Davis Food City, Inc.

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis Food City, Inc. and Local 455, Retail Clerks International Association, AFL-CIO. Case 23-CA-4084 July 10, 1972 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 23, 1972, Trial Examiner Herzel H. E. Plaine issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order, as modified herein. 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 and hereby orders that Davis Food City, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Amend paragraph 2(a) of the recommended Order by deleting the words "restore her schedule of full-time, daytime hours" and substituting therefore "restore her to her former schedule of full-time hours." 2. Amend paragraph 2(c) of the recommended Order by striking the phrase "stores in Houston and Dallas, Texas," and substituting the phrase "store at 8106 South Park Boulevard, Houston, Texas." 3. Substitute the attached notice for the Trial Examiner's notice. i The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established 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 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings. WE WILL NOT coercively interrogate you as to the union sympathies and activities of your fellow employees. WE WILL NOT grant wage increases or other economic benefits in order to persuade you not to become interested in the Union or not to join the Union. WE WILL NOT discourage your interest or membership in the Union by subjecting you, if you engage in union activity, to denials of wage increases, cuts in wages or hours, or assignments to less desirable hours, or otherwise discriminate against you in your tenure and conditions of employment. Since the Board found that we failed to give employee Bonnie Guillory a wage increase on August 1, 1971, and cut her wages and hours and assigned her to less desirable hours, because of her union activity, WE WILL give her backpay with interest for the loss of earnings since August 1, 1971, and place her in the higher job and wage classifica- tion to which she was entitled by reason of the wage increase of August 1, 1971, and will restore her to her former schedule of full-time hours. DAVIS FOOD CITY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. TRIAL EXAMINER'S DECISION HERZEL HE. PLAINE, Trial Examiner: The question presented was whether Respondent, Davis Food City, Inc., a chain grocery, violated Section 8(a)(1) of the National Labor Relations Act (the Act) by granting a wage increase to employees in August 1971 to blunt a union organizing drive of its store employees by the Charging Party (the Union), Local 455, Retail Clerks International Association, 198 NLRB No. 24 DAVIS FOOD CITY 95 AFL-CIO, and by interrogating employees about the union activities of fellow employees; and whether, at the same time, Respondent violated Section 8(a)(3) and (1) of the Act by decreasing the wages and hours of work of the employee leader of the union organizing drive. The case was tried in Houston, Texas, December 21 and 22, 1971, on a complaint filed September 30, 1971 (resting on a charge filed August 27, 1971), and Respondent's answer, generally denying any wrongdoing. General Counsel and Respondent have filed briefs. Upon the entire record of the case, including my observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Texas corporation engaged in sale at retail of groceries in various stores or supermarkets in Houston and Dallas, Texas. In the year prior to issuance of the complaint, Respondent sold goods valued in excess of $500,000, and received goods valued in excess of $50,000 transported in interstate commerce from places outside Texas. Respondent is engaged, as it admitted, in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as Respondent also admitted, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Discrimination Against Employee Guillory Respondent operates five grocery stores or supermarkets in Houston and one in Dallas, and employs between 150 and 200 employees in the five Houston stores, according to its president and owner (sole stockholder) A.L. Davis. Only the personnel of the meat department of the stores are unionized, affiliated with the Meatcutters Union and so affiliated when Davis acquired the stores. In December 1970, the Union inaugurated an informa- tional handbilhng, outside Respondent's stores, asking prospective customers to boycott the stores because, testified President Davis, he was said to be paying substandard wages to his employees. This handbilling or boycott lasted about 10 days and terminated just before Christmas 1970. At the time, and since, employee Bonnie Guillory was and is a grocery checker on the cash registers in the South Park store in Houston, employed since June 1970. Neither she nor any other employee had been involved in the informational handbilling or boycott. In early July 1971, testified employee Guillory, she undertook in cooperation with the Union to help organize the nonunion employees of the South Park store (also known as store 2). There were about 35 such employees she said, and employee Guillory testified that she approached and talked to about 27 or 28 of them, almost entirely in and about the store premises. Pursuant to instructions from the union official, she carried a pad of paper and asked each employee who might be interested in the Union to put his or her name and address on the pad. Most of those she approached on the subject signed the pad, Guillory testified, but a few did not. Generally, she said, the signers asked questions about benefits and union dues. Employee Guillory was the only store employee who engaged in this organizing activity. Employee Guillory turned in her list of names and addresses to the Union and, according to Union Business Representative Noria, the Union mailed, to each of the approximately 21 employees listed, a letter (G.C. Exh. 4) telling of what it hoped to do for them in terms of wages and benefits and urging each to sign and return an enclosed union authorization card. The letter was dated July 30, 1971, and Nona testified it was mailed that day. Later, on August 13, the Union, using one of its professional staff, attempted to handbill the employees inside the store but, after partially distributing the leaflets (dated August 11, 1971, G.C. Exh. 5), was stopped by Store Manager Howard Haglar, second in command to Supervi- sor-Manager Jim Ward. (There was a similar distribution made or attempted at other of Respondent's stores.) The union letter of July 30 was received by the employees to whom it was addressed, and was also seen by the store management . Witness Gregory Johnson, for the General Counsel, testified that employee Guillory talked to him about the Union in the third week of July 1971, and that he received the July 30 letter about 1 or 1-1/2 weeks thereafter. Witnesses for Respondent, Jim Ward, supervi- sor-manager (in charge of the store), and cashier Nancy Johnson, indicated that they saw copies of the letter brought in to them by employees who had received copies. Supervisor-Manager Ward claimed he didn't see a copy of the letter until Tuesday, August 17, when a cashier brought it in. Cashier Nancy Johnson testified that employee Lou Franks brought a copy of the letter to the office after August 13 when the Union did a handbilling of the store, at least she thought it had to be them, but wasp t sure. Employee Franks came to the office with they letter,' according to cashier Nancy Johnson, addressing both Ward and herself and wondering (aloud) how she got the letter. Cashier Nancy Johnson undertook to reply (Ward said nothing, according to her), and her reply indicated full previous knowledge of the organizational effort and how it was conducted: "I said, `Well, Lou, if you got the letter, the only way you could get it would be if you gave your name and address to Bonnie [Guillory] and she gave it to the union and they sent you the letter.' " Cashier Nancy Johnson also testified that she too had been approached to sign up by Bonnie Guillory, possibly 3 to 5 weeks pnor to the August 13 handbilling, but declined to sign; and employee Gregory Johnson (who since resigned his job on Thanksgiving 1971) testified that he heard cashier Nancy Johnson telling Supervisor-Manager Jim Ward, at a time pnor to the August 13 handbilling, that Guillory was trying to get the Union in the store. I This was evidently not the same copy of the letter Supervisor-Manager with her copy of letter on a Monday, Wednesday , or Thursday, according to Ward referred to receiving on Tuesday, August 17, because cashier Nancy Nancy Johnson. Johnson said she did not work on Tuesdays, and employee Franks came in 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cashier Nancy Johnson in her direct testimony denied that she ever told Supervisor-Manager Ward that employee Guillory was doing the organizing for the Union, but cashier Nancy Johnson's own testimony on cross-examina- tion, particularly the quotation above, made in Ward's presence, indicates the contrary. I am also satisfied that the information concerning Guillory's union activity was conveyed to and known by Supervisor-Manager Ward well before August 13, notwithstanding his denial.2 Indeed there is testimony by employee Gregory Johnson that, even prior to the Nancy Johnson-Ward conversation which took place before the August 13 handbilhng, Ward told his second in command, Store Manager Howard Haglar, that employee Bonnie Guillory was trying to get the Union in the store.3 (See fn. 4, infra.) On Thursday, August 5, 1971, according to Store Manager Haglar, he received word from Respondent's central office that there was to be a general pay raise, starting with the week already begun on Sunday, August 1. Haglar immediately called Supervisor-Manager Ward at his home, where he was on vacation, to aid, said Haglar, in preparing the list of employees to receive the increases, in turn to be reported back to the central office for making up the Saturday payroll (paid to the employees on the following Wednesday). Ward testified that was when he, too, first learned of the pay raise. Employee Guillory, who was a checker, and employee Marvin Cox, who worked in the produce department, were the only two of the eligible employees who did not receive the pay raise (in their classifications the increase was from $2.25 per hour to $2.50 per hour), according to Supervisor- Manager Ward and Store Manager Haglar. However, it turned out, on cross-examination of both supervisors, that employee Cox was on vacation at the time, and when he returned he was given the raise. However, employee Guillory was not given the raise but was given a cut in pay. Supervisor-Manager Ward said he talked to employee Cox when Cox returned from vacation on August 16 and told him that his previous wage rate of $2.25 per hour had been abolished under the August 1 schedule, and that he was going to have to be worth $2.50 per hour, the new rate. Ward said he gave employee Cox the choice of improving or of being fired, and paid him the $2.50 rate. As Store Manager Haglar testified and General Counsel's Exhibit 13, the payroll for the week ending August 14, shows, employee Cox actually received the new rate of $2.50 per hour in the week ending August 14; hence the raise was given Cox retroactively following Ward's conversation with him on August 16. In employee Guillory's case, on the other hand, she was informed by Assistant Store Manager Senale on or about August 9 that while her previous $2.25 hourly rate had been replaced by the $2.50 hourly rate, she would not be getting the new rate and would be paid henceforth $2 per hour, the next lower rate. Getting no satisfactory explana- 8 Ward's denial was worthless, because he claimed he did not know of Guillory's union activity until the unfair labor practice charge was filed (August 27, 1971), whereas the testimony of Respondent's witness cashier Nancy Johnson made clear that Ward knew of Guillory's activity well before then 3 In this connection , these conversations, at the store "office," could readily be observed and heard by persons nearby even if not directly tion for the cut from Senale, employee Guillory went to Supervisor-Manager Ward the next day. According to Ward, he told employee Guillory that with the elimination of the $2.25 wage rate at which she had been paid, he could not move her up to the $2.50 rate because of her job performance, and so he had to put her back to the next lower rate of $2 per hour. According to Guillory, Ward's explanation of the cut in pay was that she wasn't helping the store where others were. When Guillory asked Ward if there were others who had been similarly cut in pay, Ward testified he told her he would not discuss other employees with her. In this connection, the wage rate classifications are not posted, said Ward; an employee had to come in and ask about them. The August 1 wage increase was effective in all of Respondent's stores, said Ward, but Guillory was the only employee identified as receiving a pay cut. - Discussing employee Guillory's alleged poor perform- ance, said to be the cause for the pay cut, her most immediate supervisor, Assistant Store Manager Seriale, testified that on "the register she is a great checker," but that she had a tendency to wander off from the register. Supervisor-Manager Ward claimed that prior to the wage cut, when Guillory worked on the late shift, she would not stay beyond the 10 p.m. closing and help put groceries back on the shelves. He cured that by talking to her, said Ward, but thereafter when she stayed late, she started throwing groceries at random in open places on the shelves. Again he talked to her, said Ward, and she improved in that regard. There was an episode when she refused to clean up a cash register area, but this occurred in October 1971 (about 3 months after the wage cut), according to Ward. He also complained, in his testimony, that she had been absent or late in connection with Sunday work, but admitted that he had never reprimanded her for absences on Sunday or because she came late. At the same time that employee Guillory was informed of her pay cut she also suffered a cut in her scheduled hours of work, and a rescheduling that was essentially evenings and nights rather than her previous daytime hours, She formerly was scheduled for from 38 to 40 hours per week, but after the week ending August 14, 1971, her scheduled hours according to Ward were reduced to a maximum of 28 hours per week over 4 days per week, and these were hours that ended up at 10 p.m. each day, except Saturday at 6 p.m. According to Ward, the reduction in hours was principally Sunday hours (Sunday is a regular workday in the store). Again, as with the pay cut, employee Guillory was not informed until after the cut in hours was made. Supervisor- Manager Ward claimed that he explained to employee Guillory that neither Store Manager Haglar nor Assistant Store Manager Seriale, who usually took turns in handling the store on Sundays, wanted her working on Sundays because she needed supervision they could not give when involved, because, as Store Manager Haglar stated, the office is actually an open cigarette counter and booth where Nancy Johnson operates as both cigarette booth operator and cashier. Employee Gregory Johnson testified that he was at the counter for change when the Nancy Johnson-Ward conversation took place, and was going by the "office" when the Ward- Haglar conversation occurred DAVIS FOOD CITY 97 either of them was in charge alone. Ward admitted that he had never told employee Guillory that Supervisors Haglar or Senale complained about her prior to the time he cut her out of Sunday work and reduced her hours; and he also conceded that, though he permitted employees who had taken off time to make up lost time, he did not allow Guillory to work more than the reduced schedule. Section 8(a)(3) and (1) Findings Employee Guillory was the only store employee engaged in organizing the employees for the Umon. The store employees and management knew it, and Respondent retaliated by (1) reducing her hourly rate of pay at the same time it increased the hourly rate of the other employees, (2) reducing her total wages with a cut in the scheduled hours she could work per week, and (3) putting her regularly on the less desirable evening and nighttime hours of work in place of her previous usual daytime schedule. She alone was the sole employee reduced in pay, hours, and desirable scheduling. This discriminating action by Respondent was initiated abruptly and without any warning to employee Guillory, immediately following the Union communicating individu- ally with the store employees whom Guillory had begun to recruit. While the abruptness and timing of the discrimina- tion are, by themselves, persuasive evidence of Respon- dent's unlawful motivation, N.L.R.B. v. Sutherland Lumber Co., 452 F.2d 67 (C.A. 7, 1971), Respondent's sham explanation for its conduct toward employee Guillory, and its singular treatment of her, even different from that accorded marginal employees, provide additionally persua- sive evidence of Respondent's illegal intention. Employee Guillory was admittedly an excellent checker, but Respondent claimed that it cut her pay and hours because she had exhibited certain failings, such as wanting to leave at the 10 p .m. close of business, on occasions when she worked late, without helping to restore merchandise to the shelves or putting the merchandise in the proper shelves. However, Supervisor-Manager Ward admitted he had cured these alleged failings prior to making the cut in pay, by talking to her, and that he had not previously raised any question with, or reprimanded, employee Guillory about certain absences or late arrivals on Sundays, also suggested at trial as a further failing. The alleged incident of a failure by employee Guillory to clean her register was conceded to have happened several months after the cut in pay. And Respondent's alleged reason for the reduction in Guillory's hours, namely, that the store supervisors complained they did not want her working with them on Sundays because it was said she wandered about the store, was admittedly never called to employee Guillory's attention until after the cut in hours. Altogether, the total explanation had the appearance of either resurrecting dead issues or conjuring up complaints that had not arisen when the discrimination took place. Nevertheless, even if we were to assume that employee Guillory was not performing her work in all respects as Respondent wanted; the disparate wage and hour treat- ment accorded her was in sharp contrast to that accorded the alleged marginal or submarginal employee Marvin Cox. Both employees Guillory and Cox were not put on the original list by Supervisor-Manager Ward to receive the wage increase of August 1, on the alleged ground that neither was deserving. However in the case of Cox, who was on vacation, when he returned , Supervisor-Manager Ward talked to him, explained why Ward was unhappy with his performance, but gave him the wage raise, starting in the previous week, on condition that Cox would strive for and show improvement in performance of his work. The same discussion and opportunity was not offered to employee Guillory, notwithstanding the fact that she had previously shown responsiveness and improvement when Supervisor-Manager Ward brought a complaint to her attention. This special discrimination against employee Guillory reinforces the view that her activity for the Union was the real problem of concern to Respondent, not her work performance, and that retaliation against her, to impress her and all the employees with Respondent's disapproval of her union activity and to discourage that activity, was the object that Respondent had in mind. Respondent's discriminatory conduct toward employee Guillory was a violation of Section 8(a)(3) and (1) of the Act. N.L.R.B. v. Bin-Dictator Co., 356 F.2d 210, 215 (C.A. 6, 1966), denial of wage increase to union protagonist; N. L. R. B. v. My Store, 345 _ F.2d 494, 497 (C.A. 7, 1965), cert. denied 382 U.S. 927, cutting hours of employment of union adherents; N.L.R.B. v. Lowell Sun Publishing Co., 320 F.2d 835, 840 (C.A. 1, 1963), assignment to less desirable night work of employee member of union organizing committee. B. Interrogation Concerning Union Activity Employee Carl Schmidt is an employee at Respondent's South Park store who had been working for 8 months at the time of the trial. Since he was also a high school student, age 16, he worked part time. His job was a stocker, and he shared in the wage increase of August 1, 1971. Employee Schmidt testified that some weeks before the August 13 handbilling of the store by the Union, he was engaged in conversation with Store Manager Haglar. Haglar asked him, said Schmidt, if employee Bonnie Guillory had said anything to him or other employees about the Union. Schmidt testified that he replied, no, but asked Haglar, "since you mention the Union ,would it help me?" Haglar replied, according to employee Schmidt, that a union would not help a part-time boy much. Employee Schmidt further testified that he did not know at the time of his conversation with Store Manager Haglar that employee Guillory was active for the Union, that she got in touch with him later and asked if he wanted to join the Union, and told her yes. Store Manager Haglar admitted talking with Schmidt about the Union, but said the discussion occurred after the August 13 handbilling and related only to Schmidt's ,question, whether belonging to the Retail Clerk's Union would help Schmidt, and Haglar's reply, that he couldn't see how it would help Schmidt. However, it was brought out in cross-examination by Respondent of employee Guillory, that Store Manager Haglar was asking other employees who was behind the Union, a fact that supported employee Schmidt's testimo- ny. Moreover, because employee Schmidt was in the 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vulnerable position of a current employee testifying adversely to his employer, his credibility was entitled to added support, Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961); Wirtz v. B.A.C. Steel Co., 312 F.2d 14, 16 (C.A. 4, 1963).4 Section 8(a)(1) Fording Store Manager Haglar's inquiry of employee Schmidt and other employees as to who among their fellows was pushing the Union was coercive, N.L.R.B. v. Harbison Fischer Manufacturing Co., 304 F.2d 738, 739 (C.A. 5, 1962), and interfered with the employees' free exercise of their organizational rights under the Act, in violation of Section 8(a)(1), N.L.R.B. v. Midwestern Instruments, Inc., 264 F.2d 829, 831 (C.A. 10, 1959). C. The August 1971 Pay Raise According to the testimony of President A. L. Davis, the August 1971 pay raise applied to all of its stores and became effective for the week ending August 7, 1971. Davis testified that the raise did not include everyone, but did affect a substantial number, about 50 percent of the employees, he said. However, looking at the details supplied for the South Park store, it appeared that the percentage was much higher, because 20 out of 32 employees, or 63 percent, received the wage rate increase in the week ending August 7, or, as in the case of employee Marvin Cox, in the week ending August 14. All 20 were full-time employees, who averaged 40 hours or better per week.5 President Davis testified that there was no schedule for the timing of pay raises, and that he alone in the Company made the judgment that an increase was necessary or desirable, based on the competitive wage market and ability of the Company to pay. There had been four previous increases between August 18, 1970, and June 14, 1971 (each gradation in the classifications did not get a boost each time), and, although the last wage increase had been only 1-1/2 months previous, President Davis said he decided to move up the next increase to August 1 because he thought there might be some governmental controls and he did not want the Company caught with a low wage scale during the period of controls. "Therefore," said Davis, "I speeded up the increase that would have actually been put into effect at some later date in the year . . . . The time was influenced by the imminence of a freeze." However it is general knowledge that the wage and pnce freeze announced by President Nixon on August 15, 1971, effective at the close of August 14, 1971, was a well-kept secret before its promulgation, and came as a surprise to the Nation, particularly since the national administration 4 It would also appear from employee Schmidt's testimony and the related testimony, that Store Manager Haglar was aware of union organizing in the store and of employee Guillory's activity in that regard, prior to July 30 and before she had completed her recunting of member prospects and turned her list in to the Union. 8 G C. Exh 7 showing the employee roll and wage rates on July 31 is starting point. Of the 46 names appearing thereon, the last 8, Nos. 39 through 46, the meat department personnel , who have a separate pay agreement, are eliminated . Also eliminated from the remaining 38 names are 6 more names, for a net of 32 The six are Tony Postel, No. 21, and had taken the public position, up until the actual announcement of the freeze, that it was against, and would not invoke, wage and price controls.6 On cross-examination, President Davis admitted that this state of affairs was so that he did not have any advance knowledge of, and did not know there were going to be, wage controls or a freeze when he made his decision to give the wage increase of August 1, and that, like everyone else, he knew that President Nixon had said he was against controls until he announced the freeze of August 14. Davis said what he really meant was that the business journals had been debating for a long time the need for controls but he also admitted that in June, July, and August, 1971, there were no articles in the journals or occurences that led him to believe wage control was more imminent then than it had been 4 or 5 months before. President Davis testified that he had been aware of the December 1970 handbilling and informational picketing by the Union. He claimed that his first knowledge of the Union's activity in 1971 came in the second week in August, when the stores called into him to say they were being handbilled inside the stores. President Davis also claimed that he made his decision (to put a wage increase into effect) prior to July 29, and made it without consulting anyone; but that he did not notify the stores until sometime between July 29 (a Thursday) and August 6 (a Friday), with oral instructions to the store managers that the raise was to go to everyone in the class entitled to the raise if performing satisfactorily, and that marginal employees were to be reclassified. However, the only other testimony on this subject came from Supervisor-Manager Ward and Store Manager Haglar, who testified that they first learned and were informed of the wage increase on Thursday, August 5, with a request to get the names of the employees in at once for the payroll for the week ending Saturday, August 7. Section 8(a)(1) Finding From the total circumstances, I think it is fairly clear that Respondent made the decision and acted to accelerate giving a wage increase, starting with the week that began August 1, on or about August 5, 1971, after the Union had circularized its authorization cards with its July 30 mailing to the list of interested employees obtained by employee Guillory. It has already been established that the store management was contemporaneously aware of Guillory's recruiting for the Union prior to July 30, and of the union letter of July 30 to the South Park store employees, and it appears from the testimony of President Davis that the store managements kept him informed of union activity at the stores. The action of President Davis in ordering the wage raise Justin Smith , No. 26, who do not appear on the subsequent payrolls, L Garcia, No. 8, and Lester Poster, No. 20, who were dropped after August 7, and Richard Brown, No 3, and Mike Martinez, No. 18, who were dropped after August 14 (see G C Exh . 6 and 13, payrolls for weeks ending August 7 and 14, respectively, and G .C Exhs 14 through 17 for the subsequent 4 weeks in August and September) 6 Executive Order 11615, August 15, 1971, 36 Fed. Reg. 15727. Business Week for August 21, 1971, for example, described the President's announcement of August 15 as "one of the most radical reversals of policy in all political history," p 21 DAVIS FOOD CITY 99 on August 5 for the week already begun was a reaction to the Union's organizing effort. The timing of the raise, the sham reason for it-i.e., accelerating an increase that would not have been ordered so soon after the previous increase in order to anticipate a then unknown and unpredicted wage freeze-and the discriminatory denial of the wage increase to the one employee who was organizing for the Union, provide persuasive evidence that the real purpose of the wage increase was to dissuade the employees from pursuing their interest in the Union. Bestowal of economic benefits by an employer for such purpose is a restraint upon the freedom of choice of employees for or against unionization, and a violation of Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409-410 (1964). CONCLUSIONS OF LAW 1. By discriminatorily denying a general pay increase to employee Guillory and instead reducing her pay, hours, and desirable schedule of hours because of and to discourage her union organizing activity, and to discourage union affiliation by Respondent's nonunion employees, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 2. By coercively interrogating its employees concerning the union sympathies and activities of fellow employees, and by granting a wage increase -to dissuade employees from pursuing their interest in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It will be recommended that the Respondent ( 1) cease and desist from its unfair labor practices; (2) make employee Guillory whole for the loss of pay suffered since August 1, 1971, by reason of the lost increase, and the reduction, in wage rate and the reduction in hours, and place her in the higher job and wage classification to which she was entitled under the wage increase of August 1, 1971, and restore her schedule of full- time, daytime hours. The backpay shall be computed on a quarterly basis as set forth in F. W. Woolworth Co. 90 NLRB 289 (1950), approved in A.LR.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Manufacturing Co. v. N.LR.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U. S. 888 ; and (3) post the notices provided for herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: 7 ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees as to the union sympathies and activities of fellow employees. (b) Granting wage increases or other economic benefits in order to dissuade its employees from becoming interested in and supporting the Union. (c) Discouraging interest or membership of its employees in the Union by subjecting employees, who engage in union activity, to denials of wage increases , cuts in wages and hours, or assignments of less desirable hours, or otherwise discriminating against them as to their tenure and conditions of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make employee Bonnie Guillory whole in the manner set forth in the section of the decision entitled "The Remedy," for any loss of earnings she may have suffered as a result of the denial of the wage increase and reduction in pay and hours after August 1, 1971, place her in the higher job and wage classification to which she was entitled by reason of the wage increase of August 1, 1971, and restore her schedule of full-time, daytime hours. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Order. (c) Post in its stores in Houston and Dallas, Texas, copies of the attached notice marked "Appendix." 8 Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director for Region 23, Houston, Texas, the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter in conspicuous places, includ- ing 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. (d) Notify the Regional Director of Region 23, in writing, within 20 days from the date of the receipt of this Decision what steps the Respondent has taken to comply herewith .9 7 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Order herein shall, as provided in Sec. 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 8 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." 9 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 of Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith."