Bedford Discounters, Inc.

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bedford Discounters, Inc. and Retail Store Employees Union, Local 372, Retail Clerks International Association, AFL-CIO. Case 1-CA-8361 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 3, 1972, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, Bedford Discounters, Inc., Bedford, New Hamp- shire, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Delete paragraph 1(d) of the recommended Order and reletter the remaining paragraphs accord- ingly. 2. Substitute the attached notice for the recom- mended notice. I We hereby adopt, pro forma, the Administrative Law Judge's 8(a)(1) findings to which no exceptions have been filed However, since the supervisory status of Meat Department Manager Grasstnt, Produce Department Manager Wieland, and Delicatessen Department Manager Delessio has not been properly determined in this proceeding, and since certain of the Administrative Law Judge's 8(a)(1) findings to which Respondent has excepted are dependent upon resolution of the status of these individuals, we do not adopt the Administrative Law Judge's findings that Respondent violated Sec 8(a)(1) of the Act by creating an impression of surveillance of employees' union activities with regard to Grassim, by telling any of these managers that the store would or might close down "if the Union came in", by stating to any of them that in the event its Bedford store became unionized, it would close that store as an "example" to the Concord and Salem, New Hampshire, stores, by implicitly threatening Wieland with loss of his job if the Union won the forthcoming election, and by interrogating Delessio and Grassmt concerning their knowledge of union activity However, in view of Respondent's 8(a)(3) and numerous 8(a)(1) violations and our consequent broad order herein, the deletion of the foregoing findings will not affect our remedy herein APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with closing of our store or any other reprisals if they engage in union activity or choose to be repre- sented by a union. WE WILL NOT question our employees about their union activities or those of other employees. WE WILL NOT grant or promise our employees wage increases , holidays, insurance, or other benefits for the purpose of discouraging their union activities. WE WILL NOT urge our employees to refrain from signing union authorization cards or attend- ing union meetings. WE WILL NOT discharge or otherwise discrimi- nate against employees in order to discourage membership in Retail Store Employees Union, Local 372, Retail Clerks International Associa- tion, AFL-CIO, or any other labor organization. WE WILL offer Paul Gamache and Clement Nadeau immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without loss of seniority or other rights or privileges, and WE WILL make them whole for any pay they lost, with interest, because of the discrimination against them. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to engage in, or to refrain from engaging in, any or all the activities specified 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 authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. BEDFORD DISCOUNTERS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed 202 NLRB No. 98 BEDFORD DISCOUNTERS, INC 585 Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 7th Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 223-3330. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in this case was filed on May 24, 1972, by Retail Store Employees Union, Local 372, Retail Clerks Interna- tional Association, AFL-CIO, hereinafter referred to as the Union. The complaint issued on July 12, 1972, alleging that Respondent had violated Section 8(a)(1) and (3) of the Act.' Thereafter, Respondent filed an answer denying the commission of any unfair labor practices. A hearing was held before me in Manchester, New Hampshire, on September 13 and 14, 1972. At the conclusion of the hearing, the parties waived oral argu- ment. Briefs have been received from the General Counsel and Respondent. The issues to be decided are: 1. Whether Respondent through its agents on various dates in May and June 1972 engaged in various violations of Section 8(a)(1) of the Act. 2. Whether Paul Gamache and Clement Nadeau were discharged on May 12, 1972, because of their union activities. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following- FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Bedford Discounters, Inc., a New Hampshire corpora- tion, is engaged at Bedford, New Hampshire, in the retail grocery business and is the food department for the J.N. Fields Discount store in Bedford. Respondent's annual gross volume of business exceeds $500,000, and it annually purchases products valued in excess of $50,000 which are shipped directly to it from points outside the State of New Hampshire. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will i The complaint was amended at the hearing 2 Unless otherwise indicated , all dates set forth hereafter occurred in 1972 3 In his Decision , the Regional Director found that several department managers in the store were supervisors within the meaning of the Act The Union thereafter requested review of the Decision On August 18, by telegram, the Board denied the request for review except as to the placement of the meat, produce, and delicatessen department managers, and amended effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Since August 1971, George F. Pope, Jr., has been owner- operator of Respondent and has served as its store manager. From September 7, 1971, until after the events here at issue, Harold E. Sanborn was assistant manager of the store. There are about 20 full-time employees and a number of part-time employees employed at the store. It is conceded that at all times material Pope and Sanborn were supervisors within the meaning of the Act and agents of Respondent. Sometime in April 1972,2 several store employees began discussing the possibility of seeking union representation. On the night of Tuesday, May 9, a meeting was held at the home of employee Richard Palmer which was attended by employees Paul Gamache, Tom Peterson, Palmer, and three union representatives. The three employees signed cards at that meeting and took blank cards which they solicited other employees to sign starting the next day both at and away from the store. On June 5, the Union filed a petition in Case 1-RC-12,203 seeking an election among Respondent's full- time and regular part-time employees. After a hearing on July 18, the Regional Director issued a Decision and Direction of Election .3 An election was held on August 18, 1972, which resulted in a vote of 43 for the Union, 7 against, and 8 challenged ballots. Respondent filed objections to the election which had not been resolved at the time of the hearing in this case. B. Respondent's Knowledge of the Union Activity and Alleged Violations of Section 8(a)(1) of the Act Before the Discharges of Gamache and Nadeau In issue is whether Respondent became aware of the union activity at the store before the discharges of Gamache and Nadeau. Both Pope and Sanborn denied that they learned of the union activity until shortly after the discharges. However, Meat Department Manager Michael Grassini, former employee Neal Smith, and alleged discnminatee Clement Nadeau testified to conver- sations with Pope and Sanborn prior to the discharges which would establish their knowledge of the union activity before that time. Although Grassini apparently supported the Union in the election, he was an employee at the time of the hearing in a position of some responsibility the Decision to permit them to vote subject to challenge, leaving the issue of their status to be resolved through the challenge procedure The three managers in question appeared as witnesses for the General Counsel before me and testified to alleged violations of Sec 8(a)(1) Respondent did not contend that they were supervisors before me and objected to litigation of their status in this proceeding For purposes of this proceeding, I have considered them to be employees within the meaning of the Act, as Respondent has not contended otherwise 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had some interest in not testifying falsely against the interests of his employer. His testimony, as was that of Smith and Nadeau in this regard, was forthright and convincing. On the other hand, neither Pope nor Sanborn inspired confidence as witnesses. Pope concededly misstat- ed the dates of the discharges in an affidavit given during the investigation of this case. Whatever his reason for doing so, his explanation, at the very least, cast strong doubt on his memory of the timing of the critical events. Sanborn first denied interrogating any employee and later conceded that he did so. Both Pope and Sanborn testified before Grassmi, Smith, and Nadeau, and neither of them was questioned specifically about the conversations attrib- uted to them by the General Counsel's witnesses.4 In these circumstances, and as I find below that there are independent reasons to reject critical portions of their testimony as to the reasons for the discharges of Gamache and Nadeau, I do not credit the denials of Pope and Sanborn and do credit the testimony of Grassini, Smith, and Nadeau. In April, when a few employees had been talking about a union, Grassini and Grocery Manager Ed Walsh went to Pope and told him that there were problems in the store and that the employees were thinking about organizing a union. Thereafter, Grassini, Walsh, Pope, Sanborn, and the produce department manager, Wieland, met with Pope, and the department managers told Pope that a lot of employees were unhappy about wages and working conditions and that they felt something should be done about it or there would be a union. After this meeting, Pope went to the various departments and talked to employees to find out what their grievances were.5 On May 10, the day when solicitation of employees to sign union authorization cards began, Sanborn asked Smith if Paul Gamache was trying to start a union. Smith replied that he did not krow and walked off. On the next day, May 11, Gamache spoke to Nadeau about his interest in the Union. While they were talking, Sanborn approached, and they ended their conversation. As Nadeau resumed work, Sanborn asked if that had been another union meeting. Nadeau said yes. Sanborn asked if Nadeau was for or against the Union. Nadeaujust smiled and did not answer. On the same day, Sanborn asked Grassini if he knew anything about a union. Grassini replied that he knew no more than anyone else. Sanborn said he thought Gamache was right in the middle of it. That night Pope asked Grassmi if he knew anything about a union, and Grassmi again replied that he knew no more than anyone else. While there is no direct evidence that Pope or Sanborn observed the union activity at the store, Pope had been 4 Pope testified as an adverse witness called by the General Counsel as his first witness and was examined by the Respondent at that time Sanborn testified out of, turn immediately after Pope at the request of the Respondent Neither was recalled to testify after the General Counsel completed his case 5 Grassini so testified without contradiction Walsh was found to be a supervisor by the Regional Director in the representation case and that finding was not set aside by the Board on review Walsh did not testify 6 Wiese Plow Welding Company, Inc, 123 NLRB 616, Ballard Motors, Inc, 179 NLRB 300 7 Gamache had punched his card wrong that day so that the times when he returned from lunch and next punched out for supper were reversed in forewarned by Grassini that the employees were thinking of getting a union to represent them. There is evidence that starting on May 10 employees talked about the Union and solicited on its behalf both at and away from the store premises. The complement of employees at the store was not large. In these circumstances and in the light of the questions of Pope and Sanborn to Grassini, Smith, and Nadeau, the inference is warranted that knowledge of the umon activity had come to Pope and Sanborn, and that indeed they suspected Gamache before May 12, the day of the two discharges,6 with some accuracy, of being a leader of the organizing effort. I further find, as alleged in the complaint, that Sanborn interrogated Smith as to the union activities of Gamache, interrogated Nadeau as to his own umon activities, and created the impression of surveillance of the union activities in his statements to Grassmi about Gamache, all in violation of Section 8(a)(l) of the Act. In the context of these and later violations found below, I find further that Sanborn and Pope unlawfully interrogated Grassim. C. The Discharge of Paul Gamache As found, Gamache attended the meeting at Palmer's house on May 9 where he signed an authorization card. During the rest of the week until his discharge, Gamache talked to other employees and solicited them to sign authorization cards. He obtained about 10 or 11 signatures and talked to 20 or 30 employees. He camed on these activities at the store during lunch hours and breaks as well as away from the store. He did not try to hide what he was doing. On Friday, May 12, at about 7:30 p.m., Pope came to Gamache on the floor of the store. Pope had Gamache's timecard for that week in his hand. Pope asked him what time he had gone to lunch that day, and Gamache pointed to the times on the card.? Pope said he was going to have to do something he did not want to do. Gamache said he could guess what that was and asked if he had reasons for it. Pope told Gamache he had a bad attitude and wasn't doing his work properly. Gamache indicated that he believed that he was being discharged because of the Union. Pope replied that he did not say that. Pope did not explain what he meant by his reference to Gamache's attitude, but, when Pope mentioned Gamache's poor work, Gamache said that he was not only doing the particular job to which he was assigned but was also performing several additional duties. Pope agreed that he was.8 According to Pope, he decided to discharge Gamache on May 12 because of Gamache's excessive tardiness, absen- teeism, and poor work habits. order on the card Superficially the card showed that he had left for lunch at 123 and had not returned until 4 13 However the next entry which shows "out" at 2 24 represented the time he returned and indicates that he was I minute late returning from lunch rather than almost 2 hours late Gamache pointed out this reversal to Pope 8 Gamache so testified as to his final conversation with Pope Pope was not asked to describe that conversation in full but testified that he gave Gamache three reasons for his discharge , excessive tardiness, absenteeism, and poor work habits As Pope concededly referred to Gamache's timecard, I find it likely that he also indicated to Gamache that his attendance was a reason for the discharge BEDFORD DISCOUNTERS, INC: 587 The attendance record of Gamache shows two instances in 1972 when Gamache missed a half day's work,9 three instances in April and May when Gamache was from 13 to 15 minutes late in arriving at work, eight instances in that period when Gamache was from 5 minutes to 29 minutes late returning from lunch, and one instance when Ga- mache was 2 hours late returning from lunch.10 Gamache conceded that on the day before his discharge he took an unusually long time in building an end display. However, the testimony of Pope and Sanborn with respect to Gamache's attendance and work persuades me that they are not to be credited that these were considered to be serious problems by them, that they had ever previously warned Gamache, or that these were the true reasons for Gamache's discharge. With respect to Gamache's absenteeism, Pope initially testified that on three occasions Gamache had failed to return to work after lunch. When shown Gamache's timecards, Pope identified two dates, one on March 24, when Gamache did not return to work after lunch, and the other on April 28, when Gamache reported at noon instead of 8 a.m. According to Pope, on the first occasion Gamache called in to say he was unable to return because he had personal problems and had been drinking. On the other occasion, Pope testified that Grocery Manager Walsh reported to him that Gamache had called in to say that he had been to a party the night before and would be late. Although Pope testified that on both occasions he reprimanded Gamache and threatened disciplinary action, he also testified that on the first occasion he called Gamache aside and talked to him to see if he could help straighten out the problem and that he did nothing on the second occasion. Sanborn testified that most of the time he was in charge of the store on Thursdays and that many times Gamache's afternoon absences were on Thursdays when Gamache was the only person in the grocery department. In fact, Gamache's timecards show that neither of his half-day absences were on Thursdays.ii While Gamache conceded the reason he did not return from work on March 24, and did not dispute the reason he gave for missing work on the morning of April 28, he denied that he was warned or reprimanded on either occasion. It is undisputed that Gamache was paid for the time he missed and was not docked for either the half days he missed or his tardiness. Pope testified that he was unaware that Gamache was paid for the time he missed because someone else handled the payroll. I do not credit Pope or Sanborn that Gamache's absences had been a matter of concern to Respondent or that Gamache had been reprimanded because of them. Sanborn's testimony is refuted by Gamache's timecards. Initially, Pope also erroneously stated the nature of Gamache's absences. His testimony as to what he said to Gamache on these occasions was shifting and, in conjunc- tion with his initial misapprehension of the number and nature of Gamache's absences, indicated at the very least uncertain recollection. His claim that he was concerned about Gamache's absenteeism and tardiness for at least a month but yet remained unaware that Gamache was being paid for time missed is difficult to swallow. For these as well as the reasons expressed elsewhere with respect to other critical testimony of Pope and Sanborn, I have not credited Pope or Sanborn and credit Gamache. With respect to Gamache's tardiness, Gamache testified that he ate lunch with Grocery Manager Walsh three or four times a week and that they returned late on occasion. According to Gamache, Walsh told him that it would be all right and that he would take care of it. Walsh who was found to be a supervisor in the representation proceeding did not testify. Yet Pope testified that Walsh had told him of Gamache's excessive tardiness and that Walsh had warned Gamache about it. Pope also testified that he told Walsh to reprimand Gamache and that on at least two occasions Pope personally reprimanded Gamache. San- born testified he warned Gamache about his long lunch hours on two or three occasions, and told Pope on those occasions that they ought to do something about it. Yet when asked to be specific, he named only two occasions when he warned Gamache, one when Gamache allegedly failed to return from lunch on a Thursday and the other when Gamache and two other employees overstayed a coffeebreak. It is quite clear that Gamache's only significant tardiness was in returning from lunch. As Gamache was not docked for being late, as Walsh did not testify to contradict Gamache's testimony that Walsh said he would take care of it,12 and as Sanborn's testimony was deficient on its face, I credit Gamache that Walsh condoned this tardiness and said he would take care of it, and I do not credit Pope or Sanborn as to their alleged warnings to Gamache or that his tardiness was viewed as a serious breach by them. With respect to Gamache's poor work, which allegedly triggered Pope's decision to discharge him, the testimony of Pope and Walsh is equally deficient. According to Pope, the fact that Gamache was working poorly first came to his attention on May 11, the night before Gamache's dis- charge, when Sanborn told him it had taken Gamache 7 1 /2 hours to build an end display. Sanborn, on the other hand, testified that for 2 or 3 months before Gamache's discharge he was dissatisfied with Gamache's work and discussed it with Pope on two or three occasions before May 11. Indeed Sanborn after conceding that he said nothing to Pope on May 11 to criticize Gamache's performance that day or to attempt to speed it up, explained that he felt that he wasn't getting any results by going to Gamache himself and that he would tell the store manager "who could make the decision." Sanborn's attempts to explain what he meant by not getting results were unconvincing, and a reading of his testimony as a whole with its shifts, inconsistencies, and rationalizations 9 The record also shows that Gamache was absent for a full day on March 10 However Pope testified that he did not know whether Gamache's absence on that day was excused, and Respondent did not rely on this absence as evidence of improper absenteeism IU Gamache challenged the accuracy of the entry representing his return from lunch on this occasion which unlike others was written by hand There is some indication also that the timecard showed Gamache 1 hour late and that Pope erroneously described it as showing him 2 hours late 11 The records also show that he was late returning from lunch only twice on Thursdays On April 27 he was I I minutes late, and on May 4 he was 8 minutes late 11 Gamache testified that he believed Walsh was still employed by Respondent No evidence was offered to the contrary or to show that Walsh was unavailable as a witness 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leaves little doubt that Gamache's work performance never had been viewed as a problem before and that Sanborn had not in fact previously discussed Gamache's alleged poor work with Pope. Much more believable than Sanborn's explanation for his failure to criticize or to attempt to speed Gamache's work on May 11 is Gamache's explanation that his work building the end display was interrupted by other duties which he was also expected to perform and that the nature of the display made it more difficult to build. To be sure, the burden is on the General Counsel to prove the discriminatory motive for Gamache's discharge, and not upon Respondent to prove the contrary. But the General Counsel's burden is more than met in this case. Gamache was a leader of the organizing effort. Sanborn's interrogation before Gamache's discharge shows both that Gamache's role was suspected by Respondent and that Respondent was actively seeking to confirm its suspicions. Respondent's later conduct, described below, and the testimony of Pope amply establish Respondent's union animus. These factors, coupled with the timing of the discharge, establish a prima facie case. The evidence as to the alleged cause of the discharge not only fails to negate the inference of discrimination but adds support to it,13 warranting the conclusion that those reasons were not the true reasons for Gamache's discharge but pretexts ad- vanced in the hope of justifying the discrimination against him. I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Paul Gamache. D. The Discharge of Clement Nadeau As found above, on May 11 Nadeau talked to Gamache about the Union at the store and was observed and questioned by Sanborn immediately thereafter. Nadeau confirmed that he and Gamache had been talking about the Union and replied only with a smile when Sanborn asked if he was for or against the Union. During that day and the next day, Nadeau spoke to several employees about the Union at the store during supper hours, on breaks, and in the aisle near the dairy department where he worked. He did not attempt to conceal what he was doing. On May 12 during his lunch hour, he signed a union authorization card which he gave to Gamache upon returning to the store. Nadeau had worked for Respondent since August 1970, and since the spring of 1971 he had been dairy manager.i4 At around 4 p.m. on May 12, Pope told Nadeau that he had some bad news for him, that he was going to have to let him go. According to Nadeau, Pope gave as reasons that he was not doing his work and had a bad attitude. According to Pope, he told Nadeau that he was incapable of running the department, was not properly set up for business, and had excessive waste of time and merchan- dise. Nadeau asked Pope why he said he had not been doing his work, and told Pope that his part-time helper had been out sick, that his stock had come in late on delivery, and that these were the reasons he had been unable to complete his work. Pope did not answer him and just walked away.15 At first blush, the evidence in the case of Nadeau is closer than in the case of Gamache. Although Nadeau initially testified that he had never received complaints about his work, he conceded that he had been spoken to about his work, had been criticized for leaving the store on Wednesday nights before his case was set up , and had been told it was his fault in months when the percentage of profit figure for his department was low . There is also independent evidence that Respondent was dissatisfied with Nadeau's work in the testimony of Gamache that approximately 6 weeks before Nadeau's discharge Pope told Gamache he was being considered for the dairy manager's job and indicated that Nadeau was to be terminated. Also, unlike Gamache, Nadeau was not one of those who was instrumental in starting the organizing campaign, and only started to participate in the union activity on the day before his discharge. However, the version of Pope and Sanborn of the events which immediately preceded and finally caused Nadeau's discharge simply does not withstand analysis. According to them, the busiest day of the week at the store was Thursday, and by Wednesday night Nadeau was expected to have the dairy cases fully stocked and ready for business the following day. Pope testified that he decided to discharge Nadeau because on Thursday, May 11, the dairy case was again not ready for business and that was the final thing in a series of events he could not tolerate. Pope testified that he had told Nadeau to stay the night before to get his case in shape, that Pope was away from the store most of Thursday, and that upon his return Sanborn had told him that the case was not stocked and was out of business for most of the day on Thursday. Pope also testified that it was necessary that Nadeau have the case completely set up on Wednesday night because Thursday was normally Nadeau's day off. Sanborn also testified that he noticed that the case was not stocked on Thursday morning and reported it to Pope when Pope returned to the store late in the day. He also testified that Nadeau did not work Thursday. Nadeau testified, however, that at the time of his discharge Thursday was not his day off, and his timecard shows that he worked from 9 a.m. to 9 p.m. on Thursday, May 11. Moreover, Nadeau testified, and his timecard again confirms, that on Wednesday, May 10, Nadeau was sick and not at work. Further Nadeau testified without contradiction that a part-time employee, David Healy, was normally assigned to help him and did not work at all for 2 or 3 weeks before Nadeau's discharge, leaving Nadeau without any help to stock the dairy case and keep it stocked. Whatever dissatisfaction Respondent may have had with Nadeau's work prior to his discharge, it is clear that the testimony of Pope and Sanborn as to the alleged immediate cause of Nadeau's discharge cannot be credited. 13 In addition to the reasons set forth above for discrediting Pope and department manager and requests by him that Pope do something about it Sanborn's testimony concerning Gamache 's attendance record , I also note 14 It is conceded that Nadeau was not a supervisor within the meaning of that from the time Pope became owner-operator of Respondent until May the Act 12 no employees had been discharged, and one employee with a poor 15 Nadeau so testified Pope was not questioned about his conversation attendance record had been retained despite complaints by the meat with Nadeau , except as to the reasons he gave Nadeau for the discharge BEDFORD DISCOUNTERS, INC. It is likely that the dairy case was not fully stocked on Thursday morning, but Pope could not have told Nadeau to stay late on Wednesday night to finish stocking it, and Nadeau was not off work on Thursday. That Nadeau's helper was not at work and was not replaced is undisputed. Respondent has not contended that Nadeau' s illness on Wednesday was feigned or that it had any criticism of his attendance record. Whatever the state of the dairy case on Thursday morning, Nadeau was hardly to be faulted for having failed to stock it when he was not at the store and had no assistance. Pope and Sanborn did not testify that they were unaware of the extenuating circumstances, nor could one believe that they might have been. Rather their version simply altered the facts to eliminate the valid explanation for the state of the dairy case on Thursday morning. In these circumstances, I cannot credit either their version of the facts or Pope's testimony as to the reason he decided on May 12 to discharge Nadeau. This is then a case in which the alleged triggering cause for the discharge of an employee has been demonstrated to be false, and that demonstration itself warrants the inference that some other cause existed which Respondent desired to conceal.16 Although Nadeau was not an initiator of the union activity, there is ample evidence to lead to the conclusion that the concealed cause was Nadeau's union activity. Thus, Sanborn's questioning of Nadeau elicited that he and Gamache had been having a "union meeting" when Sanborn observed him, and Nadeau's evasive smile when Sanborn asked him if he was for or against the Union was tantamount to an admission that Nadeau was for the Union. These factors considered in conjunction with Respondent's union animus and the timing of Nadeau's discharge on the same day as the discharge of Gamache lead to the conclusion that the final event which caused Respondent to translate its dissatisfaction with Nadeau into a discharge was Nadeau's identification by Sanborn on the day before his discharge as a coactivist of Gamache in the union organizing effort. I find that Respondent discriminatorily discharged Clement Nadeau in violation of Section 8(a)(3) and (1) of the Act. E. The Alleged Violations of Section 8(a)(1) After May 12 Several employees or former employees testified in support of the allegations of the complaint as to alleged violations of Section 8(a)(1) of the Act which occurred after May 12: Pope and Sanborn both testified before any of this testimony was adduced and left much of it uncontradicted. Pope conceded that he was upset when he learned that the employees tried to contact the Union and that they had gone to a union before talking to him about their problems. He conceded that he probably asked employees the question how it got started and that he did not want a union in the store because it would cause him undue headaches and trouble . Pope was not questioned otherwise 16 Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466 (C.A. 9). 17 Although Taylor's card is dated May 10, it appears that the date on the card may have been in error. While I credit Taylor's uncontradicted testimony as to the substance of his conversation, I do not find, as Taylor testified, that this conversation occurred before the discharges of Gamache 589 as to any of the alleged violations of Section 8(a)(1) attributed to him. Sanborn initially denied questioning any employees about their union activities. However, he later conceded that he asked employees if they were for or against the Union, and after an initial denial of recollection also conceded that he told employees he thought there was a possibility that the store could close if the Union were "too strenuous" on Respondent. Sanborn's testimony in these respects as in others was vague, inconsistent, and shifting. The testimony of Pope and Sanborn where it differs from that of the employee witnesses is not credited, and the findings which follow are based upon the substantially uncontradicted employee testimony. 1. Threats that the store would close Around the time that Frederick Taylor, a meatcutter, signed a union authorization card 17 Pope asked him if he had heard about a union. Taylor said that he had. Pope asked if he had signed a card. Taylor said that he had not. Pope told him that the store could not run with a union and asked Taylor something about the employees' griev- ances and why they wanted a union. Taylor voiced some of the employees' complaints, and Pope ended the conversa- tion by saying that if a union was voted in, the people who voted for it would not be there 2 months after it came in. He said he was going to close the store if the Union got in because it would be financially impossible for him to operate it. On or about May 15, Pope told Delicatessen Manager Delessio that if the Union came in he would close the store because he could not afford the Union. Pope also told Delessio to go back and tell the employees in his department what he said. Delessio did so. In mid-May, Pope told Neil Smith that he wanted to give him the Company's viewpoint on the Union and said that if the Union got in there was a very distinct possibility that the store might close or that hours would have to be cut. Smith told him he thought the store needed a union. On or about May 24, 1972, Pope told produce clerk Richard Palmer that he would like to discuss the Union with him and tell him his side of it. Pope said he did not feel that the employees needed a union and believed they could solve their problems in the store by themselves. He said that if a union came in and put a hardship on the store it would have to close. Pope asked Palmer not to attend a union meeting that evening. Palmer replied that it was his right to attend and he felt that he should go for his own benefit. On or about June 12, Sanborn asked Delicatessen Manager Delessio what he thought of the Union. Delessio replied noncommittally. Sanborn said that he was glad that he, Sanborn, was leaving because the store would be closing and that Pope was going to set an example for the Concord and Salem stores.18 Delessio disputed Sanborn's assertion. and Nadeau. 18 There were food stores similar to Respondent's in Concord and Salem associated with Fields Discount stores but with different owner-operators. The Union filed petitions to represent the employees at those stores concurrently with its petition in Case I-RC-12,203. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In mid-June, Sanborn told Meat Manager Grassini that the store would probably close if the Union was voted in. Grassini said he didn't believe it. On the morning of June 13, Pope asked Wieland what he thought. Wieland replied that he thought they were in the wrong business. Pope said, "Well you may have your chance to get out pretty soon." Wieland asked if he should start looking for another job, and Pope gave no answer. Sometime in July, Sanborn asked Palmer if he had another job. Palmer said that he did not and asked Sanborn why he had asked. Sanborn said that if the Union came in they were going to have to close the store. Palmer told Sanborn he did not believe it, and that he would believe it the day he came to work and found the doors locked. Also in July, Sanborn told Grassini that if a union was voted in the Bedford store they would close it to make an example for the Concord and Salem stores. In all but one of these conversations, Pope and Grassini stated that the store would or might close if the Union became the representative of the employees. Even though Pope in some instances stated that Respondent might be forced to close because of economic necessity, he did not condition his statement on any wage or contract demand but simply upon the advent of the Union. These statements cannot be viewed as mere predictions of the consequences of agreement to particular demands of the Union.19 In other instances Pope and Sanborn gave no reason for their statements that the store would close, and in two instances Sanborn stated that the store would close to set an example for other stores. I find that in each of the conversations the statements that the plant would or might close were threats of reprisal in violation of Section 8(a)(1) of the Act. In the June 13 conversation between Pope and Wieland, there was no mention of the Union or of closing the store. But in the context of the numerous threats of store closure and absent any other explanation, I find that Pope's statement that Wieland might have a chance to get out of Respondent's business pretty soon was intended to convey that Wieland might need to look for another job if the Union won the election because of the threatened store closure. I find that this statement also violated Section 8(a)(1) of the Act. 2. Grants of benefit Around May 1, before the union activity began, the meatcutters had a conversation with Pope about a raise. At that time, Pope told them that they had been due for a raise on February 10 and would be getting a 5.5 percent increase which was permissible under Wage Board policy. The meatcutters asked if they would get retroactive pay from February 10. Pope said he didn't have any answer for that question. They asked if they would get as much as the employees of Stop and Shop because their raises had previously coincided and raises for the Stop and Shop employees were then being considered by the Wage Board. Pope said he did not know and would have to check with Philadelphia. 19 Components, Inc., 197 NLRB No. 25. 20 The Hertz Corporation, 184 NLRB No. 49. On May 17, the meatcutters met again with Pope. At that time, Pope said that they would get raises retroactive to February 10 and that he still had no answer as to whether they would get the same raises as the Stop and Shop employees. On June 6, Pope called Wieland's attention to a notice posted on the bulletin board. Pope explained to Wieland and the grocery department manager benefits which were set forth in the posted notice and told them to explain them to their employees. Pope told Wieland that there was $1,000 of life insurance for part-time employees after so many months of service and that there would be a personal holiday for all full-time employees subject to agreement between the department head and the store manager. Wieland had not previously heard of these benefits, and the employees did not previously have a personal holiday. Respondent offered no explanation for Pope's an- nouncement to the meatcutters on May 17 that, their wage increase would be retroactive or for the June 6 posting of the notice of additional benefits for other employees. In the case of the retroactivity, little more than 2 weeks earlier, before the union activity began, when the meatcutters expressed their interest in retroactivity Pope told them he could not give them an answer. Yet, only shortly after the union activity started and before Pope could tell them the amount of the increase, he announced that it would be retroactive. In the case of the other benefits, they were announced concurrently with the filing of the representa- tion petition, and Pope made it clear that he wanted the good news spread and understood. In the context of Respondent's other efforts to discourage support of the Union and in the absence of any explanation for the grant of these benefits at these times, I find that they were granted and announced to coerce employees in the exercise of their protected rights in violation of Section 8(a)(1) of the Act.20 3. Other violations of Section 8(a)(1) Around May 17, Pope asked porter Ross Gookin not to sign a card for the Union and not to attend union meetings. Gookin told him that he did not think anyone was out to hurt Pope and that the employees were organizing to help themselves to get more pay. Pope said the Union would hurt him more than it would help the employees. As found above, during Pope's May 24 conversation with Palmer, Pope also asked Palmer not to attend a union meeting that evening. I find that Pope urged Gookin and Palmer to refrain from signing authorization cards and attending union meetings in violation of Section 8(a)(1) of the Act.21 Toward the end of May, Pope told Produce Manager Wieland the Union could be stopped but that he could not do it without the help of the department heads. Wieland disagreed with him and told him he thought it was too far along. Pope said he could not afford to pay cashiers top wages or any of the other employees top wages if the Union came in the store. Pope also said that the employees could do without outside help and did not need such help 21 N.L.R.B. v. Witbeck, 382 F.2d 574 (C.A. 6); Southbridge Sheet Metal Works, Inc., 158 NLRB 819. BEDFORD DISCOUNTERS, INC. 591 to make the store run better and to get better benefits. He asked Wieland to tell the produce employees to have faith in Respondent and that things would get better in the future. After this conversation, Wieland repeated what Pope had said to two produce department employees. I find that Pope threatened reprisals if the Union became the representative of the employees and promised unspecified benefits if it did not, thereby violating Section 8(a)(1) of the Act. On June 9, Taylor asked Pope for an advance on his pay. Pope said that he could have it but that if the Union got in he did not know whether he could do it again. Pope asked Taylor if he thought the Union were coming in, and Taylor said that it was definitely coming in. Pope then discussed some of the employees' grievances and said that he could promise Taylor 25 cents more an hour but that it would be classified as an unfair labor practice. Pope added that if the Union did not come in there would be changes made. Pope said that they could organize a type of grievance committee and in that way he could listen to the problems of the employees. Taylor said that he did not think a grievance committee would work because Pope would still have the final say. I find that Pope threatened loss of privileges if the Union won the 'election, indirectly promised a wage increase, and promised other changes of benefit to the employees if the Union lost the election, all in violation of Section 8(a)(1) of the Act. Finally, I find that when Pope spoke to Taylor in May and when Sanborn spoke to Delessio in June about the store closing, as set forth above, Pope also unlawfully interrogated them in violation of Section 8(a)(1) of the Act. offers of reinstatement , less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Bedford Discounters, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Store Employees Union, Local 372, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with reprisals if they engaged in union activities, by interrogating employees concerning their union activities and those of other employees, by granting and promising employee benefits to discourage their union activities, by creating the impression of surveillance of union activities, and by urging employees to refrain from signing authorization cards or attending union meetings, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. By discharging Paul Gamache and Clement Nadeau on May 12, 1972, because of their union activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(aX3) and (1) 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: 22 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therel<rom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily discharged Paul Gamache and Clement Nadeau on May 12, 1972, I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and to make them whole for any loss of earnings they may have suffered by payment to them of the amounts they normally would have earned as wages from the dates of their discharges to the dates of zz In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. ORDER Respondent, Bedford Discounters, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with closing of its store or any other reprisals if they engage in union activity or choose to be represented by a union. (b) Interrogating its employees as to their union activities or those of other employees. (c) Granting or promising employees wage increases, -holidays, insurance, or other benefits to discourage their union activities. (d) Creating an impression of surveillance of union activities. (e) Urging employees to refrain from signing union authorization cards or attending union meetings. (f) Discouraging membership in Retail Store Employees Union, Local 372, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discrimina- tion against its employees in regard to their hire or tenure of employment or any term or condition of their employ- ment. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activities 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. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Paul Gamache and Clement Nadeau immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay that they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 23 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Bedford, New Hampshire, place of business copies of the attached notice marked "Appen- dix."23 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Decision what steps the Respondent has taken to comply herewith.24 24 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."