Buddies Supermarkets, Inc.

BUDDIES SUPERMARKETS, INC. 407 Buddies Supermarkets , Inc. and Retail Clerks Interna- tional Association, AFL-CIO, Local 368 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Buddies Supermarkets, Inc. and Charles Ray Smith. Cases 16-CA-4304 and 16-CA-4312 June 12, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 29, 1972, Trial Examiner Samuel Ross issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings,' findings,2 and conclusions and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby orders that Respondent, Buddies Supermarkets, Inc., Fort Worth, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order, as so modified: The first sentence of paragraph 2(d) shall read as follows: "(d) Post at its Store No. 4 and its garage from which the milk route drivers operate copies of the attached notice marked `Appendix.' " 1 In affirming the Trial Examiner herein we in no way rely on Resp Exh 20, which the Trial Examiner rejected but nonetheless proceeded to evaluate 2 Respondent has excepted to certain credibility findings of the Tnal Examiner It is the Board's policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 326 (C A 3). We have carefully examined the record and find no basis for reversing his findings 3 Respondent has excepted to the broad order recommended by the Trial Examiner As the unfair labor practice herein involved only two locations of Respondent, we find merit in Respondent's exceptions and shall amend the Order accordingly SAMUEL Ross, Trial Examiner: On charges filed respec- tively by the above-named Union on March 22, 1971, and by Charles Ray Smith, an individual, on March 31, 1971, a consolidated complaint issued on May 14, 1971, which alleges that Buddies Supermarkets, Inc. (herein called Respondent or the Company) engaged in unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. In essence the complaint charges that the Respondent violated the Act by terminat- ing the employment of Nona B. Greever because of her membership in and activity for the above-named Union, and by discharging Charles Ray Smith because he engaged in concerted activities guaranteed to employees by Section 7 of the Act. The Respondent filed an answer to the complaint which denies the substantive allegations of the complaint and the commission of unfair labor practices. Pursuant to due notice, a hearing in this case was conducted before me at Fort Worth, Texas, on August 5, 6 and 31, 1971. Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent, a Texas corporation whose principal office and place of business is located in Fort Worth, Texas, is engaged in the business of owning and operating numerous retail stores, located principally in the State of Texas, from which it sells groceries and related products. During the past 12 months, a representative period, the Respondent purchased goods and products valued in excess of $50,000 which were shipped to its facilities in Texas directly from places outside the State of Texas. During the same period, the Respondent sold goods and products valued in excess of $500,000. On these admitted facts, I find that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is not disputed, and I find, that at all times material herein, Retail Clerks International Association , AFL-CIO, Local 368 (herein called the Union), has been .a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background x In early 1970, the Union launched a campaign to organize the Respondent's retail food store employees in the Fort Worth-Dallas area, and on March 4, 1970, it filed a representation petition with the Board (Case 16-RC-5418). On April 27, 1970, the parties entered into a stipulation, approved by the Regional Director, for a 197 NLRB No. 70 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification upon consent election in a bargaining unit comprising some 788 employees working in 53 stores. The election was scheduled for May 14, 1970, but was cancelled because the Union filed unfair labor practice charges against the Company on May 5, 1970 (Case 16-CA-3973). On July 14, 1970, a second stipulation was executed by the parties and approved by the Regional Director for certification upon consent election. This election, sched- uled for September 3, 1970, was held, and resulted in the Union's defeat by a vote of 443 to 209, with challenged ballots insufficient in number to affect the election results. The Union thereupon filed timely objections to the election. Thereafter, following a hearing before Trial Examiner Paul Bisgyer on the Union's objections to the election, which was consolidated with its unfair labor practice charges against the Company, the Board on August 24, 1971, issued its Decision and Order in Buddies Supermarkets, Inc.,i wherein it found that Respondent had violated Section 8(a)(1) of the Act, by: warning employees that selection of the Union to represent them could result in a drastic reduction in working hours or discharge; admonishing employees to refrain from showing support of the Union in the Respondent's stores and directing them to remove union buttons or risk discharge; warning employ- ees that participation in a lawful strike or selection of the Union as their representative could result in reduction in the number of available jobs, loss of jobs, and the elimination of assistance by package boys' questioning employees as to how they voted in the election, accusing them of lying when dissatisfied with the response, and informing them that it knew how they voted; and threatening to discontinue the prevailing practice of permitting employees to switch scheduled working hours in reprisal for their support of the Union. Based on these findings of violations of Section 8(a)(1) of the Act by Respondent, and on additional conduct, the Board also ordered inter aha, that the election conducted on September 3, 1970, be set aside and that a second election be conducted. B. The Discharge of Nona B. Greever Mrs. Greever was employed for about 10 years by one A. L. Davis as a checker and part-time cashier at a retail food store located at Springdale and Riverside Drive, Fort Worth, Texas, when the Respondent bought out Davis and 1 192 NLRB No 143 2 The cashier's cage in each store is an enclosed area where the Respondent keeps large sums of money and where it cashes checks for its customer's 3 All dates hereinafter refer to 1971 unless otherwise noted 4 The findings in respect to Mrs Greever 's continued functioning as a relief cashier at store no 4 are based not only on her uncontroverted and credited testimony but also on the corroborating testimony of Respondent's witnesses Ora Cate and Ruth Daniel, employees of store no 4 5 Mrs k reever testified that Larry Heise, who signed the unfair labor practice charge in this case for the Union, was the representative with whom she had the above telephone conversation. However, she obviously was in error in this regard because Heise, an adverse witness called by the Respondent, denied that it was he who contacted her on this occasion, and testified that it probably was union representative Jerry Palmer, in whose area she resided, who telephoned her and later left the literature I regard Mrs Greever's error in this regard as unintentional and immaterial, and I credit her testimony in this regard to theiextent indicated above. designated the store as Buddies No. 45. She continued thereafter to work for the Respondent at store no. 45 in the same capacity as checker and part-time cashier. On December 13, 1968, Mrs. Greever was transferred to Respondent's store no. 4, and, according to her uncontro- verted and credited testimony, she was told that the reason for the transfer was because "it [store no. 4] was closer to my home and since my husband was ill that I would be closer to go home to see about him, because I tried to go home on my lunch hour." At the time of this transfer, the manager of store no. 4 was Kenneth Johnson. After her transfer, Mrs. Greever continued to work under Johnson's supervision both as a checker at the cash register and as a relief checker in the cashier's cage when "they were short of help." 2 Mrs. Greever continued to act as both checker and relief cashier at store no. 4 when Johnson was replaced as manager by John Benton, and she was given a set of keys by Benton to use in the event she was needed for work on a weekend. On February 6, 1971,3 Manager Benton of store no. 4, and Vernon Hall, the manager of another of Respondent's stores, "swapped stores" and Hall took over as manager of store no. 4, and thereafter, whenever the need for a relief cashier arose, Mrs. Greever worked in the cage.4 In the latter part of February or early in March 1971, Mrs. Greever received a telephone call at her home from a representative of the Union who informed her that "another election" would be "coming up" and asked her how she felt about the Union. Greever said that she was for it, and the union representative replied that he would mail some literature to her. Subsequently, on March 3, the union representative called at Greever's home when she was not there, left a union authorization card and some literature with her invalid husband, and said that he would return later but did not.5 During the week following her receipt of the Union's literature, Mrs. Greever spoke to 4 of the 12 to 15 employees of store no. 4 about the Union .6 These conversations took place both in the store and on the telephone. In sum, according to Mrs. Greever's credited testimony, she told the three female employees that she had been contacted by the Union, asked them whether they similarly had been contacted and how they felt about the Union, and suggested that they needed "some kind of organization." To Farrell she said, "I think it is time that you consider joining the Union."7 6 Ruth Daniel, Ora Cate, Carolyn Jordan, and Joe Farrell 7 Employee Ruth Daniel, a witness for Respondent , first denied having any conversation about the Union with Mrs. Greever but later admitted having several such conversations, including one "a week" or "two or three days" before Greever's discharge on March 10 Her version of that conversation was that Greever said that "she would bet that it would go union if and when we had another vote." In the light of the self- contradiction in Mrs Daniel's testimony, the absence of any attempt by Mrs Greever to exaggerate the extent of her union activity, and based on demeanor, I regard Mrs Greever's version of their conversation credited above to be more reliable than Daniel's. Employee Ora Cate, another witness for Respondent , testified that in a telephone conversation with Mrs Greever the latter told her "she was for the union and that we'd be better off if we were union " Mrs. Cate could not recall the date of this conversation , but she "imagine[d ]" that it was "about probably two weeks after she [Mrs . Greever ] was discharged " Mrs Cate also was uncertain as to whether Mrs Greever or she initiated the telephone call and as to which of them brought up the subject of the Union Moreover, BUDDIES SUPERMARKETS, INC. On March 10, Mrs. Greever signed a card authorizing the Union to act as her collective-bargaining representative and mailed the card to the Union on her way to work.8 According to Mrs. Greever's credited testimony, later that morning she told Store Manager Hall that she understood that it was a company policy or rule that employees were supposed to report contacts by -the Union.9 Receiving no comment from Hall, Mrs. Greever then told him that she had been contacted by the Union, that they had visited her home during her absence, had left some literature with her husband, and that they had said they would be back.io Shortly before 1 p.m. that same day, Store Manager Hall drove Mrs. Greever to the personnel office where she was subjected to a polygraph test conducted by Perry E. Ivie, the Respondent's polygraph examiner The test lasted I hour and 10 minutes, from 1:05 p.m. to 2:15 p.m., and while it was in progress Store Manager Hall waited in the office of Arthur Dyson, the head of Respondent's security department. During the examination, Mrs. Greever readily admitted to Ivie that during the 2-1/2 years which had elapsed since her last polygraph examination, she had eaten (grazed) a total of about 15 cents worth of Brach candy without paying for it.li She also was asked by Ivie whether she had taken any money or merchandise from the Respondent and whether she had ever falsified her timecard, and she responded in the negative to both questions Upon request by Ivie, Mrs. Greever readily agreed to and signed a statement in which she admitted the grazing of 15 cents worth of candy and denied the taking of any money or merchandise.12 At the conclusion of the polygraph examination, after a short wait in Ivie's office, Mrs. Greever was called into Dyson's office where, according to her credited testimony, she was told by Dyson that "Mr. Berman and Mr. Rasbury have decided we're going to have to let you go." She asked why, and Dyson replied, "For grazing." Mrs Greever queried, "Fifteen cents of grazing7" Dyson said, "Yes.... That's just the way it is." Greever then went to Vice President Berman's office and protested her discharge, but Berman professed lack of knowledge as to what had transpired, and he promised to check into it and call Mrs. Greever. However, he never did. Mrs Cate assertedly also was unaware that "there was a union campaign going on " In the light of all this uncertainty, I regard Mrs Greever's testimony regarding the date of their conversation as more reliable than that of Mrs Cate 6 The card was self-addressed to the Union's post office box in Dallas, Texas, and required no postage See Resp Exh 4 The Respondent contends that Mrs Greever did not mail the card to the Union, "but personally delivered it to them [in] the afternoon after she got fired (Brief pp 6-7) " There is no support in the record for this contention, and I reject it as devoid of merit 9 On cross-examination , Mrs Greever testified that she was told during the prior election campaign in 1970 by both Store Manager Kenneth Johnson and Zone Supervisor Joe Coldwell that it was "a company policy that an employee is to notify management of any knowledge they have of the union representatives contacting them " The Respondent failed to call either Johnson or Coldwell to deny this testimony, and it offered no explanation for not doing so However , the Respondent's Vice President Joe H Berman credibly denied that the Company has any such rule, and its witness , employee Ora Cate, testified that she was not "familiar with" any such rule Whether or not the Respondent has such a rule (which I doubt) is clearly immaterial to the issue of whether Mrs Greever was nevertheless so told by her supervisors In the light of the unfair labor practices in which the Respondent engaged during the prior campaign, and its unexplained failure C. The Incredible and Pretextual Reasons Asserted by the Respondent for Firing Mrs. Greever As noted above, when Mrs. Greever was peremptorily fired, she was told only that her termination was based on her admission that she had grazed 15 cents worth of candy in the last 2-1/2 years without paying for what she had thus consumed. The same reason for her termination admittedly was the only one which the Respondent reported to the Texas Unemployment Commission. At the commencement of the hearing in this case , the Respondent in its opening statement asserted only this reason as the cause for Mrs. Greever's dismmssal . 13 Later in the hearing however, the Respondent expanded on this single reason asserted for her discharge 14 and asserted that it fired her, not only because of her admission to the grazing, but also because it believed that she stole cash from the Respondent 2-1/2 years ago while she was a part-time cashier at store no. 45, and because it currently regards her as a poor security risk. As noted infra, I regard all of the reasons asserted by the Respondent for Mrs. Greever's dismissal as incredible pretexts. Polygraph examinations of employees by the Respon- dent are not unusual, and during the course of her employment by the Company, Mrs. Greever has submitted to five or six such tests since 1961. During 1967 and 1968, while she was employed as a checker and part-time cashier at Respondent's Store No. 45, the Company suffered cash shortages of $3,065 in 1967, and $3,480 in 1968.15 During the period of these shortages, Greever submitted to two polygraph examinations in 1967, and one in about October, 1968. In those tests, Greever admitted occasional grazing of penny candy of minimal value, but she denied that she had taken any money from the Respondent. However, according to Vice President Berman, "the polygraphist (sic)" told him that her charts "showed certain deception" in her responses to the latter question.16 Despite her admissions to grazing, Mrs. Greever was not fired, and, according to her credited testimony, she to call either Johnson or Coldwell to deny that they so told Mrs Greever during the campaign , I credit her uncontroverted testimony in this regard 10 Hall's version of this conversation was that Mrs Greever said, "two union men came to her house and I think she said her husband turned them away, and she said, 'Now if they come back , do I have to admit them9', and I said, 'Of course not' " Based on his demeanor while testifying , and other incredible testimony by him, including but not limited to the pretextual reasons for firing Mrs Greever to which Hall later testified, I am persuaded that her version of this conversation is more reliable than Hall's, and I credit him in this regard only to the extent that his testimony accords with hers i i Eating candy or other merchandise without paying for it is a practice called grazing which is forbidden by the Respondent unless "the full retail price" is paid for what is consumed 12 See Resp Exh 21 13 Tr p 6 14 See tr p 356 is See Respondent's financial statements for 1967 and 1968 (Resp Exh 15 and 14, respectively). Respondent's Vice President Joe H Berman testified that these cash shortages were "abnormal," "severe," and "well above what we consider normal " 16 The polygraph examiner who conducted these tests was not called by the Respondent to testify notwithstanding that its counsel stated that he intended "to bring the polygraph man in here with the records " 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received no warning that she would be fired if she continued in that practice.l7 On December 13, 1968, 2 months after her 1968 polygraph test, Berman transferred Mrs. Greever from store 45 to store no. 4, assertedly "for security reasons," and he professedly issued "specific" instructions at that time to Joe Coldwell, the zone supervisor of both stores, that she was to "work only the [cash] register" as a checker and not "in the cashier's cage" where there are large sums of money.18 Following her transfer, the cash shortages at store no. 45 dropped substantially to $632 for the year 1969.19 The quite obvious purpose of Berman's above testimony, and the introduction by the Respondent of its financial statements for store 45 for the years 1967, 1968, and 1969, was to support the assertion that the Respondent had reasonable grounds for its professed belief that Mrs. Greever "is a thief," and that she was substantially responsible for the "abnormal" cash shortages at store no. 45 in 1967 and 1968, which were eliminated in 1969 by' er transfer.20 However, contrary to this intended implication, Mrs. Greever credibly testified without contradiction that "Everybody [at store no. 45 ] was being transferred" at that time. Further, Berman admitted on cross-examination that other employees, and the manager, might also have been transferred out of store 45 about the same time, but he professed a lack of recollection regarding such other transfers, assertedly because "the only one [transfer] I handled was Mrs. Greever." Obviously, the Respondent has records which could have confirmed or negated Mrs. Greever's testimony that "everybody was being trans- ferred" at that time, but it produced no such records and offered no explanation for its failure to do so. The failure of the Respondent to produce records to show that only Mrs. Greever was transferred at that time persuades me, contrary to the intended implication of Berman's testimo- ny and the supporting financial statements, that the Respondent had no rational basis for a belief that Mrs. 11 Vice President Berman testified that on February 20, 1967, after Mrs Greever admitted on her polygraph examination that she had grazed, and he assertedly was told by the examiner "that there was deception in the area of money, the taking of money," he immediately called her into his office, showed her a statement which she had signed in 1964 (Resp Exh 6), that she understood the Company's policy regarding grazing, and "told her that recurrence could lead to her discharge " Berman further testified that after Mrs Greever left his office on that occasion, he prepared a written memorandum of what had transpired and put it in her personnel folder (Resp Exh 7) However, Mrs Greever not only denied receiving any such warning from Berman, she also denied ever having been in his office prior to the date of her discharge Aside from the wntten date assertedly put on the exhibit by Berman when he prepared it, there is nothing thereon to indicate when, or even if, it ever was in Mrs Greever's personnel file As indicated infra, I regard Berman's testimony as implausible and incredible in many respects and as generally unreliable I note in this regard that after the 1967 polygraph test in which she assertedly was thus warned that repetition of grazing would result in her discharge, Mrs Greever was given two additional polygraph tests, one in 1967 and another in 1968, in which she admitted to grazing candy but was not discharged For all these reasons, and in the light of her ready admission in 1971 to Polygraph Examiner Ivie Greever was "a thief" who was responsible for "the cash shortages at Buddies 45." 21 Berman further testified that he did not fire Mrs. Greever at that time, notwithstanding that he "suspected her of stealing money," because he "couldn't prove it," and he had "to protect our company for (sic) false arrest." Instead, he professedly transferred her to another store with "specific instructions that she should not be in the cage but only at the [cash] register which reduce[d] our exposure quite extensively." I regard Berman's explanation for not then finng Mrs. Greever, and for instead transferring her to another store where she would handle money, as patently inconsistent with his professed suspicion that she was stealing money, and I am persuaded by the said transfer that he had no such suspicion.22 As noted above, Berman also testified that when he transferred Mrs. Greever to store no. 4 on December 13, 1968, he issued "specific instructions" that she was to work only as a checker at the cash register, and not "in the cashier's cage" where there are large sums of money. However, as found above, notwithstanding Berman's alleged "specific instructions," after her transfer, Mrs. Greever worked at store no. 4 for 2-1/2 years, not only as a checker at the cash register but also as a relief cashier under three successive store managers. Hall, the manager of store no. 4 when Mrs. Greever was fired, admittedly received no instructions, from either his predecessor Benton or anyone else, that she was prohibited from working as a relief cashier in the cage. Neither Manager Johnson nor Manager Benton was called by the Respon- dent to testify regarding the receipt of any instructions that Mrs. Greever was prohibited from working "in the cage." As previously noted (see fn. 18, supra), Zone Manager Coldwell also was not called to corroborate Berman's testimony that he issued such instructions to Coldwell. I am persuaded by all the foregoing, including the undisput- ed evidence that Mrs. Greever continued to function as a relief cashier without challenge for 2-1/2 years after her that she had grazed candy during the intervening 2-1/2 years since her 1968 polygraph test, I credit her testimony that she received no warning from Berman that a repetition of grazing would result in discharge, and I do not credit or believe his testimony to the contrary 1s Coldwell was not called by Respondent to corroborate Berman's testimony in this regard 19 See Resp Exh 13 20 Respondent's Security Chief Arthur Dyson testified, "In my opinion, she is a thief," and he further testified that he based this opinion on his belief that she was responsible for "the cash shortages at Buddies 45 " 21 N L.R B v Sam Wallick, et al , d/b/a Wallick and Schwalm Company, 198 F.2d 477, 483 (C A. 3), 2 Wigmore Evidence, Sec 285 22 See N L R B v. Walton Manufacturing Co, .369 U S 404, 408, in which the Supreme Court quoted with approval from the opinion of Judge Learned Hand in Dyer v. MacDougall, 201 F 2d 265, 269, as follows For the demeanor of a witness .. may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story, for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies BUDDIES SUPERMARKETS, INC. transfer, that no credence can be given to Berman's uncorroborated testimony that he issued any such instruc- tions.23 So far as the record discloses, there were no cash shortages at store no. 4 during the 2-1/2 year period that Mrs. Greever was employed there before her peremptory discharge. The sudden decision to subject her to a polygraph examination on March 10 could not then have been based on any recent peculations of cash by her. During the polygraph test Mrs. Greever denied taking money or merchandise from Respondent, but, according to Ivie, the polygraph examiner, "there were responses on the [polygraph] charts indicative of deception to theft of cash money and falsifying the timecard," and he later so told Security Chief Dyson. However, in 1967 and 1968, when there were known substantial cash shortages at store no. 45 where Mrs. Greever worked, and she was subjected to three polygraph tests, she was not fired despite allegedly identical reports by the polygraph examiner that her responses in the area of not taking money allegedly were indicative of deception, and notwithstanding the asserted belief that she was responsible for the shortages. The reason given by Vice President Berman for not then firing her was that she had denied culpability, he could not prove otherwise, and he wanted to avoid a possible damage suit against the Company "for false arrest." Although I regard that testimony as incredible, I deem even more incredible the Respondent's assertion that it fired her on March 10, 1971, because the polygraph charts indicated deception in her denial of theft of cash, when there was then no cash shortage, and she had similarly denied the taking of money or merchandise. For all the foregoing reasons, including the failure of the Respondent to assert this reason for Mrs. Greever's discharge in its opemng statement, I regard this alleged ground for her termination as a pretextual afterthought to lend support to the Respondent's original single assertion that it fired her because, during the course of 2-1/2 years, she ate 15 cents worth of penny candy without paying for it. I likewise regard the Respondent's initial assertion, that it fired Mrs. Greever because she grazed 15 cents worth of candy in 2-1/2 years without paying for it, as implausible and unworthy of belief. My reasons for so concluding are as follows: The Respondent undisputably forbids its employees from consuming or taking any merchandise "without having first paid the full retail price for it." However, violation of this rule did not, at least in the past, necessarily result in the discharge of the offending employee. Thus, the uncontroverted record discloses as follows: Oram Don Story started to work for the Respondent as a "sack boy" in February 1961, later became "a stocker," and subsequently in 1964 admitted during a polygraph examination that he had grazed $40 worth of merchandise in the last 4 years. He nevertheless was permitted by Vice 13 Both Vice President Berman and Security Chief Dyson testified that they were unaware that, contrary to Berman's alleged instructions, Mrs Greever had continued to work in the cashier's cage after her transfer They further testified that they first learned about it when Dyson visited store no. 4 on March 5, 1971, saw Mrs Greever in the cashier 's cage, and then reported it to Berman I find it difficult to believe that, in an operation as 411 President Berman to pay for the merchandise that he had grazed and retain his job. Story later was promoted to assistant manager of one of Respondent's stores before he voluntarily quit in December 1966. Alan Collins was hired by the Respondent in the summer of 1967 as a sack boy and later was promoted to work as a "checker, stocker, [and] all-around man." In 1969, he was given a polygraph test, and he was told by the polygraph examiner that "the average person grazes so much a year" and that "the mimmum was over $100." Collins according- ly "estimated" and admitted that he had grazed "a little over $100" since he started to work for the Respondent. After making that admission and at the conclusion of the polygraph test, Collins was permitted to return to his job, but a few days later he was called back to the Respondent's office and was requested by its "personnel manager" "to pay it back" for the merchandise which he had admittedly grazed. Collins agreed to do so in monthly installments, and was retained in the Respondent's employ until he later voluntarily quit in February 1970 for "a better paying job." The Respondent made no attempt to controvert the credited testimony of Story and Collins above. It is thus obvious that in the past the Respondent has condoned much greater violations of its rule against grazing than the 15 cents worth admitted by Mrs. Greever and did not discharge offending employees if they agreed to pay for the merchandise that had been grazed. However, no such opportunity was offered to Mrs. Greever when she was told that she was discharged because of her admission to the grazing of 15 cents' worth of candy in 2-1/2 years. Vice President Berman attempted to explain this quite obvious disparity in the treatment accorded to Mrs. Greever and that dispensed to other violators of the nongrazing rule by implying that since the promotion of Arthur Dyson to security chief in "approximately May or June of '69," the discipline meted out has been more severe. Berman testified in this regard that the discipline now imposed is "more or less standard," and that "currently, if they admit to theft, they are discharged." Similarly, when Dyson was asked whether there was "any standard policy of discipline [for admitted grazers]," he testified, A. My interpretation [of the policy] is that grazing is stealing, and if you steal you are punished, and you are punished by being terminated. I conclude that the testimony of Berman and Dyson that the current "standard" policy of the Respondent is to fire employees who engage in grazing is unworthy of credence or belief, and that contrary to their testimony, the Respondent has no such "standard" policy. I base these conclusions on the following considerations: a. Vice President Berman testified that employees other than Mrs. Greever have been fired by Respondent "for grazing in the amount of 15 cents." However, when Berman was asked "who and when?", he replied that he did not have the records with him, and he was instructed to sophisticated as the Respondent's, any employee could possibly act in a forbidden capacity for 2-1/2 years without the knowledge of management and its security department I therefore regard both the testimony regarding Berman's alleged instructions, and the asserted lack of knowledge of Greever's continued functioning as a relief cashier, as implausible and incredible. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produce them later in the hearing. The records thus requested were never produced. Instead, the Respondent, through Security Chief Dyson, produced a compilation, prepared by the Company prior to the hearing, which purported to list the names of 35 employees who assertedly had been fired by the Respondent between December 10, 1970, and July 12, 1971, for grazing various types of merchandise of unspecified value. The unexplained failure of the Respondent to produce the records specifically requested persuade me that the Company has no record to support Berman's testimony that it has discharged other employees merely because they grazed merchandise valued at 15 cents or less.24 b. The examination of Dyson on voir dire regarding the list of 35 employees who professedly had been discharged for grazing disclosed that the employees listed thereon were discharged, not only because of grazing, but for additional reasons not disclosed thereon. It thus developed that the first name on the list, Rebecca Wren, who assertedly was "terminated for grazing $1.00 merchandise," admittedly might also have been terminated because "she had taken change from customers and engaged in shoplifting, and had used marijuana." The voir dire examination of Dyson further developed that Robert J. Reedy, who assertedly was "terminated for grazing penny candy," likely was terminated because he also had "lied about prior employment where he was discharged by two employers." In the light of the foregoing, I am impelled to the conclusion that the list (Respondent's Exhibit 20) is not what it was professed to be, a record of persons who were discharged only for grazing. I accordingly place no probative value on this exhibit.25 c. The evasive, equivocal, and self-contradictory testi- mony of Dyson clearly discloses that the Respondent has no standard policy of discharging all employees who admit to violations of its grazing prohibition. In this regard, Dyson first testified as quoted above that grazing was "stealing," and that the punishment for stealing was, without exception, termination of employment. However, Dyson later admitted that all persons who admitted grazing since he became security chief had not been fired. When Dyson was then asked by Respondent's counsel to explain "what were the circumstances with regard to Mrs. Greever's discharge that was (sic) different from theirs [admitted grazers who were not fired]," Dyson testified that in some cases of "minor grazing," if the employee's personnel folder did not contain a signed form that they understood the rule which required payment for all merchandise taken or eaten,26 he did not discharge them. However, a short while later, Dyson admitted that not all persons who signed the form and then grazed were fired, and that in some cases "we give them another chance." d. Finally, Dyson in effect conceded that Mrs. Greever was not fired because she grazed 15 cents' worth of penny 24 See fn 21 25 The list was received in evidence by consent pursuant to the agreement of counsel that after the close of the hearing, they would jointly examine the Respondent's files and would submit a signed stipulation as to all of the reasons for the discharge of the 35 persons named on the list who purportedly had been discharged only for grazing No such stipulation was ever forwarded On January 24, 1972, after the close of the hearing, the General Counsel moved to strike Respondent's Exhibit 20 because of the candy in 2-1/2 years, when he testified that "Mrs. Greever's situation [was] different" from the other grazers who were not discharged "because, in my [Dyson's] opinion, she is a thief," and that this opinion was based not on "her grazing" but rather on "the cash shortages [two years earlier] at Buddies 45." All of the foregoing persuade me, contrary to the testimony of Berman and Dyson, that the Respondent neither had nor has a standard policy of discharging all employees who graze, and that the assertion that Mrs. Greever was discharged because she grazed 15 cents' worth of candy in the course of 2-1/2 years is another patently implausible pretext to conceal the real reason for her termination. D. Concluding Findings in Respect to Mrs. Greever's Termination In the light of my findings above that all of the reasons asserted by the Respondent for Mrs. Greever's discharge are incredible pretexts, the real reason for her peremptory dismissal is not difficult to perceive. The applicable principle in situations such as this where the reasons asserted for discharge are regarded as false was aptly stated by the Court of Appeals in Shattuck Denn Mining Corporation v. N.L.R.B.,27 as follows: Nor is the trier of the fact-here the trial examiner-re- quired to be more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. [Emphasis supplied.] Mrs. Greever had been employed by the Respondent and its predecessor for about 14 years. On December 13, 1968, she was transferred to store no. 4, and for the ensuing 2-1/2 years before her peremptory discharge on March 10, 1971, she worked at that store as a checker at a cash register, and as a relief cashier "in the cage" where checks are cashed for the Respondent's customers and large sums of money are kept. Other employees of store 45 also were transferred at about the same time. Mrs. Greever's transfer assertedly was based on a belief that she was responsible for the abnormal cash shortages at store no. 45 during 1967 and 1968. However, in the light of the continued employment by Respondent of Mrs. Greever in positions in which she was permitted to have access to large sums of money, and the incredible explanation given by Berman and Dyson not firing her instead of transferring her (the absence of an admission by Mrs. Greever of guilt), I am persuaded, as I have found above, that Berman and Dyson in fact had no such belief that she was a thief responsible for the shortages at store 45.28 Despite the continued access of Mrs. Greever to large sums of money at store no. asserted failure of the Respondent to reply to his written request of September 2, 1971, which specified the material needed for inclusion in the proposed stipulation. To date (February 25, 1972), the Respondent has filed no opposition to the motion to strike Exh 20. The motion is hereby granted, and the exhibit is ordered placed in the rejected exhibit file 26 See Resp Exh 6 27 362 F 2d 466, 470 (C.A. 9) 28 As found above, I also regard the testimony of Berman and Dyson BUDDIES SUPERMARKETS, INC. 4, there had been no cash shortages at that store during the last 2 1 /2 years of her employment before her peremptory discharge. One would assume therefore that the absence of cash shortages at Store No. 4 should have persuaded Berman and Dyson, even if they were not, as I have found, already so persuaded, that it was not Mrs. Greever who had been responsible for the earlier cash shortages at Store No. 45. Why then did the Respondent suddenly subject Mrs. Greever to a polygraph test and then fire her peremptorily? It clearly was not based on any admission in the polygraph test that she had [taken money, because she had denied doing so, and the absence of such an admission assertedly was the reason she had not been fired 2-1/2 years earlier when there were cash shortages at the store where she worked. It obviously could not have been based on cash shortages at store no. 4, since none were shown to exist. And, as found above, it certainly was not based on the patently pretextual reason, the only one given to her when she was fired, that she had grazed 15 cents' worth of penny candy during the past 2-1/2 years. The answer to the question posed above readily appears in the activities in which Mrs. Greever engaged just before she was poly- graphed and fired. The Respondent is opposed to the representation of its employees by the Union. As found by the Board, it had engaged in extensive unfair labor practices to defeat the Union at the earlier Board election which was conducted on September 3, 1970. One month before Mrs. Greever's discharge, Trial Examiner Paul Bisgyer had conducted a hearing which resulted in his and the Board's later decision that the Respondent had violated the Act, and that the election which the Union had lost should be set aside and a new election conducted. During the week preceding her discharge on March 10, Mrs. Greever became a union advocate,29 and solicited employees both in the store and by telephone on behalf of the Union. There were only about a dozen employees who worked in Store No. 4 where Mrs. Greever's solicitation for the Union occurred. Moreover, on the morning of the very day that Mrs. Greever was subjected to a polygraph examination and fired, she had told Vernon Hall, the manager of store no. 4, that she had been contacted by union representatives, that they had left some literature at her house, and that they had said they would return. The Respondent denies that it had any knowledge of Greever's union activities. There is no direct evidence that the Respondent had such knowledge. "A finding of knowledge of union participation may, however, be based on circumstantial evidence."30 Here, not only did Mrs. Greever engage in her activity in "a small plant,"31 but she that Mrs Greever's employment at store no 4 as a relief cashier in the cage was contrary to Berman's specific instructions, and that they first learned that she was functioning in that capacity 2-1/2 years later on March 5, 1971, as a tax on credulity and unworthy of belief 29 In the prior election, Mrs Greever admittedly had voted against the Union 30 N L R B v Mid State Sportswear, Inc, 412 F 2d 537, 539 (C A. 5), N L R B v Schill Steel Products, Inc, 340 F.2d 568 (C A 5) 3i N L R B v Mid State Sportswear, Inc, supra 32 N L R B v Montgomery Ward, Inc, 242 F 2d 497, 502, cert. denied 355 U S 829, N L R B v Mid State Sportswear, Inc, supra 33 Shattuck Deno Mining Corp v N L R B, supra, N L R B, v Mid State 413 also had apprised the store manager on the very day of her discharge that she had been contacted by the Union. The timing of that discharge,32 the patently pretextual and vacillating reasons asserted for her dismissal,33 and the fact that at the time of her discharge, no other reasonable explanation appears for her dismissal, all persuade me that the Respondent was aware of Mrs. Greever's solicitation for the Union and that it fired her because of that activity. Accordingly, I find that by so doing the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. E. The Dismissal of Charles Ray Smith Smith was hired by the Respondent in 1961, and after 2- 1/2 years, he was transferred to its milk department where he drove a truck hauling milk to the Company's stores. At the commencement of this assignment, Smith worked for a guaranteed weekly salary, but in 1965, , he and the Respondent's other milk truckdrivers were put on an hourly pay basis. On December 16, 1969, the Respondent called a meeting of the four milk truckdrivers then employed by it,34 and Gene Morrison, the administrative assistant to Vice President Berman announced that effective immediately, they would be put on a commission basis so that "the more milk we hauled, the more we make." 35 Morrison told them that they would be given a drawing account of $155 per week, that the rate of commission would vary and be based on the average number of gallons of milk per week sold and delivered during a quarter annual period, the rate declining as the average weekly sales increased, that the new compensation program would be in effect for 13 weeks on a trial basis, and that, "At the end of this quarter, if you boys want to go back on the hourly rate, I'm sure we can do so." 36 Morrison then gave each of the four drivers an identical form contract, setting forth the precise terms under which they would be working and requested them to sign it. They all did so.37 Under the terms of these identical agreements, effective November 30, 1969, the percentage of commission ranged from 1.72 percent for average weekly deliveries of 9,001 to 10,000 gallons, down to 1.11 percent for weekly deliveries of from 14,001 to 15,000 gallons. According to the contract the applicable commission rate applied to total sales, and not dust to the gallons sold in excess of that for which a higher rate applied. It thus was possible for a driver to sell and deliver more milk and receive less compensation than a driver who sold less to which a higher commission rate applied. The contract further specifically provided that regardless of the quantity of milk sold, the maximum Sportswear, Inc, supra, N L R B v Griggs Equipment, Inc, 307 F 2d 275, 278 (CA 5) 34 Charles Ray Smith, Thomas F Weaver, Foy V Parham, and E. L Smith. as The quotes are from the uncontroverted and credited testimony of Weaver 36 The quotes above are from the uncontroverted and credited testimony of Charles Ray Smith 37 The agreements of Charles Ray Smith, Weaver and Parham. all dated 12-16-69, bear the following exhibit numbers Resp Exh 1, TX Exh 1(b) and 2(a) 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compensation a driver could receive in any quarter was $2080.00, or, in other words, $5 a week above his weekly drawing account of $155. In early March 1970, 9 weeks after the milk route dnvers signed their contracts, and thus 11 weeks after the agreements were made effective, they were summoned to another meeting by Morrison. Just before this meeting, the -route drivers discussed among themselves whether they should ask to go back on an hourly rate basis, and they decided not to do so, and to "stick with the program for another quarter and see how it came out." At the meeting, Morrison gave each of the drivers a slip of paper which showed the total number of gallons of milk he had sold during the 9-week penod between December 14, 1969, and February 28, 1970, his average weekly sales, the commis- sion rate applicable to his weekly average, the gross commission he had earned, the amount he had drawn on account, and the net compensation due him. Morrison explained to the drivers how he figured their earnings, and gave each of them a check for the difference between what they had received on the drawing account and what they had earned.38 On an undisclosed date (probably April 1970), the Respondent changed the dairy from which it obtained its milk from one in Fort Worth, where most of its stores are located, to one in Dallas. This change substantially increased not only the distance which the route dnvers had to drive, but also the number of hours they had to work to complete their tasks. Thus, according to the credited uncontroverted testimony of Charles Smith, after the change of dairies, he worked an average of 60 hours per week or better. Thereafter, the milk route drivers met frequently for dinner in Dallas, and discussed, inter alia, the subject of whether they should ask the Respondent to put them back on an hourly rate of pay basis. Although no definite decision was made by the drivers in respect to this subject, "it was pretty well settled that that was the thing to do, you know, to ask if we could [go back to an hourly wage rate], you know."39 And as milk route driver Weaver credibly testified, "We didn't particularly have him [Smith] appointed to bring it up, but we knew it was going to come up because we had done talked it among ourselves, that we would ask about the possibilities of going back on the hourly wage." We did figure that he'd bring it up." On April 21, 1970, 7 weeks in the course of the then current quarterly period, the Respondent convened anoth- er meeting of its milk route drivers.40 The meeting was attended by three members of management, Vice President Berman, his Assistant Morrison, and William Coughlen, the supervisor of the milk route drivers. At the meeting, the Respondent offered the drivers a revised contract to compensate for the increase in their hours of employment which had resulted from the change in milk suppliers. The 38 See TX Exh 4(a), 5(a), and 6(a) 39 The quotes are from Charles Ray Smith's uncontroverted and credited testimony. 40 E L Smith then was no longer a milk route driver, and Labe Hawkins,' a new full-time milk route driver, attended this and all subsequent meetings of the drivers 4i Previously, the commission rate for that quantity had been I II percent 42 The quotes above are from Smith's credited testimony Berman's testimony in this regard was substantially to the same effect proposed contract provided for their continued compensa- tion for sales on a commission basis, and a continued drawing account of $155 per week. It also provided that the dnvers would be reimbursed an additional $312 per quarter if they returned 100 percent of their empty milk cases, or a lesser percentage of $312 equal to the average percentage of empty milk cases which they returned. Under the new contract, the rate of commission which would be paid for the higher ranges of average weekly sales was reduced to a top rate of 1 percent for sales of over 15,501 gallons.41 Moreover, it continued to limit compen- sation to a slightly higher maximum per quarter regardless of the volume of sales which the milk route driver generated. Notwithstanding the proposed changes offered by the Respondent to compensate for the longer hours which the milk route drivers were working, Smith, the most vocal of the milk drivers, asked "if it would be possible for us to go back on the hourly [wage] rate." Vice President Berman replied that it would be of no advantage to the route dnvers since he would put on an additional truck "and our hours would be cut down until we wouldn't be making any more money than what we are." Smith then asked Berman, "Suppose if all of us decided that we really wanted to go back on the hourly rate?" Berman responded that in that event, "he'd just have four new dnvers there in the morning."42 Faced with this ultimatum, Smith and the other three milk route drivers signed the new contracts,43 and each was then compensated under the terms of the preceding contract for his commission earnings in excess of his drawing for the 7 weeks which had elapsed in the then current quarter.44 After the meeting, the four milk route drivers met, discussed what had transpired, and decided that although "we still like to have went back (sic) on the hourly wage," "we'd try to live with this contract we had signed." 45 About June 1, 1970, 6 weeks after signing the new contracts, the milk route salesmen received their first accounting under the new contract they signed in April. That accounting disclosed that although Smith sold and delivered a greater volume of milk during this penod than any of the other drivers (90,501 gallons or an average of 15,084 gallons per week), his commission on sales ($932) was the lowest of all the drivers.46 The next quarter ended on August 29, 1970, and shortly thereafter, Morrison, Vice President Berman's assistant, again convened a meeting of the milk route drivers to review the computation of their earnings for the quarter, and to pay them for the excess over their drawings., As in the previous quarter, Smith again had the greatest volume of sales, but, because of the lower percentage rate applicable to his weekly sales average, the commission he learned ($2162.()0)47 was less 43 Resp. Exh 2, TX Exhs 1(c), 2(b), and 3(a). 44 For the Respondent's computations of those earnings , see TX Exhs 4(b), 5(b), and 6(b) 45 The quotes above are from the credited testimony of Weaver, one of the milk route drivers 46 Compare TX Exh 6(c), the Respondent's computation of Smith's earnings for this penod , with TX Exhs. 4(c), 5(c), and 7(a), its computations of the earnings of the other milk drivers 41 See TX Exh 6(d) BUDDIES SUPERMARKETS, INC. than that earned by Weaver ($2,220.00), although the latter sold and delivered 6,775 gallons less than Smith.48 However, since the commission earned by Smith and Weaver exceeded the contractual limitation on their earnings for the quarter, the Respondent credited each of them only with a maximum of $2080 ($160 per week) for the quarter. Smith complained that Morrison had improp- erly applied the limitation on maximum compensation "under the previous contract that we had signed" which no longer was in effect. Morrison then recomputed the net compensation due Smith, and, using the figure of $2112.50 ($162.50 per week) as the maximum quarterly commission which could be earned by any milk route driver, he concluded that both Smith and Weaver were entitled to an additional $32.50, and he gave them "supplementary checks" in that amount. The other two drivers, Hawkins and Parham, then complained that the computation of the compensation due them was incorrect, but, upon recompu- tation, Morrison told them that the amounts on the slips which had been given to them were correct.49 When the next quarter ended on November 28, 1970, the Respondent again distributed computation slips and checks to the milk route drivers for their net earnings above drawings. As in the preceding quarters, Smith again had the greatest volume of sales of all the Respondent's milk route drivers,50 and he and Weaver both had sales in the highest volume bracket, 1 percent, the lowest commission percent- age then in effect. In December 1970, following receipt of the last quarter's computation, milk route driver Hawkins complained to Morrison that although he had sold and delivered 2,000 gallons more milk than Parham in the preceding quarter, Parham received $35 more in pay than he. Morrison "refigured" their earnings and told Hawkins "that the figures came out right." By their terms, the identical contracts signed by the milk route drivers in April 1970 expired on November 30, 1970, and sometime in December 1970 they were called to a meeting with Supervisor Coughlen and offered a proposed new contract. Under the new proposal, the rate of commission applicable to the highest volume of sales was reduced from 1 percent to .946 percent. Smith complained to Coughlen that under the new proposal, if he hauled the same amount of milk in the next quarter as he had in the preceding one, he would earn less money. Coughlen, after making the necessary computations, agreed that the new commission rates, if applied to Smith's sales for the preceding quarter, would result in reduced earnings for him. Smith then asked Coughlen if he would take the proposed contract back to Vice President Berman for revision since its terms provided a wage increase for the other drivers, but a decrease for employees whose volume of sales was compensated at the lowest commission rate. Coughlen agreed to do so. Hawkins and Parham signed the proposed new contract. However, Smith and Weaver refused to do so but nevertheless continued to work for the Respondent delivering milk on their respective routes. About January 7, 1971, Milk Route Supervisor Coughlen 48 TX Exh 4(d) 49 TX Exhs 5(d) and 7(b) 50 Compare TX Exh 6(e) with TX Exhs 4(e), 5(e), and 7(c) 51 The new undated superseding contracts signed by Hawkins and Parham are in evidence as TX Exhs 2(c) and 3(b) According to Vice 415 called the four milk route drivers back for another meeting and met with them in groups of two, first with Hawkins and Parham, and then with Smith and Weaver. According to the credited testimony of Hawkins, Coughlen told him and Parham that the Respondent "had corrected the errors" in the contract which they had signed a few weeks earlier, and he then presented them with a superseding contract which they signed.51 However, when Smith and Weaver were called in to sign like contracts, Smith observed that the commission rate applicable to his sales for the last quarter was 0.988 percent, still less than the I percent he formerly had been paid. Thus, based on like sales for the next quarter, the new rate represented a reduction in pay for Smith of about $25 for the quarter or $2 per week. Smith accordingly asked Coughlen if he would take the proposed contract back to Berman for revision a second time. He told Coughlen, "I don't want to gamble myjob on it but I would like for him to change this percentage to where I won't lose any money. I'm not asking for a raise', but I don't want to lose any money for doing the same amount of work that I've done in the past." Coughlen replied, "Well, you're pushing your luck"a little too far," but he nevertheless agreed to send the contract back to Berman again for possible revision.52 On January 19, 1971, Morrison, Berman's assistant, called Smith back to his office and told Smith that "Mr. Berman wasn't going to make a special program just to suit me." Morrison further told Smith that he could either sign the contract or find himself anotherjob. Smith replied, "I'll sign it," and he did. On March 10, 1971, while Smith was on his run making deliveries of milk, he was instructed to go to Berman's office that afternoon. According to Smith's credited testimony, Berman told him that he was being discharged, that he "was causing dissention among the other drivers by making . . . their problems my problems," and by discussing the pay sheets, paychecks, and commission rates with them. Smith replied that he could not understand how or why privacy was involved or required, since these matters had been discussed and the pay sheets had been exhibited openly by the Respondent in front of all the milk drivers at the meetings called by the Company. Berman responded, "Well, still, you just agitate them." Smith answered, "No sir, I didn't feel like that I did." Berman then told Smith that he "had become a thorn in his [Berman's] side," and "you've got to be removed." He also said that Smith "had caused the company adverse publicity by raising cane (sic) over the [commission] program." Berman asked Smith why he was "so dissatisfied" with his job. Smith replied that he loved his job, but that he now was dissatisfied with the commission program because the new rate applicable to his volume of sales had been reduced, and that he could not possibly increase his sales further "without working around the clock." Smith added, "All I ask is that you check these figures and give me a figure that won't lose me any money, because I'm pushing my route as hard as it can be pushed. I'm putting all the President Berman, the earlier contracts which Hawkins and Parham had signed in December had been destroyed and were not available for comparison purposes 52 Although the record in this respect is not clear, Weaver apparently signed the new undated contract (TX Exh 1) at this meeting 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD milk through the stores that I can put through them." Berman concluded the conversation by telling Smith that he still was fired, but that he would reemploy him on application after 30 days if he heard no reports that Smith had discussed their meeting.53 Since March 10, 1971, the Respondent has not reinstated Smith. F. The Reasons Asserted by the Respondent for Smith's Discharge According to Berman, he fired Smith because of reports that Smith "had been doing a lot of complaining and being disruptive in the stores, disruptive around the other drivers about his [commission] pay plan and about complaining in general." Other than these vague generalities, Berman's only specific testimony regarding the complaints and disruptions for which he fired Smith was as follows: 1. According to Berman, he received a complaint from Dick Turk, the garage supervisor, "that he was having a problem with Mr. Smith, that he [Smith] didn't want to fuel his truck, he [Smith] was complaining about that and causing him [Turk] static." Turk was not called by the Respondent to testify that he made any such complaint about Smith to Berman, and no explanation was offered for not doing so. I therefore infer that no such complaint was made by him to Berman.54 Moreover, I regard Berman's testimony that he in part based Smith's discharge on Turk's complaint as utterly implausible and unworthy of credence. Smith's uncontroverted and credited testimo- ny in this regard was that until sometime in January 1971, when Turk took over the supervision of the garage, the trucks of the milk route drivers were serviced and provided with fuel by the garage employees. However, when Smith first asked Turk to have his truck serviced, Turk replied that Smith would have to do it himself. Smith said, that "hasn't been the practice in the past," and Turk retorted, "Well, that's in the past and it's not going to be serviced now." Smith then called his supervisor Coughlen, but "he was unaware" of any change in the previous practice. Prior to this occasion, Smith had not been told that he was required to service his own truck. However, he nevertheless did so then and thereafter until he was discharged. In light of the foregoing, Berman's testimony, that he received a complaint from Turk about Smith's reluctance to fuel his truck and that he based Smith's discharge 2 months later in part thereon, is unworthy of any credence whatsoever.55 2. Berman's next specification about the complaints for which he assertedly fired Smith was as follows: "A couple of store managers complained that as Smith made his rounds he was talking to employees on productive time complaining about his program, his compensation pro- gram." On cross-examination, Berman testified that he received these complaints "around the latter part of 53 Berman's version of his terminal conversation with Smith was substantially different from Smith's, which I have credited above As previously noted in connection with Mrs Greever's dismissal, I regard Berman's testimony as generally unreliable and unworthy of credence Conversely, with the exception only of dates, which Smith readily conceded might be erroneous, and of the number of commission contracts which Smith assertedly signed, regarding which he evidently was mistaken, I was favorably impressed by Smith's demeanor that his testimony was worthy of reliance and credence Accordingly, I credit Berman's version of this January or first of February," from Store Managers George Motley and Tom Roder. Berman admitted that he did not warn Smith at that time, assertedly because these were "isolated incidents" that "had not reached the proportions it (sic) later reached." However, Berman then admitted that Smith was never warned that he would be discharged if he complained about the commission compensation program. Smith credibly denied that he complained to employees on his route about his compensa- tion. The Respondent did not call Store Manager Motley or Store Manager Roder to support Berman's testimony that they complained to him about Smith, and the Respondent also failed to call any employee to whom Smith allegedly complained about his commission com- pensation program. No explanation having been offered for the failure to call these witnesses, I conclude, not only that Smith, as he testified, made no such complaints, but also that no reports of such complaints were received by Berman.56 There is thus no testimony either that Smith had complained in the stores about his pay program, that he interfered with employees "productive time," or that he had been "disruptive." I therefore regard Berman's testimony that his decision to discharge Smith 1-1/2 months later because of these alleged complaints as unworthy of any credence or belief. 3. The last of the complaints which in part assertedly motivated Smith's dismissal, "the straw that broke the camel's back,"57 was testified to by Respondent's Meat Warehouse Manager Dennis Culpepper. Culpepper's job includes supervision of meat distribution to all of the Respondent's supermarkets. According to Culpepper, Smith, whom he had known for 3 years, visited his office on March 9, 1971, and "discussed the pay situation" on his job. Culpepper testified that Smith said "it wasn't fair and he felt like he was getting cheated by the company," and that in light of the number of hours he was working, "he was getting approximately $1.15 an hour for his time. Culpepper further testified that he orally reported this conversation to Vice President Berman the following morning, March 10. On cross-examination, Culpepper disclosed for the first time that Smith visited his office to inquire about a possible transfer to the meat distribution department, that the discussion of the hours Smith worked occurred in connection with Smith's inquiry as to the number of hours and days per week which Culpepper's drivers worked, that Smith then asked Culpepper if he had an opening for a driver, and that Culpepper said that he did not at that time, and that transfers were "strictly up to personnel" and not to him. I regard Culpepper's version of his conversation with Smith as embellished and exaggerated, and worthy of little credence. Smith admitted that he spoke to Culpepper "on several occasions." Smith also frankly admitted that he had conversation with Smith only to the extent that it accords with Smith's or when it constitutes an admission against the Respondent's interest 54 International Union, United Automobile, etc Workers of America (UA W) v. N L R B, 79 LRRM 2332 55 1 note in this regard that Milk Route Driver Hawkins also was reluctant to fuel his truck that day and did not do so until after he spoke to Supervisor Coughlen Hawkins is still employed by the Respondent 56 See fns 21 and 54, supra 57 Resp brief, p. 13 BUDDIES SUPERMARKETS, INC. "mentioned" to Culpepper's drivers that the milk route drivers had to fuel their own trucks, and that he "didn't think it was quite right." Smith denied, however, that he told Culpepper that he was being cheated by the Company, and he also denied that he either told Culpepper "anything about $1.15 an hour," or that he "complained" to Culpepper about his pay plan. Although as hereinafter noted, Smith had ample cause for complaint, I credit his denials not only because I regard him as a reliable witness but also because it is unlikely that he would make such statements to a supervisor of the Respondent in the course of an application for a transfer to a job in the supervisor's department.58 I am persuaded by all the foregoing, as well as by demeanor, that Culpepper's testimony regarding Smith's alleged complaints is worthy of little, if any, credence. I similarly regard both Culpepper's and Berman's testimony regarding the oral report which Culpepper assertedly made to Berman about Smith's complaints. No plausible reason appears why Culpepper should report to Vice President Berman, whose jurisdiction encompasses 7,000 employees, that Smith, one of the 7,000, was "unhappy with his job," especially since transfers from one department to another, according to Culpepper, "was strictly up to personnel " Moreover, although Culpepper's recall appeared quite definite in respect to his report to Berman about Smith's "complaints," he could not remem- ber whether he reported that Smith appeared to be seeking a transfer. For all these reasons, I regard Culpepper's testimony about his report to Berman of Smith's alleged complaints as worthy of little reliance. My unfavorable opinion of Berman's credibility already has been stated on several occasions. I conclude from all the foregoing, as well as from Smith's outstanding record of performance as a route milk driver, that Berman's testimony, that Smith's discharge was motivated in part by his complaints to store managers, employees, and Culpepper, is unworthy of belief. G. Concluding Findings As found above, when Berman notified Smith that he was being fired, he told Smith that one of the reasons for that decision was that Smith "was causing dissension among the other drivers by making . . . their problems my [Smith's] problems," by discussing the pay computation sheets, paychecks, and commission rates with them, and that Smith thus was an "agitator" and "a thorn in his [Berman's] side" that had "to be removed." The Respon- dent apparently does not dispute Smith's testimony in this regard, since Berman similarly testified that the dismissal was in part because Smith "had been ... disruptive around the other [milk] drivers" about the commission "pay plan." The General Counsel contends that this conduct for which Smith thus was terminated constituted "concerted activities for the purpose of collective bargaining or other mutual aid or protection" within the meaning of Section 7 of the Act, and that therefore his discharge violated 58 Smith credibly testified that after hearing about the favorable working conditions in the meat distribution department, he commented to Culpepper "about what a gravy train" his drivers had, and that he said "in a 417 Section 8(a)(1) of the Act. The Respondent, on the other hand, contends that, since Smith admittedly had not been designated by the other drivers to protest the Respondent's commission pay program, his conduct was not "concerted activities" within the meaning of Section 7, and that, consequently, his discharge did not violate the' Act. As found above, when the commission pay program was instituted by the Respondent, the milk route drivers were told that "the more milk we hauled the more we make." This was not always the case, however, for as Respondent's commission pay computations in. evidence disclose, on many occasions, drivers who sold and delivered more milk received less pay than others who delivered less. This was one source of dissatisfaction with the program, not only by Smith, but also by some of the other drivers. Moreover, by limiting the milk drivers' earnings to a maximum earning of only $5 a week above their weekly drawing account, the program further failed to comport with the promise that "the more milk we hauled, the more we make." When the commission program was first inaugurated by Respondent, the drivers also were told by Berman's assistant Morrison that the program would be in effect "on a trial basis," and that if the drivers wanted to go back on an hourly rate, "I'm sure we can do so." However, when the change in dairies and the resulting long hours of work brought about a desire to return to an hourly pay rate, not only by Smith but also by the other drivers, they were threatened first with reduced hours of employment and then with dis- charge and replacement. Thereafter, when the Respon- dent's last contract proposal cut the percentage rate applicable to the highest volume of sales, and thus in effect cut the pay of Smith and Weaver, the two highest volume milk drivers, they both initially refused to sign the contract and thereby succeeded in effecting a partial restoration of the percentage rate that had been cut. Finally, when Smith sought the restoration of the balance of the cut rate for maximum gallonage from .988 percent to the former 1 percent, he was threatened with discharge unless he signed the contract. In all of these matters, Smith, clearly the most vocal of the drivers, was in the forefront in expressing these grievances to Respondent and thereby was regarded by Berman to be "causing dissention among the other drivers" and to be an agitator. However, although Smith admittedly was not the designated spokesman of the other milk drivers in voicing these complaints, in attempting to persuade Respondent to go back to the hourly wage system, and to have the cut in the commission rate restored, Smith was expressing views on matters which had been discussed by the milk drivers among themselves and which were of concern and/or benefit not only to Smith but clearly also affected the wages, hours, and other terms and conditions of employment of all the drivers.59 Moreover, Smith's vocal expression of these grievances to management in the presence of the other milk route drivers clearly invited their joinder in his protests about terms which affected all of them and invited concerted action by them in this regard. Indeed, as found above, Smith's protest about the cut in joshing manner, `I think I'll transfer over to the meat department' " 59 N LR B v. Interboro Contractors, Inc, 388 F.2d 495, 500 (C A 2) 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the commission rate induced Weaver to join with him in refusing to sign the first proposed contract offered by the Respondent in December 1970.60 I conclude from all the foregoing that Smith's conduct, for which Berman regarded him as an agitator, as causing dissension among the drivers, and for which he discharged Smith, was concerted activities for mutual aid or protection within the meaning of Section 7 of the Act, and that, by terminating Smith's employment therefor, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 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 I, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, 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 the Respondent terminated the employment of Nona B. Greever and Charles Ray Smith and thereafter failed and refused to reemploy them because they engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection guaranteed by the Act, I will recommend that the Respondent be ordered to offer them immediate reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by the payment to each of them of a sum of money equal to the amount she and he normally would have earned from the date of their termination to the date of reinstatement, less their net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board.61 I will also recommend that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this recommended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: 60 Mushroom Transportation Company v N L R B, 330 F 2d 683, 685 (CA 3) 61 F W Woolworth Company, 90 NLRB 289, backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 62 In the event no exceptions are filed as provided by Section 102 46 of CONCLUSIONS OF LAW 1. Respondent, Buddies Supermarkets, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, AFL-CIO, Local 368, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Nona B. Greever, by terminating her employment, and by failing and refusing to reinstate her because of her support of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, and by terminating the employment of Charles Ray Smith because he engaged in concerted activities for mutual aid or protection guaran- teed to employees by the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. 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 basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: 62 ORDER Respondent, Buddies Supermarkets, Inc., its officers, agents, successc ss, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Retail Clerks International Association, AFL-CIO, Local 368, or of any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Discharging or otherwise discnminatmg against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Retail Clerks International Association, AFL-CIO, Local 368, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Nona B. Greever and Charles Ray Smith immediate and full reinstatement to their formerjobs or, if those jobs no longer exist, to substantially equivalent 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 , automatically become the findings, conclusions, decision, and order of the Board, and all objections thereto shall be deemed waived for all purposes BUDDIES SUPERMARKETS, INC. positions, without prejudice to their seniority or other rights and privileges enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of this Decision entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 to analyze and determine the amounts of backpay due under the terms of this Order. (d) Post at its stores in Dallas and Tarrant Counties, Texas, and at its garage from which its milk route drivers operate, copies of the attached notice marked "Appen- dix."63 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive, days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable sits-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 16, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply here- with 64 63 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 64 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 said Regional Director for Region 16 , in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice; and we intend to carry out the Order of the Board. The Act gives all employees these rights: To engage in self-organization; To form, join, or help unions; To bargain collectively through a representative of their own choosing; 419 To act together for collective bargaining or other mutual aid or protection; and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discourage union activity or member- ship in Retail Clerks International Association, AFL-CIO, Local 368, or any other labor organization by discriminating against you if you choose to engage in union activity or join that union or any other union. WE WILL NOT discharge or otherwise discriminate against you in regard to hire or tenure of employment or any term or condition of employment for engaging in any of the activities listed above that are protected by Section 7 of the National Labor Relations Board. Since it was decided that we violated the Act by terminating the employment of Nona B. Greever because she engaged in union activities, and by terminating the employment of Charles Ray Smith because he engaged in concerted activities guaranteed by the Act, WE WILL offer them full reinstatement to their former jobs, and WE WILL pay them for any loss they suffered because we fired them. WE WILL respect your rights to self-organization, to form, join, or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through Retail Clerks International Asso- ciation, AFL-CIO, Local 368, or any representative of your choice, or to refrain from such activity, and wE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. You and all our employees are free to become members of any labor organization , or to refrain from doing so. Dated By BUDDIES SUPERMARKETS, INC. (Employer) (Representative) (Title) We will notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office. Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.