Lees Shopping Center, Inc.

LEE'S SHOPPING CENTER, INC. 507 Lees Shopping Center, Inc. and Meat Cutters' Union, Local No. 88, a/w Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Retail Store Employees' Union, Local No. 655, a/w Retail Clerks International Association, AFL-CIO Lees Shopping Center, Inc., and Lees and Associates, Inc., and W. Glenwood Lees d/b/a Lees Service Station and Retail Store Employees' Union, Local No. 655, a/w Retail Clerks International Associa- tion, AFL-CIO. Cases 14-CA-6211-1, 14-CA-6211-2, and 14-CA-6211-3 July 28, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 29, 1972, Trial Examiner Harold X. Summers issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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, and findings,2 and conclusions3 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 as modified herein and orders that Respondents Lees Shopping Center, Inc., Farmington, Missouri, Lees and Associates, Inc., and their officers, agents, successors, and assigns, and W. Glenwood Lees, d/b/a Lees Service Station, Farmington, Missouri, and his agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Delete the period at the end of paragraph 1(b) and insert thereafter: "their shopping center in Farmington, Missouri." 2. Substitute the following for paragraph 2(b): "(b) Offer to Rosemary Blum, Wanda Blum, Katherine Beard Burnia, Sandra Ely, Stephen Hager, Patsy Hendon, Lena Johnson, Elvie King, Alberta Racer, Vern Westenhoefer, Nancy Zavala, Donald Blum, and Jewell Gibson reinstatement to their former or substantially equivalent positions at the restaurant and/or gas station if the Respondents reopen either of them at their shopping center at Farmington, Missiouri; otherwise offer the said employees reinstatement at the existing operations at the said shopping center in any jobs for which they may be qualified, without loss of seniority or other rights or privileges, dismissing, if necessary, any persons hired after the discharge of the above-named employees and distributing available positions with- out discrimination against any employee because of union affiliation or activities, following the system of seniority, if any, customarily applied in the conduct of the Respondent's business; and create a preferen- tial hiring list containing the names of any employees above named for whom there are not sufficient job openings and, as job openings occur thereafter, offer reinstatement to said employees to any jobs for which they may be qualified." 3. Substitute the following for paragraph 2(d): "(d) Make such individuals whole for any loss of earnings suffered by reason of the discrimination against them from the date of the termination of their employment until the fulfillment of the obliga- tion imposed in paragraph 2(b), above, in the manner set forth in the section of the Trial Examiner's Decision entitled `The Remedy.' " 4. Substitute the attached notice for the Trial Examiner's notice. i The Respondents have requested oral argument This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties 2 The Respondents have 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 of 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 adopt the Trial Examiner's recommended bargaining order as an appropriate remedy for the Respondents' flagrant, widespread unfair labor practices in violation of Sec 8(a)(l) and (3), N LR B v Gissel Packing Company, 395 U S 575, 615, and therefore find it unnecessary to consider or pass upon his finding that because they did not doubt the Union's majority the Respondents unlawfully refused to bargain with the Union 3 The Trial Examiner recommended that the discriminatees be reinstated if the Respondent should institute any restaurant and/or service station and that meanwhile they be placed on a preferential hiring list for any further vacancies in Respondent's existing operations in jobs they are capable of performing However, reinstatement to restaurant and/or service station jobs should properly be limited to such operations at the shopping center at Farmington, Missiouri, but in view of the findings herein, we deem appropriate that the discrimmatees be offered immediate reinstatement in any jobs for which they may be qualified in the existing operations without loss of seniority or other rights or privileges, and that the Respondents be required to dismiss any persons hired in any such jobs after the unlawful termination of the discriminatees, and shall so order 198 NLRB No. 73 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Amalgamated Meat Cutters, Local 88 or in Retail Clerks. Local 655, by discriminating in regard to hire, tenure, or other condition of employment. WE WILL NOT close down any of our operations because employees in those operations may choose to be represented by a labor organization and in order to discourage the unionization of any of our other employees. WE WILL NOT refuse to bargain collectively with Retail Clerks, Local 655, as the exclusive bargaining agent of all nonsupervisory restaurant and food-dispensing employees in any restaurant or food-dispensing service which we may operate in the future at our shopping center in Farming- ton, Missouri. WE WILL NOT ask employees about their contacts or acquaintanceship with, or their knowledge as to activities of, union representa- tives; ask employees to report the presence of union representatives on our premises; give employees the impression that we are watching them with respect to their union activities or that, if they should choose a union to bargain for them, prounion employees might be subjected to special surveillance; imply to employees that if they choose a union as their bargaining agent there might be layoffs or discharges; threaten employ- ees that we would or might close any of our operations if they choose a union as their bargaining atent, or grant any wage increases in order to induce employees to resist becoming organized by a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by them; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any such activities except as the right to refrain may be limited by the lawful enforcement of a lawful union-security clause. WE WILL offer Rosemay Blum, Wanda Blum, Katherine Beard Burnia, Sandra Ely, Stephen Hager, Patsy Hendon, Lena Johnson, Elvie King, Alberta Racer, Vern Westenhoefer, Nancy Zava- la, Donald Blum, and Jewell Gibson reinstate- ment to their former or substantially equivalent positions at the restaurant and/or gas station if we reopen either of them at our shopping center at Farmington, Missouri; otherwise WE WILL offer the said employees reinstatement at the existing operations at the said shopping center in any jobs for which they may be qualified, without loss of seniority or other rights or privileges, dismissing, if necessary, any persons hired after the discharge of the above-named employees and distributing available positions without discrimi- nation against any employee because of union affiliation or activities, following the system of seniority, if any, customarily applied in the conduct of our business; and WE WILL create a preferential hiring list containing the names of any employees above named for whom there are not sufficient job openings and, as job openings occur therefafter, offer reinstatement to said employees to any jobs for which they may qualify. WE WILL pay the above-named employees for any loss suffered because of our discrimination against them, for the period from the closing of their respective operations until we offer them reinstatement or place them on a preferential hiring list for any openings on jobs they can perform, or until they procure substantially equivalent employment elsewhere, whichever occurs first. LEES SHOPPING CENTER, INC., LEES AND ASSOCIATES, INC., AND W. GLENWOOD LEES, D/B/A LEES SERVICE STATION (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room LEE'S SHOPPING CENTER, INC. 509 448, St. Louis, Missouri 63101, Telephone 314-622-4142. TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Examiner: In this proceed- ing, the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board, respectively) issued a complaint' alleging that Lees Shopping Center, Inc. (referred to herein as Respondent Center), Lees and Associates, Inc. (referred to here as Respondent Associates), and W. Glenwood Lees, d/b/a Lees Service Station (referred to herein as Respondent Station) had engaged in and were engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (herein called the Act), which complaint was amended in certain respects at the hearing herein. The answer to the complaint, as amended, admitted some of its allegations and denied others; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at St. Louis, Missouri, on August 23 and 24, 1971; all parties were there afforded full opportunity to call, examine, and cross-examine witnesses and to argue orally and thereafter to submit briefs. At issue were questions as to (1) whether the three Respondents constitute a single employer for the purposes of the assertion of jurisdiction, of unfair labor practice liability, and of responsibility for remedying any unfair labor practices found; (2) whether the Respondents, jointly or severally, independently interfered with, restrained, or coerced employees in the exercise of self-organizational rights guaranteed them by the Act; and (3) whether the Respondents, jointly or severally, discontinued a restau- rant operation and a service station operation, thereby terminating the employment of a number of named individuals, because those individuals had joined or assisted one of the two Unions who filed unfair labor practices charges herein and/or to discourage other employees from joining or assistang this Union or any other union. At issue also were questions of (4) whether one of the Charging Unions represented a majroity of the employees in an appropriate bargaining unit; and (5) whether, under the circumstances, an order upon any or all of the Respondents to bargain with this Union is an appropriate remedy. Upon the entire record in the case,2 including my evaluation of the witnesses based upon my observation of their demeanor, and upon due consideration of briefs filed, I make the following: FINDINGS OF FACT 1. THE EMPLOYER(S) At the outset-because it cuts across questions of jurisdiction, liability for any unfair labor practices, and I The complaint was issued on June 21, 1971 The unfair labor practice charges initiating the proceeding, Cases I4-CA-6211-1 and 14-CA-6211-2, were filed on April 23, 1971, and an additional charge, Case 14-CA-6211-3, was filed on May 20, 1971, and amended on June 16, 1971 2 By order issued December 1, 1971, 1 made certain corrections in the transcript remedy, if one is called for-the issue of whether or not the three Respondents herein constitute a single employer must be dealt with. The General Counsel contends that, at all times material herein, the three Respondents have operated affiliated businesses with common ownership, officers, and manage- ment, they have constituted a single integrated enterprise, and their officers and management have formulated and administered a common labor policy-in short, that they should be regarded as a single employer for purposes of this proceeding. The Respondents, jointly and severally, deny that they have operated affiliated businesses with common owner- ship, officers, and management, that they have constituted a single integrated enterprise, that their officers and management formulate and administer a common labor policy. They deny that they constitute a single employer for purposes of the Act. They contend, on the contrary, that theirs are separate enterprises, with separate boards of directors insofar as the two corporate Respondents are concerned, and that, for all purposes of this Act, the three are and should be considered to be separate employers. In 1955, with W. Glenwood Lees as its president, Respondent Center was incorporated for the purpose of operating a supermarket and a locker plant. The corpora- tion purchased property at 1014 St. Genevieve Avenue, in Farmington, Missouri, property on which the supermarket building was located; in addition, land to the west of the building, owned by Lees and his wife, was leased from them by Respondent Center to be used as parking space for customers of the market. The locker plant operation3 led the supermarket into the sale of freezers and, eventually, of other appliances. In 1957, television sets were adeed to the line, and the health and beauty aids section expanded into a pharmacy department. At or about this time, the building was enlarged, on additional ground purchased by Respondent Center from Mr. and Mrs. Lees; it then assumed its present size, approximately 154 by 156 feet. During or about 1958, it was decided by Lees and his associates to go into additional businesses at the shopping center location-a restaurant and automobile service station-and, for this purpose, Respondent Associates was formed, again with Lees as its president. A 25 by 40-foot space was partitioned off within the supermarket building for the restaurant; likewise, a small area was partitioned off for the office of the service station, and gas pumps were placed outside the office. Thereupon, Respondent Associ- ates took over the responsibility for these two new operations. The only relevant change during the ensuing l l years4 was the fact that, in 1961 or 1962, the rentals charged for the restaurant and the service station were reduced. In October 1969, by a resolution of its board of directors, Respondent Associates discontinued its operation of the service station, and Respondent Center looked for some- 3 This record does not reveal further details about the locker plant The use of the past tense in certain answers given on the witness stand indicates that Respondent Center no longer operates the plant 4 Within this period, Lees had financial interests in other enterprises, e g, Great Western Wholesale Meat Company and Des Loges Appliances, which are not involved herein 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one else to lease the space. In January 1970, an unrelated partnership leased the space and operated the service station. Three months later, the partnership sold its merchandise to one Len Hammers and worked out an arrangement for Hammers to take over its lease; he operated the station for approximately a year and then, because he could not pay his bills, he went out of business. Thereafter, starting on March 20, 1971, Glenwood Lees took upon himself (as Respondent Station) the operation of the service station. On May 19 and 21, 1971, respectively, the restaurant and the service station were closed down, under circumstances with which, among other things, this case is concerned. During the period pertinent herein, March, April, and May 1971, the complex at St. Genevieve Avenue was the location of the main offices and principal operations of all three Respondents' enterprises.5 W. Glenwood Lees was president of Respondent Center, and its other officers were Donald K. Cheesebrough (Lees' brother) and Mary Louise Lees (his wife); Lees owned 99 percent of the stock in the corporation, and the remainder was owned by Cheeseb- rough and Mrs. Lees. With respect to Respondent Associates, Lees was president, R. F. Stoker was vice president, and Donald Cheesebrough was secretary-treas- urer, the three also constituting the board of directors; 6 Lees owned five-sevenths of the stock of the corporation and the remainder was owned by Stoker and Cheeseb- rough. As has been indicated, Glenwood Lees was the sole proprietor of Respondent Station.? The parties introduced testimony as to a number of factors bearing upon the relationship between the three Respondents. Although there was a substantial amount of interchange of duties among the nonsupervisory employees within the supermarket, there was no such interchange as between the supermarket, the restaurant, and the service station.8 The picture with respect to the interchange or overlap- ping of supervision is somewhat more mixed. Lees, in addition to his various capacities above described, was and is general manager of the supermarket, among other things exercising the powers of hiring and discharging its employees and of deciding upon wages paid. Under him, there were a number of department heads, in groceries, produce, pharmacy, and meats. The first three, under Lees' supervision, did most of the buying in their respective departments; because the meat department head was comparatively new, Lees did most of the buying for that department, and he himself bought all the television sets and most, if not all, of the other appliances sold in the 5 It also housed the main offices of Southern Acceptance Corp, Inc , a corporation formed in 1955 6 Stoker is not related to Lees, nor is he involved in the daily operations of any of the enterprises at the shopping center He is president of Great Western Wholesale Meat Company, an enterprise in which Lees had but no longer has a financial interest ° During the same period, Lees was also president of Southern Acceptance and of its several wholly owned subsidiary corporations whose principal offices were elsewhere There is no contention or evidence that, except for the coincidence of Lees' financial interest, the Southern Acceptance corporations should be linked with the Respondents for purposes of this proceeding B 1 do not regard as exceptions to this statement the fact that, after the restaurant closed down under circumstances with which this case is supermarket. The head of the meat department was Donald Cheesebrough, who has been mentioned as an officer of Respondent Center and as an officer and director of Respondent Associates. In his day-to-day activities, he had nothing to do with the operation of the restaurant. George Keown was the operating manager of the restaurant, responsible, under Lees, for its day-to-day operations. This was a full-time task; in addition to supervising directly the employees of the restaurant, he did all of its buying, and he performed no duties for the supermarket. Lees, who spent 50 to 70 percent of his working hours in the supermarket, would, on occasion, go into the restaurant and operate the cash register for 15 or 20 minutes at a time; while in the restaurant, he might tell an employee to do something, but this was the exception rather than the rule. On the other hand, on the basis of testimony with respect to the giving of a wage increase to restaurant employees in April 1971, I find that Keown had to clear with Lees with respect to the granting of wage increases. Finally, I note that Lees, along with Cheeseb- rough, signed checks for Respondent Associates, while Keown did not. As for the service station, Lees was its only supervisor. All dealings between the three entities were, on the surface, at arm's length. The restaurant made some of its purchases on the outside, but it bought almost all of its food items from the supermarket. The actual buying would be done by Keown or, on occasion, by one of the restaurant employees designated by him. He, or his designee, would go through the supermarket picking out needed items. As for many purchases, his price was the same as that to the public; as for others, the same quantity discounts were given as were given to outside restaurants who made purchases at the supermarket. Items would be paid for in cash at the checkout counters or, in the case of certain purchases of meat or produce, would be charged to Respondent Associates on a short-term basis.9 The restaurant maintained its own cash register, bank account, and books. The books were kept by employees who worked in offices on the mezzanine of the supermar- ket building and who were employed by Respondent Center; these same employees maintained the records of the service station.1° Lees, testifying at this hearing, said he did not know whether there was an allocation of costs for the bookkeeping services rendered for companies other than Respondent Center, and no witness called by Respondents testified to the contrary; moreover, in the various profit-and-loss statements in this record, there is no concerned, the manager of the restaurant for the preceding 7-1/2 years became a general clerk in the supermarket , nor the fact that one individual, Donald Blum, worked for all three enterprises within a period of 45 days 9 In former years, there had been an indefinite -term running account of financial dealings between Respondent Center and Respondent Associates, but the amount owed by the latter became so great that the board of directors of Respondent Center discontinued the practice Thereafter, Respondent Associates paid cash for most of its purchases, settled its meat and produce charges weekly, and paid its rental monthly io In addition, these employees have, through the years, kept the books for other of Lees' interests-Des Loge Appliances, Great Western Wholesale Meat Company , and the rentals for the various parcels of real estate he owned LEE'S SHOPPING CENTER, INC. 511 mention of this item. Consequently, I find that there were no charges made for such work. On the other hand, most of the time of these clerical employees was occupied by services for Respondent Center; the rest of their work was "negligible." In its advertising, in newspapers and on billboards, the products and services of all three enterprises were offered to the public without relevant differentiation. Indeed, outsiders regarded the entire complex as comprising the "Lees Shopping Center." Respondent Associates' tele- phone was an extension of that of Respondent Center, and phone calls would be answered by the greeting "Lees Shopping Center". (The pharmacy has a separate tele- phone line.) There was no telephone at the service station. The business hours of the supermarket were 8 a.m. to 8 p.m. The restaurant closed at the same hour, but it opened earlier-at one time, at 6 a.m., but, beginning in January 1971, at 7 a.m. Customers of the restaurant included supermarket employees, supermarket customers, and out- siders, in proportions which, according to the testimony herein, do not lend themselves to quantification. Entrance to the restaurant (or to the office of the service station, for that matter) could be effected either from the outside parking area or from the front area of the supermarket "outside" the checkout counters. In passing upon the "singleness" of the three Respon- dents herein, we must start with the fact that, on paper at least, Respondent Center, Respondent Associates, and Respondent Station are set up as three separate entities. Each of the two corporations has its own charter, officers, and board of directors; the individual proprietorship, of course, has none of these. In line with the manner in which the three enterprises have been set up, there is no formal intermingling of such things as books, records, and bank accounts; and each employee, in the discharge of his duties, performs work only for the employer by whom he is being paid. One cannot, however, ignore the interlocking aspects. W. Glenwood Lees is the titular head of all three companies, and his financial interest amounts, respectively, to 99, 71.5, and 100 percent of the total capitalization of each. As for the two corporations, the other officers/directors of Respondent Center are Lees' brother and his wife. The former also is a director of Respondent Associates, in which we find the only officer/director "outside the family," a 14.3-percent stockholder whose primary interest is in an enterprise with which Lees was formerly associat- ed. The interlocking character of the three Respondents carries over into the identity of those involved in the day- to-day management of the three enterprises. Although the manager of the restaurant confined himself to that job (lust as do the department heads in the supermarket),)) there is no doubt that Lees himself actually "ran" all three operations. His personal supervision was limited only by the time available to him; even so, he retained final authority for such things as the giving of wage increases. The nature of the rental arrangements, throughout the years and at the time of the commission of the alleged unfair labor practices, tells something about the relation- ship of the Respondents. Respondent Center leased the parking space serving the complex-at a rental unmen- tioned in this record-from Lees and his wife; and Respondents Associates, although its customers used the same parking space, assumed no share of the rental. The rents paid by Respondent Associates to Respondent Center for its restaurant and service station were originally fixed at $200 each, a figure which, for each parcel, was voluntarily cut to $100 in 1961 or 1962 and was never raised thereafter. This rental, on Lees' own testimony, differed from that which was charged to intervening "outside" operators of the service station, was substantially less than would have been charged to other outsiders for either space, and was lower than square foot rentals prevailing in Farmington. After Respondent Associates discontinued its operation of the service station in October 1969, it paid no rent whatsoever to Respondent Center for the station space, although it kept its inventories there for at least 3 months. And, finally, when Lees himself took over the operation of the service station (as Respondent Station) he worked on a "verbal leasing arrangement" with Respondent Center, at a rental not revealed by this record. As I have found, the public regarded the entire complex on St. Genevieve Avenue as an integrated enterprise; and I do not believe that this conception was confined to the public. Asked at the hearing the "primary purpose for having all these corporation," Lees testified that The first purposes . . . is to operate either a related business or in a related location. . . . We, I mean myself and my associates in business, thought it might be wise to go into the restaurant business and also the service station business but we felt that was more different operations than should be handled in one corporation... . In a single sentence, he has demonstrated that he regards the enterprises as "related" and that there is an identity of decisional authority as between the different enterprises.12 In summary, based upon these factors and those recited earlier herein, I find that regardless of the formal arrangements W. Glenwood Lees was the dominant force in all three enterprises, that he bears almost the entire financial risk with respect to their operations, that his was the dispositive voice with respect to all decisions of substance made by the three Respondents-among other things, those involving labor relations policy-and that each decision with respect to any of the three enterprises was made with due regard to the well being of the other two. I find and conclude that, for all purposes of the Act, Respondent Center, Respondent Associates, and Respon- dent Station have constituted and constitute a single employer (which, when referred to as such hereinbelow, will be called the Joint Respondent). 11 Of passing significance is the fact that one of these department heads testified that "we" knew about an organizing campaign among the was authorized to sign checks for restaurant expenses employees of the supermarket but "we" were unaware of any such 12 At other places in his testimony, he uses the pronoun "we" in referring campaign among the restaurant employees to management of one or another of the Respondents For example, he 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. JURISDICTION Respondent Center is, and has been at all times material herein, a Missouri corporation engaged in the operation of a supermarket at which groceries, appliances, drugs, food, and related items are sold at retail. During the calendar year 1970, which is a representative period, Respondent Center, in the course of its operations, sold merchandise valued at in excess of $500,000, and, during the same period, it received merchandise which came directly from points outside the State of Missouri valued at in excess of $50,000. Respondent Center concedes, and I find, that it is an employer engaged in commerce within the meaning of the Act. At all times relevant herein, until on or about May 19, 1971, Respondent Associates, a Missouri corporation, was engaged in the operation of a restaurant. Although some of the products it used cross state lines-its coffee purchases alone exceeded $250 per month-its total activities did not and do not meet any of the standards set by the Board for the assertion of jurisdiction under the Act; the General Counsel concedes, and I find, that, taken alone, Respon- dent Associates is not an employer engaged in commerce within the meaning of the Act. From on or about April 1, 1971, until on or about May 21, 1971, Respondent Station, an individual proprietorship, was engaged in the retail sale of gasoline and related petroleum products. Its own activities did not and do not meet any of the standards set by the Board for the assertion of jurisdiction under the Act; the General Counsel concedes, and I find, that, taken alone, Respondent Station is not an employer engaged in commerce within the meaning of the Act. Having found, however, that the three Respondents constitute a single employer for all purposes under the Act, I find that the three of them collectively, the Joint Respondent, are an employer engaged in commerce within the meaning of the Act. III. THE UNIONS The Charging Party in Case 14-CA-6211-1, Meat Cutters' Union, Local No. 88, a/w Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (hereinafter called the Meat Cutters), and the Charging Party in Cases 14-CA-6211-2 and 14-CA-6211-3, Retail Store Employees' Union, Local No. 655, a/w Retail Clerks International Association, AFL-CIO (hereinafter called the Retail Clerks), are labor organiza-, tions within the meaning of the Act. 13 The Meat Cutters was granted recognition when it claimed that a majority of the meat department employees had signed bargaining authorization cards, but this record contains no evidence as to how the Retail Clerks achieved its bargaining status nor does it further define the unit which had been represented by that organization 14 Three or four of the clerks had approached Lees and, saying that they did not like the representation they were getting from the Retail Clerks, asked what they could do to get rid of the organization He advised them that they would have to file a petition with the Labor Board and ask for an election As a result of this conversation , two of them went to the Board's St. Louis offices and filed the necessary forms IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background, Setting, and Chronology of Relevant Events Commencing during or about 1958, certain employees of Respondent Center had been represented for collective- bargaining purposes by one or the other of the labor organizations involved herein. The Meat Cutters and the Retail Clerks were recognized by Respondent Center as the exclusive bargaining agents of the meat department employees and of the rest of the supermarket employees, respectively.13 During 1961, one or more of the supermar- ket nonmeat-department clerks filed a "decertification petition" with the Board 14 and, in the ensuing election, the Retail Clerks was ousted as the clerks' bargaining agent. In 1964 or 1965, a decertification petition was filed with respect to the Meat Cutters,15 but, before any formal action could be taken, the Meat Cutters voluntarily disclaimed its right to represent the meat department employees and it was decertified. Thereafter, for a number of years, none of the employees at the shopping center was represented by a union, and, insofar as is revealed by this record, no union made any organizing attempt among them. As of the beginning of 1971,16 Respondent Center employed approximately 20 persons in the supermarket, a figure which included 4 in the meat department, and Respondent Associates employed approximately 12 in the restaurant. As earlier noted, the service station, at this time, was not yet being operated by Respondent Station. , Late in February, in the course of the ratification of a collective-bargaining contract between the Retail Clerks and a competitor of Respondent Center, some of the individuals there involved informed agents of the Retail Clerks that employees at Lees shopping center had expressed an interest in representation by a union. Officials of the Retail Clerks met with their opposite numbers in the Meat Cutters to discuss the possibility of making a new organizing effort at Lees', and it was decided that a joint campaign would be launched-the Meat Cutters would seek to interest meat department employees in unioniza- tion, and the Retail Clerks would work among the other employees. Sometime that month, a representative of the Meat Cutters made contact with Ed Gibson, an employee in the meat department at the supermarket.17 Gibson was persuaded to sign a union authorization card, and he took other cards for use by the other three meat department employees. Insofar as is revealed by this record, he was successful in procuring the signature of but one individual. On March 8, two representatives of the Retail Clerks 15 At that time, there were only three employees in the meat department Glenwood Lees asked one of them, Ed Gibson, if he knew that the Meat Cutters' contract had expired and if he had heard anything from the union Gibson said he had heard nothing and he asked how the meat department employees could get rid of the union Lees told Gibson what the grocery clerks had done and, shortly thereafter, the decertification petition was filed i6 Unless otherwise indicated, all dates hereinafter referred to fall within the year 1971 17 Gibson had been working in the meat department during the period of the Meat Cutters prior representation of Respondent Center's meat department employees See fn 15, supra LEE'S SHOPPING CENTER, INC. 513 went to the restaurant at Lees' shopping center. By change, they engaged Nancy Zavala, a waitress, in conversation; they told her who they were and what they were trying to do, and they suggested that if she or anyone else was interested in representation by a union, they would be glad to make house calls. That night, they went to Zavala's home and met with Zavala and Sandra Ely, a dishwasher at the restaurant. They explained what they were trying to do and they produced bargaining authorization cards. Both of the employees signed, and Zavala, agreeing to help in the organizing campaign, accepted some blank authori- zation cards. Although it had been the original plan of the Retail Clerks to attempt to represent all nonmeat-department employees in the Lees' complex, they decided, at this time, to concentrate first on the restaurant; organizing these employees, they believed, would be less difficult than organizing the supermarket employees. As has been indicated, Zavala and Ely signed Retail Clerks cards on March 8 at Zavala's home. Thereafter, Zavala spoke to employees of the restaurant about joining the Retail Clerks. Mainly as a result of her efforts, Katherine Beard Burnia, a waitress, signed a card on March 9; Alberta Racer, a waitress, signed on March 20; Rosemary Blum, a grill cook, signed on March 29; and Wanda Blum, a dishwasher, signed on May 3. Additional restaurant employees also signed cards-Lena Johnson, a grill cook, on March 9; Elvie King, a cook, on March 30; and Donald Blum, cleanup boy, on April 15. From March 9, during the next 8 plus weeks. Zavala also spoke to five or six supermarket employees about repre- sentation by the Retail Clerks. From among them, it appears that she persuaded one to sign an authorization card. Meanwhile, Glenwood Lees had become aware of the existence of a union organizing drive in the shopping center; the fact became a subject of common conversation not only among employees but between employees and Lees himself. There is some question as to the detailed extent of his knowledge-I find, on his credited testimony, that he originally thought that the movement was confined to the supermarket employees and -was not aimed at those in the restaurant-but there is no doubt, from events which I find to have taken place (details infra) that he learned of the general campaign early in March. Thereupon, he engaged in a series of conversations with employees which, the General Counsel contends, constitued interference with and restraint and coercion of employees in the exercise of their self-organizational rights. Subsequently, Restaurant Manager Keown also spoke to certain employees, as to which conversations the General Counsel makes the same claim. The details of these conversations appear below. On March 20, Lees (as Respondent Station) took over the operation of the service station, with two employees. (He regarded the step as a stop-gap, to last until someone else could be found to take over.) During the period relevant herein, no service station employee, as such, signed a union card.18 On or about April 19, a wage increase was given to employees of the supermarket, followed, a week later, by a wage increase among restaurant employees. The General Counsel contends (see infra ) that the giving of these increases, in context constituted interference with and restraint and coercion of employees in the exercise of their self-organizational rights. By letter dated May 13, the Retail Clerks claimed to represent a majority of certain employees of Respondent Associates and asked for recognition as their bargaining agent, and, on the 18th, its representatives made clear that only the restaurant employees were involved in their request. At or about this time, Lees conducted an investigation of sorts as to the desires of the restaurant employees with respect to union representation. On the 19th, the Retail Clerks request for bargaining was rejected, and, on the same day, Respondent Associates closed the restaurant. Two days later, Respondent Station closed the service station. These facts-details of which appear below-constitute the bases for the General Counsel's contentions that the Joint Respondent has unlawfully refused to bargain with the bargaining agent of the restaurant employees and has unlawfully terminated the employment of the employees of both the restaurants and the service station. B. Management Talks to Employees As found earlier, Glenwood Lees 19 became aware of a union organizing campaign among employees at the shopping center early in March. According to his testimo- ny at this hearing, it was a "common thing" for an employee in the supermarket not only to talk to fellow employees, but to talk to him about a visit from a union representative on the previous night; this happened on a number of occasions and it was treated as "a joking matter. . . . I may have asked employees if they had talked with the union representatives [but] I never went beyond that." Lees conceded, however, that he did tell a number of- employees of the supermarket about experiences encoun- tered during the period in which the Retail Clerks and the Meat Cutters had previously represented employees there, some 10 years earlier. He explained at the hearing that he felt that those bargaining relationships created a number of problems, and that he believed that his present employees ought to be aware of this fact. In substance, he testified, he told the employees with whom he discussed the subject that, prior to the period in question, the employees of the shopping center had worked together "like a family" without any problems of "attitude" or customers relations, and the business had grown every year; after the unions came in, however, there was complete change: there was a lack of cooperation and, indeed, there was friction between employees in the different departments-for example, if an employee from one department made a suggestion to one from another department, he was told to mind his own business-and employees, to a point of rudeness, refused to perform special services for customers. These were the '" Donald Blum, who had signed a card when he was working in the restaurant, later went to work in the service station 1e I find Lees, at all pertinent times , to have been acting as agent for the Joint Respondent 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD things-Lees' testimony continued-that he told employ- ees during March and April 1971; aware from his previous experience with unions, he "carefully refrained" from telling any employee that he could not join a union or that he would suffer reprisals for joining a union. To the extent Lees' above testimony stands uncontradict- ed, I credit him. Specifically, I find that he did speak to employees in the supermarket,20 telling them, along the lines indicated above, of problems which arose during the unions' period of prior representation of employees of the supermarket. Carol Petty, an employee who worked in the meat department 4 days a week and in the produce department 1 day,21 testified that, on or about March 8, Lees came up to her and said that he wanted to make her aware of some of the problems arising when a union had been in the store. During that period, he told her, employees could not perform any job except that to which they were assigned "under the union"; therefore, he continued, if a union came in now she probably could not work her day in the produce department. In the same conversation, he told her about a young employee who had been working in the supermarket at the time the union was in. "I guess evidently he was against me, he was for the union." Continuing, Lees said that "this boy" thought he could not be fired for not doing his job as long as there was a union, but (he told Petty) "Everyone can make a nustake"-and he could watch such a person-and the boy did make a mistake and he was fired. Lees did not testify with respect to this specific conversation. (In response to a question as to whether he had told an employee of the restaurant that that employee was either for him or against him, he denied that he ever used "any phraseology of that nature." Obviously, this testimony does not directly meet Petty's.) At any rate, I credit Petty. Dennis Bayless, a stock clerk in the supermarket,22 testified that on or about March 16 Lees spoke to him: (1) Lees said that a union had been in the market on a previous occasion and had not worked out-there had been conflicts because employees had to be "specialized in certain fields," like the meat department; (2) Lees went on to say that, since wages would have to be competitive with others in the area, employees would not be able to work for a full 8 hours because "We don't have that much business going on"; and, finally (3) Lees asked Bayless if he had talked to any union representatives, or if he had heard about them, to which questions he was given a negative answer. I credit Bayless' testimony. Grace Thurman, an employee in the meat department,23 testified that in the latter part of March Lees told her that a union had been in the store some time in the past and that there had been problems; among other things, he said he 20 At this early stage, as I have found, Lees was unaware of any organizing efforts among the restaurant employees 21 And who had signed an authorization card for the Meat Cutters 5 days earlier 22 Who had signed a Retail Clerks card on March 10 23 Who had not signed a union card 24 Thurman testified that, in the same conversation , she told Lees that Ed Gibson, of her department , had informed her that, if she and another meat department employee did not sign union cards they would be laid off Lees assured her, she testified, that there was nothing to this had laid off people at the time because he could not afford to pay union wages to people who were doing extra work.24 I credit the testimony of Thurman, who struck me as being reluctant to testify on behalf of the General Counsel. The testimony of Petty, Bayless, and Thurman was presented in support of certain specific allegations of the complaint, allegations that the Joint Respondent, through Lees, implied in a conversation with an employee that if the- union got in he might have to lay off or discharge employees in order to pay the union's scale of wages, told an employee that he would discharge employees if they failed to support him in the union's organizational campaign, told an employee that he might have to reduce employee working hours if the union were recognized, and questioned an employee about contacts with and knowl- edge of union representatives. The evidence as credited by me, while it may factually support all or parts of these allegations, does not necessarily add up, in every case, to interference with or restraint or coercion of employees in the exercise of the self-organizational rights guaranteed them by the Act. For example, I do not perceive an unlawful threat of reprisal in an employer's telling an employee that certain union policies, if imposed, might bring about disadvantages (e.g., a shortening of work hours or confinement to one department) for certain employees.25 I find no merit, therefore, in the allegation that the Joint Respondent violated the Act by Lees' telling an employee that he might have to reduce working hours if the union were recognized, nor would I find a violation in his implying that the union's policy on "specialization" might result in a loss of work for a two-department employee. This reasoning, however, does not apply to Lees' telling one or another employee that he might have to lay off or discharge employees in order to pay the union' s scale of wages. Here, the predicted result was not a "belief as to demonstrably probable consequences beyond his con- trol"; 26 clearly, he has omitted mention that he might be able to resist union pressures for higher wages or that, absent such resistance , he might be able to effect such economies as to avoid layoffs or discharges. As for Lees' telling-Petty about the prounion employee he had watched and, upon finding a reason therfor, had discharged, I do not believe that it comports with the complaint's allegation that"he "told an employee he would discharge employees if they failed to support him in the union's organizational campaign." On the other hand, it does clearly convey that, should a union come into the store, prounion employees might be subjected to special surveillance-a communication which, while not specifi- cally alleged in this complaint as a violation, was fully litigated. And finally, in the context of the Joint Respondent's 25 "Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union , so long as the communications do not contain a 'threat of reprisal or force or promise of benefit' He may even make a prediction as to the precise effects he believes unionization will have on his company [so long as) the prediction [is] carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control " N L R B v Gisset Packing Co, 395 U.S 575, 618 26 Ibid LEE'S SHOPPING CENTER, INC. unfair labor practices hereinabove and hereinbelow found, it is clear that Lees' queries of Bayless as to the latter's contacts with or knowledge of union representatives were unlawfully coercive. In sum, I find that, in these three conversations, the Joint Respondent, through Lees, interfered with, restrained, or coerced employees in their exercise of self-organizational rights in the following respects only: By implying that, if a union became the employees' bargaining agent, the necessity of paying union wage scales might bring about layoffs or discharges; by implying that, if a union became the employees' bargaining agent, prounion employees might be subjected to special surveillance; and by questioning an employee about contacts with and knowl- edge of union representatives. During the month of March, Lees had one or more pertinent discussions with Keown, the restaurant manag- er.27 According to his testimony, having learned from employees of home contacts by organizers, he was curious as to whether the organizers were coming into the shopping center as well; also, he was curious as to who they were and he wanted to know what they looked like. Therefore, he asked Keown whether union organizers were coming into the restaurant to eat. Keown said that he did not know the answer to this question at that time. This, I find, led to a number of conversations between Keown and restaurant employees. On or about March 16, according to the testimony of Katherine Burnia, Keown approached her and Linda Sales.28 He asked them if they knew anyting about a union "trying to get in there." Burnia answered in the negative, and he asked "Have you seen any union men in [here)?" Both Burnia and Sales said that they wouldn't know a union man if they saw one.29 In mid-April, according to the testimony of Lena Johnson, a grill cook at the restaurant, she had a conversation with Keown in the storeroom behind the restaurant. She testified that he asked her if she "knew anything about the union" and she said she did not; that he then asked if she had seen any union men and she gave the same answer; and that he closed the conversation with the remark "Well, you know if the union comes in, you'll be assigned to one job only. In other words, I think the restaurant will close down if the union gets in." Nancy Zavala testified that, on April 16, Keown spoke to her at the rear of the kitchen. He asked her if she knew any union men; she said she did not. Then he said, in the form of a question, "You know that if the union gets in, Mr. Lees will close the restaurant?" That ended the conversa- tion. Keown, testifying, conceded that he had discussed "union activities" with employees of Respondent Associ- ates. In view of the "rumors" to the effect that the union was in the store, he became curious as to whether his (restaurant) personnel "had been involved in any activity or had been contacted by the union . . . so I asked them." But he denied having told any restaurant employee that the 27 1 find Keown, at all pertinent times, to have been acting as agent for the Joint Respondent 28 Burma had signed a union authorization card the week before 29 Sales, who went on leave of absence shortly after the date in question, 515 restaurant would be closed "if they engaged in union activities," nor did he concede that he said anything to any of them "that would imply that the restaurant was going to be closed because of union activity." In resolving the questions of credibility, to the extent they exist, in connection with the conversations testified to by Burnia, Johnson, and Zavala, I have given due consideration both to the demeanor of the witnesses who testified thereon and to the plausibilities inherent in the situation; I find, thereon, that Keown did speak to these employees in substantially the manner testified to by them. The proof with respect to these conversations is intended to be in fulfillment of allegations in the complaint that the Joint Respondent, through Keown, questioned an employ- ee concerning her acquaintance with the union and knowledge of visits to the restaurant by union representa- tives, asked an employee if she knew any union men, told an employee that the restaurant would be closed if the union came in, and asked an employee if she had seen any representatives of the union. On the facts surrounding these conversations as found by me, I conclude that these allegations are supported by a preponderance of the evidence and that, thereby, the Joint Respondent interfered with, restrained, and coerced employees in the exercise of self-organizational rights guaranteed them by the Act. There was testimony that, beginning on or about April 23, Keown became more explicit as to the consequences of a union's success in organizing the restaurant employees. I am convinced, and I find, that as of this time the Joint Respondent had become aware that the Retail Clerks was attempting to organize the restaurant employees as well as others in the shopping center. I make this finding in the face of Lees' testimony that the first he learned of any organizing among the restaurant employees, was his receipt, on May 15, of the Retail Clerks claim to represent the majority of them-discussed infra; I base it on the plausibilities inherent in the factual picture. Restaurant Manager Keown,30 as earlier found, had, since mid-March, questioned his (restaurant) employees about union matters, had, since mid-April, continued in this course of conduct and, in addition, in conversations with restaurant employ- ees (including one with Nancy Zavala, the most active union organizer in the shopping center complex), had threatened that the restaurant would be closed should the union's campaign be successful, and now, as hereinbelow found, was about to intensify his efforts. Nancy Zavala testified that, on or about April 23, a week after their earlier conversation described above, she and Keown had another conversation. Keown called her to the grill in the front part of the restaurant and asked her if she had seen any union men; she answered that she had not, and then he said, "Well if you ever see any, would you point them out to me?" Zavala tried to change the subject: "George, why don't we ever receive a raise?" He merely looked at her and said, "Mr. Lees will close the restaurant if the union gets in." Once again, she asked about the raise, did not testify 30 Who conceded that he was aware of union actrvnties "in the store" without limiting his awareness to activities among supermarket employees 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and once again he merely repeated the statement he had just made. Next day, according to the testimony of Katherine Burnia, Keown walked up to her near the ice cream machine at the rear of the restaurant and said he wanted to tell her something. He warned her to watch what she said because "Walter"31 runs to Mr. Lees with everything. Her answer was that she did not care if Lees knew or heard what she said. He said "But I know about the union," in response to which she denied having any such knowledge herself. He closed the conversation with, "Well, if the union gets in, Mr. Lees will close the restaurant." I have noted earlier that Keown, on the witness stand, denied ever having told any employee that the restaurant would be closed for union-connected reasons. In this respect, I have previously discredited him, and I do so here. I find that conversations of April 23 and 24 took place as testified to by Zavala and Burnia, and I find that the Joint Respondent thereby interrogated an employee as to whether she had seen any union representatives, asked her to report to him if she did see any, threatened closure of the restaurant should a union become the employees' bargaining agent, and created an impression of company surveillance of union activities,32 and consequently, inter- fered with, restrained, and coerced employees in the exericse of their self-organizational rights. This record contains testimony as to two other conversa- tions between Glenwood Lees and employees. Wanda Blum, a dishwasher in the restaurant, had signed a union authorization card on May 3. Shortly thereafter, according to her testimony, she was approached by Lees while she was in the kitchen. He asked her if she had signed a union card and if she knew anyone else who did. Her answers to both parts of the question, she testified, were in the negative. Donald Blum (brother of Wanda) testified that, at or about mid-May, while he was working in the gas station, he went to Lees' office to obtain the day's startup money. There, Lees asked him if any union men had stopped by the station to talk to him or if he knew anything about any union cards. Having received a negative answer, Lees went on to say, according to Blum's testimony, that a majority of the people of the restaurant and service station had signed union cards and "if it should go through" he would have to close down the restaurantand the service station. I credit both sister and brother33 and find that, in these conversations, the Joint Respondent, through Lees, asked an employee about conversations and contacts with the Retail Clerks, asked an employee it union representatives had spoken to him about joining I a union, and told an employee that if in fact a majorit I of its employees had signed union cards, the restaurant rid the service station would be shut down. The last pertinent conversation, according to the testimony, took place on the afternoon of Tuesday, May 18. Vern Westenhoefer, the afternoon cook at the restau- rant, testified about it. Keown would normally leave work at 3 or 4 p.m., and she was responsible for the operation of the restaurant from that time until 8 p.m. On this Tuesday, he returned shortly after he had left, an unusual occur- rence. He went to the kitchen, where she was working. "What's going on around here?" she asked, to which Keown replied, "Shut the door. I don't want you to say anything about this, but I think the union wants to try to come in here and if it does this place is going to be closed." I find here another instance in which, as alleged in the complaint, Respondent, through Keown, threatened a closure of the restaurant if the union became the employees' representative. Summarizing, I have found that, on various occasions between March 8 and May 18, 1971, inclusive, the Joint Respondent, through agents, interrogated employees as to their contacts or acquaintanceship with, or their knowledge of activities of, union representatives; solicited an employ- ee to report the presence of union representatives on the premises; conveyed to employees the impression that the employer was engaged in the surveillance of union activities and that, if a union became the employees' bargaining representative, prounion employees might be subjected to special surveillance; implied to employees that if a union became the employees' bargaining representa- tive, there might be layoffs or discharges; and conveyed threats to employees that, if a union became the employ- ees' bargaining representative, it would close its restaurant and its service station-each and all of these acts constituting interference with restraint and coercion of employees in the exercise of the self-organizational rights guaranteed them by the Act. On the other hand, I have found no unlawful interference, restraint, or coercion in any other statements made by agents of the Joint Respondent to employees.34 C. The Wage Increses On or about April 19, the supermarket employees on the payroll of Respondent Center received wage increases. The complaint alleges that these increases were given in order to induce the supermarket employees to refrain from union activities. The General Counsel put on two witnesses with respect to certain circumstances surrounding the giving of the increases. According to Carol Petty, meat department employee, she received a 10-cent-an-hour raise; dissatis- fied, she asked Lees if there was going to be another one, and in response, he told her that there had been a mistake and that another increase would be forthcoming.35 Grace Thurman, also of the meat department, testified that, like 31 The record contains no further identification of this individual 32 The impression, I find, was created by his statement to Burnia that he was aware of the existence of a union in the store, not as argued by the General Counsel, by his statement that someone, unidentified in this record, would report whatever was said to management 33 As noted, Donald Blum's testimony fixed Lees' conversation with him as occurring "at or about mid-May " In context, because Lees did receive a union claim of majority representation on Saturday, May 15 (see infra ), I find that the conversation took place between that date and May 21, the day the service station closed 14 In addition to those items which have been heremabove discussed and found not to be violative of the Act, I note here that no testimony was received in support of one or more allegations of the complaint-for example, the allegation that, "On or about April 24, 1971, George Keown told an employee that the Union would not get in because the restaurant would be closed " 35 She did receive the second increase LEE'S SHOPPING CENTER, INC. Petty, she had asked about (and eventually did receive) a second increase. During her conversation with Lees about the second increase, she further testified, he had told her that he had recently been investigating the pay scales of competitors and was ready to meet them, and, in the course of the conversation, he mentioned that "the union" had recently organized at Hecht's and at Jarvis Sons, both competitors. I credit both Petty and Thurman. According to Lees' testimony, he had spoken, during the previous 30 days, to various competitors, and he concluded that he would have to increase wages to meet those prevailing in the community in order to keep his help; this, he testified, was the sole reason for the increase. In my opinion, the General Counsel has, considering the Joint Respondent' s awareness of a union campaign then being conducted among its employees and its union animus as displayed in its agents' conversations with employees hereinbefore described, established a prima facie case that the giving of the raise was indeed designed to induce the supermarket employees to resist the unions' organizing efforts. And it is my further opinion that the Joint Respondent has not successfully negated the infer- ence. The explanation that comparative wage rates in the area had just been investigated is not convincing; the investigation took place during the period of the organizing attempt of which the Respondent was aware, and was unaccompanied by, for example, any evidence that such investigations had been made on a regular or other basis, with or without a union presence. I am persuaded, by what I consider to be a: fair preponderance of the evidence, and I find, that the wage increase to the supermarket employees was designed to induce them to refrain from union activities and thereby interfered with, restrained, and coerced them in the exercise of the self-organizational rights guaranteed them by the Act. The complaint also alleged, as interference with and restraint or coercion of employees in the exercise of their self-organizational rights, that, on or about April 26, 1971, Keown told the restaurant employees that they were receiving a raise and that there would be another one later. The employees of the restaurant had never received a general wage increase, insofar as is revealed by this record. Nancy Zavala, for example, had worked there for 4 years and had never received a raise although she had often asked for one. Katherine Burnia had had no change in pay during the 3-1/2 years of her employment. And Lena Johnson, a 6-year employee whose seniority was exceeded only by that of Keown, had received but one raise, early in 1970. In mid-March, a week or two after she had signed her authorization card, Zavala raised the subject with Keown, "How do you go about getting a raise in this place?" At that time, he said that the girls would have to sign some kind of a petition for Lees' approval; however, he did not give specific details, and no action was taken in that direction. But after the supermarket employees received their increase , supra, the unhappiness of the restaurant employees increased and one or more of them brought the matter to Keown's attention. Keown took the problem to Lees, recommending that a raise be given. Lees, 36 This is not to say that, even if it were not an unfair labor practice, the giving of this wage increase might not shed light upon the subsequent 517 in effect, said that he could see no way in which a raise could be given, considering the losses being sustained by the restaurant, but Keown persisted, suggesting that a small raise would make for a happier group. Thereupon, Lees told Keown that he would leave it to him, but he cautioned that an increase of more than 5-cent-per-hour would put the restaurant in worse shape than it was already. On April 26, Keown called the employees of the restaurant together and began by saying, "Well, I did it." He said he had tried for 10 cents and had succeeded in getting a 5-cent increase; and he said that he would try for more later. Repeating, he conceded that this was not much of an increase, but said tha !,there would be more in the future. Zavala protested that she did not need the money "later"-she needed it now-and this ended the group discussion. Although the matter is not free of doubt, I do not believe that, in this instance, the General Counsel has demonstrat- ed by a preponderance of evidence that the giving of this wage increase and the promise of the further increase in the future was designed to discourage union activities. I believe that the action was a reluctant, but natural, response to the discontent of the restaurant employees upon learning that the supermarket employees had received a wage increase and that it was not based upon union-related considerations36 D. The Bargaining Request, the Refusal, and the Closedown of the Restaurant and the Service Station By letter dated May 13, the Retail Clerks, through Nick Torpea, an organizer, advised "Mr. Glenwood Lee, Lee's and Associates" that it represented a majority "of your store employees in the restaurant and service station" and requested recognition as their bargaining agent. Stating that it was prepared to prove its majority status by a check of its authorization cards, it asked that "everything remain status quo in order to avoid any future problems" and requested a conference to be held on Tuesday, May 18. Having received this letter on May 15, Glenwood Lees replied with a note saying that he would be available for a meeting on Tuesday, May 18. On Monday, May 17, Lees met with all but one of the restaurant employees, either singly or in groups. Telling them that a union had made a claim of having been designated as their bargaining representative by a majority of them, he said that he wished to have their signatures for comparison purposes in order to check the claim. At this request, they affixed their signatures to a sheet of paper which he carried. Katherine Burma was the one whose signature he did not procure that day; instead, he saw her next day. Her testimony as to this contact, which I credit, is as follows: At or about 11 a.m. on the 18th, Lees asked her for her signature, saying that his purpose was to verify her signature on a union card. In the course of the conversa- tion, he asked whether she had in fact signed a union card, and she said that she had. He said that he had not realized closing of the restaurant , and, in the discussion of that subject herembelow, I shall give this circumstance due consideration 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that his help was dissatisfied with their jobs, upon which she stated that the reason for the dissatisfaction was low wages. He informed her that he had lost $950 in the restaurant during the past year; Burnia said she did not doubt this, but that, if it were so, it was because Keown was a poor manager who permitted too much waste. She then asked him if it was true that he was going to close the restaurant if the union got in; in reply, he said he couldn't "say too much" but that the Federal government was "already on him," and "I have no alternative but to close the restaurant if the union gets in." Continuing, he said he had only kept the restaurant open as "a drawing card". On the same day, Tuesday, May 18, two representatives of the Retail Clerks, Kelly, its president, and Torpea, went to the shopping center and met with Lees pursuant to arrangements made by the exchange of correspondence. After they reaffirmed their claim of majority status among the restaurant employees,37 Lees asked whether he could see the authorization cards; the request being refused, he asked what, then, was the purpose of this meeting. Kelly said that the cards would be shown to a disinterested party such as a clergyman or a lawyer with no connections with the company. Lees asked whether the cards would be shown to his own lawyer, and he received an affirmative answer. Thereupon he picked up the telephone and called the office of David Colson (who acted as counsel for the Joint Respondent in this matter). As he put in the call, he said to the union representatives, "You fellows are really wasting your time because, if you [do] have the majority, I'm going to turn the key in the door." When the call was put through, he learned that Colson was out of town, and he made arrangements for the union representatives to meet with Colson at the latter's office on the following morning. He told the union representatives that he would arrange for Colson to have the signatures of the employees at that time, and he closed the conversation with the remark, "Well I really wish you guys would have the cards with you because I have a man coming in to measure the department, because if you got the majority, I will turn the key in the door." Wednesday morning, May 19, Kelly and two other agents of the Retail Clerks went to Colson's office. Very early in the discussion, Colson excused himself to take a telephone call. (The telephone call, according to Lees' testimony, came from Lees himself. "Dave," he told Colson, "You know we made this appointment with these union people to bring these cards down, but I think we are wasting everybody's time, because a decision has been made to close the restaurant, and I see no point in going into it.") Colson returned to his office and said, "I'm sorry, gentlemen, you're wasting your time. Evidently, Mr. Lees has had a change of heart and has decided to close the store." In further explanation, he said that the restaurant had been losing money and that the closing had been uniter consideration for some time. Kelly said that this was 37 Subsequent to the sending of its May 13 letter , the Retail Clerks never did press its request for recognition as agent for the service station employees along with the restaurant employees As noted below , the sole bargaining unit herein found appropriate for collective -bargaining purposes does not include the service station employees 38 Neither the 8 nor the I I includes Donald Blum, who had , on April 15, signed a Retail Clerks card when he was employed in the restaurant but going to "create a problem," and Colson agreed. As the union representatives left, Kelly flashed the authorization cards in front of Colson, saying "I just want you to see that we did have the cards." From Colson's office, the representatives went to the supermarket, where they wafted for Lees to finish talking to a customer. Then, they told him what they had heard from Colson, and Lees confirmed that he was going to close the restaurant. To Kelly's remark, "You know you're gonna have a problem," he merely said, "I don't care." Later, the same day, the restaurant was closed down. With this act, the employment of Rosemary Blum, Wanda Blum, Katherine Beard Burnia, Sandra Ely, Stephen Hager, Patsy Hendon, Lena Johnson, Elvie King, Alberta Racer, Vern Westenhoefer, and Nancy Zavala was terminated. The Retail Clerks called a meeting of the restaurant employees next day, Thursday, May 20. Those who attended discussed the closing, and they unanimously passed a "strike vote." Next day, Friday, May 21, the ex- restaurant employees set up a picket line outside the shopping center. At or about midday, Lees, having learned that the picketing had cut down the business of the service station to almost nothing, decided to end that operation; and, while the picketing was still going on, the service station was closed down. Thereby, Donald Blum and Jewell Gibson became unemployed. After 5 hours, the picketing, having been enjoined by a state court, ended. Since that time, both the restaurant and the service station have remained closed, and (except for Restaurant Manager Keown, who became an employee of Respondent Center) none of the restaurant or service station employees has been reinstated or otherwise em- ployed by the Joint Respondent. In accordance with stipulations of the parties and the related testimony thereon, I find that an appropriate unit for collective-bargaining purposes in this matter consisted of all restaurant employees employed by Respondent Associates at the Lees shopping center in Farmington, Missouri, excluding any office or clerical employees, professional employees, guards, and supervisors as defined in the Act, an excluding all nonrestaurant employees in the shopping center. As of the month of May, until and including May 19, this unit consisted of the II employees who lost their employment as a result of the closedown of the restaurant on that day. On or before May 3, 8 of these 11 had signed cards authorizing the Retail Clerks to act as their representative for collective-bargaining purposes.38 There- fore, on May 19, when, I find, the Joint Respondent rejected the Retail Clerks request for recognition, that organization had in fact been designated as bargaining representative by a majority of the employees in an appropriate bargianing unit 39 On May 18, when Lees met with representatives of the who, subsequently, became an employee of the service station is The complaint did not allege that there was a request or demand for recognition apparently because of the inclusion of the service station employees in the Retail Clerks original letter requesting recognition But. I have found, the service station employees were omitted from the confirmation of the request on May I8 LEE'S SHOPPING CENTER, INC. 519 Retail Clerks, he did not express any doubts as to the union's claim of having been designated as bargaining agent by a majority of the employees in the unit. Nor, on the next day, when counsel, on behalf of the Joint Respondent, formally rejected the Retail Clerks request for recognition, was doubt as to the union's majority status given as the reason; rather, the sole basis given for the action was that the request was a waste of time in view of a decision that the restaurant be closed. At the instant hearing, Lees testified that, at the time of the request, he did in fact entertain doubts as to the Retail Clerks majority status; he would have been very surprised if a majority of his employees had signed up with a union. But he was not asked for, and he did not give, the basis for his having entertained any such doubts.40 I am convinced, and I find, that the Joint Respondent did not in fact doubt the Retail Clerks majority status among the employees in the above-described unit at the time it rejected the request for recognition.41 Under the circumstances, I conclude, the Joint Respon- dent's refusal to recognize and to bargain with the Retail Clerks as the exclusive representative of the involved employees constituted both an unlawful refusal to bargain and an interference with and restraint and coercion of said employees in the exercise of their right to bargain collectively through a representative of their own choosing, a right guaranteed them by the Act.42 For purposes of possible remedy herein, the parties have stipulated to the appropriateness, for collective-bargaining purposes, of a unit of employees which, in ultimate effect, consists of the unit above found appropriate and any future successor thereto: All nonsupervisory restaurant and food-dispensing employees who may be employed by Respondent Associates, Respondent Center, or Respondent Station in any restaurant or food-dispensing service which may be operated by any of them in the future. On the basis of the parties' stipulations and the related testimony thereon, I find this to be an appropriate unit for collective-bargaining purposes. The complaint alleges that the Joint Respondent discon- tinued the restaurant and the service station operations, and thereby terminated the employment of those employed therein, because said employees joined or assisted the Retail Clerks and/or with the intention of discouraging its other employees from joining or assisting the Retail Clerks 40 In its arguments herein the Joint Respondent makes no claim that Lees' doubts were based, in any respect, upon the restaurant employees' answers to management's inquiries into their union affairs (With but one exception-Burma's May 18 "admission" to Lees that she had signed a union card-all employees had denied any knowledge of, let alone any interest in, a union's organizing attempt.) Needless to say, little reliance can be placed on employees' responses to coercive interrogation 41 Interestingly enough, the Joint Respondent has not taken the position, in this case, that it has any present doubts as to the Retail Clerks majority As will be seen, it has expressed a willingness to recognize and to bargain with the Retail Clerks for any restaurant or food-dispensing employees should either Respondent Associates or any other constituent of the Joint Respondent operate a restaurant or food-dispensing service in the future 42 The complaint did not allege that there had been an unlawful refusal to bargain, apparently because of a supposedly defective bargaining request But I have found that there was a valid request (and refusal) and the issue was fully litigated. At any rate, in this instance, the refusal- to-bargain finding is cumulative of the interference-with self-organizational rights or any other labor organization. In support thereof, the General Counsel argues that, on more than one occasion, the Joint Respondent informed employees and Retail Clerks representatives that the restaurant would be closed and, on at least one occasion,' informed an employee that the service station would be closed, if the Retail Clerks were to represent the employees working in those opera- tions. The facts, as I have found them, fully support the argument, in the light of the collective-bargaining animus of the Joint Respondent as displayed by the unfair labor practices hereinbefore found and by other above-described conduct of agents of the Joint Respondent which fell short of constituting unfair labor practices, and particularly in view of the timing of the closedowns, closely following, as they did, the request for recognition and the rejection thereof. Clearly, the General Counsel had made out a prima facie case. The Joint Respondent argues that union considerations had nothing to do with the closings; that the restaurant operation was terminated for economic reasons, in accord- ance with a decision which predated the receipt of any request for recognition. In essence, the Joint Respondent claims that the restaurant operation was losing money for a long period of time and that this was the sole basis for its action. As for the closing of the service station, as I understand the argument, the decision was triggered by the substantial loss of business due to the picketing on May 21, in an operation which, at best, was a "holding operation" until/unless an outside operator could be brought in. In support of its defense, the Joint Respondent intro- duced testimony covering the operations of the restaurant over a number of years. Glenwood Lees testified, basically by reading from corporate minute books of Respondent Associates,43 about the profit picture of Respondent Associates in general and its restaurant in particular for a number of years past: At a meeting of the Board of Directors held on February 1, 1965, consideration was given to the statement of operations for the fiscal year ending November 30, 1964,44 during which period, according to the statement, the restaurant's operating profit45 amounted to $597.46 During the same period, the service station (then operated by Respondent Associates) produced enough finding See the section entitled "The Remedy" herein 43 In his brief, the General Counsel implies that the genuineness of these minutes is subject to question ("These 'records' are maintained by Mr Lees and are retained in his possession That portions of these could have been substituted or altered prior to the hearing in this case is evident ") I note that, in relevant detail, they are corroborated by the profit-and-loss statements which were made part of this record While I shall give appropriate consideration herein to questions of plausibility which may exist with respect to the contents of the minutes and the interpretations to be drawn therefrom, I am not prepared, on this record, to find that there were any substitutions or alterations therein 44 Hereinafter, reference to the operations for a given year should be understood to refer to the 12 months ending November 30 of that year 45 1 e , income , less operating expenses directly attributable to the running of the restaurant Hereinafter , the operating profit or loss-whether for the restaurant or for the service station-may sometimes be referred to simply as the profit or loss, respectively 46 Mine are rounded-off figures 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD profit so that, combining the two operations and then deducting "general and administrative expenses"47 the corporation ended with a net profit of slightly over $1,000. "A discussion was held as to what might be done to improve the restaurant operation," read the minutes, "and it was generally agreed that the lack of volume was the principal cause of the loss. [Director] Stoker suggested that the restaurant be closed and that more attention be given to the operation of the service station which was producing some profit. However, no official motion was made to this effect and no action was taken." At the annual meeting held on Febuary 1, 1966, the financial and operating statements for fiscal 1965 showed that the service station had had a small profit [on cross-examination, Lees set the figure at $1,995] but that the restaurant had had a loss of $1,785 and that, after deduction of the general and administrative expenses for both operations, the corporation had lost $1,611. "President Lees reported to the Board that he had discussed at. considerable length the restaurant with his manager, Mr. George Keown, and that steps were being taken to reudce expenses and that some increases in prices had already been placed into effect and that he felt that the current year's operation would be substantially improved. A discussion was held as to whether to continue the operation of the restaurant for another year or whether to discontinue the restaurant operation entirely. It was generally agreed to continue the operation for another year and make an exerted effort to reverse the trend and get the operation on a profitable basis." Some 6 months later, on August 18, 1966, the Board met again.48 "President Lees reported to the Board that a change of management was made in the service station, that business had improved, and that it appeared that the profits would be better for the year's operation. He also reported that the restaurant opera- tion looked better than in the previous year. The sales were up and the expenses were being held at about the same level. He stated that it looked as if a small profit might be made in the restaurant operation for the current year." At the annual meeting held on February 1, 1967, it was noted that, for fiscal 1966, the restaurant had shown "some profit before general and administrative expenses" and that the service station had a better year than in 1965. The chairman (Lees) "called attention to the fact that the corporation did have a small operating profit for the year's operations." The Board met on Feburary 1, 1968. For fiscal 1967, according to the financial and operating statement, the service station had shown a smaller profit than the previous year but was still operating in the black. The restaurant, however, showed a substantial loss-$3,632; salanes and the cost of food sold had increased and sales were down. After a discussion, a resolution was passed to the effect that "the restaurant operation be discontinued at the end of the current fiscal year, provided the operation did not show a profit . However, if the restaurant operation is able to produce a profit, then it shall be continued in operation for an additional year." According to the minute of a meeting held on Feburary 1, 1969, the service station experienced a substantial loss during 1968; there was a discussion of the change in personnel there and of Lees' suspicion that there had been some pilfering of merchandise by employees. The restaurant, on the other hand, was shown to have enjoyed "a small profit" [set in Lees cross-examination at $246] before the deduction of the general and administrative expenses ; after the deduc- tion was made, the result was "a small loss. . . . After a discussion of the financial situation of the corpora- tion, it was generally agreed that the corporation could not continue and operate indefinitely showing losses, year after year, and that should such losses continue, that the operation should discontinue business entire- ly." The Board met again on October 14, 1969. The occasion was the fact that a substantial amount of merchandise had been lost or stolen in the service station and that, despite two or three changes in personnel, the operation had deteriorated to the extent that Lees advised closing the service station operation. The Board passed a resolution to the effect that the service station be discontinued, that its merchandise inventory and other assets be sold to satisfy obligations of the corporation, and that the property and equip- ment be turned back to the lessor , Respondent Center. The service station was closed, according to Lees' testimony, within a day or two thereafter. Lees' testimony with respect to the profit picture continued: The next regular annual meeting of Respondent Associates' directors took place on Feburary 2, 1970. Lees distnbuted copies of the financial and operating statements for 1969, which statements showed that the service station, which had been closed in September 1969,49 had experienced a substantial loss and that the restaurant again had experienced "a small loss"-$5,100 and $1,800, respectively. Lees noted that more attention could now be given to the restaurant "and perhaps it could be converted into a profitable operation." A resolution was adopted to the effect that "the restaurant operation should be continued for another year but that should it show any loss for the fiscal year ending November 30, 1970 that the operation should be definitely discontinued." The Board again met on October 12, 1970. Lees reported that the firm's auditor would be unable to take care of the corporation's tax work until after the first of the year and, therefore, was asking for an extension of time to file tax returns with the Internal Revenue Service. He further reported that , according to interim 47 Consisting of corporate officers' salaries and expenditures not directly attributable to one or another of Respondent Associates' operations 48 The annual meeting of the Board normally took place at or about February 1st, but meetings were held whenever they were thought necessary 49 Actually, the service station closed down in October , within days after a meeting of the directors held on October 12 Lees , testifying here, denominated this as an error in the minutes LEE'S SHOPPING CENTER, INC. 521 records, the restaurant was operating at about a break- even point and would probably show a small loss; he had conferred with Keown on several occasions and had been told that every effort had been made to reduce working hours and to increase volume. None- theless, Lees told the others, it appeared to him that the restaurant operation "was a losing battle." Thereupon, the directors passed a resolution to the effect that "the restaurant operation be continued until [the auditor] has the opportunity to audit the company records. If, on receipt of the final information following the audit the restaurant has again shown a loss, then the operation shall be immediately closed and the corpora- tion shall cease doing business until further opportuni- ties are presented." The Board met again on February 1, 1971. Lees reported that the auditor had not yet made the annual audit but that it was expected shortly. Going on, he said that it was evident to him that the corporation had again lost money during fiscal 1970. Calling attention to the fact that the corporation was renting space from Respondent Center, he suggested that some notice of a likely discontinuance of the operation ought be given to the lessor. It was thereupon resolved "that notice be hereby given to [Respondent Center] that the corpora- tion would very likely discontinue using the space rented by it for the restaurant operations some time within 2 or 3 months." the next directors' meeting about which Lees testified was one of the board of Respondent Center. Using the minutes of that corporation, he i testified as to a meeting held on March 9: , Lees informed the other directors that Respondent Associates had informed Respondent Center that it "would most likely vacate the space occupied by the restaurant because it had been operating at a loss for some time"; a definite decision, the notice said, would be made upon receipt of its auditor's report on or about May 15. Lees then stated that, "for several years, consideration had been given to the installation of a furniture department but that such installation had been postponed because of the lack of space. He suggested that this space occupied by Lees and Associates be utilized to set up a small furniture department. A motion duly made, seconded, and passed, the following resolution was adopted: Be it resolved that W. G. Lees, president of the corporation and Mary Louise Lees, secretary of the corporation, begain immediately making contacts and placing orders for furniture and that definite plans be made to utilize the space which is to be relinquished by [Respondent Associates], to be used as a furniture display department." Shortly afterward, Lees' testimony continued, he and his wife met with a representative of Johnson Carter Furniture Company in St. Louis and looked over their line of furniture on display, and, within two or three days thereafter, the Carter representative visited Farmington, at which time Respondent Center placed orders for some living room sofas and chairs and for some bedroom furniture. The first shipment was received around May 10; it was stored in a warehouse. According to Lees' further testimony, he finally received Respondent Associates' 1970 financial reports, along with a Federal tax return for his signature , on Saturday, May 15, 1971, the same day he received a recognition request from the Retail Clerks . He opened the union's letter first and, as earlier indicated , sent off a reply. That afternoon, his testimony continued, he opened the auditor's letter and, affixing his signature to the tax return, he put it into the mails addressed to the Internal Revenue Service. Lees testified, in passing, that the actual operational figures of the restaurant for fiscal 1970, as reflected in the reports received on May 15, 1971, were actually worse than had been expected at Respondent Associates' directors' meeting of February 1-a number of expense items had not been anticipated . The operating loss amounted to $1,184.02 ; deducting general and administrative expenses of $2,393.59 and adding income from the sale of service station assets of $2,586.84, the net loss for the corporation amounted to $990.77. And, he further testified, but without annotation, since November 30, 1970, the restaurant was "still sustaining losses." At any rate, on the day after the 1971 financial information was received , i.e., on Sunday, May 16, the directors of Respondent Associates met. The meeting was held out of town, since Director Stoker could not come to Farmington . Lees testified from the minutes: The chairman [Lees ] notified the other directors of the 1970 financial figures. "After a discussion , during which discussion reference was made to the minutes of the Board meeting held on February 2, 1971, which minutes had recorded [the resolution earlier quoted herein]," a resolution was adopted : "Be it resolved that the restaurant operation be closed on Wednesday, May 19, 1971 since that day is the normal pay day for employees, and that all business activities of [Respon- dent Associates ] be concluded on that date." Lees went on to testify that , thereupon , the restaurant was closed down on the 19th , that its fixtures were put up for sale,50 and that, "in June," he and Mrs. Lees visited the Merchandise Mart in Chicago and placed additional orders for furniture, which furniture was scheduled to be delivered in September . Meanwhile, as of the dates of this hearing, the restaurant space was being remodeled into a display room for furniture. The above testimony, the Joint Respondent argues, fully supports its defense-that the restaurant operation was terminated for economic reasons unrelated to union considerations , in accordance with a decision which predated its receipt of any request for recognition. Indeed, it argues further, and offered Lees' testimony to this effect, that it was unaware of the existence of any union campaign among the restaurant employees until the receipt, on May 15, of the union's claim. I am not convinced. For one thing, if my prior findings herein are correct, Lees' awareness of the existence of a union campaign among the restaurant employees did in fact predate his 50 For some time, he said, the fixtures were kept in place, the better to attract buyers; finally, on an unnamed date, the unsold fixtures were put into storage 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt of the Retail Clerks request for recognition on May 15. The Joint Respondent became aware of such an effort at least by April 23. Secondly, in his meeting with the Retail Clerks represent- atives on May 18, Lees did not inform them that, unrelated to union considerations, a decision to close the restaurant had been made. On the contrary, his only related reference was to a possible closing specifically tied up with union considerations. This, despite the fact that supposedly the decision had long been in the making, had been condition- ally implemented at the February 1 directors' meeting, and had been formalized only 2 days earlier. While I am not prepared to find that the corporate minutes from which Lees read at this hearing are not genuine,51 this does not mean that I must find that their contents support the Joint Respondent's defense. There is no doubt that the restaurant operation did sustain a net loss for the period from fiscal 1964 through fiscal 1970. Also, accepting Lees' testimony unsubstantiat- ed by financial records, I find that it sustained a further undetermined loss between November 30, 1970, and the date of the closing of the restaurant. But a dispositive issue in this matter is-was the closing of the restaurant occasioned by these losses? The General Counsel argues strongly that the nature of the operation demonstrates that the restaurant was utilized principally as an instrument to attract customers to the supermarket and that, therefore, the Joint Respondent did not really believe that it had to make money in order to justify its existence. Just as strongly, counsel for the Joint Respondent argues that the restaurant was treated as a separate operation and that neither the Act nor any other law requires an employer to operate indefinitely at a loss. I have already found that the restaurant operation was closely related to and was but one part of the Lees' shopping center complex and that, as such, any decision affecting it was made with due regard to the well being of the rest of the complex. I note that, in his May 18 conversation with Katherine Burnia, supra, Lees referred to the restaurant as a drawing card; and that, in similar vein, Lees testified at the hearing that, although, for example, the electric sign outside the shopping center cost money, he felt that a "certain amount" of expenditures for advertising was necessary to promote business. I find that the Joint Respondent was willing to sustain a "certain amount" of loss in the restaurant and still keep it open. I would not, if I could, substitute my business judgment for the Joint Respondent's as to whether, at the time of the 51 I do regard it as passing strange that Respondent Associates' minutes of the May 16 meeting makes no note of the Retail Clerks demand for recognition received I day earlier Lees, on the witness stand, conceded that the subject might have been mentioned at the meeting but said that(1) it would have been omitted from the minute at any rate because the Joint Respondent's corporate minutes recorded only "official acts" or discussions leading up to same, and (2) this was "no big issue because it had no bearing on the decision to close the restaurant" As for (I), an examination of the prior minutes from which Lees testified reveals them to contain much material other than official acts or discussions leading up to official acts, moreover, it strains my credulity to be asked to believe that the subject would not have been considered important enough to have constituted a basis for discussions leading up to formal action, one way or another As for (2), if it was true that the advent of the union, as dramatized by its 1-day old request for recognition, was not considered important because a decision to close the restaurant had already been made, I would have thought that, at closing, it had reached the limit beyond which it was willing to sustain losses in the restaurant; but I must examine all the circumstances in order to determine whether the Joint Respondent had indeed arrived at that judgment. The original investment in Respondent Associates back in 1958 when it was founded was $3,500, $2,500 of which was contributed by Lees, and no additional stockholders' contributions have since been made. During the first 8 years of its existence, the corporation, which operated both the restaurant and the service station during that period, made money some years and lost it other years, but, according to Lees' testimony, that period ended with neither a surplus or a deficit. Thereafter, his testimony continued, the financial picture deteriorated until, at the time of this hearing, there was a deficit of approximately $18,000, which deficit consisted basically of sums owed by Respondent Associates to Respondent Center.52 If there was such a deficit, the cost to the Joint Respondent of operating the restaurant was approximately $1,633 per year throughout the period of its existence or, if this deficit was incurred since 1966, $3,600 for each of the last 5 years. In point of fact, there is some reason to doubt that there was an $18,000 deficit as a result of the last 4 or 5 years' operations preceding the closing of the restaurant. During fiscal 1964, when the closing was first discussed, the restaurant had netted an operating profit of $597. There- after, its fortunes varied: In 1965 it lost $1,785; in 1966 it made $1,995; in 1967 it lost $3,632; in 1968 it made $246; in 1969 it lost $1,805; and in 1970 it lost $1,184.53 The General Counsel points out that the loss during the last year was less than that of any year in which a loss was incurred.54 His argument is loud and clear-having tolerated a losing operation for these many years, why did the Joint Respondent take action in a year in which things were looking up? His answer-because a union entered the picture. Considerable light is shed on the question by the numerous statements, as found above, made by agents of the Joint Respondent, both to employees and to union representatives, as to their intention about closing the restaurant operation, and, in one instance, the service station as well, for union-related reasons. Significantly, no such conversation contained within it the statement that the potential closing would be a result of economic conditions, in whole or in part. Both Lees and Keown testified that they had spoken to employees about the possibility of the restaurant's closing the very least, this fact would have been recorded in the minutes 52 In view of my findings as to the interlocking relationship of the respondents herein, I find, contrary to the testimony of Lees at this hearing, that a repayment of the $18,000-if that is an accurate figure-would, in effect, amount to a payment by Glenwood Lees to Glenwood Lees, and that a failure to repay it would, in effect, constitute a failure by Glenwood Lees to pay Glenwood Lees Ss Lees' reference, in his May 18 conversation with Burnia, to a $950 loss in 1970 is explained, presumably, by his having adjusted the figure above indicated by making allowances for the general and administrative expenses ($2,394) and for the income from the sale of service station assets ($2,587) 54 But he fails to point out that, in at least 3 of the last 7 years, the restaurant made a profit To put the argument in its proper focus, then, one must correct the General Counsel's statement During the last year, the restaurant lost less than 3 of the preceding 6 years but lost more than the other 3 years LEE'S SHOPPING CENTER, INC. 523 because of lack of profitability . Lees could not recall names or dates and places, but he estimated that he talked to employees along these lines probably 8 or 10 times over the entire period-since 1958?-and, during the 5 years preceding this hearing, 2 or 3 times ; after January 1, 1971, he conceded, he did not tell this to any of the employees because "he did not feel that it was their business." Pushed for details, he said that he had had such conversations with Nancy Zavala, Ruby Martin, and Linda Sales. Keown insisted that, Mary Bauman and Linda Sales that the Restaurant might be closed because it was not making a profit. Ruby Martin, Linda Sales, and Mary Bauman did not testify ; each of them had left the employment of the Joint Respondent prior to the closing of the restaurant. Zavala, who did testify, denied that Lees had spoken to her about the possibility of the restaurant 's closing because of its losing money ; she did say that, 2 or 3 years before the hearing, Lees told her that things were not going as well as he had hoped and that there would have to be changes in food portions, food prices, and workhours in order to make up the difference ; and, in February or March 1971, she testified, Keown had said something about the possibility of Lees' converting the restaurant into a cafeteria without any cut, however, in the number of employees . Others who testified, Johnson, who had worked in the restaurant for 6 years; Vern Westenhoefer, who was, in effect, second in charge and who had not signed a union card; and Katherine Burnia, who was present at discussions concern- ing food portions, denied that either Lees or Keown had ever said anything about the possibility that the restaurant might be closed for financial reasons. On, this evidence, I find that agents of the Joint Respondent never did tell employees that the restaurant would or might be closed for financial reasons. Some light on the problem is also shed by Lees' testimony that the restaurant was busy only during the breakfast and the lunch hours, that , had the closing hour been pushed forward to 2 or 2:30 p.m., the losses might have been cut, but that no consideration was given to this move when it was finally decided to close the restaurant. Finally, I think it significant that, less than 3 weeks before the decision finally to close the restaurant was made, a wage increase was given to the restaurant employees. Although, I have found, this was not motivated by union considerations , it does reflect upon the Joint Respondent's willingness to sustain further losses in the operation. I am persuaded, and I find, that the closings of the restaurant on May 19 and of the service station on May 21 were not motivated by financial considerations. I find and conclude instead, on the basis of what I consider to be a fair preponderance of the credible evidence , that the closings were bottomed upon union considerations. These findings, of course, constitute a rejection of the Joint Respondent's defense and necessitate some explana- tion of (1) the fact that Respondent Associates ' corporate minutes for some years prior to the beginning of the unions' campaign made mention of discussions and actions having to do with a possible closing of the restaurant because of financial losses and (2) the fact that, over 2 months prior to the receipt of the Retail Clerks demand for recognition as the restaurant employees' bargaining agent, Respondent Center initiated plans to install a line of furniture at the supermarket, in the space up to then occupied by the restaurant. As for (1), the possibility that the Joint Respondent, as a reasonable employer, would keep close watch upon a "losing operation"-even an operation on which it was willing to undergo some loss-just as it would have kept close watch upon an inefficiently expensive electric sign is just as valid an explanation as that put forth here by the Joint Respon- dent; for example, the directors' concerns as reflected in the minutes, could well have been constantly voiced if only to keep the restaurant manager ever looking for ways and means to cut losses . As for (2), it is significant that the first mention of using the restaurant space for a furniture operation, on March 9, postdated the Joint Respondent's becoming aware that a union campaign was being organized at the shopping center complex ; this awareness, I have found, came before that date. Recognizing the applicability of N.L.R.B. v. Darlington, 380 U.S. 263, the General Counsel here argued that the Joint Respondent closed the restaurant and service station not only because of the Retail Clerks apparent success in organizing the restaurant employees but also in order to "chill unionism" among the employees in the rest of the complex. In the light of the unfair labor practices above found, considering the fact that the two involved unions were trying to organize supermarket employees as well, a fact of which the Joint Respondent was aware , I conclude that the chilling of unionism among the supermarket employees was indeed one of the bases for the closing. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent Center, Respondent Associates, and Respondent Station constitute a single employer, the Joint Respondent, within the meaning of Section 2(2) of the Act. 2. The Joint Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and W. Glenwood Lees and George Keown are agents of the Joint Respondent. 3. The Meat Cutters and the Retail Clerks are labor organizations within the meaning of Section 2(5) of the Act. 4. All restaurant employees employed by Respondent Associates at the Lees shopping center in Farmington, Missouri, excluding any office or clerical employees, professional employees, guards, and supervisors as defined in the Act, and excluding all nonrestaurant employees in the shopping center, constitute and at all times material herein constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. For purposes of this proceeding, the above bargain- ing unit may also be described as consisting of all nonsupervisory restaurant and food-dispensing employees who may be employed by Respondent Associates, Respon- dent Center, or Respondent Station in any restaurant or 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD food-dispensing service which may be operated by any of them in the future. 6. On and after May 3, 1971, and up to and including at least May 19, 1971, the Retail Clerks was the exclusive representative of all employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 7. On or about May 15, 1971, as clarified on May 18, the Retail Clerks requested of Respondent Associates that it recognize the Retail Clerks as the exclusive bargaining representative of the employees in said appropriate bargaining unit, and, on or about May 19, 1971, the Joint Respondent, through Respondent Associates, rejected this request. 8. By thus rejecting the Retail Clerks request for recognition, the Joint Respondent refused to bargain collectively with the representative of employees in an appropriate bargaining unit, within the meaning of Section 8(a)(5) of the Act. 9. On or about May 19, 1971, the Joint Respondent, through Respondent Associates, closed down its restaurant operation, thereby discriminating in regard to the hire and tenure of employment by terminating the employment of, and thereafter refusing to recall to employment, Rosemary Blum, Wanda Blum, Katherine Beard Burnia, Sandra Ely, Stephen Hager, Patsy Hendon, Lena Johnson, Elvie King, Alberta Racer, Vern Westenhoefer, and Nancy Zavala because they had selected the Retail Clerks as their bargaining agent and in order to chill unionism among other of its employees, thereby discouraging membership in a labor organization; by such conduct, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 10. On or about May 21, 1971, the Joint Respondent, through Respondent Station, closed down its service station operation, thereby discriminating in regard to the hire and tenure of employment by terminating the employment of, and thereafter refusing to recall to employment, Donald Blum and Jewell Gibson because the restaurant employees had selected the Retail Clerks as their bargaining agent and in order to chill unionism among other of its employees; by such conduct, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 11. By the foregoing conduct, and, on various occa- sions between March 8 and May 18, 1971, inclusive, by interrogating employees as to their contacts or acquain- tanceship with, or their knowledge of the activities of, union representatives; by soliciting an employee to report the presence of union representatives on the premises; by conveying to employees the impression that the employer was engaged in the surveillance of union activities and that, if a union became the employees' bargaining representative, prounion employees might be subjected to special surveillance; by implying to employees that, if a union became the employees' bargaining representative, there might be layoffs or discharges; by conveying threats to employees that, if a union became the employees' bargaining representative, it would close its restaurant and its service station; and by granting a wage increase to its supermarket employees to induce them to resist a union's organizing campaign. By each and all of these acts the Joint Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof. 12. The aforesaid acts are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 13. Except for the foregoing, Respondent has commit- ted no unfair labor practices under the Act. THE REMEDY Having found that the three respondents, as a single employer, have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain joint and several affirmative actions in order to effectuate the policies of the Act. With respect to the closedown of the restaurant and of the service station, the General Counsel does not ask that the Joint Respondent be ordered to reestablish either operation; hence, he does not ask that the employees whose employment was terminated as a result of the closings be immediately reinstated. In fact, he does not set forth what he considers to be the appropriate remedy. I shall recommend that (1) these employees (a) be reinstated to their former or substantially equivalent positions should any restaurant or service station operation be instituted by the Joint Respondent in the future, without prejudice to their seniority or other rights and privileges, and (b) meanwhile be placed upon a preferential hiring list for any vacancies in the entire shopping center complex the duties of which they are capable of fulfilling; and (2) they be made whole by the Joint Respondent for their loss of earnings suffered because of the Joint Respondent's acts, for the period from their respective losses of employment until (a) they be thus reinstated or placed on a preferential hiring list, or (b) they procure substantially equivalent employment elsewhere,55 whichever occurs earliest. Taking into account net earnings elsewhere, backpay shall be computed on a quarterly basis, with interest at the rate of 6 percent per annum in the manner heretofore established by the Board. It has been noted that the complaint did not allege that the Joint Respondent had unlawfully refused to bargain with the Retail Clerks for the restaurant employees; nevertheless, the General Counsel seeks a bargaining order56 "because of the monstrous unfair labor practices committed by the Joint Respondent, as described above under the 8(a)(1) and 8(a)(3) sections."57 I have found that there was an unlawful refusal to bargain here and that the issue was fully litigated; on this alone, I would recommend the issuance of a bargaining order. In addition, I find that the unfair labor practices herein found to have been committed by the Joint Respondent were "so coercive that, 55 Darlington Manufacturing Co v N L R B, 397 F 2d 760, enfg 139 that the Court of Appeals for the Second Circuit, in N LR B v. Flomaac NLRB 241. Corporation, 347 F 2d 74, enforced that Board decision in part but refused to 56 But he does not ask that the Joint Respondent be ordered to bargain enforce the order to bargain because it did not regard the 8(a)( 1) violations about the closedown of the restaurant or about the effects thereof, as "serious enough." 51 He cites Flomatic Corporation, 147 NLRB 1304, but he fails to note LEE'S SHOPPING CENTER, INC 525 even in the absence of a Section 8(a)(5) violation, a bargaining order [is] necessary to repair the unlawful effects" thereof.58 Moreover, even if this were a "less extraordinary" case marked by "less pervasive" practices, I would find, particularly in view of the fact that the employyes in the involved unit are no longer employed therein and have no likelihood of immediate employment therein, that the traditional remedies would not ensure that a fair election could be held; and, since, in fact, the Retail Clerks did have a majority, I would recommend the issuance of a bargaining order.59 I shall recommend that the Joint Respondent be ordered to cease and desist from engaging in the conduct herein found to have constituted unfair labor practices within the meaning of the Act,60 and, since the unfair labor practices committed by the Joint Respondent are of a character striking at the roots of employees' rights safeguarded by the Act, I shall recommend that the Joint Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Finally, since any notice to employees with respect to the unfair labor practices found herein may not otherwise come to the attention of the restaurant and service station employees, I shall recommend appropriate publication thereof in addi- tion to the usual posting requirements.61 Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, I hereby recommend that the Board issue the following: ORDER62 Lees Shopping Center, Inc. and Lees and Associates, Inc., Respondents herein, and their officers, agents, successors, and assigns, and W. Glenwood Lees, d/b/a Lees Service Station, Respondent herein, and his agents, successors, and assigns, shall: 1. Each cease and desist from: (a) Discouraging membership in a labor organization by discriminating in regard to hire, tenure, or other conditions of employment. (b) Refusing to bargain collectively with Retail Store Employees' Union, Local No. 655, affiliated with the Retail Clerks' International Association, AFL-CIO, as the exclusive collective-bargaining representative of the em- ployees in an appropriate bargaining unit composed of all nonsupervisory restaurant and food-dispensing employees who may be employed in any of the above respondents in any restaurant or food-dispensing service which may be operated by any of them in the future. (c) Closing down any of its operations because the employees therein choose to be represented by a labor organization and in order to discourage unionization of any of its employees outside such operations. (d) Interrogating employees as to their contacts or acquaintanceship with, or their knowledge as to the 58 N L R B v Gissel Packing Company, supra at 615 59 Ibid at 614, also see American National Stores, 195 NLRB No 3 60 But nothing herein should be construed as requiring the Joint Respondent to rescind any wage increase already given fii Summit Tooling Co, 195 NLRB No 91 62 In the event no exceptions are filed as provided in Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, activities of, union representatives; soliciting employees to report the presence of union representatives on the premises; conveying to employees the impression that the employer is engaged in the surveillance of union activities and that, if a union should become the employees' bargaining representative, prounion employees might be subjected to special surveillance; implying to employees that, if a union should become the employees' bargaining representative there might be layoffs or discharges; threatening employees that, if a union should become the employees' bargaining representative, it would close any of its operations; and granting any wage increase to employ- ees in order to induce them to resist a labor organization's organizing campaign. (e) In any other manner interfereing with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right to refrain may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Each, jointly and severally, take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Upon request, recognize and bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described bargaining unit if and when it should operate any restaurant or food-dispensing service. (b) (1) Offer to Rosemary Blum, Wanda Blum, Katherine Beard Burma, Sandra Ely, Stephen Hager, Patsy Hendon, Lena Johnson, Elvie King, Alberta Racer, Vern Westen- hoefer, Nancy Zavala, Donald Blum, and Jewell Gibson full reinstatement to "hirs"63 former position (or. if that position no longer exists, to a substantially equivalent position) in the event that it should institute any restaurant or service station operation in the future, without loss of seniority or any other employment rights or privileges, and (2) meanwhile, place each of them upon a preferential hiring list for any vacancies which should occur in any of its existing operations in positions the duties of which "heesh"64 is capable of performing (c) Immediately notify any of the above-named individu- als presently serving in the Armed Forces of the United States of the right to employment, under the terms described above, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) Make each such individual whole for any loss of conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 61 1 hereby offer a word needed by the language, meaning "his and her " fi4 "he/she " 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnigs suffered by reason of the discrimination against "hirm,"65 from the date of the termination of "hirs" employment until fulfillment of the obligation imposed in paragraph 2(b)(1) above or of paragraph 2(b)(2), above, or until that individual procures substantially equivalent employment elsewhere, whichever occurs first, in the manner set forth in the section above entitled "The Remedy." (e) 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 analyze the amount of backpay due and the right of reinstatement under the terms in this order. (f) Post at its place of business at Farmington, Missouri, copies of the attached notice marked "Appendix."66 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by its representative, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Mail to each of the individuals named above, at "hirs" last known address, a copy of the above-described notice, duly signed by its representative. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not heretofore remedied in this recommended Order. 65 "him/her " Order of the National Labor Relations Board" shall be changed to read 66 In the event that the Board's order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."