does not appear to have denied this 12 Dodson did deny this. 13 I have previously found that the matter of changes in assignments and schedules was thoroughly litigated at the hearing as to alleged violations of Sections 8(a)(1) and (5) of the Act 14 1 am finding post that this also violated Section 8(a)(5) of the Act. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, he said he had gotten a letter from the union and he understood that three employees were unhappy with the situations as they were and he had wished that the employees had come to him first. According to Dodson during his discussion with his son the night before (August 14) they had considered operating costs when they decided to switch back to Merchants Supply. Dodson said this would result in a savings of 26 to 40 hours work per week, as Merchants did its own supplying and racking, or about one less employee. Dodson also said Mrs. Dodson was then returning from a vacation and was available for work. Dodson further testified that although employee Mary Wortley was junior in employ- ment to Gerber he decided to retain Wortley because she was available nights and full time while Gerber insisted upon working only part time. Gerber- said that before this conversation no one had given her any reason to believe that she was not performing satisfactorily or that any changes were in contemplation. On August 20, as will be discussed more fully hereafter, union representative Lewis and another union representa- tive, Clark, met with Dodson concerning recognition. At that time Clark also raised the subject of Gerber's termination. Dodson stated, according to Clark, that he had been dissatisfied with Gerber's work for some time and that her services weren't needed because of Dodson's decision to hire an outside vendor to perform certain stocking and merchandising functions. Clark said that it was odd that Gerber had been terminated on the same day Respondent had received the Union's letter. According to Clark, Dodson replied that the receipt of the letter was "the straw that broke the camel's back." " I note in this connection that Lewis did not specifically corroborate Clark's account in this regard. Lewis said that it was Clark who did the talking. While the General Counsel argues that it is to be expected that Clark's recollection would be the more precise, it might also be expected that Lewis would recall such statement if made. I do not find it necessary to resolve this in order to determine the matter of Gerber's termination. With respect to Gerber's termination there is no question that it was in part if not in whole brought about by the change from American to Merchants. As I have concluded that this change was precipitated or accelerated by the union letter seeking recognition, in violation of Section 8(a)(1) of the Act, it is evident that as a part of the consequences of an illegally effected change that Gerber's termination was discriminatorily motivated. The termina- tion of Gerber would accordingly be a violation of Section 8(a)(3) and (1) of the Act and I so find. Gerber was subsequently reemployed by Respondent about October 14, 1970. She testified that Dodson told her "when he could he would give me a substantial raise." She said he told her something to the effect that he would like to give her a raise now but his hands were tied by the Union. 5. The termination and reemployment of Irene Kremen On August 14 immediately after receiving the Union's 15 The discussion as to Kremen is predicated on Dodson s testimony since Kremen, who was in Canada, did not testify. letter, according to Dodson, the first employee to whom he spoke was Irene Kremen, a checker. Dodson testified 15 that Kremen admitted having signed a card by stating "we've all signed cards." This would indicate to Dodson that others had likewise supported the Union. Kremen was senior at least to checkers Wortley and Gerber. She took a vacation between August 15 and 22 and on returning on August 24 called Dodson to ask when she should come into work the next day following a change in the schedules during her vacation. Dodson told Kremen she "wasn't needed anymore." The next day she talked to Dodson at the store and objected to the fact that he had terminated her rather than Wortley. Dodson said Wortley would be there the following spring, but Kremen was scheduled to leave the area to go to British Columbia. The following day, pursuant to legal advice,16 Dodson reversed his decision and called Kremen back to work where she continued on a reduced schedule (as did most of the other employees) until she quit to go to Canada on October 8. With respect to Dodson's explanation for Kremen's termination the General Counsel points out: That Dodson had earlier stated that he had "hired Mary (Wortley) so we could have help while we went on vacation. Mary was what you call a summer job . . ." Dodson had then added he "anticipated keeping her on as full-time in the place of Iris during the winter time . . ." The General Counsel argues that this only served to show that Dodson was grabbing at excuses as fast as they came to mind. The General Counsel argues further that even if Wortley at some point became a permanent employee, as far as Dodson was concerned, it was implausible that she would have obtained such status so soon after she started employment. This could be the case but is not necessarily so, since apparently Dodson was impressed by Wortley's work and she was one of the two persons who did receive a substantial increase in Decem- ber, to be discussed hereafter. While the General Counsel takes the view that Kremen was scheduled to leave in the spring, Dodson testified that Kremen's husband had said they could go anytime and earlier. Kremen actually did quit about October 8 and left for Canada. In any event I do not consider that this question of selection is necessarily dispositive of the matter as far as Kremen is concerned. It, of course, can be argued that she was selected instead of others because of her stating that she had signed a union card. However, by August 22, after meeting with Clark and Lewis, referred to supra andpost, it is probable that Dodson had a fairly good approximation as to who would make up the majority who purportedly had signed cards, which would appear to have included Wortley as well. Without regard to the question of selection, in my judgment the termination of Kremen, occurring at the time it did and as a proximate result of Respondent's precipitating or accelerating the change in operations when it did because of the Union's letter, was discriminatorily motivated. The termination of Kremen for 1 day according- ly would be a violation of Section 8(a)(1) and (3) of the Act and I so find. The foregoing resolution as to Kremen and Gerber still leaves the question of the reduced hours for the women 16 Dodson said he received legal advice that it would make it less likely that unfair labor practices would be charged if he took Kremen back. DODSON IGA FOODLINER 201 employees which occurred, according to the records, during the week of September 12 following advice by a lawyer to Dodson and which will be discussed post. 6. Alleged 8(a)(1) activities a. Allegations concerning wages of Sanderson and Leibrant The General Counsel had initially alleged that on August 16 the Respondent "increased the wages of its box boys above the area union scale." He moved to delete this allegation and substitute an amendment that on or about August 16, 1970, the Respondent, through Dodson, "informed its box boys that they were now receiving wages in excess of those called for in the area union contract and that they should keep this fact in mind if the union matter came to a vote." According to box boy Gerald Sanderson, about 8 o'clock on the evening of August 14 Leland Dodson told him he had "received a letter and that some of the employees had asked to go union. He said he didn't know who they were but he could probably find out." Dodson then went on and mentioned Carol Vander Yacht's name saying she had been "working too hard and that she was just overdoing herself." Sometime either in this conversation or the following Sunday according to Sanderson, Dodson told him he thought Vander Yacht had taken "drastic steps in this" (apparently referring to union activity) "without knowing what would come out of it." On Sunday, the 16th, Dodson spoke to Sanderson and Robert Leibrant, another box boy, about the Union. According to Sanderson he told them that Bob is not earning $1.65 an hour now, but $1.75 and "you Jerry (Sanderson) are not earning $1.75 an hour but $1.85" and that if the store went "in the Union or became a union shop" their wages would be "frozen at $1.65." Sanderson said Dodson closed the conversation by telling them "to think it over carefully." Dodson did not deny Sanderson's account. Leibrant was called by Respondent but was not asked to deny, contradict, or verify Sanderson's account. It is clear through testimony and records which I credit that these increases effective the week ending August 15 had been granted prior to the union organization, so that their grant was not violative of the Act. It is also clear and I find that both Sanderson and Leibrant were aware of the increases prior to the receipt of the Union's letter requesting recognition. Sanderson testified that he' learned before August 14 from Leibrant and from checking his card that he had been given a 10-cent raise. This indicates that Leibrant himself had learned of the wage increase before August 14 and it corroborates Dodson's testimony that he told Leibrant and Sanderson of their wage increases before August 14. I conclude and find that the wage increases themselves were given to Sanderson and Leibrant before August 14 and that they were told of these increases prior to August 14. With respect to the rest of the statements made on August 16, set forth above, the proposed contract submitted by the Union indicates a rate of $1.70 initially for the helpers. Whether the prior contract paid $1 .65 or not is unclear. This latter statement by Dodson appears to be in the nature of argument and, on the basis of the record herein, in my judgment such does not constitute a violation . Since the wage increases were granted before the union letter was sent and appear to have been known to both Sanderson and Leibrant, I do not find such to be a violation . I conclude there is no violation as to the matters alleged with respect to the allegation set forth supra. b. Allegation concerning change in coffee and pastry policy After receiving the letter from the Union the Respondent changed its coffee and pastry policy. Coffee had been supplied from a coffeepot in the meat department with some pastry or cookies provided . The new policy was to provide coffee without charge at a restaurant across the street. Dodson testified the move was based on two considerations : (1) the unsightliness of the coffeepot17 in the meat department and (2) his wish that employees could enjoy their breaks without being called upon to go to the checkstand or do other work while on a break . Kern, the manager of American Wholesale, testified he had several times suggested to Dodson that the coffeepot be removed from the meat area. The employees on the morning of August 15 and thereafter were advised individually they would be permitted to have coffee in a cafe across the street from the store but that pastry which had been given to them free would not be paid for. Dodson testified that there was some practice about providing cookies or sweets in various ways. He said the girls often brought little pastries or cake, the Orowheat driver often gave them packages of sweet rolls that were getting old on the shelves and also the Sunshine and National Biscuit salesmen set out packages of broken cookies. When there was nothing else Respondent "furnished them." Dodson, his wife, and four grandchil- dren ate some. Dodson testified the actual cost if he had provided all would have been 50 or 60 cents a day and that Respondent furnished probably half. Obviously the cost would have been low while provision at the restaurant would have been substantially more. Also it is a fair conclusion that coffee at the restaurant would entail more cost than out of a coffeepot. Some effort was made by Dodson to indicate that the change had been under discussion for quite a while, but Dodson did admit that at one point that the decision to change occurred after notification by the Union. Dodson said "we made our decision after we were notified the Union would be out there bargaining. Orran and I talked it over and thought it would cause extra tension to the store. He was putting in a meatcutter and if the health men came out to look things over and criticized us that was all right , but we didn't want them to criticize the meatcutter who didn't have anything to do with it. We decided we should do something about that before we got unduly criticized and got our help criticized when they shouldn't be." Dodson said that he went over to the restaurant across the street and arranged to furnish the coffee and put it on 17 Dodson was asked when a customer would see the coffeepot when he they were either preparing it or had had it. There were dirty cups approached the meat counter and he replied: sitting there. It was just rather unsightly. The very first thing he would look right over to the place where 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his bill and that he then informed the help that they would have coffee but didn't know whether he told everyone. Carol Vander Yacht indicated she wasn't told and didn't know about the new coffee policy for some time, which will be referred to post. Dodson explained that he had looked around the store to try to figure out where to put the coffee and get it away from the meat room and that another problem had been to have clerks repeatedly take their coffee breaks all at one time which would take them out of the meat room and leave a customer standing at the checkstand. This according to Dodson would result in Van Etten, who was prompt, going over and waiting on them. Dodson said he felt that by moving to the restaurant they would not be disturbed and be able to have a better break and he didn't think anyone would object to it. Although the changes in lunch facilities have been found to be violations under certain circumstances,18 in this instance I am not convinced that although the coffee change occurred at the time of the union letter it was designed to affect the union organizational activity or by way of reprisal therefor. I believe that a reasonable appraisal of this action should be taken and accordingly am finding that the coffee change was not in violation of the Act. c. Threats to withhold wage increases In late August or early September, Dodson approached Van Etten and said that he could not give the girls wage increases "until this was settled, and it would take about 10 or 11 months." About October 13, in a conversation concerning Gerber's return to work, Dodson told her, in effect, that he couldn't give any wage increases at that time because "his hands were tied by the union." Dodson added that "when he could" he would give her a substantial raise. The defense asserted by Respondent is that lawyers cautioned Dodson not to give increases. While there are certain limitations with respect to the granting of wage increases during the period of a union's organizational or recognitional activities, there is no absolute prohibition thereon. Dodson was therefore accordingly incorrect in his statement. Such statements were therefore violative of Section 8(a)(1) of the Act and I so find. d. Threat to close the store if the union came in Some 3 or 4 weeks after August 14, Mary Wortley happened to be nearby when Leland and Orran Dodson went to the meatcase. According to her, they should have seen her. According to Wortley, Dodson remarked "that if the union came in, if worse came to worse, `they would be forced to close.' " Dodson denied that, to his knowledge, any employee was present in what he called a private conversation, but he did not deny someone could have been. In addition, Dodson explained that the "above was taken out of context and that he was conversing with Orran about the NLRB settlement proposal requiring him to hire Gerber back and restore all employees to full hours." Dodson said he had remarked that the effect of this would be to force him into bankruptcy and he would rather close the store and pay creditors than do that. Respondent points out that General Counsel's witness Van Etten had said that Dodson had told her he had no objection to employees joining the Union. While I don't consider that this definitely disproves the foregoing, it is evidence of an attitude contrary thereto. First, I do not consider that the record clearly indicates that the remarks of the Dodsons were directed toward Wortley. Second, it appears that there was more to the conversation and the context than Wortley heard and reported. I am not satisfied that the General Counsel in this instance has established that the remarks attributed by Wortley to Dodson were made as set forth nor that they were directed toward her. I am accordingly finding no violation as in this respect. e. Wage increases to Gerber and Wortley In December, Gerber and Wortley were both given substantial wage increases. Gerber had been receiving $1.90 an hour; she was increased to $2.35. Dodson told her that since the hearing had been postponed to a date in January "his, advisers had told him he could go ahead and grant the increase." Wortley had been hired at the rate of $2.25 an hour, was given a 5-cent increase in July to $2.30, and was given an additional 25-cent raise in December. The record reflects that Respondent had no regular schedule for wage increases but granted them on a discretionary basis. In the past it had generally granted a 5-cent or 10-cent increase with the only large exception prior to December being the 50-cent increase given to Christiansen at the time he took over Vander Yacht's produce duties. However, Respondent points out 5-and 10-cent increases to an employee over a period of time would add up to a substantial increase. Dodson gave the instance of Irene Kremen who in 1970 was raised from $2 to $2.10 the last week in January, to $2.15 the third week in March, to $2.25 April 4, and to $2.35 April 24. During the period of time from August to December when no pay increases were given, had increases been given such could have totaled the amount set forth in the amount of 35 cents in the case of Gerber and 25 cents in the case of Wortley. The record also reflects the following comparison of Wortley and Gerber's pay and that of other employees: Vander Yacht and Van Etten received $2.75 per hour from July on-they had, of course, performed duties in addition to checker prior to August 14. Kremen received $2.35 while Gerber had been hired at $1.90 and received this until she was raised 35 cents to $2.25 in December. Wortley had started at $2.25, was raised to $2.30 in July, and then 25 cents to $2.55 in December. Certainly Gerber's increase to the range Kremen had for apparently comparable work was not unreasonable. As for Wortley who started at $2.25, she had received a 5-cent raise in July within about 2 months of hiring. Other increases thereafter might be anticipated. Under all the circumstances I do not find the 25 cent increase to Wortley in December to be inordinate or inconsistent with Respondent's policy of giving increases from time to time-which policy had been inhibited from August to December. I am also aware of the fact that this was a period in the 18 Cf. Baker Machinery, 184 NLRB No. 39, TXD. DODSON IGA FOODLINER economy in which more substantial increases may have been necessary to retain good employees. If the Respondent were failing to give increases it should have given during the interval, it is difficult to conclude that the granting of such subsequently would be illegal, particularly where the rates as set forth were below other employees and where it could be reasonably anticipated that they would be raised. I conclude that under the circumstances the granting of the increases in December were not violative of the Act and so find. 7. The alleged constructive discharge of Carol Vander Yacht The question presented is whether or not Carol Vander Yacht "quit" her employment on November 2, 1970 under circumstances which would amount to a "constructive discharge." From the credited testimony of Kremen, it is evident Dodson knew Vander Yacht had signed a card, from Kern's credited testimony he knew that the union meeting was at Vander Yacht's house, from Sanderson's credited testimony Dodson was quite annoyed at Vander Yacht, and from Clark's credited testimony and Dodson's actions the letter had both upset and annoyed Dodson. There is also the testimony of Janice Hetterly, a customer, that about October 28 Dodson told her that Vander Yacht had been organizing for the Union and "forcing people to sign the cards." I have also found that following the Union's letter Dodson had taken and removed Vander Yacht from her position as produce clerk and assigned her duties primarily as checker. The latter resulted in a change in her hours but apparently the hours of all other employees except one were also changed. Prior to the advent of the Union, Vander Yacht testified that she had a close personal relationship with Dodson and "I confided in him the same as he did in me, I think it was a very friendly personal thing. I had a lot of respect for Leland." She said that Dodson consulted her on a good many questions concerning operating policy. However, she did seek to bring in the Union, after Arnie Christiansen said he was amazed at the heavy work she did and if the Union was in she wouldn't be doing such. She thought about it and "I hadn't been too happy with things so I went to the union office." Vander Yacht contended that although she had ordinari- ly been handed her checks by Respondent, after receiving a check on August 18 she did not receive one for 2 weeks. The circumstances relating to distribution of checks during that period are in dispute with some elements not entirely clear. Dodson testified that prior to August 22 he had decided, following a suggestion by his son Orran, to post the checks on the wall adjacent to the bulletin board. This is a position where the checks would be seen if the door were shut, but 19 The record reflects the following- A. Well, I asked him if he had gotten his check that week and he said yes, he had. I said, "I didn't." He said, "I saw your check on the wall. I can go up and get it for you." s x a s s Q Did he specify where? A. The only thing I thought he said was he would go up and get it for me. I took it it was upstairs and I hadn't been upstairs. Q. What, if anything, did you do after you spoke to Mr Christiansen'? 203 not if the door were open since it would then obscure part of the wall. Dodson admitted that this occurred after the union letter. Dodson explained the reason for the change, was that he had been in the habit of carrying checks to distribute, but that he sometimes forgot them and on occasion had dropped some on the floor. According to employee Jean Van Etten, the first she was informed or knew that checks were placed on the bulletin board behind the door was about September 4, when she and Mary Wortley were told by Dodson that from then on their checks would be so placed. This meant the first check Van Etten received on this bulletin board was on September 9. Dodson admittedly distributed the checks for the preceding 2 weeks to some employees. There is an apparent conflict- between Dodson's earlier testimony during the original hearing and his testimony during the reopened hearing as to whether or not he had personally given out all of the checks or posted some on the board. At the initial hearing Dodson was somewhat vague about the matter. In the reopened hearing although not specific Dodson testified he had posted at least three of the checks next to the bulletin board. The only corroboration for posting during the period from about August 22 to September 4 for the latter location is Arnie Christiansen's testimony that he saw Carol Vander Yacht's check at that location. Christiansen testified that sometime (apparently during the last of August) he had observed Vander Yacht's check on the wall by the bulletin board, that he had said, "Carol, it must be nice to have that kind of money that you don't need your check." Christiansen said he saw tears were in Vander Yacht's eyes and testified Vander Yacht said, "Well, Arnie, Bill is not working and I do need that check, but he will have to hand it to me. I am not going to ask him for it." Christiansen said he just made the statement that sometimes you have got to swallow your pride and do things that you don't care about doing. Christiansen said he did not recall telling Vander Yacht where the checks were. Vander Yacht said she had always been given her checks previously by Dodson and she was not going to ask him for them. She said Christiansen had told her on August 29 that he had seen her check on the wall and offered to get it but she didn't want him to and had broken into tears, in essence confirming his story except for the fact that Vander Yacht testified that Christiansen had told her that her check was on the wall. She indicated at this point that she thought it was on the wall upstairs. However, she contacted union representative Lewis who apparently also contacted Clark and they suggested she get her camera and take a picture of the check. Vander Yacht proceeded on the following Monday at noon to look for the check on the wall behind the door and did not find it. She said she was reluctant to go upstairs to see if it was up there.19 The latter indicates some question as to whether Vander Yacht understood the A. I didn't do anything at the store that day I went home that night and I called Mr. Lewis and I told him what Arnie had told me, that there was a check that was posted somewhere and what should I do about it. He said, "I am going to talk to Roger Clark today. I will call you back and let you know." He called me back and he said Roger told him to tell me to take a camera to work and take a picture of the check. Don't take the check, this would be the best evidence we could have. So on Monday morning I went to work and I took my camera with me in a sack. At 12 o'clock they all went to lunch, Mrs. Dodson, Orran and Leland were all gone and Jean was the only one in (Continued) 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checks were downstairs or upstairs when Christiansen told her it was on the wall. Although she said she thought, when Christiansen told her it was on the wall, that this was upstairs she commenced to look for the check on the walls downstairs. Also there is some question as to when Vander Yacht did receive the checks from Dodson who showed her the board which had two of her checks on it which she took off. Vander Yacht said that this occurred on Friday, September 4, and she then went to Bellingham from Everson. However, in the latter connection it appears that if she worked a full day this would have been 5:30 in the afternoon. The record does not establish whether or not the banks were still open at that time or what date a night depositary would stamp on deposited checks. Dodson places the time as September 1 or 2 when Vander Yacht obtained her two checks. The General Counsel asserts Dodson deliberately withheld Vander Yacht's check because of her union activities. The matter is arguable and under some circumstances such inference could be drawn. However, while suspicious, the circumstances herein are not entirely clear and it is evident that Vander Yacht reacted strongly to taking any action toward obtaining her check. Vander Yacht stated that the reason she took this position was she had been harassed by Dodson by taking her off the produce job and changing her hours and that he was no longer friendly. The change of hours evidently was no different from that of other employees. The change from the produce job has been previously noted and undoubted- ly could evoke a response from Vander Yacht. As for the lack of friendliness, it is not surprising under the circumstances. Nor is it a violation for the owner to cease to be friendly. See Southwestern Co., 111 NLRB 805 at 824. The General Counsel contends that Dodson was seeking to make a case against Vander Yacht. How this could be the case with the checks is not clear. In the instance of Vander Yacht's taking a camera to photograph a locale, it would seem rather that the Union was seeking to establish a case against Dodson. With respect to the coffee break change, Vander Yacht testified: The coffee pot was removed from the store the next day, and the cups, and I had no knowledge of where we were to have coffee, just that there were no breaks. The following week when the schedule was posted on the wall, it said you work whatever time you come to work and it would say a certain time for a break, it was 10 minutes, and when you come back and the next break was 10 minutes and I never knew where it was. This was never told to me until three weeks later in a conversation. Leland told me that coffee had been provided across the street. I had heard this from the other girls but I had never been invited to go, so I never had gone over for coffee. Here again Vander Yacht's response was that she wouldn't the store. Q. Are we referring to Monday, August 31st" A Yes Lee, the butcher was there, but there were no customers in the store and I went inside the little hall and I shut the door and took the camera out of the sack and looked around on the walls and there was no check on that wall any place. I was going to go upstairs to see if it was up there and I chickened out I hadn't been use to playing cops and robbers and I just didn't go any further. There was no check on the wall downstairs at that time Q Did you specifically look in the area behind where the door go until personally invited by Dodson. There is nothing to indicate that the coffee break change, which I have found was legal, was directed to her, nor does it appear that everyone but Vander Yacht was told about it. The timing of subsequent events is not entirely clear but the following appears to have occurred. About 3 weeks after the Union's letter, Vander Yacht was called to the back of the store along with Van Etten and Kremen. After they arrived, according to Vander Yacht, Dodson criticized the employees' failure to call out numbers at the checkstand. Van Etten and Kremen, according to Dodson, said nothing. Vander Yacht protested that she had always called out prices. According to Vander Yacht, Dodson became somewhat angry and walked away stating that he didn't want "to talk anymore about it." Dodson was asked if he had admonished or warned Carol and answered: A. Yes, I did, and not entirely Carol alone. It had come to our attention at different times that none of us, myself included, and I try not to do any checking if I can get out of it, we were not calling out the prices of the items as they were being rung up. I called them to the back room in the presence of Orran and told them, if I remember my words right, "I don't really think this should have to be said." Q. Before you tell us what you said, identify the group that you called back there. A. Irene Kremen, Jean Van Etten, Carol Vander Yacht. Q. Tell us now what you said and what anyone else said. A. I told them I didn't think it was necessary to tell them this, but there was one in the bunch who had been at the market long enough to know that it was definitely a practice for the checkers to always call the amount of the sales out as they rang them up. Irene and Jean did not make any reply. Carol told me that she always had done that. The girl was mistaken, she just didn't always do it. The General Counsel argues that Dodson had never made an issue of calling out prices at the checkstand previously. Assuming this were so, it does not follow that such may not properly be raised since certainly customers are entitled to know in some manner the charges per item. On Sunday, October 18, late in the afternoon, Vander Yacht called Dodson concerning her work schedule the next week. She was told she was scheduled the next day, Monday. She asked if he would mind if she traded with Van Etten since she had a commitment to have a baby shower. It appears that requests to exchange with other employees had been granted by Respondent in the past. However, the record does not show how much time had been involved prior to making such requests, nor does it reflect what the schedules had been previously. In this instance Dodson refused to permit the change stating, according to Vander Yacht, "He was sick and tired of you having things your would have covered it if it were open? A. Well, I had to shut the door I shut the door to take the camera out of the sack and there was nothing on any wall downstairs at that time DODSON IGA FOODLINER way." According to Jean Van Etten, on October 23, during a conversation with Dodson, he told her: Leland told me that, let's see, Carol worked the first three days of the week, Mondays, Tuesdays, and Wednesdays. the early shift. Iris worked Thursday, Friday, and Saturday, and Mary worked Monday, Tuesday, Wednesday evenings and I worked Thursday, Friday, and Saturday evenings. That's the way he's had it set up. He said he did not want to have to cut hours from Mary to change the days so that I could work my evenings because Iris [Gerber] refused to work with Carol. [Emphasis supplied.] Dodson testified as to his having set up teams to cover the operation with Vander Yacht and Wortley on one of them. He referred to Vander Yacht's wanting him to fire Ins Gerber. Dodson then testified: When Mrs. Vander Yacht called me up it was late, just at closing time Sunday night. For me to make that change that she was asking, it would have necessitated me calling the other help and changing it. I told her-she wanted to know if she could change, if I didn't mind, and I said, "I mind." She said, "I have got a shower planned for tomorrow and I have got to go to it." I said, "Well you had better." She started giving me a rough time about why it was that they couldn't change their time of working hours as they had in the past. If I remember, my reaction to her was, "There have been a lot of things done to accommodate everybody else at the store, but here of late everything seems to be done to disrupt the store and this is not going to go through to disrupt it at this time. My time schedule is going to stand just as it is." Vander Yacht was not reprimanded for taking the day off. However, on October 20, according to Vander Yacht, she was called to the back of the store by Dodson and found there the recently assigned produce clerk, Mike Young, and Don Peterson, a salesman from Merchants. Dodson told her he wanted her to "stop criticizing store policies to the customers while you are on the job." Vander Yacht protested she only talked to them when they asked her questions and Dodson repeated he wanted "her to stop talking to the customers." When Vander Yacht said if this meant "completely," according to her, Dodson slammed his fist down and said, "I want you to stop talking to the customers." Dodson then said with respect to calling prices that she was not calling them "loud enough for the customers to hear." Vander Yacht's response was that if she stood behind Dodson she couldn't hear him either. Dodson became angry at this point and, according to Vander Yacht, said, "Are you trying to build a case against me?" Dodson testified with respect to the foregoing: A. I instructed Carol to stop criticizing the store and its policies while she was on thejob and also instructed her to pay more attention when she was a checker that the customers did not have to wait and she would have to be called to get to the checkstand to check them out, that that had been happening. Also, that I had stood in the alleyway behind her while she was checking out customers and if she was calling out the prices she was calling them out low enough that I didn't hear them and I was sure the customers couldn't hear her and I would 205 appreciate it if she would speak a little louder when calling them. Also while she was calling out the numbers and prices to not talk, not talk while she was ringing up. [Emphasis supplied] Q. Did Carol say anything at that time? A. Yes. Q. What did she say? A. She said, "Well, I have been working in the checking stand next to you and I haven't heard you calling them and I think you were calling them." Dodson also testified he had not told Vander Yacht to stop talking to customers completely . Dodson stated: A. I told her while ringing up items not to talk, and while talking, not to ring up, but at no time did I tell her not to talk to the customers, Carol or anyone else. A few days after this incident, Dodson had a conversa- tion with Van Etten in which he said that he should have gotten rid of "Vander Yacht the previous summer," that she was "sick" and that she was ruining his business by criticizing store policies and that "one of us has to go." Dodson did not specify exactly what was referred to with respect to criticism of store policies. There is no question from the record that the atmosphere was no longer friendly between him and Vander Yacht and it is also evident that Vander Yacht was upset about the situation. As for patronage of the store, Vander Yacht admitted that she and her family, consisting of approximately 12 persons, ceased purchasing at the store. The foregoing, of course, could have resulted from criticism of the store. The fact that such number of persons related to Vander Yacht would cease buying at the store may have annoyed Dodson. The foregoing conversation that Van Etten had with Dodson was related by her to Vander Yacht which probably disturbed Vander Yacht. Apparently after Van Etten reported her conversation with Dodson to Vander Yacht, Vander Yacht had a case of shingles and went to see a doctor who suggested she quit. Vander Yacht said she had never had the shingles before and that the "harassment" had upset her. Dodson testified that he had kept a record as to incidents involving Vander Yacht on advice of an attorney and had then given her the oral warning on October 20. On October 25, he handed her a letter confirming the contents of the oral warning. Although there may be a contention that the case of shingles followed the warning, I do not so find for the reason that the written warning was issued October 25, while Vander Yacht said she worked 2 or 3 weeks after she had the shingles and she quit on November 2. This would place her case of shingles at least a week prior to the written warning. Accordingly, I conclude that the shingles preceded both the written warning and apparently also the oral warning on October 20 concerning her work. The written warning from Dodson on October 25 is set forth hereafter: October 25, 1970 Everson, Washington Mrs. Carol Vander Yacht 2547 Mt. Baker Hwy. Bellingham, Washington This is to confirm that on October 20, 1970, at 3:10 p.m., I did instruct you to discontinue critisizing (sic) 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store policies to customers-while you are on the job. Also that on the same date and time I did instruct you to be more alert in seeing that customers do not have to wait for a checker. Also that I did call to your attention the facts that you are not calling out the prices loud enough for customers to hear the amount and that you are not to ring up sales while conversing with the customer. I informed you that I had noticed you often fail to call the prices at all to the customer. (signed) W. E. Dodson Dodson's IGA According to Vander Yacht, there had been no previous warnings given out by Dodson during the 5 years she worked in the store. Dodson testified that he gave her the letter because "he felt she was so mad back there that she probably wouldn't remember half of what was said." The reference in the letter about checking is set forth, supra, in more detail in Dodson's testimony. According to Vander Yacht: ... He said I was making customers wait at the checkstand for service, which they only had to wait long enough for me to walk down an aisle for me to get there. We were instructed we were to work within the visibility of our checkstand and this could be as far as the eggs and butter in the back of the store you could still see the checkstand. That is how long they had to wait ... . Also on the same date,' October 20, Dodson told Mary Wortley she was to be sure and "register only on one register. They had been mixing them up and I needed to pin it down because we had had considerable trouble in getting our records to balance out each night." The effect of the foregoing is that following the introduction of the Union the relationship between Dodson and Vander Yacht became strained. Dodson was no longer friendly, nor was he legally required to be. Vander Yacht was upset first by the change in the produce department and then evidently by numerous matters which occurred. The checks were one, the coffee another. The matter of the trading of a day another. So also the other items of criticism, whether directed to her or a number of persons as set forth, supra. While the issue is not free from doubt, the burden of proof is on the General Counsel. The employer is entitled to operate the store and to do so in an orderly and reasonably efficient manner. The circumstances herein are such that, while they may be viewed with suspicion, in my judgment they do not clearly establish such action directed to Vander Yacht as to amount to a constructive discharge. The change from produce clerk to checker in its inception might have been viewed as such, although the pay remained the same and with respect to lifting was less onerous. However, Vander Yacht continued to work, but while working an unfriendly relationship developed between her and Dodson which may have been magnified by mutual sensitivity and stubborness. In conclusion I do not consider that the General Counsel has established by a preponderance of the evidence a constructive discharge in the case of Carol Vander Yacht and I shall recommend that the complaint be, dismissed with respect to this allegation. 8. The reduction in hours I have previously indicated that the reduction in hours of work of the women, which occurred during the week of September 12 and which was a result of the change from American to Merchants, initially constituted a violation of the Act since it emanated from and was precipitated by the union letter. I find such would constitute a violation of Section 8(a)(1) and (3) of the Act. However, as previously set forth, it does appear that Respondent had a basis for reducing the amount of help in terms of its increased costs and the unsatisfactory nature of American Supply's services. Further, the fact that Respondent could operate with less employee hours was a further manifestation that more were not needed. For these and other reasons I am in the section headed "Remedy," post, not recommending any backpay order with respect to the reduction in hours. 9. The issue as to majority The complaint alleged, the answer admits, and I find the following unit is appropriate: All the Respondent's grocery employees, excluding meat department employees, office clerical employees, confidential employees , guards, and supervisors as defined in the Act. The General Counsel contends that the Union had a majority of the employees in the unit as of the time its letter was sent and received by Respondent, and also a week later when Lewis and Clark discussed the matter with Dodson, since by the latter time another employee had signed a card. Respondent contends that when all the employees it claims are in the unit are counted, Gerber found to be properly terminated, and certain cards found to be invalid, the Union did not have a majority. The facts with respect to the following are that there are in question nine named employees, Mary Wortley, Irene Kremen, Carol Vander Yacht, Gerald Sanderson, Iris Gerber, Jean Van Etten, Lisa Hougen, Arnie Christiansen, and Robert Leibrant. This would total nine employees. Five of these, Vander Yacht, Van Etten, Wortley, Kremen, and Gerber, signed authorization cards on August 12. Sanderson signed a card on August 19 before the second meeting between Clark and Lewis and Dodson.' The General Counsel contends that Hougen and Christiansen are temporary employees and should not be counted. Respondent claims that both of these should be included and that Irene Gerber was properly terminated on August 14 and should not be included. Since Gerber's card had been signed prior to the time recognition was requested, even if the discharge were proper, the card would be countable if determined valid. Further I have found, supra, that the discharge was not proper. Respondent does not attack the cards signed by Van Etten, Vander Yacht, or Kremen. It does attack the validity of cards signed by Gerber, Wortley, and Sanderson, and also one by Leibrant which was not offered by the General Counsel but by Respondent. Respondent contends that in the case of Gerber's card she signed after it was represented to her that establishment of the Union was to be upon majority vote and there would be no obligation to pay dues until that was accomplished. DODSON IGA FOODLINER In order to properly evaluate this contention , I am setting forth Gerber's testimony in some detail so it can be compared with the testimony of union representatives as to what was said. Q. Didn't he tell you that you would have an opportunity to change your mind or that this card was tentative or anything like that that you might have a vote later on and change your mind? A. There was something said about a vote but I don't recalljust exactly what. Q. And was that said before you signed the card? A. I do not recall. * Q. Did they tell you that you wouldn't have to pay an initiation fee or union dues until the union was established at Dodson's? A. That's right. Q. And that that establishment had to do with the vote of the majority of the employees? A. Yes. * * * * * TRIAL EXAMINER: Was anything said about what going union meant, a vote by a majority of employees? THE WITNESS: That was discussed. * * * * THE WITNESS: Was said, brought up. TRIAL EXAMINER: By whom? THE WITNESS: I don't know, it was at the meeting at Carol's home. TRIAL EXAMINER: What was said about a vote of employees? THE WITNESS: I really can't remember what was said. I had forgotten all about it until they had jogged my memory. It was though, if the majority of the employees wanted to go union, I got the impression, then, it was going to. The store would go union is what I mean. TRIAL EXAMINER: That was discussed in the meeting? THE WITNESS: Yes. TRIAL EXAMINER: Now, how was the majority to be determined, by card, by vote, by show of hands? THE WITNESS: I believe it was by vote. It was up to each individual's vote. TRIAL EXAMINER: In what way? THE WITNESS: Well, that I don't know. I don't know how we were to vote. TRIAL EXAMINER: Do you know who brought up the subject of voting? THE WITNESS: I don't remember. * * * * * Q. (By Mr. Nelson) Mrs. Gerber, at that meeting you say you do recall the subject of the election or vote? A. I recall. Q. That election isn't familiar to you? 207 A. I can't say yes or no. Q. On the subject of a vote, did anyone tell you at the time you signed the card- MR. NIELSON (interrupting) Objected to as leading. TRIAL EXAMINER: IT overrule in this instance, proceed. Q. (By Mr. Nelson) Did anyone tell you at the time you signed the card, before it, long before it, that the purpose of that card was to get a vote? A. I don't remember. I do remember-well- TRIAL EXAMINER: (interrupting) You do remem- ber what. THE WITNESS: I do remember saying that I would rather talk to Mr. Dodson before I signed the card and they-I was told that that was not the way it was done. Q. (By Mr. Nelson) Did anyone tell you before you signed the card or at the time you were filling it out and signing it that the only way to get a union in the store would be an election or vote? A. I don't remember. [Emphasis supplied.] Union representative William Lewis testified with respect to the cards: I passed out the application cards which were shown here earlier in the trial. I went right down the line with it and they filled them out. When they were through, why I went around and collected them and put them in my briefcase. They asked what the next step would be and I told them that we would send Mr. Dodson a letter stating that we had a majority of the employees in his establishment and with this I would send an industry contract so he could see what the people were asking for. Then, of course, you know how the chatter goes. They wanted to know supposing he doesn't go for the union contract. I said "Well, there are only three steps you can take. Either he accepts it or we may have to go to an NLRB election. The last resort would be to put a picket line on." Well, this was all right. I did tell them that if he accepted the contract and if there were to be any changes in the contract outside of what we had agreed to there, that we wanted our industry contract, that if there were any changes the employees would have the right to vote on those changes whether they wanted them or not. We would not accept anything except the contract as it was unless they agreed to the changes. [Emphasis supplied.] We visited for a while and then I went home. Q. To the best of your recollection, was there any discussion on the subject of a vote or an election before the employees signed the cards. A. No. According to Respondent, Wortley testified, with respect to the signing at Vander Yacht's house, that she would have an opportunity to change her mind on being represented by the Union and that despite the signing a vote would be taken, a majority vote would have to be established. In order to properly evaluate this testimony, I am setting forth the following from the record: Q. (By Mr. Nelson) Did he say anything about any other employees having an opportunity, that is, employ- 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees that weren't at Carol's house that night, that they would have an opportunity to have a voice in whether the union came in? A. I don't know. Q. (By Mr. Nielson) Did,Mr. Lewis, or anyone else at Carol's house that night, say these cards would be used so the employees would ultimately have a chance to decide-the majority of employees could decide whether they wanted a union? A. Well, it seems like something was mentioned about a vote being taken and there would have to be a majority vote. Q. A. There had to be a majority vote? To get in, yes. Q. (By Mr. Nielson) Well, was something said about getting another chance before the decision was final? A. It seems like there was but I can't remember. Q. You don't remember the exact words? A. Exact words, no. Q. But you know something like that was said? A. I think so. * Q. (By Mr. Nelson) Mrs. Wortley, in connection with this reference to an election or vote being held that you said was made during the meeting on August 4 at Carol's house, first of all, do you recall whether this was said before or after you signed the card? A. I can't remember if it was before or after. Q. Did anyone tell you at that time that the only way the union could get into the store was through an election? MR. NIELSON: I object to that as leading. TRIAL EXAMINER: Overruled. A. I don't know for sure but I figured that we had a chance. MR. NIELSON: I move to strike that. TRIAL EXAMINER: Yes. What are you moving to strike? MR. NIELSON: The answer. She said, I believe, I took it, I figured or- TRIAL EXAMINER: (interrupting) All right, I'll strike that part of the answer. Q. (By Mr. Nelson)- You testified before that you do recall being discussed three ways of getting the union in, is that a fair statement? A. Yes. Q. Do you recall any other-was the election one of those ways? A. It seems like it was. Q. Do you recall any other ways that it was discussed? A. Not words for word. I couldn't tell you. Q. Was reference made to sending the letter? A. Yes. Q. Was that one of the ways that was discussed? A. Yes. TRIAL EXAMINER: Is the answer yes? THE WITNESS: Yes. Q. (By Mr. Nelson) Did you know the letter was going to be sent to Mr. Dodson? A. Yes. Q. Was reference made to the possibility of going on strike? A. Yes. Q. Was that the third way? A. Yes. MR. NELSON: I have no further questions. (Recross) Q. (By Mr. Nielson) Mrs. Wortley, were you told or were you not told at Carol's that despite the fact the letter would be sent or that they might strike or whatever that there would still be an election or vote before the union got in, is that correct, or not? A. The way I understood it- MR. NELSON (interrupting): I object once again. Q. (By Mr. Nielson) Tell us how you recall, what is your understanding? A. I can't remember word for word, but I think it was talked about having an election before it came in. Q. Before the union would go in? A. Yes. * * * TRIAL EXAMINER: What was said about a majority of votes? THE WITNESS: It would have to be a majority of votes to get in the store. TRIAL EXAMINER: What was said about having a majority of votesto get it into the store, as you recall. THE WITNESS: I can't remember word for word what was said about it except that there would have to be a majority. TRIAL EXAMINER: You would have to have a majority vote before you had a union or majority vote if you had a vote, or what. THE WITNESS: You would have to have a majority vote. TRIAL EXAMINER: For what? THE WITNESS: To bring the union in. TRIAL EXAMINER: Now, you said a letter was to be sent the day after you signed the card? THE WITNESS: Yes. TRIAL EXAMINER: What was said to be the reason for the letter or the purpose of the letter? THE WITNESS: This was one way to let Mr. Dodson know about the union. TRIAL EXAMINER: What was to be in the letter? THE WITNESS: I don't know what all was written in the letter. TRIAL EXAMINER: Do you know what was to be said in the letter, to be told? THE WITNESS: He just said there would be a letter notifying him of the meeting and that we had signed cards. TRIAL EXAMINER: Anything else about what the letter was to say? THE WITNESS: That's all I can remember. [Emphasis supplied.] The foregoing in essence indicates the testimony from DODSON IGA FOODLINER 209 witnesses Gerber and Wortley whose recollection of the precise statements made to them is somewhat dubious. Lewis' testimony was clear and what he testified he stated clearly would be proper. The testimony of Wortley in part confirms what Lewis said including the reference to the different ways of achieving recognition, including signing of cards. Also it cannot be ascertained whether, if there were reference to a vote, such occurred before or after the cards were signed. Further I think it is evident that Lewis' version of what he said is accurate. A difficulty from an employee witness' standpoint is at what point and in what context the matter of a vote was mentioned when this question is propounded at a hearing months later. Based on my observation of Lewis, the fact that his statement of procedure is one often followed, the partial corroboration of this statement by Wortley and the (not surprising) indefiniteness or lack of recollection of Wortley and Gerber, I am crediting Lewis' testimony as to the card signing by Gerber and Wortley. I accordingly find that the cards of Gerber and Wortley were signed with no improper representations made with respect thereto and accordingly are valid authorization cards.20 Sanderson's card was signed at Vander Yacht's home on August 19. The Respondent contends that Sanderson's testimony indicates that he was told that signing a card did not mean that he could not later change his mind. However, a reading of the transcript will in my judgment lead to a different conclusion. Q. At the meeting at Carol's house, when Mr. Clark talked to you, did he tell you that the card would be used for a vote? A. No, he did not. Q. No mention of that at all? A. Not that the cards would be used for a vote, no. Q. There was no mention of an election, or a vote of employees, by Mr. Clark or anyone at the meeting? A. Yes, there was. Q. Who mentioned it? A. I suppose it was Mr. Clark. Q. What did he say about it? A. It was one of the steps that could be used to create a union shop. Q. Did he tell you, you could vote yes or no, or get out of signing the card if you wanted to? A. I can't recall. Q. Well, did anyone there indicate, even though you signed the card that you would later have an opportunity to change your mind, by vote. You could vote another way if you wanted to. A. I believe there was something said to that effect. Q. (By Mr. Nielson) Was that said to you before you signed the card? A. I can't recall. * about either having the right to vote or getting out of signing a card? THE WITNESS: Do I recall that? TRIAL EXAMINER: What was said about that? THE WITNESS: I can't remember. [Emphasis supplied.] It is evident that the foregoing does not nullify the validity of Sanderson's card. In addition, Clark testified with respect to this meeting that Sanderson said he would like to sign a card and he gave it to him. Clark later said he asked Sanderson to sign a card which he obtained from Lewis. Clark also said that: A. As I had earlier asked that it be read back, and I certainly, if you would have let me go into it further, would have finished only to advise you that we in every meeting state every step of trying to bring about bargaining with an employer, which I am sure through the steps was in starting out with the signing of the authorization cards, requesting recognition, and only then if recognition were not granted to the union would the union utilize the cards for the filing of a petition, but only after we had demanded recognition and if the employer had denied the same. Based on the foregoing, I find Sanderson's card is valid. The General Counsel claims that Lisa Hougen should not be counted as an employee. Hougen was hired evidently on a temporary basis to do some cleanup work during the summer. She worked the following hours: 12 in week ending 7-18-70; 8 in week ending 7-25-70; 6 in week ending 8-1-70; 9-1/2 in week ending 8-8-70; 6 in week ending 8-15-70. According to Dodson, after checking the records, Hougen's last day of employment was August 13, 1970. Accordingly, I do not consider her to either be a full- time employee or employed at the time the 'demand was received on August 14 and I do not count her as an employee. Arnie Christiansen was originally employed in July to work until sometime in September, when he was to go on an evangelistic mission and possibly to return thereafter. In fact Christiansen worked steadily until he left about September 19 on an evangelistic trip overseas. While Respondent would not guarantee him a job on return it definitely wanted to employ him if it could when he returned. Accordingly Respondent did take Christiansen back about Christmas time in December 1970. Thereafter Christiansen continued to be and still is in the employ of Respondent. I consider that he was a regular employee as of August 14 and continued to be until he left about September 19. Accordingly I conclude that there were eight employees in the unit as of August 14 and that at that time the Union represented five of the eight in the unit. As of August 19 it represented six (including Sanderson) in view of my finding that Gerber was improperly laid off on August 14. It is evident and I find that the Union had a majority at the time the demand was made and, at all material times thereafter. The next question is whether Respondent violated the Act by failing to bargain with the Union. On August 14, Respondent received the union letter TRIAL EXAMINER: Do you recall what was said requesting recognition. As found above, it immediately 20 Leibrant's card was not offered by the General Counsel but was may or may not have said to him could not affect the validity of the other offered by Respondent. Whatever Vander Yacht, who solicited the card, cards which were obtained by Lewis. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeded to unilaterally change its operations as a result thereof so as to then affect the work of employees Van Etten and Vander Yacht and the employment of Gerber and a week later Kremen. This also subsequently resulted in a reduction in hours. I have found that by all of these acts, Respondent violated Section 8(a)(1) of the Act and by certain -of these acts violated Section 8(a)(3) of the Act. Respondent also advised employees it could not grant any wage increases until the union matter was settled. I have found it thereby violated Section 8(a)(1) of the Act. By these acts Respondent has engaged in a course of serious misconduct in violation of the Act which made a fair and open election impossible and denied to the employees their statutory right to self-organization and representation regardless of the employees' desires and regardless of the Union's numerical strength. Respondent's refusal to recognize and bargain with the Union under the foregoing circumstances was violative of Section 8(a)(5). I accordingly find that Respondent violated Section 8(aX5) of the Act by refusing to bargain with the Union on and after August 14, 1970.21 Further, Respondent's unfair labor practices were such in nature as to require, even in the absence of a Section 8(a)(5) violation, a bargaining order to repair their effect. I find, in any event, that Respondent's unfair labor practices were of such a pervasive character as to make it unlikely that their illegal and coercive effects would be neutralized by conventional remedies so as to produce a fair election. In these circumstances it appears that employee sentiment as expressed through the authorization cards is a more reliable measure of their desires on the issue of representation than, an election would be.22 I therefore find that by refusing to bargain with the Union and by engaging in extensive unfair labor practices, Respondent violated Section 8(a)(5) and (1) 23 and that to effectuate the policies of the Act, a bargaining order is required to remedy its refusal to bargain as well as its other unfair labor practices.24 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow thereof. v. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (3) of the Act by terminating Irene Kremen and Iris Gerber who were subsequently reinstated, I shall recom- 21 N L.R.B. v ,Gissel, 395 U.S 575 22 See (and compare) Medley Distilling Co, 187 NLRB No. 12. 23 1 accordingly also find that in addition to violating Section 8(a)(1) of mend that they be made whole for any loss of earnings they may have suffered therefrom, in the case of Kremen, by payment to her of a sum of money she would normally have earned as wages for the one day she was separated, and, in the case of Gerber, by payment to her of a sum of money equal to the amount she normally would have earned as wages from August 14, 1970, until she returned to work about October 14, 1970, less their respective earnings during said periods. Loss of earnings shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 189, and interest at the rate of 6 percent per annum shall be added to the backpay, to be computed in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate computation of backpay. Having found that the Respondent had a majority in an appropriate unit, that it requested recognition therefor, and that the Respondent refused recognition and thereafter engaged in conduct making a fair election unlikely and which by its nature would tend to thwart and discourage collective bargaining, I have found that the Respondent violated Section 8(a)(5) and (1) of the Act. I have further found and am recommending that this conduct should be remedied by an affirmative order requiring Respondent to bargain with the Union, upon request, in the appropriate unit. With respect to the matter of reduction in hours which I have found violative of the Act for reasons set forth supra, I am recommending that the Board, although recognizing what precipitated the reduction, should in its discretion take into account the facts that there was indicated a business need for a lesser number of employee hours and that the store in fact is operated with less hours. See and cf. Carolina Mills, 92 NLRB 1141, enfd. 190 F.2d 675 (C.A. 4) and Hod Carriers, Laborers Union Local No. 300, 159 NLRB 1128 at 1135, 1136, citing and discussing cases. I also note that my recommended order provides that Respondent shall bargain with the Union. I am accordingly not recommending any make-whole remedy with respect to the reduction in hours. Because of the nature and extent of the unfair labor practices engaged in by Respondent, as found above, it will further be recommended that Respondent be ordered to cease and desist from in any other, manner infringing upon the rights of the employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Dodson's Market, Inc., d/b/a Dodson IGA Foodliner is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local Union No. 240, is a labor organization within the meaning of Section 2(5) of the Act. the Act by unilaterally changing its operations after and as a result of the union letter, Respondent thereby also violated Section 8(a)(5) of the Act. 24 See Gissel, supra DODSON IGA FOODLINER 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed by Section 7 of the Act in the manner found herein, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The following constitutes an appropriate unit within the meaning of Section 9(b) of the Act: All the Respondent's grocery employees, excluding meat department employees, office clerical employees, confiden- tial employees, guards, and supervisors as defined in the Act. 5. At all times material herein, Retail Clerks Interna- tional Association, Local Union No. 240 has been the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit above, on and after August 14, 1970, the Respondent has refused to bargain and engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By unilaterally changing assignments and scheduling of work and hours of employees on and after August 14, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. By discriminating in regard to the hire and tenure of employment of Irene Kremen and Iris Gerber and reducing hours of employees to discourage membership in a labor organization, Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 25 ORDER Respondent, Dodson's Market, Inc., d/b/a Dodson ][GA Foodliner, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively with Retail Clerks International Association, Local Union No. 240 as the exclusive collective-bargaining representative of its employees in a unit composed of: All the Respondent's grocery employees, excluding meat department employees, office clerical employees, confiden- tial employees, guards, and supervisors as defined in the Act. (b) Failing and refusing to bargain in good faith with the Union by unilaterally changing assignments and schedules and hours of employees in the appropriate unit. 26 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 26 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 211 (c) Informing employees that no wage increases can be granted while a union matter is,pending. (d) Discouraging membership in Retail Clerks Interna- tional Association, Local Union No. 240, or in any other labor organization of its employees by discriminating in regard to their hire or tenure of employment or any term or conditions of employment. (e) In any like or related manner interfering with the right of employees to self-organization, to form labor organiza- tions, to join or assist the above-named or any other labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Make Irene Kremen and Iris Gerber whole for any loss of earnings they may have sustained as a result of the discrimination against them in the manner prescribed in section V of this Decision entitled the "Remedy." (b) Upon request bargain collectively with Retail Clerks International Association, Local Union No. 240, as the exclusive bargaining representative of all employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if understandings are reached, embody such understandings in signed agreements. (c) 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 to an analysis of the amounts of backpay due under the terms of this recommended Order. (d) Post at its premises in Everson, Washington, copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region '19, after being duly signed by an authorized representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.27 It is further recommended that the complaint be dismissed in all other respects. 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." 27 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.