Franklin Stores Corp.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Franklin Stores Corporation, and its Wholly Owned Subsidiaries, Barkers of Willimantic, Inc., and Bark- ers of Wallingford, Inc., and the Miles Shoes Mel- disco Willimantic, Inc. and Local 919, Retail Clerks' International Association, AFL-CIO. Cases 1- CA-7728, 1-CA-7935, and 1-CA-7989 September 14, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 22, 1972, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs: Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Franklin Stores Corporation, and its wholly owned subsidiaries, Barkers of Willimantic, Inc., and Barkers of Wallingford, Inc., and the Miles Shoes Meldisco Willimantic, Inc., their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponder- ance 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 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WELL, Trial Examiner: On June 28, 1971, Local 919, Retail Clerks' International Association, AFL-CIO, hereinafter called the Union, filed with the Regional Direc- tor for Region 1 (Boston, Massachusetts) of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Barkers Store of Willimantic, Connecti- cut, violated the Act by discharging six named employees and by other acts and conduct. This charge was amended on July 26, adding the name of a seventh alleged discrimina- tee, and amended again on August 25, adding the names of two more alleged discnminatees, and additionally charging "Meldisco Shoe." A complaint and notice of hearing on the above charge and amended charges was issued by the Re- gional Director on September 16, 1971, naming as Respon- dent Franklin Stores Corporation, d/b/a Barkers Store and Meldisco Shoe. Respondents' answer to the complaint cor- rected the names of Respondents to Franklin Stores Corpo- ration and its wholly owned subsidiary, Barkers of Willimantic, Inc., and The Miles Shoes Meldisco Williman- tic, Inc.; admitted that certain employees were discharged; and denied the commission of any unfair labor practices. On October 26, 1971, the Union filed another charge (1-CA-7935) alleging that Barkers Inc., violated Section 8(a)(1) and 8(a)(3) by the discharge of an employee from its Wallingford, Connecticut, store. On December 7, 1971, the Union filed another charge (1-CA-7989) realleging the dis- charge of the employees involved in the original charges upon which a complaint had already been issued, and alleg- ing additionally the discharge of two other employees as violations of Section 8(a)(3) of the Act. This last filed charge was amended on December 14, 1971, naming the Respon- dents in accordance with the answer filed by Respondents to the original charge, and correcting the name of one of the alleged discriminatees. Thereafter, on January 4, 1972, the Acting Regional Director issued an order consolidating cases, an amendment to the complaint, and a new notice of hearing, adding to the earlier complaint allegations with regard to one discharge and various 8(a)(1) allegations at the Wallingford store and the constructive discharge of an employee at the Willimantic store. After a motion for a bill of particulars, and an answer thereto, and a ruling thereon, the matter came on for hearing before me on January 26, 1972. The heanng took place on January 26, 27, and 31, and February 1, all in the year 1972. All parties were represented by counsel and had an opportunity to call and examine witnesses, and to adduce relevant and material evidence. At the close of the hearing the parties waived oral argument, and thereafter briefs were received from the General Coun- sel and from the Respondent. Upon the entire record in this matter, and in consideration of the briefs, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF RESPONDENTS Respondent, Franklin Stores Corporation, is a Dela- ware corporation engaged in the operation of retail discount department stores in various States of the Union. Respon- dents Barkers of Willimantic, Inc., and Barkers of Walling- ford, Inc., are Connecticut corporations wholly owned by Respondent Franklin Stores Corporation, and operate indi- vidual retail discount department stores in Willimantic and Wallingford, Connecticut, respectively, Respondent, The Miles Shoes Meldisco Willimantic, Inc., is a Connecticut corporation which leases the shoe department of the store 199 NLRB No. 10 FRANKLIN STORES CORPORATION 53 operated by Barkers of Willimantic, as well as other Barkers and Franklin Stores. Each Respondent has gross sales re- ceipts in excess of $500,000 annually, and each receives goods valued in excess of $50,000 annually from points outside the State of Connecticut. Each of the Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Franklin Stores Corporation and Barkers of Willimantic, Inc., by virtue of the lease arrangement with the Respondent Miles Shoes Meldisco Willimantic, Inc., (hereinafter called Respondent Meldisco) has the right to veto the employment of employees by Respondent Meldis- co and to insist on the discharge of employees by Respon- dent Meldisco for breach of Respondent Franklin Stores Corporation rules. Accordingly, Respondent Franklin Stores Corporation and Respondent Meldisco are coem- ployers of the employees who work in Meldisco's shoe de- partment at Willimantic. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES Background Commencing around the beginning of April 1971, the Union started an organizational campaign at Respondents' Willimantic store. The union organizer in charge of the campaign was Albert Valsecchi. A disgruntled former em- ployee, Robert C. Green, Jr., was recruited as a paid union agent, and he and Valsecchi did most of the organizing work, sometimes assisted by another organizer, McAvoy, and one or two others on occasion. Respondents' store in Willimantic faces the main street with a parking lot surrounding it. The front of the store consists of plateglass windows with checkout counters near the door. The organizers had free access to the parking lot in front of the store where, especially at times that employ- ees were entering and leaving, they tended to congregate talking to the employees and probably soliciting their sup- port. The organization was by no means surreptitious. To- ward the end of April, Valsecchi left his business card with the manager. Commencing about the end of May or early June union buttons were handed out to the union support- ers and they wore them in the store. After the overt organi- zation commenced, the Union's paid representatives would enter the store several times a day on some occasions, and fan out, walking through the store and greeting the clerks, as well as the supervisory personnel. There is no evidence that at any time while they were in the store the union agents solicited employee support or handed out union cards or buttons; the object appears to have been nothing more than an overt display to management and the employees of their presence. Respondents' management found the presence of the organizers in the store irritating. The manager, Stanley Bar- clay, ordered that whenever organizers were walking through the store, supervisors were to follow them, appar- ently to prevent their engaging in any organizing activities. Manager Barclay, immediately upon learning of the advent of the Union, informed his superiors. Under Re- spondents' administrative setup the Connecticut stores are under the immediate supervision of Alvin Korn. Under Kom is a group of employees known as merchandising supervisors, who visit the various Connecticut stores, gener- ally once a week, advising and consulting with the depart- ment managers and the store manager. Sometime in mid-May Korn instructed one of his mer- chandising supervisors, Alan Wilstein, to take a picture of any union organizers that came into the store. Wilstein was given a miniature camera by the camera department man- ager, and took a picture of union organizer Green the next time he came into the store. According to the testimony of Green, he had stopped to greet an employee, Paulette Lucas (Haines) in the ladies' ready-to-wear department, when he noticed Wilstein take a picture of the two of them. Wilstein denied that any employee appeared in the picture, stating that he took the picture of Green as he walked through the department. Mrs. Haines, although she testified that she left her job because of harassment by management involving the union organization, when asked to specify the harass- ment, did not mention the picture taking incident. Accord- ing to the testimony of Wilstein and of Korn the film when developed showed no image. After the union campaign started Respondent mount- ed a campaign against the union organization. Barclay spoke individually to most, if not all, of the employees, and he and Kom spoke to the employees in meetings attended by all employees in the store. In early June Bernard Kossar, the executive vice presi- dent of the parent corporation, visited the Willimantic store, along with Alvin Kom. Kossar testified that he visited all of the stores at least twice a year, and some of them three or four times. As a result of his visit, under circumstances which will be explicated below, an employee was discharged from the ladies' ready-to-wear department because the store was allegedly overstaffed; three employees were discharged from the store because they were related to other employees of the store; and an employee was discharged from the shoe department by Meldisco on Kossar's demand, allegedly be- cause of his poor performance and appearance. The last four of these discharges are alleged by the General Counsel to be violative of Section 8(a)(3) of the Act. The organizational campaign continued through the summer. In the fall it spread to other stores operated by Respondents, including the Wallingford store. The Union used the same group of organizers at the other stores that it used at Willimantic. The record does not disclose whether the Union has achieved a majority at any of Respondents' stores or has sought recognition in them. The Discharges The General Counsel alleges that eight employees were discharged in violation of Section 8(a)(3) of the Act, and that two other employees were constructively discharged by Respondent, all at the Willimantic store, and that another employee, Alice Souza, was constructively discharged at the 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wallingford store. At the close of the General Counsel's case, I dismissed the 8(a)(3) allegations with regard to Willi- mantic employees Edith D. Vertifeuille and Shirley R. Lan- don, neither of whom appeared at the hearing, and as to whom the record did not disclose a prima facie case. The Respondent admits discharge of the remaining six employ- ees, but asserts that they were discharged for cause, and not in violation of the Act. Annette L. Postler. Annette Postler was a clerk in the hardware department at the Willimantic store. Her imme- diate supervisor was Department Manager Bealieu. Postler had been employed at the store for about 3 years. She was one of the earlier union supporters and was wellknown as such to Respondent. Respondent contends that Mrs. Postler spent a great deal of time organizing on company time . The only evi- dence of this fact is found in the testimony of Regina Cehel- nik, who became the manager of the shoe department in mid-April. Cehelnik testified that prior to becoming manag- er, the then manager of the shoe department was James Crouch, and that he was very prounion. She testified that Mrs. Postler spent some time visiting with James Crouch and Tom Limanni during working hours and discussing union affairs. She also stated that Mrs. Postler urged her during working hours to join the Union. Miss Cehelnik, who was led through a good deal of her testimony by counsel for the Respondent, testified, in answer to his question asking what Postler said to her about signing cards, as follows: Well, Mr. Crouch did most of the work and he felt that we should sign a union card and it would help get the Union in faster, so he said that we were going to sign cards and everything so we all did sign cards. Q. Including yourself. A. I signed a card also and everything and so then Anne Postler came and she said that if we didn't sign cards that Crouch said he would fire us. She testified that either Crouch or Limanni gave,her the cards to sign. On cross-examination Mrs. Cehelnik testified that she did not know whether Mrs. Postler was on her break I or on duty at the time of her conversations with employees in the shoe department. She also testified that she signed a union card so as "not to get any enemies" and that she signed it before she became manager. I deduce from Mrs. Cehelnik's testimony that Mrs. Postler, on talking about the Union, was talking in the warehouse section of the shoe department because when asked whether she was pre- sent when Mrs. Postler visited with Crouch or Limanni, she answered, "not too often. I stayed on the floor mostly." In answer to the question from Respondents' counsel, "and I take it that this is prior to your becoming manager of the department, is that correct? Or after as well?" she answered, "after as well." "Both before and after, she would come in and say these things to you?" "Yes." From this Respondent argues that Mrs. Postler continued organizing among the employees of the shoe department after mid-April. Howev- er, it is improbable, in my opinion, that this is true. I do not credit Mrs. Cehelnik. I think if she had had a truthful story to tell she would not have had to be led through it. Further, 1 Employees at the Willimantic store get coffeebreaks of 10 minutes each morning and afternoon. I find no cause to believe that Mrs. Postler spent any amount of time organizing in the shoe department after the departure of James Crouch, if, as Cehelnik testified, all of the employees of the shoe department signed union cards before Crouch left, at his request. Respondent adduced no other evidence that Postler engaged in any organizing activities on company time. It is clear that when the various union agents would parade through the store, they would normally greet Mrs. Postler and occasionally stop and talk to her briefly. However, there is no evidence that the Union was ever mentioned in these conversations, and I believe that in view of the close surveillance of the union organizers while they were in the store by management officials it is highly improbable that any union affairs were discussed. Nevertheless, on several occasions Hardware Manager Beaulieu cautioned Mrs. Postler about "socializing" with her friends during business hours, and on one occasion gave her a warning after she had had a brief conversation with Bob Green on one of his tours of the store. On the occasion of Kossar's visit at the Willimantic store in June, he called Mrs. Postler into the manager's office, and told her that he had a statement that she had been handing out union buttons during business hours on the store premises, and that he was going to discharge her. Mrs. Postler denied that she had handed out union buttons during business hours, saying that she had only two union buttons, and had given one to a friend during a lunch break and was wearing the other. On hearing this Kossar lectured Mrs. Postler on engaging in union activities on company time, and told her that he expected a full day's work out of her, and would not tolerate anything less. Kossar also told her that if she was caught handing out buttons on company time again, that she would be discharged. Kossar testified that he had been informed by Assistant Manager Zenowitz that Postler had handed out union but- tons on company time. Although Zenowitz took the witness stand, and testified about other matters, he was not asked about this incident. Mrs. Postler denied that she had handed out any buttons on company time. I do not credit Cehelnik's testimony that Postler said that Crouch would have the employees fired if they did not join the Union. According to Cehelnik's testimony, this took place after Crouch had already prevailed on all of the employees in his department to join the Union. If, in fact, Postler and Crouch were in close communication as Cehel- nik stated, Postler must have been aware of this fact. Ac- cordingly, it is improbable that Postler would have uttered such a threat to people who had already joined the Union. I believe that Cehelnik, who, as will be seen below, has had good evidence of the ability of Respondent Barkers to disci- pline employees of Respondent Meldisco, is doing anything she can to cooperate with Respondents in their presentation of this case. It was Postler's custom on arriving and departing from the store to stop and talk with union organizers who usually were standing in front of the store. One occasion, she testi- fied, her department manager, Beaulieu, advised her that it did not look good for her to stand in front of the store talking to the union organizers. Beaulieu denied making the statement, although he testified that on several occasions he FRANKLIN STORES CORPORATION warned her about talking to the union organizers inside the store. Beaulieu obviously took seriously Barclay's admoni- tions to break up conversations between the organizers and his employees in the store. He testified that he told Green, on a couple of occasions, to leave his help alone during working hours. He apparently had reference only to Green's conversations with Mrs. Postler, which lasted from 2 sec- onds to 2 minutes, according to his testimony. Beaulieu told Kom that Green habitually talked to Mrs. Postler while he was in the department, and Kom told him to tell her that if she wanted to associate with her friends during business hours, she should punch out, and not do it on company time. Beaulieu testified that he could see out the front of the store and saw employees talking to union organizers outside the front of the store, merely by looking out of the window, but he never intentionally watched employees, and never saw Mrs. Postler talking to any union organizers outside the store. I do not credit him in this regard. He appears to have been sincerely devoted to management's cause during the organizational campaign, and I believe that he observed the organizing going on outside the store as carefully as any member of management during the summer of 1971.2 How- ever, by and large, I find that Beaulieu attempted to be truthful in his testimony. I think that Mrs. Postler's testimo- ny is incorrect with regard to the alleged admonition. There can be no question that Mrs. Postler was consid- ered one of the leading union supporters. On one occasion she and another girl were entering the store and passed Assistant Manager Zenowitz at the door. Zenowitz ob- served to another person standing with him, "Here come the union organizers, they are late today." Zenowitz testified that he did not have reference to Mrs. Postler and her com- pamon, but was merely observing that the professional un- ion organizers who were normally present at the store when the employees arrived, had not arrived. He also testified that they were not in sight at the time. Under the circumstances I can only believe that he was referring to Postler and her companion. Mrs. Postler testified that about June 1 Department Manager Beaulieu told her that Respondent was going to issue her three written warnings, and then discharge her because of her union activities. Beaulieu denies making any statement like this. Thereafter, on June 24 Beaulieu gave her a warning slip that stated that she had been socializing with friends on company time. I believe that the statement attrib- uted to Beaulieu by Mrs. Postler was made either in contem- plation of, or at the time he gave her the warning slip, and I believe it amounted to no more than a warning that three such warning slips made her liable to discharge under the company's rules? 2 Beaulieu was partisan enough in the campaign that when called at home by Green, who attempted to enlist his support in the organizing campaign, Beaulieu the next morning reported Green's call to his store manager 2 The time of the occurrences herein, no one had any clear idea what the Company's rules were A few of the employees apparently had been given employee handbooks which had some of the rules spelled out briefly in them. In addition, it appears that the Respondent had at least two books containing rules, one of which was distributed only to department managers and store managers, the other apparently distributed only to the store managers. The department manager Cehelnik testified that employees were bound by Bark- er rules as well as by Meldisco's, but was apparently of the opinion the only rules that existed were rules concerning how clerks should dress on duty The managers of both the Wallingford and Willimantic stores were apparently 55 Respondents' store apparently has no lunch counter. It is customary for the managers of the various departments to appoint an employee to go to a nearby shop to get coffee for the employees' coffeebreaks in the morning and af- ternoon. Mrs. Postler had been appointed by Beaulieu and had over a period of time, been making this trip. After the organizing campaign began, Store Manager Barclay came to the conclusion that Postler took too long to get the coffee. He obviously was suspicious that this was attributable in some way to her organizing activities, and he advised Beau- lieu that Postler was no longer to go for coffee, but that he should send some other employee. Beaulieu so advised her. She said "it looks as though they are discriminating against me," and he agreed with her. He then appointed another employee to go in her stead. The General Counsel contends that this incident amounted to a suspension of Mrs. Postler's coffeebreaks, and constitutes unlawful discrimina- tion. Inasmuch as Mrs. Postler continued to have her coffee- breaks thereafter, but simply did not go get the coffee, it is difficult to see in what way she was discriminated against. If, in fact, she had been using the time, which was company time, to engage in organizing activities, or to confer with the union organizers, Respondent had a right to stop her, and if she had not, there is no detriment either to her or to the organizing activities of the employees in her removal from this task, even if it may have been occasioned by suspicion that she was engaging in union activities. Accordingly, I shall recommend that the allegation with regard thereto be dismissed. The General Counsel also contends that the remark of Zenowitz to Mrs. Postler and her friend, Mrs. Johnston, concerning the late arrival of the union organizers, consti- tute giving employees the impression of surveillance of their union activities. While under the circumstances that em- ployees were engaging in union activities, and the Employer could become aware of it only by surveillance, such a re- mark would have this coercive effect. In the circumstances of this case, where the union activities were carried on open- ly by the employees in full view of management, I do not believe that Zenowitz's statement is coercive or otherwise violative of Section 8(a)(1). Similarly, the General Counsel alleges that Respondent, through its officers, engaged in surveillance of the employees by looking at them through the window as they were talking to union organizers. There is no evidence that Respondent, in effect, maintained a watch to ascertain what employees were talking to organiz- ers. The evidence merely reveals that Respondent's supervi- sory personnel, who normally spent their time at the front of the store, saw the employees as they came and went and stopped to talk to the organizers in front of the store. I find no violation in this activity, and I shall recommend that the two allegations be dismissed. The General Counsel con- tends that Kossar's statements to Mrs. Postler with regard to handing out buttons on company time constituted a threat to employees for engaging in union activity on Respondent's premises. However, it appears, both from the testimony of Kossar and from that of Mrs. Postler, that the threat was made with regard to her engaging in organizing dimly aware that there was a rule against hiring members of the family, but neither paid any attention to it Testimony from various management offi- cials concerning the rule put it into several versions, and at least two versions appear in writing 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities on company time. Respondent has a right to warn employees not to engage in organizing activities on compa- ny time, and it is clear that Kossar's threat to discharge Postler immediately was withdrawn when she protested that she had not, in fact, distributed buttons. Under all the cir- cumstances I do not find that this violates Section 8(a)(1) as alleged, and I shall recommend the complaint be dismissed with regard thereto. With regard to the admonitions by Beaulieu, both on his own behalf and on behalf of Supervisor Kom, to Postler that she should cease speaking to union representatives on Respondent's premises or time, I find a somewhat different situation. There is no evidence that at any time Mrs. Postler talked about union affairs with the organizers or with other employees on company time. The admonitions directed to her were, in fact, generally couched in terms of socializing with her friends, rather than talking with organizers, a eu- phemism adopted by Beaulieu and apparently by Kom, and Barclay. There is no evidence that Respondent had any rule or enforced any rule against employees socializing with ac- quaintances or friends coming into the store. In view of the fact that most of the employees were teenagers, and in a small town such as Willimantic probably knew a good many of the people who entered the store, a rule against the small conversation that would normally take place would proba- bly be unenforcible. The record is quite clear that the objec- tion of Respondent was not to socializing as such, but rather was to speaking with the union organizers going through the store. The gravamen of an 8(a)(1) violation is that it has a reasonable tendency to interfere with, restrain, or coerce employees in the valid exercise of their union activities. The Board has long realized that it cannot draw hard and fast rules with regard to such violations. Each must be consid- ered in context rather than alone. In this instant situation it is apparent that the Union was engaging in a sort of game with management, the only effect of which was to demon- strate to employees management's inability to control the actions of the union agents. No organizational activities took place during the patrolling of the stores by the union agents, and the General Counsel does not even contend that the following of the union agents by Respondent's supervi- sors is violative. The effect of the union organizers' activities was to waste the time of the supervisors who were delegated to follow them through the store, and to waste the time of the employees to whom they would speak, albeit, briefly. As Respondent's counsel pointed out at the hearing, although each conversation may have been no more than a greeting, the multiplication of the greetings by the constant circulat- ing of union agents among the employees who were suppos- ed to be at work could become a costly problem to Respondent, and one against at which it had a right to protect itself. The employees were aware of this situation. They must have watched with amusement the alertness of Respondent's supervisors at the entrance of the union or- ganizers, and the intentness with which they followed each other around the store. That this interfered with employees' work was probably amusing to the union agents, but it must have been galling to Respondent. I do not believe that it is reasonable to assume that employees will be coerced, re- strained, or interfered with in their union activity by the attempts made by Respondent to stop this activity, and I believe that when employees joined in the game to the ex- tent that Postler did of stopping her work and talking to union agents, even if only for a minute or two, Respondent has a right to admonish her and, if necessary, threaten to give her a warning notice and ultimately discharge her if she persists. Accordingly, I find no violation in Respondent's acts with regard thereto, and recommend that the complaint be dismissed, insofar as a violation is alleged. On the weekend of June 26 Respondent took its semi- annual inventory at the Willimantic store. On the Friday of that weekend, and perhaps on the Thursday, the stock in the warehouse sections of the store, known as the perimeter, was counted and slips of paper with the value of the mer- chandise were posted in the warehouse. From the time the warehouse was counted merchandise was not supposed to be removed therefrom and put into the stock on the floor to be sold. However, the record reveals that if a customer calls for an expensive item that is not in the floor stock, and is available in the perimeter, the clerk would be allowed to get the item out of the perimeter stock after changing the count and informing the manager. On Saturday, June 26, the perimeter count was spotchecked by supervisory per- sonnel, and then on Sunday, when the store was closed, the floor stock would be counted, and all of the slips of paper collected and sent to New York where they are collated and a value is given to the merchandise. Mrs. Postler and a newly hired part-time employee were assigned to count the perimeter stock in the hardware department. According to her testimony, which is not controverted by Respondent, she and her companion went into the perimeter together. He would count the merchandise in the various storage loca- tions, and she would fill out the papers, initialling each as she completed it. They would then post the paper on the merchandise and then move on to the next location and continue the count. On Saturday Assistant Manager Ze- nowitz testified that on June 26 he had discharged employee Shirley Landon, at 5:40, after which he went into the perim- eter and began spotchecking the inventory slips. In the up- per perimeter in the hardware department he came across one or two mistakes bearing the initials AP, which referred to Anne Postler. He came back downstairs and looked for Mrs. Postler. He was informed that she had left and he notified Surendi. He testified he gave the slips on which the errors appeared to Surendi, and "he took it from there." According to the testimony of Surendi, who was a mer- chandise supervisor, and was in charge of the inventory at the Willimantic store on this occasion, Zenowitz found a mistake while Surendi was inventorying in the luggage de- partment, and called Surendi to the perimeter, where he showed him the merchandise and the slips that did not balance. Surendi testified that he made the correction and then he sent Zenowitz to get Mrs. Postler. Zenowitz re- turned without her, stating that he could not find her, whereupon he and Zenowitz continued to check the perime- ter, and found a few more mistakes and went to look for her, at which time they ascertained that Mrs. Postler had left with Shirley Landon a little before 6, and as they left, Mrs. Postler made a statement "You ain't heard the last of this. We'll be back."4 4 Shirley Landon was alleged in the complaint to have been discharged because of her union activity. She did not appear at the hearing, and the complaint was dismissed with regard to that allegation FRANKLIN STORES CORPORATION 57 Surendi identified five documents as the inventory slips that contained the mistakes which he and Zenowitz correct- ed. He testified that he identified them by his initials on the slips, and that he had Surendi initial the corrections that they made. The first of the five slips shows one item crossed off, with no initials. Another item, six units at $19.99 per unit, is crossed off, with the initials of Surendi, and below it is written five units at $19.99. On the second exhibit an item of three units at $2.99 is crossed off, and below it is written two units at $2.99. The crossed off item is followed by an initial that looks like M.O.E. The third slip contains one line crossed off, five items at $27.99, and written on the bottom of the list are four items at $27.99. Also there is one item at $1.99, one at $15.99, one at $16.98 and another item, which is obscured by the court reporter's stamp, and cannot be read, all crossed off, and with the initials M.O.E. or M.O.C. and Surendi's initials written after it. On the fourth slip nothing is crossed off, and no initials appear. And on the fifth slip two items are crossed off, one, six units at $19.99 and the other, five units at $19.99, and two items are written, both, four units at $19.99. These are initialed by the M.O.E. initial on one side and Surendi's on the other. It is notable that each of the items in which there was allegedly a mistake was a reduction of one rather expensive unit from the count. The next morning when Mrs. Postler came to work to complete the inventory, Surendi met her at the door and would not permit her to enter the store. He told her that she was suspended and that she should see the store manager the following day. Surendi immediately told Korn of the actions he had taken. Kom called Barclay early Monday and told him to tell Postler, when she came to the store, that she was suspended until Kom could investigate. When Kom next came to Willimantic he told Barclay to leave Postler suspended until he had had a chance to complete his investigation. What investigation he had in mind is not disclosed. Barclay put Postler on vacation, which was due her. At the end of her vacation she contacted Barclay who told her that she was discharged because her work was unsatisfactory. She asked whether it took 3 weeks to find out that she was unsatisfactory. Barclay stated that he had been told by New York to discharge her. I conclude that Mrs. Postler was discharged because of her union activity. She testified without contradiction that in past years she had assisted in the inventory a number of times, and that she and other employees had made mistakes, that she had found mistakes made by other employees, and that no reprimands had ever ensued therefrom. She did not deny making the mistakes attributed to her on this occasion, but there is no way for her to have known anything about them, since she was never permitted in the store after they had allegedly been found. It is clear that Respondent made no investigation of the inventory taking, and under the cir- cumstances, it appears that the mistakes could equally well have been that of employee Lawson, her companion in the count, if, in fact, there were mistakes. However, in view of the testimony and the exhibits with regard to the mistakes, I find that there is considerable question about them, too. If I believe Surendi that each of the mistakes was initialed by him and counter-initialed by Zenowitz, only two of the five exhibits were mistakes involved in this incident. If I were to accept the testimony of Zenowitz, only one or two mistakes were found by him at all, although Surendi testi- fied that he and Zenowitz went back and found several more. I am assuming that the M.O.E. initial is that of Ze- nowitz, although he identified himself on the witness stand as Arthur Zenowitz and it is difficult to see how M.O.E. becomes A.Z. In addition, the type of correction made on the four inventory tickets that display a correction reveals a reduction of one expensive item in each case. It appears that it was not uncommon for expensive items to be taken out of stock after the count was made, and the inventory slips changed. Zenowitz's testimony appears credible that he found one or two mistakes in all. Whether these mistakes are attributable to Mrs. Postler was apparently explored neither by Respondent at the time nor by any party at the hearing, yet without more Surendi determined to suspend Mrs. Postler from further work on the inventory. Postler's testimony was not contradicted that mistakes on prior in- ventories had been made by her and by others without any repercussions whatsoever. Some other factor would appear to have been at work in this instance. Respondent would have us believe that the added factor was the early depar- ture of Mrs. Postler on that Saturday. Respondent deduces that she departed some minutes before her normal quitting time upon being asked to take Shirley Landon home. Mrs. Postler admits that she left early, but stated that it was only a minute or two before 6 when she departed. According to Zenowitz's testimony, he discharged Shirley Landon at 20 minutes to 6, thereafter went to work checking the inventory in the hardware section, found a mistake, called Surendi's attention to it, and then set out to seek Mrs. Postler. It appears improbable that all of this could have taken place in a very few minutes, and I believe it is much more proba- ble that Mrs. Postler's estimate of a minute or two before 6 is more nearly correct. At any rate, Mrs. Postler testified without contradiction that she and other employees had been permitted to leave a few minutes before their normal quitting time under various circumstances in the past, with- out being disciplined before. Again we seek a distinguishing characteristic and it may be Postler's statement that the Respondent had not heard the last of the matter of the discharge of Miss Landon, which I think can safely be as- sumed was considered by Respondent to be a reference to union action .5 I conclude that the suspension by Surendi resulted from Mrs. Postler's union activity, probably topped off by her "threat" that Respondent had not heard the last of the discharge of Miss Landon. During the several weeks between the suspension of Mrs. Postler and her discharge, it is apparent that no investi- gation was made into the circumstances of the alleged in- ventory mistakes. Korn and Barclay had a conversation, as a result of which, according to Barclay's testimony, it was decided that the suspension would be converted to a dis- charge because of the unsatisfactory work of Postler since the union campaign began. Specifically, according to Bar- t Store Manager Stanley Barclay testified that "any time I did anything, everybody would say, oh, it's because I'm in the Union." 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clay, Postler's work became unsatisfactory in that she spent an inordinate amount of time talking to other employees, and to union representatives in the store on company time, and that she did not timely prepare inventory order lists referred to by Respondent as laundry lists . It does not ap- pear that the latter fault was of such magnitude that it, at any time, led to a reprimand, but Respondent would have us believe that it was one of the prevailing reasons for the conversion of the suspension to discharge . Respondent did not show, except for the testimony of Cehelnik, which I have discredited, that Mrs. Postler engaged in any union organiz- ing activities on company time . Respondents position in that regard is unsupported. It is clear that Beaulieu was suspicious of her conduct and watched her closely during the period of union organization, but he was able to testify to no union activities on her part on company time. I con- clude that the reasons given for the discharge are pretextual, and that the real reason for the discharge was Respondent's aim to rid itself of the girl who was probably the leading union adherent in its store. I find that the discharge violated Section 8(a)(3) and (1) of the Act, and I shall recommend an appropriate remedy therefore. Biaggio Mangano: Mangano was a clerk in the hard- ware department under department manager Bealieu. He had worked in that capacity since 1969, starting as an eve- ning employee, and then had shifted to daytime work. When Posstler was suspended Beaulieu asked Mangano to work her evening shift for 2 weeks , and Mangano agreed. In the second week in July Barclay was informed that Postler's suspension was to be converted to a discharge, and he thereupon informed Mangano that the night work would be permanent. Mangano declined to work nights, whereup- on Barclay told him that he would have to lay him off. The next day, however, Barclay asked Mangano if he would work 2 nights a week. Mangano said he would think it over and let Barclay know. Mangano then had a conversation with department manager Beaulieu and agreed with him to work 2 nights a week. Beaulieu so informed Barclay, who agreed and told Mangano so. However , the next day, Bar- clay again approached Mangano and stated that there was a misunderstanding, and that he would have to work 3 nights and not 2. Mangano declined to work 3 nights a week and was discharged on July 17. Mangano testified that at his discharge he asked Beaulieu if he was being laid off because of his refusal to work nights, or because of his union sympa- thies, and that Beaulieu replied that he thought it was be- cause Mangano was prounion. Mangano's union sympathies were well known. Beau- lieu testified that he was one of the two employees in the hardware department whom he saw wearing union buttons, the other being Postler. Mangano also testified that when he first started wearing a union button, Manager Beaulieu pointed to the button and said "that doesn't help matters out." Beaulieu testified on the contrary that Mangano asked him whether he thought management and the Union would get together, and that he replied that he did not know, and asked Mangano what he had to gain out of wearing a but- ton. The General Counsel contends that this exchange con- stitutes a warning by Beaulieu to employees about wearing a union button and violates Section 8(a)(1) of the Act. From Beaulieu's demeanor at the time he testified concerning the conversation, I conclude that Mangano's version of the ex, change is correct, and I credit it. However, I credit Beaulieu's report as to the question by Mangano that pre- ceded his statement. I do not find it coercive. I believe that Beaulieu was, in effect, answering Mangano's question with the suggestion that the display of the union buttons by the employees was liable to make it harder for the Union and the Employer to get together. I consider that this is a state- ment of Beaulieu's personal opinion in the matter, which was asked by Mangano, and did not constitute a threat against employees or specifically against Mangano. I shall recommend that this allegation be dismissed. Mangano also testified that store manager Barclay stat- ed that when he saw Mangano's union button, "of all people I least expected you to be wearing a button." This was not denied by Barclay, nor is it alleged to be a violation. Howev- er, I think it provides the key to my conclusion with regard to Mangano. I think that Barclay was speaking the simple truth. Mangano, on the witness stand, did not appear to be a militant type of person, nor one who would be interested in rocking the boat in which he was riding. It is notable that when Postler was taken off the task of getting coffee for the department, it was Mangano who was appointed to that job and continued doing it until his discharge. I accept Respondent's explanation of the need to have more person- nel working on the evenings rather than through the day, especially in view of the fact that two of the clerks were no longer employed by Respondent. Mangano's insistence that he would work no more than 2 evenings a week in place of the 3 evenings a week previously worked by Mrs. Postler, was, I am convinced, the cause of his discharge. It is clear that the Respondent made every effort to go along with him and to convince him that he should work the additional evenings. There is no evidence that the Respondent had any reason to believe that Mangano would refuse to work 3 evenings a week. He was originally hired to work evenings. I reject his testimony that Beaulieu told him when he was being laid off, that he thought it was because he was proun- ion. I do not believe that Beaulieu thought so, and I do not believe that he said so. Whatever he said, in response to Mangano's statement that he suspected that his union activ- ity was the reason for his layoff, I believe that Mangano did not hear correctly .6 Accordingly, I conclude that the General Counsel has not proved by a preponderance of the evidence, that Man- gano was discharged in volation of Section 8(a)(3) and I shall recommend that the allegation be dismissed. Deborah Johnston: Deborah Johnston had been em- ployed in the toy and layaway sections for a number of years, and was apparently the senior girl in the layaway section. She was known to Respondent as a union partisan, almost from the beginning of the union campaign. She held meetings at her home and wore a union button. At a meet- ing of employees in June 1971, Johnston challenged District Supervisor Kom to call in the union people outside and debate with them, or to meet them at the union hall and debate with them. The challenge was not accepted. Accord- ing to Johnston's testimony, which I credit, when she first wore a union button her supervisor, Florence Lee, suggested 6 On the witness stand Mangano testified that his hearing was poor. FRANKLIN STORES CORPORATION 59 that she should take it off or she would more than likely be fired. This was denied by Mrs. Lee, whom I do not credit. Mrs. Johnston testified that Assistant Store Manager Engel- son told her in October that he was shocked to hear that she had anything to do with union activity. Engelson's version of the statement was that Johnston asked him what affect her being in the Union would have upon her job, to which he replied he did not know anything about it, that her deci- sion was her own. I do not believe either version of this incident, and I make no finding with regard thereto. I agree with Respondent that it is highly improbable that Engelson, in October, would profess to be shocked to hear that John- ston was engaged in union activity. There could have been no one in the store, I think, at that time unaware of her union adherence. One the other hand, I can no more con- ceive of Johnston at that stage in the campaign, stopping Engelson on his way through the store to ask him what affect her union membership would have on her Job. By this time the General Counsel had already issued a complaint in the matter alleging that nine individuals had lost their jobs because of their union adherence. Mrs. Johnston was hold- mg union meetings at her home, and I do not believe she was unaware of the filing of the charge or the attendant circumstances. She did not impress me as being a naive person in any regard. That there was an exchange, I do not doubt, but I find no credible evidence to support the allega- tion of the General Counsel, and accordingly, I shall recom- mend that the complaint, insofar as it alleges that Engelson "created the impression of surveillance" by this incident, be dismissed. Johnston testified that in the latter part of October, Supervisor Lee asked her if it was true that she held union meetings at her home, to which Johnston replied in the affirmative. Johnston added, on cross-examination, that Miss Lee told her that it would not be to her advantage to associate with union organizers. Manager Lee denied mak- ing the statement or asking this question, but admitted that she had had a number of conversations with Deborah John- ston concerning the Union. In each of these instances, ac- cording to her, Johnston asked her how she felt about unions and she replied that they could be bad, and she wanted no part of them. Mrs. Lee went on then to say that Johnston would urge her to attend the meetings, and she declined. I find that Lee asked Johnston if it was true that she held union meetings at her home, and that Johnston admitted that it was true and invited Lee to attend them. I believe that her testimony that Lee told her it would not be to her advantage to associate with union organizers was a light misquotation, and that what Lee said was that it would not be to Lee's advantage to be seen associating with union organizers in the store. I do not believe Lee's testimony that Johnston repeatedly commenced conversations asking Lee how she felt about unions. As I have stated above I do not think Johnston is naive or stupid, and I doubt if she would have asked that question twice. I conclude that although technically Florence Lee in- terrogated Deborah Johnston, asking her if it was true that she had union meetings at her home, this interrogation was not coercive or otherwise violative of Section 8(a)(1). John- ston made no secret of her union adherence, and was out- spoken, even in the employee meeting with District Supervisor Korn. Lee made no attempt to find out who else attended such meetings or any details concerning what took place at them. Johnston testified that five such meetings were held at her home. In the rather close community of Respondent's store, it is improbable that there was any secret about this, especially in view of the open and public nature of the organizing activities. I believe, under the cir- cumstances of this case, that this does not constitute a viola- tion, and I shall recommend that the complaint be dismissed with regard thereto. Early in November Johnston asked Store Manager Barclay for a leave of absence from November 13 through December 6, in order to go on a business trip with her husband. Barclay said that he would check with Kom, be- cause all leaves of absence had to be cleared through him. On November 12 Barclay told Johnston that he would not give her a leave of absence because the period during which she planned to be gone was the busiest time at the layaway desk, and her presence was needed at the store. She gave, as her opinion, that the refusal to grant her a leave of ab- sence was attributable to her union activity. Barclay merely shrugged. According to Johnston thereafter, she and Bar- clay had a discussion about the Union dunng the course of which, he asked her why she felt that way about the Union, and at the end of which she asked if she could return to work on December 6 if she reapplied, and Barclay told her there would be no openings for her. There is no evidence that after her return, Johnston made any attempt to reapply at Barkers Store. She was replaced by another employee during her absence. The rec- ord does not disclose whether this girl is still employed at the Barker store. The General Counsel contends that Johnston was ter- minated because of her union activities. I do not so find. I find that she was terminated on being told that she could not have a leave of absence, and on her determination to go on the trip with her husband anyway. The General Counsel further contends that the Respondent discriminated against Johnston by refusing in advance to rehire her on her return. However, Johnston quoted Barclay as saying that there would be no openings on her return, and there is no evi- dence that Johnston ever attempted to ascertain whether, in fact, there were openings, or whether there have been open- ings since her return. I find insufficient evidence in support of the General Counsel's allegation, and I recommend that it be dismissed. Ronald M . Beaulieu, Leonard J. Nelson, and 'Deborah A. Dunstan When Kossar came to the Willimantic store in June, according to his testimony, he chanced upon the fact that there were two employees named Nelson working in the hardware department. He inquired of manager Barclay whether they were related and was told that they were father and son, whereupon, if I credit him and credit Barclay, he lost his temper, cursed at Barclay, and demanded that he comply with what he knew to be the Company's rule that no two persons in the same household should be employed in the same store. At this point, he and Barclay went over the list of employees in the store and ascertained that there 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were four such combinations , Ronald M. Beaulieu, the son of Hardware Department Manager Beaulieu, Leonard J. Nelson, whose father worked in the hardware department as did he, and Deborah Dunstan , whose mother worked in the store. In his anger, Kossar demanded that Barclay dis- charge one member of each family immediately, but Korn interceded on Barclay's behalf and secured permission for him to take a few days or a week to separate the supernu- merary family member so that the store 's equilibrium would not be upset. Accordingly, to this Kossar reluctantly agreed. Accordingly, Barclay in each case, selected the child of the family combination, and gave them the blue slips which meant discharge . This appears on the face of it to be open and shut. Kossar testified that this is a firm rule of the Company, and that he expects managers to follow the rule, and that he enforces the rule where he finds it to be broken. The General Counsel , however, adduced interesting evi- dence with regard to the rule . In the first place, it appears that the rule has, in fact , been in existence over a period of years. In the Barkers employee's manual, which is distrib- uted to newly hired employees occasionally , the rule ap- pears in this form, "the Company does not look favorably upon the hiring of relatives to work in the store." In a document entitled, "Manual of Operating Procedures" for Barkers stores, dated June 10, 1970, the rule appears in this form, "no two members of the same family may be em- ployed in the same store." The testimony of the various officers and supervisors of Barkers would indicate that the rule is that no two members of the same household may be employed in the same store . Miss Cehelnik, who managed the shoe department, testified that she had never heard of the rule, although she was responsible for the enforcement of Barkers rules. It is clear that at no time in at least the past five years, had anyone ever made any move to enforce the rule at the Willimantic store . Although the rule is a strict Barkers policy, according to Kossar, the record reveals that there are a number of families represented by two or more members each in the Wallingford store , and no move has ever been made to enforce the rule there. The Respondent adduced evidence that a fourth per- son, Barbara Carey, a cashier whose mother worked in the stationery department, was discharged in the latter part of June because of the rule . This discharge was not alleged to be a violation, although it is difficult to see on what basis the General Counsel draws a distinction. Leonard Nelson testified that he signed a card for the Union at the home of Deborah Johnston in the presence of Union Agent Valsecchi and another union organizer, and he thought that Anne Postler and Ronald Beaulieu were there. To his knowledge he never told any management personnel that he had joined the Union. Nelson testified that he wore a union button one day. Nobody ever men- tioned it to him or told him to take it off , and he did not wear it thereafter, although other employees did. Ronald Beaulieu testified that he wore a union button in the store and once Assistant Manager Zenowitz asked what the word July in the middle of the button stood for. Deborah Dun- stan testified that she never wore a union button , and never did anything which would have let the Company know that 7 There is some evidence that the rule was adopted five years ago. she had signed a union card , which she did in her own home in the presence of her parents . No one from management ever , mentioned the Union to her prior to her termination. Deborah Dunstan testified that when she was dis- charged by Zenowitz she asked him if it was because of the Union, and he said that it was ; Zenowitz denied making any such statement. I found Zenowitz's testimony for the most part credible . In addition, I consider it highly unlikely that this management-oriented young man, if he were, in fact, privy to a pretextual discharge of this nature, would have so frankly admitted it to the employee being discharged. I credit his denial that the statement was made. Of the four employees laid off obstensibly because of the "family rule" it can be inferred that two were known to Respondent to be union supporters , although the inference is rather thin as to Nelson. There is no evidence to contro- vert the testimony of Barclay and Kossar that the store was overstaffed and overbudget on personnel, and it is clear that, although the rule had not been followed , a rule against the employment ,of two members of the same family in the store existed, had been promulgated some years before, and had, on occasion, in other stores been enforced. While I conclude that Kossar knew of the union organization when he went to the store, and while the evidence that Kossar in effect threw a tantrum on hearing of the employment of relatives raises a suspicion, such suspicion does not consti- tute substantial affirmative evidence that his purpose was to discriminate against union supporters rather than either en- force the rule or cut down the payroll . There is no evidence that Beaulieu or Nelson were strong union supporters or that the Employer had any knowledge that the other two young people caught in the discharge were union supporters at all. I believe an inference that their discharge related to union activities is too far-fetched for me to reach . Accord- ingly, I find that the General Counsel has not sustained his burden of proof with regard to the allegations with regard to Ronald Beaulieu, Leonard Nelson, and Deborah Dun- stan, and I recommend that the complaint with regard to them be dismissed. Mark Cireto: When Respondent's Vice President Kos- sar visited the Willimantic store in June, he took the occa- sion to cruise through the store with District Supervisor Korn. According to his testimony, he noticed a number of people in the shoe department, some of whom asked him for help in locating merchandise. He asked Korn where the help was, and Korn pointed out two young men standing at the side talking with two young ladies. The young men were Thomas Limanni and Mark Cireto . It is clear that at this time Miss Cehelnik was not in the store. According to her testimony, she had left at 5 p .m., her normal quitting time on Saturday. Limanni was dressed in a white shirt open at the neck, no tie, and a pair of slacks. Cireto was dressed in a pair of slacks and what he referred to as a Yukon shirt, which is apparently a knit, short-sleeved, sport shirt. Ac- cording to Kossar, he and Korn stood and watched Cireto for 8 to 12 minutes, talking with the two young ladies. Kossar walked toward Cireto and the young ladies "sort of drifted away." Kossar asked Cireto if he worked in the department and whether he was "punched in." Cireto an- swered in the affirmative. Kossar asked where the depart- ment manager was, and Cireto said that she was out. Kossar FRANKLIN STORES CORPORATION 61 asked whether Cireto thought he was properly attired, and pointed out that he was not wearing the employee identifi- cation badge. Cireto said that he did not know where his badge was, and that he knew that he was not properly dressed. Kossar also stated that the department was in a state of turmoil as far as merchandise was concerned; mixed sizes of shoes, unfilled counters, and scattered tables; and that he confronted Cireto with this fact, which Cireto admit- ted. Kossar and Korn•went into the perimeter of the depart- ment and found on an empty shelf papers, union buttons, and nail files with the name of the Union printed on them. Kossar asked Cireto and Limanni if they knew where this material came from, and was it theirs, or did they know how it got there. They denied ever having seen it before. Korn put the material in his pockets and he and Kossar left the department. Kossar gave Kom instructions to have Cireto immediately discharged. Kossar stated that the reason he determined that Cireto should be discharged was that he was not doing his work, that he was not dressed in conformi- ty with the company rules, and that he had been neglecting customers while engaging in a personal conversation with the young ladies. The General Counsel pointed out that the dress rules, which required that male employees wear shirts, ties, and jackets, as well as employee identification badges, are fre- quently broken. The record is clear that stockboys are per- mitted to wear sport shorts when they are working on stock work, but are expected to wear shirts and ties when waiting on customers. It appears that Cireto and Limanni had had a long history of failing to wear ties, both according to the testimony of Cehelnik. Both she and her predecessor Crouch had frequently had occasion to insist that the two boys wear ties, at least on Saturday. Apparently nowhere in the store was the rule that employees should 'wear jackets enforced. Similarly, it appears that it was not infrequent that employees would appear on the floor without their employ- ee identification badges. Cireto stated that his badge had been lost for some time, and it appears that nothing had been said to him prior to this occasion, by Cehelnik or any of the Barker supervisors. According to the testimony of both Cireto and Limanni, the store was not busy at the time of the incident, and there were not 8 to 12 customers milling around as described by Kossar. The understanding of Cehelnik of the store rules was that employees would be warned twice about breaking the employee rules, and on the third occasion could be dis- charged. When she was given instructions by Korn, at Kossar's orders, to discharge Cireto she declined to do so, and contacted her division manager, who was not normally at the store. He gave her instructions to give Cireto a warn- ing, and talked to Cireto himself over the telephone. When Kom learned the following week that Cireto had not been discharged, he contacted the Meldisco supervisor and insist- ed that Cireto be discharged, whereupon the supervisor ad- vised Cehelnik to fire Cireto and she did so. I do not believe Kossar's testimony that the conversa- tion between Cireto and the girls lasted from 8 to 12 minutes while he stood and watched. Cireto testified that it lasted 4 minutes. It is unbelievable to me that Kossar, standing in a department full of people, at least three of whom in a minute asked him for help, would have simply stood and watched for 8 to 12 minutes. Kossar attempted in his testimony to put the incident in its worst possible light to justify his insistance on the immediate discharge of Cireto, rather than following the normal course of reprimanding him. While there is evidence that on another occasion Barclay had spo- ken to Cireto and a female clerk in the perimeter, and told one of them to go on the floor, there is no evidence that Kossar knew anything of it or that it had anything to do with the discharge which clearly resulted from this one inci- dent. The General Counsel urges that the real reason for the discharge was the fact that Cireto was a union advocate and had been reprimanded by Cehelnik for talking to Green in the department shortly before this occasion. The incident in question resulted from one of Green's perambulations through the shop. Cireto testified that he stopped and asked Green how he was doing because he recognized him as a former employee. They spoke for a minute or two while Barclay stood nearby watching. Later, according to Cireto, Cehelnik came to him and told him that if he was ever caught "affiliating" with the Union again, something could possibly come of it, he could possibly be terminated. Ac- cording to Cehelmk, what she said was that Cireto should not spend time talking to the Union on company time, and Cireto told her that he was not talking about the Union. She denied any threat that she could or would have Cireto fired. I do not find Miss Cehelnik particularly credible. However, I believe that what she said was, in effect, that Cireto should stop talking to the union agent on company time or he might be fired. This is alleged by the General Counsel to be a violation of Section 8(a)(1). I think it is no more than a warning which management had a right to make under the circumstances, and I shall recommend that the complaint be dismissed with regard to this incident. With regard to the discharge, however, I believe that Cireto was discharged because he was known to be a union adherent, and because Kossar attributed the union mate- rials that he found on the shelf in the backroom to Cireto. It must be recalled that Kossar had already, on the same day, threatened to discharge Mrs. Postler for distributing union buttons in the store. I believe that the failure of the Respondent to follow its normal course of discipline of an employee for the breach of the rules gives rise to an infer- ence that the breach of The rules was not the actual cause of the discharges, especially under the circumstances here that the rules had not been strictly enforced in the past, and there is no indication that anyone had ever been discharged for any of the reasons alleged by Kossar to have entered into his thinking. I do not credit his testimony that the union activities that he attributed Cireto had nothing to do with the discharge. I find that Cireto was discharged because of his suspected union activities, in violation of Section 8(a)(3) and (1) of the Act. Paulette N. Lucas: The Ladies' ready-to-wear depart- ment was under the supervision of Muriel E. Miner, a lady who had once been in show business, and a member of two unions in New York City. Her feelings, apparently, are ambivalent with regard to unions. She testified that she had attempted to remain neutral during the employees' organiz- ing campaign, although her sympathies and loyalties were for the Employer. One of the employees, Paulette Lucas 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haines,8 testified that she had a conversation with Mrs. Miner and Mrs. Blanche Hooker, Mrs. Miner' s assistant, during the course of which Mrs. Miner told her that Debbie Johnston and Miss Lucas were suspected of being union organizers and soliciting on store time. Mrs. Miner suggest- ed that Miss Lucas and Mrs. Johnston not be seen together in the store, and that others were watching her. At a later time, according to Mrs. Haines, Mrs. Miner asked her if she had a union card. Mrs. Haines did not trust Mrs. Miner and told her that she had not because there was not a union. Mrs. Miner then asked her if she could get her one of those little white cards, apparently referring to a union card. On or about May 21, according to Mrs. Haines, Mrs. Hooker called her into the office and told her that she was instructed by a supervisor, who she did not name, to give the supervisor Mrs. Haines' membership card to the Union. Mrs. Haines made the same answer and was quite upset and asked why she was being singled out. She asked if she could go to Supervisor Korn. Miss Hooker said that Mrs. Haines was not to leave the department or talk to anyone about it. Mrs. Haines immediately left the department and went to Barclay's office where she confronted Barclay and Korn. She asked Barclay who told him that she was a union organ- izer. He said that he would not give her that information, but he had heard that she had been active. She asked him at that time for a transfer to another department, and he said he would see what he could do. At this point Mr. Kom lectured her about the Union stating that the manager would no longer be in control if the Union came in, and stating that union agents all drove Cadillacs. He criticized Bob Green and pointed out that the union agents were not permitted to solicit in the store. Korn questioned Mrs. Haines about Mrs. Miner, but Mrs. Haines said nothing about her. Early the next morning, according to Mrs. Haines, she had a telephone call from Mrs. Miner, who was upset and asked her what she had told Barclay and Korn the day before. Haines answered that she went in and told them that she was sick of being harassed about the Union, and she was trying to find out who was "hassling" her. Miner asked whether she told them any names and she said that she did not. Miner then said that Mrs. Haines had no right to go over her head, and told her that except for the fact that Mrs. Miner liked her, Mrs. Haines would not be working. Shortly after this telephone call, Mrs. Haines called Barclay at his home and told him of the conversation with Mrs. Miner, and again asked for a transfer. She stated that Barclay asked her about the union card again and said that he would take care of it Monday morning. The next morning she again asked Barclay for a transfer and he said he would take care of it, but he never did. On May 25, 2 days later, Mrs. Haines called Mrs. Miner and told her that she was quitting. Mrs. Miner appeared distressed and just hung up. Mrs. Haines testified that she quit because she could not stand the har- assment. She was working two jobs at the time and was being driven crazy. She also informed Barclay that she was 8 Miss Lucas, after the incidents involved herein, but before the hearing, married. Her name is now Paulette Haines. 9 Mrs. Haines testified that Mrs. Miner encouraged the girls to join the Union and asked her any questions about it, that she was very "gung ho" for it, but did not want to jeopardize her job. quitting. She has not been back to the store since. On cross-examination Mrs. Haines testified that the advocacy of the Union by Mrs. Miner, to which he referred, consisted of Mrs. Miner calling the girls together and saying "I don't want you girls to overtly commit yourselves, but if you are for the Union I will not, hold it against you." On another occasion she heard Mrs. Miner giving Green in- structions how to get to her home. She also testified that when Deborah Johnston would try on clothes during her break, Mrs. Miner would openly suggest that she was for the Union, and encourage the employees to work for it because she sympathized with their reasoning in wanting a union. Mrs. Miner testified that everyone in the store must have known her stand on unions, that she did, in fact, tell her employees that it was a matter of their own consciences whether to join the Union or not, and she would never hold it against them, but they were not to work for the Union on company time. With regard to her telephone call to Mrs. Haines early on a Sunday morning, she testified that she had been informed by Mrs. Hooker that the girls in the department were upset because Paulette Lucas had gone to the manager's office. She testified that she was on vacation at the time, but she was afraid of her department falling apart in her absence. Accordingly, she called up Mrs. Haines and told her that the girls were upset because she went to the office and they were afraid of what she was saying. Mrs. Haines assured her that she did nothing to hurt the girls, and that they should know it, and this concluded the conversation. Mrs. Miner then called Mrs. Hooker and told her to tell the other girls that everything was all right. She testified that she had no further conversation with Mrs. Lucas until she called a couple of days later and said that she was quitting. Mrs. Miner was a little shocked that Mrs. Haines had quit in the middle of the union campaign, but said nothing more. The General Counsel contends that Mrs. Haines was constructively discharged by the harassment of Respon- dent. The harassment to which he refers he spells out as the "continuous pattern of harassing tactics directed at Haines by constant interrogation as to a union card." It is clear from the record that Mrs. Haines is a very excitable woman, and that she was very suspicious of Mrs. Miner because she could not believe that Mrs. Miner was sincere in her support of the employees' organizational attempt. I believe that Mrs. Miner understated the extent to which she encouraged her employees to join the Union. I believe that she spoke quite freely to her employees assuring them that she would not hold it against them if they supported the Union, but advis- ing them to be careful in their support, not to breach management's rules with regard to solicitation on the selling floor during working hours. I find that, in fact, Mrs. Miner warned Mrs. Haines that she and Deborah Johnston, who apparently frequently visited the women's ready-to-wear department on her break time, could cause comment be- cause of their protracted discussions and that supervision was on the alert for union activities undertaken by employ- ees on company time. I find it incomprehensible that Mrs. Miner would have pressed Mrs. Haines to get a union card, especially in view of the fact that Mrs. Miner apparently spoke to Green and other union representatives when they circulated through the store, and could very easily have FRANKLIN STORES CORPORATION gotten a card from one of them if she had been so inclined. I do not credit Mrs. Haines that Mrs. Miner asked her to get a card, but I think that she, in her state of excitement, misunderstood something that Mrs. Miner said to her. Mrs. Miner obviously runs her department with an iron hand, and permits no interference in so doing. It is only natural that a nervous and excitable person such as Mrs. Haines would be in fear of Mrs. Miner, particularly if she mistrusted her, as she testified that she did. Mrs. Haines testified that Blanche Hooker, who was Mrs. Miner's assist- ant, came to her and asked for her union card. Mrs. Hooker was not called to testify, so this testimony goes uncontro- verted. That makes it no more comprehensible. There is no explanation why, with all of the known union adherents in the shop, management should have had such a desire to see Mrs. Haines' union card, or for that matter, any employee's. I think it much more likely that Mrs. Hooker asked Mrs. Haines for a union card, which is consistent with the testi- mony of Haines and of Mrs. Miner that Mrs. Miner, in effect, urged the employees to sign union cards.10 Appar- ently acting solely on the deductions that she had drawn from Mrs. Miner's warnings to her and from Mrs. Hooker's request for a union card, Mrs. Haines went to Barclay's office where she confronted Barclay and Korn. She knew that she was not only ignoring a direct order of Mrs. Hook- er, but that she was going over the head of Mrs. Miner, something it appears Mrs. Miner never permitted. She was obviously in a state of nervous excitement when she con- fronted Kom and Barclay, and demanded to know why they suspected her of being a union organizer. According to her testimony Barclay rather honestly said that he had heard that she had been active in the Union, and Korn gave what appears to have been the set speech that he gave any employee when he had an opportunity, running down the Union, pointing out the high salaries paid to union organiz- ers and deprecating the effect that a union might have on the store, none of which I believe to be violative of Section 8(a)(1). When Mrs. Haines demanded that she be transfer- red because of her fear of Mrs. Miner, probably augmented by the fact that she knew that Mrs. Miner would be angry with her for going to Barclay's office, Barclay temporized with her and told her not to worry. As might be expected Mrs. Hooker immediately called Mrs. Miner when Haines went to Barclay's office, and Mrs. Miner was angry, as could be expected, and attempted im- mediately to reach Mrs. Haines. By the time she reached her the following morning, Mrs. Miner was apparently appre- hensive that Mrs., Haines had told the top management about the participation of Mrs. Miner in the union organiz- ing and what employees had joined the Union, all of which led to a stormy telephone conversation, and added to Mrs. Haines' unease about her position at the store. Under these circumstances she again contacted Barclay in an attempt to get transferred, and when he failed to transfer her, she walked out of the store and went to work full time for the other employer for whom she had been working part time. 10 There is no evidence that Mrs. Hooker had any supervisory characteris- tics, even though she was denominated Mrs. Miner's assistant. It appears that in Mrs. Miner's absence Miss Hooker was required to contact Mrs Miner by telephone before taking any sort of personnel action, or in the event of any untoward happening at the store 63 It may well be that to a person of Mrs. Haines' temper- ament, the incidents recited above were intolerable, but I do not believe that they were of such a nature that her resigna- tion should be termed a constructive discharge. Surely Re- spondent has no reason to believe that Mrs. Haines was being harassed, and indeed, I believe that very few people would have felt harassed by what had taken place. Mrs. Miner's attempt to encourage and protect her employees in their union activities was completely misread by Mrs. Haines, and the normal warnings against solicitation during working time were taken by her to mean something more than they, in fact, constituted. The telephone call between Mrs. Miner and Mrs. Haines was completely the result of Mrs. Haines' own almost hysterical reaction the day before when she went to Barclay's office, and while it may have added to her unease, is scarcely attributable to Respondent. I conclude that the General Counsel has failed to show that Mrs. Haines' resignation was forced upon her by Respondent's actions in any regard, and I shall recommend that the complaint be dismissed insofar as it is so alleged. Alice Souza: Alice Souza testified that in August 1971, she was employed as the head cashier at Barkers Walling- ford store. Her manager was Jerome Sternberg. Sometime in that month Sternberg told her that he had been told that the Union was trying to organize at the Willimantic store, and they would be coming to the Wallingford store talking to different employees. He inquired of her what her feelings were about the Union, and whether her husband belonged to a union. She told him she did not know much about unions, and had nothing to say at the time. Sternberg sug- gested that she talk to her husband about it and made it clear to her that the Union would never get into Barkers, and that there was nothing that the Union could do for her. I t After her conversation with Sternberg, Mrs. Souza ap- proached Ray Trementano, the manager of the hardware department, and asked him if he knew anything about the Retailers' Union that Sternberg had spoken about. Tremen- tano said he knew about the Union and that it was a good one. Mrs. Souza asked him if he could contact the Union to come and talk to the employees, and he said that he would do so. About a month later, on September 16, accord- ing to Mrs. Souza, she had a fellow employee prepare a list for the purpose of inviting people to a Tupperware party, and had left the list on the courtesy desk. When she came back the list was gone and she got the impression that Sternberg had it. She entered his office and he told her that he understood that there was some union business going on in the store, and that he'expected her as a department head to give the names and information about the Union. She said that she would not do this because she worked with the girls for almost five years and could not betray them. Then she went on to tell Sternberg that she understood that he had taken her Tupperware list and believed that it was for the Union. Sternberg answered "yes," and she demanded to know why he took her list, why didn't he approach her directly, there was no secret. She went on to complain about people listening in on her telephone calls, and about Stem- berg asking fellow employees what she and Trementano 11 Sternberg denied this conversation in its entirety I credit Mrs. Souza's testimony in this regard. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talked to them about in conversations in the store. Accord- ing to her, Sternberg denied doing any of these things and told her to be quiet . She argued with him and he told her that there was going to be a housecleaning in the store and that Mr. Wolfe was at the head of the list with his family. She told him that he could not run the store without Mr. Wolfe, the assistant manager, because he had to ask Mr. Wolfe everything that went on before he could do anything himself. She ended up testifying that Sternberg told her that if he caught her or Trementano talking Union or passing out union cards he would personally pick them up bodily and throw them out of the store. Mrs. Souza testified that on the following day, Septem- ber 17, Sternberg again asked her to give him information of the union activities and names of the employees engaging in them. She told him that she refused to do that, and got into an argument. She quoted him as making improper and lewd suggestions to her, and she told him to stop talking like that. In the course of the argument he said he was going to do something about it and she said she was going to do something about it, too, and she walked out and punched the timeclock, and quit. On cross-examination Mrs. Souza testified that there had been no union activities in the store prior to her dis- charge. Confronted with her affidavit , however, she admit- ted that she stated in her affidavit that she and Mr. Trementano had contacted the Union and had been con- tacting employees about the Union several months before her discharge in September . She also testified on cross-ex- amination that in an unemployment hearing before the hearing in this instant case , she had testified under oath that she resented being questioned about the Union by Stern- berg because she had nothing to do with the Union. She explained that she, in fact, had nothing to do with the Un- ion. She had been talking to employees outside the store trying to find out about the Union , but no employees knew anything about it. After Mrs . Souza punched out she left the store. Some- time later her husband called the store and arranged with Sternberg to have her termination papers and check ready. When she and her husband came to get it in the early afternoon, they had a conversation outside the store with Sternberg and Kom . Sternberg told her that her job was available if she wanted it, and she said that she did not think that they could work very well together and did not want her job back. She discussed with Kom a grievance that she had with him because he had allegedly been instrumental in "quashing" a warrant or a complaint against some other person against whom she had sworn out a warrant sometime in the past. As I stated above Sternberg denied the conversation attributed to him on August 15. With regard to the Septem- ber 16 incident he testified that Souza came up to him one afternoon and accused him of taking her Tupperware list that she had left at the courtesy desk . He denied having anything to do with it, to which Mrs. Souza said "Yes you did, you know that it was a union list , and therefore you took it." He again denied it, stating that he did not know anything about a union or a union list. He also testified that this is the first that he knew of the Union being mentioned in Wallingford. The following morning, he testified, Mrs. Souza accused another employee of taking a bus schedule that she had left on the desk. He remonstrated with her and told her that she should not make unfounded accusations against people. At this point, according to Sternberg, Mrs. Souza got very excited and upset and started yelling and screaming, and accused him of trying to make a case be- cause he thought that she was involved with the Union. He again denied knowing anything about the Union and she lost her temper and yelled at him some more, and ended up saying "you don't want to have a cashier, you want an ass wiper; I quit." And she did so. The last statement is the only point at which the two accounts converge. I believe that the truth lies somewhere in between the two accounts. I believe that Mrs. Souza was probably in- strumental in getting the Union in the first place, and I believe that she was afraid that her activities with regard to the Union would be known to management. I further be- lieve that Sternberg had reason to believe that the union organization would ultimately reach the Wallingford store, and that he instructed her as head cashier that if union organizers came into the store and interfered with employ- ees at work, she was to call for help and have them ejected. I believe that she took this as a threat to her, or as a hint that her union activities were known. Later when she missed the Tupperware list 12 she suspected that she was under surveillance by the manager. I believe that she lost her tem- per and accused Sternberg of taking the list, which he de- nied. Thereafter, the following day when she accused another employee of taking the bus schedule off the courte- sy desk, Sternberg remonstrated with her and she lost her temper again, and ended up quitting. I believe that she embroidered the incidents in her testimony, and that she is fundamentally an unreliable witness. Since there is no other evidence in support of the allegations with regard to her discharge, I find that the General Counsel has not sustained his burden of proof, and I recommend that the allegation with regard to her discharge be dismissed. I also recommend that the 8(a)(1) allegations of the complaint dealing with her testimony, first that Betty Surendi engaged in an act of surveillance, second, that store manager Sternberg instruct- ed her to spy on the union activities of her coemployees, and third, that he threatened her with bodily harm and discharge if she engaged in union activities, should all be dismissed for failure of proof. The allegation that Sternberg interrogated Mrs. Souza about her position regarding the Union is sup- ported and clearly violates Section 8(a)(1) of the Act. The Independent 8(a)(1) Allegations The General Counsel contended that Respondent vio- lated Section 8(a)(1) by keeping employees under surveil- lance by the use of a camera, referring to the incident about May 21, when Supervisor Wilstein attempted to take a pic- ture of business representative Green as he walked through the Willimantic store. As I found above, the evidence that there was an employee in the picture is not supported. I do not think it makes any difference. In the first place, it is not unlawful for an employer to engage in surveillance of union 12 It is not at all clear from Mrs Souza's testa.. any that the alleged Tupper- ware list was actually not a list that she was preparing for the Union. FRANKLIN STORES CORPORATION organizers on the selling floor of a retail store,13 because the Employer has the right to lawfully prohibit such incidents altogether, and surveillance is a less restrictive measure to prevent intrusion on an employer's effort to carry on his business. With the same rationale, I do not see that it would be unlawful to take a picture of an employee talking to a union agent on the floor of the retail store in direct breach of the Employer's rules against solicitation on the floor of the store. Accordingly, I recommend that the complaint be dismissed with regard to that allegation. Mrs. Donahque Guerraz testified that she was asked by Mrs. Miner to remove her union button on the first day that she wore it. Mrs. Guerraz testified that everybody was very excited because it was the first day they all put their union buttons on, and it was also the first day that Korn came to the store. She said that her manager asked her to remove the button because it was upsetting to Mr. Korn. Mrs. Guerraz did not remove the button, and nothing ever happened. Deborah Johnston testified that her supervisor, Florence Lee, about the same time, similarly told her to take off her union button, and said that she could be fired for wearing it. Mrs. Lee denied these allegations. However, I credit both employees that the statements were made as reported. I do not credit Lee's denial, especially coupled with her denial that she ever saw Deborah Johnston wear a union button. Mrs. Miner did not deny the testimony of Mrs. Guerraz.14 I find that Respondent violated Section 8(a)(1) by these supervisor's instructions to employees to remove their union buttons. The General Counsel alleged interrogation by Supervi- sor Korn on or about May 21. The only evidence that I find that might have relation to this allegation is the visit by Mrs. Haines to Barclay's office on May 21, in which Korn deliv- ered his opinion of the Union, but there was no suggestion of interrogation in Mrs. Haines' testimony. Accordingly, this allegation must be dismissed. The General Counsel alleged that on or about May 24 Barclay gave the impression of surveillance to employees. At the close of the General Counsel's case, the General Counsel stated that the allegation related to an interroga- tion by Barclay in which he stated that he knew that an employee had signed a union card. However, there is no such interrogation alleged on or about that date, and I find nothing in,the transcript to support the General Counsel's allegation, so I shall now dismiss the allegation. The General Counsel alleged surveillance in the evi- dence of management officials looking through the window at employees talking to union officials outside the store; I dealt with this above. It is my opinion that this does not constitute a violation of the Act, under the circumstances of this case, and I recommend that this allegation should be dismissed. The General Counsel alleged that toward the end of September Wallingford Store Manager Sternberg instructed the employees to organize a campaign to request the return of their union cards. The incident referred to is found in the testimony of employee TenEyck that he and other union 13 G. C Murphy Co, 171 NLRB 370. 16 The complaint alleges two incidents of interrogation by Mrs Miner The record reveals only one, that testified to on cross-examination by Mrs Guer- raz. The complaint must be dismissed with regard to the June 14 date alleged 65 supporters suspected that information concerning the union organization was getting to management's attention, and he determined that he would attempt to ingratiate himself with Manager Sternberg, and find out the source of management's information. With this in mind, TenEyck went to Sternberg and told him that he needed his job and would do anything to keep it, whereupon Sternberg asked him if he wanted to get his union card back, and asked him to go around and tell the other employees his feelings about revoking his card from the'Union. Sternberg especially told TenEyck to speak to two employees, Chris Samuel and Tommy Martino. On a couple of occasions thereafter Stem- berg asked how he was doing. TenEyck answered that noth- ing was happening. On cross-examination he testified that he had been discharged since this incident allegedly for misappropriation of property. Sternberg testified that TenEyck came to him and said that he had made a mistake and signed a union card and asked him how he could get it back. Sternberg told him that he should then send a registered letter with return requested to the Union in Hartford telling them that he was sorry that he signed the card, and had made a mistake. TenEyck thanked him and left the office. I credit Sternberg in his testimony. I believe if, in fact, TenEyck wanted to ingratiate himself with Sternberg he would have followed the course of asking Sternberg how to get his card back, rather than simply telling him he wanted to keep his job. Aside from that fact, if it was evident that TenEyck feels that he has a grudge against Respondent, and I believe that this influ- enced his testimony, herein. I recommend that the com- plaint be dismissed insofar as this incident is alleged as a violation of Section 8(a)(1). Eugene Corderre, who is employed at the Wallingford Barkers Store as a sign painter, and was one of the original employees involved in commencing the union organization at the Wallingford store, testified that on or about Septem- ber 20 he was called to Manager Sternberg's office where Sternberg stated that he had heard that Corderre was solic- iting for the Union. He told Corderre that he could remain silent, and told him that he could do anything he wanted with regard to the Union on his own time, but he was not to solicit in the store. Sternberg went on to give what he considered to be the bad points about unions and the good points about management, according to the testimony of Corderre. Corderre also says that Sternberg asked him why he was collecting names for the Union. Sternberg testified that he had heard that Corderre was soliciting in the store, called Corderre into his office, and told him that he could remain silent, but that he was not permitted to solicit either union cards for their signatures in the store on company time. Whatever Corderre wanted to do on his own time is all right. Sternberg said in the store he had to obey the rules and regulations. Sternberg said at this point he sent Corder- re back to work. However, he testified elsewhere that he spoke to a number of employees concerning the Company's position on the Union in the store. He evaded the question as to what employees he spoke to. I conclude that Sternberg, at this juncture, had been well advised as to what he could and could not say to employees, that he called Corderre into his office and ad- vised him to remain silent and told him substantially what 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sternberg testified he said, but in addition added the antiun- ion arguments that management was promulgating in both stores. I think it is within management's rights to warn employees individually or in groups that the store rules about soliciting on the floor were to be enforced, and that this incident is no violation of the Act. On or about October 20, according to Corderre's testi- mony, he was told by Assistant Store Manager Wolfe that if the Union came in there would be a number of company policies that had not been enforced in the past which would be enforced, and specifically the policy with regard to hiring relatives of employees. Under this rule Corderre would be discharged because his mother was employed in the same store. Wolfe testified that he was having trouble with the production of signs by Corderre, and he talked him in the sign shop, saying "We hired you in defiance of company rules, which says that no two relatives of the same house- hold can be employed by the same store. We increased your hours from 20 to 40 when you wanted to go to school. All I want is 25 signs a night and no mistakes. If I can't get them from you, I will be forced to get them from somebody else." He denied that he had ever threatened Corderre or any other employee with discharge if the Union came in. This incident is alleged, both as a threat of reprisal and a threat of discharge, in two separate allegations. I credit Wolfe's testimony that the Union was never mentioned in the con- versation. It is clear that he has had problems with Corderre over a period of time about his production, and it was clear from Corderre's testimony that he suspects the Employer of an attempt to discriminate against him, and is looking for evidence of that intent. I believe that consciously or uncon- sciously he twisted something that was said by Wolfe be- cause he believes that Wolfe's warnings somehow stemmed from the union organization. I recommend that these allega- tions be dismissed. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondents' opera- tions as described in section I, above, have a close, intimate, and substantial relations to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take affirmative action designed to effectuate the policies of the Act. It has been found that Respondent unlawfully discharged Annette L. Postler and Mark Cireto. It shall be recommended that Respondent Franklin offer to Annette L. Postler immediate and full reinstatement to her former, or in the event her former job is not available, a substantially equivalent job, without prej- udice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of her unlawful termination, by payment to her of a sum of money equal to that which she would normally have earned from the date of her discharge to the date of Respondent's offer of reinstatement, less net earnings during such period. It will also be recommended that Respondent Franklin in- form Respondent Meldisco that it withdraw its objection to the employment of Mark Cireto, and that Respondent Mel- disco offer to Mark Cireto immediate and full reinstatement to his former job, or if this is no longer in existence, to a substantially equivalent job, without prejudice to his senior- ity or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his unlawful termination, by payment to him of a sum of money equiva- lent to that which he would normally have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less net earnings of such period. Backpay for both employees shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents are, each of them, engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Annette L. Postler and Mark Cireto, thereby discouraging membership in the Union, Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By threatening to discharge employees because of their union activities, and by interrogating its employees with regard to their, and other employees' union activities, Respondents have interfered with, restrained, and coerced employees in the exercise of their protected rights, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:15 ORDER Respondent Franklin Stores Corporation and its whol- ly owned subsidiaries, Barkers of Willimantic, Inc., and Barkers of Wallingford, Inc., and the Miles Shoes Meldisco Willimantic, Inc., their officers, agents, successors, and as- signs, shall: 15 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes FRANKLIN STORES CORPORATION 67 1. Cease and desist from: (a) Discouraging membership in Local 919, Retail Clerks' International Association, AFL-CIO, or any other labor organization, by discharging employees, or in any other manner discriminating in regard to hire and tenure of employment, or any term or condition of employment. (b) Coercively interrogating employees concerning un- ion activities and threatening to discharge employees for engaging in union activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as Respondent immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Annette L. Postler and Mark Cireto imme- diate and full reinstatement to their former jobs, or if these jobs no longer exist, to substantially equivalentjobs without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings as set forth in "The Remedy" section above. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at their stores in Willimantic and Wallingford, Connecticut, copies of the attached notice marked "Appen- dix."16 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representatives, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondents to ensure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.17 16 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 17 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read - "Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. WE WILL NOT discriminate against our employees for engaging in activities on behalf of the Union or on the own behalf. WE WILL NOT coercively interrogate our employees concerning their or other employees' union activities. WE WILL reinstate Annette L. Postler and Mark Cireto to their former jobs, and make them whole for any earnings they lost as a result of our discrimination against them. FRANKLIN STORES CORPORATION, BARKERS OF WILLIMANTIC, INC, AND BARKERS OF WALLINGFORD, INC, MILES SHOES MELDISCO WILLIMANTIC, INC (Employer) Dated By (Representative) (Title) WE WILL NOTIFY immediately the above-named individual(s), 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 Train- ing 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 compliance with its provisions may be direct- ed to the Board's Office, Bulfinch Building-7th Floor, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300.