United Foods Management Services, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Foods Management Services, Inc., a Wholly Owned Subsidiary of Interstate United Corpora- tion and International Brotherhood of Electrical Workers, Local 1654. Case 8-CA-10581 February 6, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 6, 1977, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief.1 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, 2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, United Foods Management Services, Inc., a Wholly Owned Subsid- iary of Interstate United Corporation, Ottawa, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice, which conforms more closely with the recommended Order, is substi- tuted for that of the Administrative Law Judge. I Respondent's request for oral argument is hereby denied as the record in this case, including the exceptions and the brief, adequately presents the issues and positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 In citing Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977), the Administrative Law Judge inadvertently omitted any reference to the payment of interest to which these cases refer. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, in 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. The Act gives all employees these rights: To act together for collective bargaining or mutual aid or protection To engage in self-organization To form, join, or help unions To bargain collectively through represen- tatives of their own choosing and To refrain from any or all these things. WE WILL NOT threaten employees with dis- charge in response to their concerted inquiries. WE WILL NOT threaten employees that others have been discharged because of their union activities. WE WILL NOT discharge employees for engaging in union activities or protected concerted activi- ties. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer to Betty Kennedy and June Utrup immediate and full reinstatement to their former positions, or, if such positions no longer exist, to substantially equivalent positions (or in the case of Betty Kennedy to the status she would have attained had she been on a preferential hiring list since November 4, 1976), without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered, plus interest. WE WILL revoke and expunge from their records all personnel actions and memoranda relating to the discharge of Betty Kennedy and June Utrup and notify them in writing that such actions and memoranda have been revoked and expunged from their records. UNITED FOOD MANAGEMENT SERVICES, INC., A WHOLLY OWNED SUBSIDIARY OF INTERSTATE UNITED CORPORATION 234 NLRB No. 118 744 UNITED FOODS MANAGEMENT SERVICES, INC. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: The issues in this case are the reasons for the discharge of two employees, whether for legitimate business reasons or because they engaged in union and concerted activity, and whether a supervisor made threatening statements which interfered with protected employee rights. As set out more fully below I find the unlawful statements were made and that the discharges were for unlawful reasons. The case arises initially from unfair labor practice charges filed November 12, 1976,1 and amended December 22 by International Brotherhood of Electrical Workers, Local 1654, hereinafter called the Union, against United Foods Management Services, Inc., a Wholly Owned Subsidiary of Interstate United Corporation, hereinafter called Respondent. A complaint based on these charges issued December 27 alleging that Respondent had engaged in unfair labor practices prohibited by Section 8(a)(1) of the National Labor Relations Act, as amended, hereinafter called the Act, by statements, allegedly made by its manager, Charles Chandler, (a) threatening two employees with discharge when they inquired what Respondent intended to do if the employees ceased work to protest a layoff, and (b) threatening another employee by informing her that the above two employees had been terminated because of their union activity; and Section 8(a)(3) by terminating employees Betty Kennedy and June Utrup because of their union activity. Respondent answered the complaint admitting jurisdictional allegations, but denying the alleged threats and denying the two discharges were unlawfully motivated. The issues were heard before me at Ottawa, Ohio, on April 4 and 5, 1977. Based on the entire record,2 including my observation of the witnesses and consideration of the arguments of counsel, and briefs by the General Counsel and Respon- dent, I deny, for the reasons set out hereinafter, Respon- dent's motion to dismiss made at the end of the hearing, and I make the following: FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent is a Delaware corporation providing food service to other businesses, including various industrial plants. Among others, it provides food services to GTE Sylvania, at its television plant in Ottawa, Ohio. Respondent annually receives gross revenues in excess of $500,000 and purchases goods valued in excess of $50,000 which it receives at its facilities in the Sylvania plant at Ottawa, Ohio, directly from points outside Ohio. Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I All dates herein are in 1976 unless otherwise noted. 2 The General Counsel moves, and Respondent in part opposes, certain amendments to the transcript. Certain errors in the transcript have been II. THE LABOR ORGANIZATION INVOLVED The Union represents the production and maintenance employees of GTE Sylvania at its Ottawa plant. It is a labor organization within the meaning of Section 2(5) of the Act. Kenneth Jones, a Sylvania employee, is president of the Union. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Ottawa Facility In its Ottawa plant GTE Sylvania employs approximate- ly 1,200 employees. To service these employees Respon- dent operates two food service facilities in the plant, one known as the Black and White cafeteria and the other as the Color cafeteria. Initially, all of the food served at Sylvania was prepared on the site. About the end of 1974 Respondent began reorganizing its operations with the view of improving profitability. The plan was to phase out onsite preparation and serving of food in favor of premade convenience foods and customer self-service. This would, it was hoped, increase profitability by reducing labor cost even though other costs would rise somewhat. The first phase of reorganization, which was put into effect about 2 years before the hearing herein, involved a changeover from full line cafeterias to limited onsite preparation of food and extensive use of vending machines. This was the system in effect when the events involved in this case began. At that time Respondent employed nine employees at Sylvania. The second phase of reorganization was to further reduce the staff to about five, resulting in a further reduction in labor cost, and the introduction of frozen convenience foods purchased from outside suppliers. Since the end of September 1976 Respondent's Ottawa facilities have been managed by Charles Chandler. He is immediately supervised by Respondent's regional vending manager, Vas Vasilevski, who in turn is supervised by Respondent's regional manager, Charles Polito. In the second phase of the reorganization involved in this case it was the responsibility of Vasilevski and Chandler to determine which employees would be retained and which eliminated. B. Events of November I 1. Separation of Betty Kennedy Betty Kennedy began working for Respondent at Sylva- nia in September 1966. She continued without interruption except for about a year (April 18, 1975, to March 1, 1976) during the first phase of the reorganization, when she was laid off for lack of work because Respondent had installed vending machines. After returning to work she continued until November 1, 1976. At that time she was the cashier in the Color cafeteria during the second shift, from 3:30 p.m. until midnight, and also performed kitchen cleanup. June Utrup, a part-time waitress, was the only other employee working in the Color cafeteria on that shift. noted and corrected accordingly and in all other respects the motion is denied. 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 1 Cafeteria Manager Charles Chandler asked Utrup if she could do Kennedy's job as well as her own, that is handle the cash register and kitchen cleanup as well as the vending machines and serving the food. Utrup told him she could. When Kennedy reported for work at approximately 3:20 in the afternoon, Chandler, according to her testimony, told her she would be temporarily laid off on the orders of Charles Polito, Respondent's regional manager. Chandler said Utrup would be taking her job. Kennedy protested that she had more seniority than Utrup and also was a full time employee whereas Utrup was only part time. But, according to her, Chandler said it was not his decision, that Respondent was cutting down on its payroll and hours of work. Chandler, who also testified, agreed that Kennedy was eliminated pursuant to a reduction in force. But he also contended that an additional reason was that she was an inadequate employee. Chandler testified also that he discharged Kennedy and did not lay her off. According to him she was disappointed and asked him why, to which he replied that the reason was a combination of operational changes plus the fact that she did not work very well. On the conflict as to whether Kennedy was laid off or discharged on November 1, I credit Kennedy rather than Chandler. Utrup corroborates Kennedy in her testimony to the effect that later on November I Chandler confirmed to Kennedy she would be laid off at least 2 weeks. Moreover, the adjustments required by the second phase reorganiza- tion appear to have been somewhat flexible. For example, Chandler transferred Kennedy's duties to Utrup for 3 days and then replaced Utrup. Respondent relies on its personnel form 801 to support its version that Kennedy was not laid off but fired on November 1. That form indicates she was terminated that day. But the entries thereon were made by Chandler who did not complete the form until the end of the pay period, November 4. 1 infer from his testimony that the entries respecting Kennedy being terminated and not eligible for rehire were made on November 4, his deadline for turning the form in. 2. Union activity on November 1 There is no evidence of any union activity among Respondent's employees prior to November I except that the week before, after Chandler had requested Kennedy to work only 4 hours on Saturdays, Kennedy and Utrup had talked together about a union. Kennedy had wanted a full 8 hours work. On November 1, after she was laid off, Kennedy went to the Color cafeteria where she and Utrup discussed the layoff. They decided to include the employ- ees in the Black and White cafeteria in their discussions and proceeded to that cafeteria where they went over the situation with employees Delores Knippen, Donna Halkar, and Helen Siefer. They asked the others if they would be willing to walk out. Two indicated they would and the third said she would have to think about it. Kennedy declared that what they needed was a union. A number of the others indicated their agreement. Also on November 1, after Chandler had laid her off, Kennedy went to the GTE Sylvania personnel office where she talked with a Sylvania personnel officer named Mike Bastian who does the hiring interviews for Sylvania. She explained to him that Chandler had laid her off and informed him that the employees in the cafeterias were interested in getting a union. He referred her to another Sylvania official named Rail. She made the same explana- tion to him. He told her it would be best to talk with Kenneth Jones, president of the Union at Sylvania. She later called Jones and arranged to meet him there the next day. 3. The second talk with Chandler After discussing Kennedy's problem with the women in the Black and White cafeteria on November I (and possibly after Kennedy's effort to reach Jones) Kennedy and Utrup sought out Chandler at the back of the cafeteria. According to Kennedy, whose account I credit, she asked Chandler, "What would happend if everybody would walk out?" Chandler answered, "You would be fired." Kennedy then asked, "What would happen if we tried to get a union in here?" To this Chandler replied that he would not appreciate it at all. Kennedy and Utrup then asked him what was really going on. He replied that the cafeteria had to pay a certain percent of rent to GTE Sylvania and that Polito had decided that by cutting down on hours and employees they would make up the money to pay the rent. Chandler indicated he did not agree with this, that he would wait awhile. But he said if they did not meet a certain percentage by November I then he figured the cafeteria would be out of the plant and he would be out of a job also. Utrup generally corroborates Kennedy. According to her, Kennedy asked Chandler how long she would be laid off and he replied 2 weeks at least but not any more. Kennedy asked him what would happen if they walked out and he replied they would be fired. She also confirmed that Chandler said he did not think the Union would be a good idea. She also reported him as saying they would be fired if a union got in. Utrup's testimony, however, is open to serious doubt because it is at variance with her pretrial affidavit in which she stated, "Afterwards, in the cafeteria, Kennedy and I asked Chandler what he would think if a union got in. Chandler replied that he did not think that he would like the idea, but it wasn't for him to say. I asked Chandler how long I would have a job there, because I had heard the cafeteria might close up. Chandler stated that he did not think that would happen, because they had to make a certain percent. Nothing was said about walking out or about anyone being fired. Nothing further was said." As for Chandler, although he did not deny that a conversation occurred between himself and the two wom- en, he did deny at any time telling any employee that they would be fired for walking off the job. According to him, the question of what would happen if they walked out was never put to him. He also denied telling Kennedy that she was temporarily laid off. In resolving this conflict I put little reliance on the testimony of Utrup because of the variance between her pretrial affidavit and her testimony at the hearing, even though in some respects each corroborates Kennedy. Both Kennedy and Utrup were clear that they jointly talked with Chandler and he did not directly deny that a conversation 746 UNITED FOODS MANAGEMENT SERVICES, INC. occurred. Although he denied that certain statements were made, he did not report what in fact was said. On the other hand, Kennedy reported on the conversation in consider- able detail and her version was not significantly eroded in cross examination. In the circumstances I credit Kennedy. Based on her testimony, I find that Chandler violated Section 8(a)(1) of the Act by threatening their discharge if the employees walked out in protest of Kennedy's layoff. C. Further Union Activity on November 2 and 3 On November 2 at 2:30 p.m. Kennedy and Utrup went to the Sylvania personnel office for the purpose of meeting Union President Jones. They found him there but he was busy talking with Chandler and told them he would see them later. They subsequently met with him about 3 p.m. in his work area in the plant. He provided them a supply of blank union authorization cards which they thereafter distributed among Respondent's employees, some in the cafeteria areas, some in the plant parking lot, and some at the homes of employees. Thus they solicited Donna Halkar and Helen Siefer in the Black and White cafeteria. Utrup told Delores Knippen, the temporary bookkeeper, that Kennedy wished to speak with her in the parking lot. At the end of her shift, Knippen did speak with Kennedy and obtained blank authorization cards for herself and her sister Ros Ann Holmbrink. Kennedy and Knippen then proceeded together to the home of Knippen's mother where Kennedy spoke with Holmbrink about joining the Union. From there Kennedy telephoned Chris Holman, the regular bookkeeper who had been on leave, and solicited her to sign a card. Kennedy testified she also telephoned Angie Recker, a first-shift employee in the Color cafeteria, and solicited her signature on a card and that Recker said she would check with Chandler the next day to see if it was okay. Utrup testified that she and Kennedy had spoken with Recker in the Color cafeteria prior to their meeting with Jones and had asked her if she would like to join the Union to which Recker replied she would go along with what the rest of the help would do. In sum, there was a substantial amount of union activity on November 2 in and around the plant in addition to further activity outside the plant. The circumstances of Respondent's small operation, the coincidence of Chandler being in conversation with Jones at the time Kennedy and Utrup were to meet with Jones in the Sylvania personnel office, and the reactions of Recker first that she would be willing to go along with what the others wanted and later that she would check with Chandler to see if it was all right all suggest that Chandler learned about employees' interest in the Union on November 2 or 3. D. Events of November 4 I. Separation of June Utrup Like Kennedy, June Utrup was a longtime employee of Respondent having been hired January 21, 1970. On November 1, 1974, she was laid off because of lack of work in connection with the first phase of the reorganization. On July 1, 1976, she was reemployed part time as a second- shift waitress in the Color cafeteria with the responsibility for tending the vending machines and serving food. When Kennedy was laid off November 1, Utrup as- sumed her duties, also performing this combined job on November 1, 2, and 3. On November 2 Utrup complained to Chandler that the combined duties were too much for her to handle. He testified that he learned on the first day (November 1) that she could not handle the cash register correctly in that she could not total it out at the end of the day, and she was unable to keep the vending machines filled. On November 4, prior to her coming to work, he telephoned her and told her that he would have to do away with her like he had done with Kennedy. Although she asked him why, he was unable to give her a definite reason, saying only that he just had to. The decision to discharge Utrup rather than some other employee appears to have been made by Chandler. Following her discharge, Utrup was first replaced by Angie Recker who was transferred from the first shift. Chandler then hired his wife temporarily to fill in on the first shift. A short time later a new employee, Sandy Palacio, was hired to replace Recker on the second shift. 2. Chandler's admission Delores Knippen, the temporary bookkeeper, testified that Chandler told her that Kennedy and Utrup had been fired because they were stirring up trouble. She testified further that she and Chandler got to talking about the Union and he commented, "That if a union ever got into Interstate United, that it wouldn't be able to meet its percentage." Still later the same day he told her that Utrup was fired because she was not doing her work. Although Knippen was a little uncertain of the date of these conversations, she was clear that they occurred. Her testimony respecting the contents of Chandler's remarks in which he spoke of the discharge of Kennedy and Utrup in the past tense indicates the conversations occurred at the earliest on November 4. Chandler denied making such comments to Knippen. However, I credit Knippen over Chandler because she was detailed in her testimony and because at the time of the hearing she was a disinterested witness no longer employed by the Respondent. The General Counsel contends that Respondent inde- pendently violated Section 8(aX 1) of the Act on November 4, 1976, when Chandler told Knippen that Kennedy and Utrup had been fired for stirring up trouble. I agree. In the context here "stirring up trouble" could have meant either union activity or concerted activity between the two. They had engaged in both. As found hereinafter, Chandler knew of the union activity. Accordingly, I find that his comment to Knippen violated Section 8(aXl) of the Act in that it informed her that the two employees had been discharged for engaging in union activity. His further comment, that if a union ever got in Respondent would not be able to make its percentage, is not alleged to have been, nor does the General Counsel contend that it was, a violation of Section 8(a)( ). Respondent has relied on that posture. 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Concluding Findings Regarding the Discriminations I. Company knowledge of union activity The record contains substantial evidence of Chandler's knowledge that Kennedy and Utrup were interested in union representation. Thus, on November 1, Kennedy, accompanied by Utrup, asked him what would happen if they tried to get a union in and he replied that he would not appreciate it at all. And after both Kennedy and Utrup were discharged he told Knippen that they had been fired because they were stirring up trouble and further said that if the Union ever got in, the Company would not be able to meet its percentage. The circumstances also support the conclusion that Chandler learned of the union activity in advance of his final discharge of Kennedy and Utrup. These circum- stances include the small staff employed by Respondent, the fact that some of the discussion among employees relative to the Union occurred in the cafeteria areas and in the plant parking lot, the fact that one employee indicated she was going to ask Chandler if it was all right to sign a union authorization card, the fact that Sylvania officials knew that Respondent's employees were interested in the Union, the fact that Chandler was seen talking with the union president at the time Kennedy and Utrup were supposed to meet with him, and the coincidence of timing between the union activity and the discharge of Kennedy and Utrup. 2. Respondent's motive for the discharges There is also substantial evidence of a discriminatory motive on the part of Chandler in discharging Kennedy and Utrup in his statements to them on November I that they would be fired if everybody walked out and that he would not appreciate it at all if they tried to get a union in, as well as his statements to Knippen after they were discharged that the reason they had been fired was because they were stirring up trouble and his further statement to her that, if a union ever got in, the Company would not be able to meet its percentage. Moreover, the same circum- stances noted above, which support a finding of company knowledge, also support a finding of discriminatory mo- tive.3 3. Contentions respecting Betty Kennedy It is undisputed that at the time of the events involved herein Respondent had in progress a second phase reor- ganization for legitimate business reasons which contem- plated a reduction in the labor force. It is also undisputed that the separation of Betty Kennedy on November I was made pursuant to that plan. She had been picked for elimination by both Chandler and Vasilevski prior to the advent of any union activity. The theory of the General Counsel is that she was laid off on November 1 (as she had been during the first stage of the reorganization) which 3 Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959); Piezo Manufactur- ing Corp., 125 NLRB 686 (1959), enfd. 290 F.2d 455 (C.A. 2, 1961); N.L.R.B. v. Tru-Line Metal Products Company and Tru-Line Screw Products, Incorpo- rated, 324 F.2d 614 (C.A. 6. 1963) cert. denied 377 U.S. 906 (1964). allowed for the possibility of recall, and that she was subsequently reclassified as discharged when it became known she was involved with the Union. I find that a preponderance of the evidence supports the General Counsel's theory respecting Kennedy. As already found, Kennedy was not discharged on November 1, she was laid off. In support of its position Respondent points to its personnel records which carry her as discharged and not eligible for rehire and to the fact that she was not replaced. Her duties were lumped together with those of Utrup and performed first by Utrup and later by others. Respondent also contends that Kennedy's work was unsatisfactory and that she failed to obey orders. Respon- dent so advised the Ohio Bureau of Unemployment Compensation in connection with her application for compensation and as a result she was denied unemploy- ment compensation.4 But, according to Kennedy, whom I credit, Chandler never mentioned these later grounds when he laid her off on November 1. She never heard anything directly from management. The first she heard was from Delores Knippen who told her she was discharged because she did not do anything and sat down all the time, and that Chandler had found out about the Union and did not appreciate it. It was on November 17, when she inquired at the Ohio Bureau of Unemployment Compensation respect- ing her claim, that she was informed for the first time that Respondent had filed a letter with the bureau stating that she did not do what she was told to do. However, no management official has ever informed Kennedy of this. Respondent's personnel records which carry her as discharged November I are the work product of Chandler. He admitted that he was unfamiliar with Respondent's forms and was uncertain as to how to fill them out. He began to fill Kennedy's forms out on November I when he laid her off but did not complete them until November 4, the deadline for sending them to Respondent's main office. In the meantime he learned of the union activity so that finalization of the data on which the company records are based occurred shortly after the union activity became known. Chandler testified that Kennedy was discharged partly pursuant to the planned reduction in force and partly because she was an inadequate employee. He did not specify what he meant by this latter, nor did he mention any failure to obey orders, nor did he testify that he had reprimanded her. Regional Vending Manager Vasilevski, on the other hand, testified that the manager (presumably Chandler) a month earlier had reprimanded Kennedy for the condition of the equipment, the amount of food left in the vending machines, and because of complaints from Sylvania. In the circumstances, his testimony respecting such reprimands appears to be hearsay and, absent any testimony from Chandler who supposedly administered them, I place no reliance thereon. Vasilevski also testified that 2 weeks prior to Kennedy's layoff he observed her and Utrup during working time 4 On December 9, 1976, the Ohio Bureau of Unemployment Compensa- tion issued a determination that Kennedy was terminated because of unsatisfactory work and a failure to obey orders. 748 UNITED FOODS MANAGEMENT SERVICES, INC. reading an Avon pamphlet and that they made no effort to get to work even though he was present. On the other hand, other credible evidence establishes that other employees also looked at the Avon pamphlets and also did crossword puzzles both during working hours and nonworking hours. In these circumstances, I do not find that viewing an Avon pamphlet was a significant consideration in evaluating either Kennedy or Utrup. Kennedy denied failing to properly clean up her work area. I credit her denial because I find it most unlikely that Respondent would have continued to employ her for such a long period of time, and reemploy her after her layoff during the first phase of reorganization, if she had been untidy or uncleanly in the kitchen. It seems to me that Respondent's reliance on these factors is catching at straws. They appear to be pretexts particularly in view of the failure to forthrightly tell Kennedy the reasons after her long service and the varying reasons put forth. Evaluating all the credible evidence, I find that a preponderance supports a finding that about November 4 Kennedy's status was changed from layoff, which implied a possibility of recall, to permanent discharge without the possibility of rehire, because she engaged in union and protected concerted activity. Such discrimination violated Section 8(a)(3) and (I) of the Act. 4. Contentions respecting Utrup The General Counsel's case with respect to Utrup is in some regards weaker than Kennedy's because Utrup was a less credible witness. The circumstances, however, particu- larly the timing of the discharge, are very persuasive and, when considered with the evidence of company knowledge and the evidence of motive referred to above, warrant the finding that Utrup was discharged for discriminatory reasons. The position of Respondent is that she was an inade- quate employee unable to handle the cash register and therefore her elimination was in accordance with the reorganization put into effect on November 1. Respon- dent's Regional Manager Charles Polito testified that elimination of three employees was planned and that these three were one Mary Bennett, Kennedy, and Utrup. Oddly enough, there is no evidence of any union activity respecting Bennett, and Respondent's records indicate that it would rehire her but would not rehire Kennedy or Utrup. By coincidence the latter two were those most involved with the Union. I find that Utrup was unable to handle her job less persuasive than it might have been if she were not an employee of longstanding whose capabilities were well known. Respondent does not contend that it did not know that she would have difficulty handling the cash register, yet she was put in charge of it on November 1 and then discharged after 3 days without being given a reason and without a chance of recall. In these circumstances, I find the timing of the discharge shortly after Chandler acquired knowledge of her union activity a persuasive basis for the I In view of the finding that Betty Kennedy was laid off on November 1, 1976, for economic reasons and was permanently discharged November 4, inference that her discharge was motivated by discrimina- tion. Accordingly, I find that, in discharging her, Chandler violated Section 8(aX3) and (1) of the Act. IV. THE EFFECr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, which are found to be unfair labor practices, occurring in connection with its operations described in section I, above, have a close and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby committing unfair labor practices within the meaning of Section 8(aXl) of the Act, by: (a) Charles Chandler on November 1, 1976, threatening Betty Kennedy and June Utrup with discharge if the employees walked out in protest of Kennedy's layoff. (b) Charles Chandler on or about November 4, 1976, informing employee Delores Knippen that Kennedy and Utrup had been fired because they were stirring up trouble. 4. Respondent discriminated with respect to employee hire and tenure of employment, and the terms and conditions of employment, thereby discouraging member- ship in a labor organization and committing unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act by: (a) On or about November 4, 1976, changing the status of Betty Kennedy from a laid-off employee with the possibility of recall to a discharged employee without the possibility of rehire, and thereafter refusing to reinstate her. (b) On or about November 4, 1976, discharging June Utrup and thereafter refusing to reinstate her. 5. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend that Respondent be ordered to offer Betty Kennedy and June Utrup immediate and full reinstatement to their former positions or, if those positions are not available, to substantially equivalent positions,5 without prejudice to their seniority or other benefits and privileges, and that each be made whole for any loss of earnings suffered by reasons of the unfair labor practices 1976, for discriminatory reasons, I recommend she be reinstated only if subsequent to November 4, 1976. a replacement has been hired in her stead. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found above by paying each a sum of money equal to that which she would have earned from November 4, 1976, the date of discharge, to the date Respondent offers reinstate- ment, less net earnings during such period. Backpay is to be computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing and Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). I further recommend that Respondent be required to preserve and make available to Board's agents, upon request, all perti- nent records and data necessary in analyzing and deter- mining whatever backpay may be due. I also recommend that Respondent be required to expunge from its records all memoranda and personnel actions related to the discharges. See Crown Central Petroleum Corporation, 177 NLRB 322, 323 (1969). I also recommend that Respondent post appropriate notices in each of its cafeterias at the GTE Sylvania Plant in Ottawa, Ohio. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDER 6 The Respondent, United Foods Management Services, Inc., a Wholly Owned Subsidiary of Interstate United Corporation, Ottawa, Ohio, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening employees with discharge in response to their concerted inquiries. (b) Threatening employees that other employees have been discharged because of union activity. (c) Discharging or otherwise discriminating against employees for engaging in union activity or other protected concerted activity. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form a labor organization, to join or assist International Brotherhood of Electrical Workers, Local 1654, or any other labor organization, to bargain collective- ly through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed 6 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. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto be deemed waived for all purposes. in Section 7 of the Act, or to refrain from any or all such activities, except to the extent such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(aX3) of the Act as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Betty Kennedy and June Utrup immediate and full reinstatement to their former positions or, if those positions are not available, to substantially equivalent positions (or in the case of Betty Kennedy to the status she would have obtained had she been on a preferential hiring list since November 4, 1976), without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Revoke and expunge from its records all personnel actions and memoranda relating to the discharge of Betty Kennedy or June Utrup and notify each in writing that such actions and memoranda have been revoked and expunged from its records. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all personnel records and memoranda regarding Betty Kenne- dy and June Utrup and all records necessary to analyze the amount of backpay due under the terms of this recom- mended Order. (d) Post at its cafeterias in the GTE Sylvania plant, at Ottawa, Ohio, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, shall be posted by 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. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I In the event that this 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." 750