Read's, Inc.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Read's, Inc. and Retail Store Employees Union, Local 692, AFL-CIO, affiliated with Retail Clerks Inter- national Association, AFL-CIO. Cases 5-CA-5776, 5-CA-5830, and 5-CA-5873-3 August 7, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 28, 1973, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Read's, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. 1 These findings are based, in part, upon credibility determinations of the Administrative Law Judge to which the Respondent has excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence . According- ly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in Case 5-CA-5776 was filed on September 25, 1972.1 A complaint was issued on November 10. The charge in Case 5-CA-5830 was filed on October 30. The two cases were consolidated for hearing and a consolidated complaint was issued on December 1. The charge in Case 5-CA- 5873-3 was filed on November 30 and amended on Decent- 1 Dates are 1972 unless otherwise specified ber 14. A complaint was issued on January 9, 1973. All three cases were consolidated for hearing the same day. The hear- ing was held on January 22, 23, 24, 25, 29, and 30, 1973, in Baltimore, Maryland. The complaints allege as violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, dis- crimination against three employees as well as various inde- pendent violations of Section 8(a)(1). At the conclusion of the General Counsel's case in chief, I granted Respondent's motion to dismiss the allegation that Respondent had discri- minated against Dianne Lee Roycroft on or about Novem- ber 29 by reducing her overall hours of work and scheduling her for more weekend work on the ground that the General Counsel had failed to make out a prima facie case as to motive. For the reasons set forth below, I find Respondent did not violate the Act when it discharged Virginia Schec- kells on September 19, did when it discharged Karol Florio on November 3, did not violate Section 8( a)(1) in some of the ways alleged, and did in others. Upon the entire record, including my observations of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT I JURISDICTION Respondent, a Maryland corporation, operates drug stores in that State. During the year preceding issuance of the complaints, it grossed more than $500,000 and pur- chased products valued at more than $50,000 which were shipped directly to it by suppliers located outside the State of Maryland. II THE UNFAIR LABOR PRACTICES A. Background The Charging Party began a campaign to organize Respondent's drug stores in July. It filed a petition in Case 5-RC-8233 on August 25. Hearing was held on September 28 and October 6 and 12. The Regional Director issued his Decision and Direction of Election on November 14. The unit comprised all full-time and regular part-time employ- ees, approximately 1,400 in number, in all of Respondent's stores in the State of Maryland. These numbered approxi- mately 80 drug stores and 1 restaurant. The election was tentatively scheduled for December 15. It was not held, being blocked by this proceeding. The Charging Party campaigned by sending organizers into Respondent's stores to solicit employees. This led to a series of incidents which are euphemistically referred to in the record as "hassles" in which Respondent sought to curb the organizers' activities. In October Respondent had three organizers arrested when they refused to leave store 31, located in Mondawmin Shopping Center in Baltimore. They were convicted of trespassing. Their convictions were on appeal at the time of the hearing in this proceeding. Respondent's attorneys conducted two meetings for store managers, assistant managers, and other officials at which instructions were issued on Respondent's legal rights and 205 NLRB No. 57 READ'S, INC. how supervisors should conduct themselves in the face of the Charging Party's campaign. One of the instructions was that the manager and assistant manager in each store should keep a diary in which to record any incidents, including the names of any employees who were witnesses of what oc- curred during the hassle. The record does not reveal what, if anything, was actually written in any of these diaries. There is no indication in the record that any employee ever saw what was written in any of these books. One employee was told by an assistant manager that the purpose of the book was "to record everything, any incident that goes on in the store pertaining to union representatives; like, who talks to them or exactly just what happened, from the time they came in to the time they left." (I do not credit the denial of Dode Allan Hoskins, the assistant manager, that this conversation took place.) The Charging Party has filed numerous unfair labor prac- tice charges against Respondent since the campaign began. Respondent had filed none against the Charging Party as of the close of the hearing herein. It filed an 8(b)(1)(A) charge on March 9, 1973. From September 9 until the hearing opened the Charging Party filed 12 charges. All except the three involved in this proceeding were withdrawn by the Charging Party after investigation by the Regional Office. A charge filed on the first day of the hearing was dismissed by the Regional Director on February 26, 1973. The Charg- ing Party also filed charges on February 26, 1973, and March 2, 1973. B. The Discharge of Virginia Sheckells 1. Facts Virginia Sheckells was hired by Respondent in November 1970 as a greeting card detailer. Detailers are supervised by buyers. They go from store to store in order to assure that the particular product line for which they have been given responsibility is being properly stocked and merchandised. By April 1972 Ms. Sheckells had become dissatisfied with her job, principally because of a running dispute with an- other detailer about the work. As a result, Joel Fried, the greeting card buyer, suggested to Ms. Sheckells that she transfer to another product and to Eileen Spittel, the cos- metics buyer, that she take on Ms. Sheckells as a detailer. Fried told Ms. Spittel that Ms. Sheckells had been having a problem with lateness and absenteeism. When Ms. Spittel interviewed Ms. Sheckells about the transfer, she told Ms. Sheckells that she would expect her to be at the stores where she was supposed to be when she was supposed to be there. She also told Ms. Sheckells that she would expect her to dress properly for her job. (Ms. Sheckells, an attractive, full-figured young woman, prefers not to wear a brassiere.) Ms. Sheckells agreed to the conditions. As a result, in April, Ms. Sheckells transferred from the supervision of Fried to the supervision of Ms. Spittel and became detailer of Goody products, a line of hair ornaments and accessories. From April until September Ms. Sheckells was a less than perfect employee. She frequently failed to turn in the report of each store visit, which Respondent requires of its detail- ers and for which it provides a form, on the ground that the reports served no useful purpose. She frequently arrived at 303 the first store on her day's itinerary later than 9 a.m., the time she was supposed to be there. (In July, she was late in arriving on the first day at the place where Respondent was holding its 2-day Christmas merchandise show for store managers. It is especially important that detailers be on time at this annual event in order to set up the display of their product line in conjunction with the manufacturer's salesman.) On several occasions Ms. Spittel could not locate her at the store where she was supposed to be. Ms. Spittel spoke to her about these various shortcomings on several occasions . In July, apparently just before the Christmas show, the Goody salesman made an indecent proposal to Ms. Sheckells. Ms. Sheckells reported the incident to Respondent's top management. As a result, Goody's na- tional sales manager came to Baltimore for a conference with Donald Cardelle, Respondent's director of merchan- dising, Ms. Sheckells, and Ms. Spittel, as a result of which the offending salesman was taken off Respondent's ac- count. On this occasion, Ms. Spittel reprimanded Ms. Shec- kells for not wearing a brassiere while working. On each of the occasions when Ms. Spittel spoke to Ms. Sheckells about her shortcomings as an employee, Ms. Sheckells promised to do better. Her attitude and performance remained essen- tially unchanged. Ms. Sheckells signed an authorization card for the Charg- ing Party in August and obtained cards from approximately 30 other employees. On one occasion she went to lunch with an organizer, leaving from and returning to one of Respondent' s stores with him. On their return, a guard in the store asked the organizer to leave the store, consonant with Respondent's no-solicitation rule (see the section enti- tled "Respondent's No-Solicitation Rule" below). During the last week in August Ms. Sheckells held a meeting at her home which was attended by employees and union organiz- ers. A day or two before this meeting Donald Crossney, manager of store 53, the store at which Ms. Sheckells cus- tomarily picked up her paycheck, asked her in passing how the Union was coming along. Ms. Sheckells replied, "Fine, but I'll let you know in a couple of days after I have a meeting." (Crossney denied this conversation, apparently relying on the fact that he was on vacation from August 17 through 24. However, since Ms. Sheckells placed the meet- ing in the week prior to her vacation, which began on Sep- tember 8, and not specifically on August 18, the "on-or-about" date alleged in the complaints , it is obvious that the conversation could have taken place as testified by Ms. Sheckells. While I have credited Ms. Sheckells over Crossney to find that this conversation did take place, I have not discredited Crossney generally. I have relied on his testimony for my findings below as to what Ms. Sheckells said to him on the day of her discharge.) Respondent's vacation policy calls for 1 week after 1 year of employment, 2 weeks after 2 years. Hired in November 1970, Ms. Sheckells became eligible for a 1-week vacation in November 1971. She took it in December 1971. In No- vember 1972, if she had remained in Respondent's employ that long, she would have become eligible for a 2-week vacation. She elected to go on vacation in September. Ms. Sheckells arranged to take off the week beginning Monday, September 11. However, she changed her plans so as to begin her vacation on Friday, September 8. In both 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instances, she reported to Pat McLaughlin, Ms. Spittel's secretary, and Ms. McLaughlin gave her approval. Ms. Sheckells had also told Ms. McLaughlin at the time she arranged for the week of September I I that she might also take off Monday, September 18. In the event, Ms. Sheckells did exactly that. As a result, she was away from work for 7 consecutive workdays, from Friday, September 8, through Monday, September 18. Ms. Spittel tried to contact Ms. Sheckells around 4 p.m. on Thursday, September 7. Ms. Spittel was under the im- pression that Ms. Sheckells' vacation was not scheduled to begin until the following Monday, the period Ms. Spittel had authorized. When Ms. Spittel learned that Ms. Shec- kells had already left work to begin her vacation, Ms. Spittel asked Ms. McLaughlin how come. Ms. McLaughlin said that she had told Ms. Sheckells she could begin her vacation on Friday without first clearing the change with Ms. Spittel because she thought Ms. Spittel would not mind. Ms. Spittel calculated that Ms. Sheckells, having begun a 1-week vacation on Friday, September 8, would return to work on Friday, September 15. When Ms. Sheckells failed to appear that day, Ms. Spittel went to Cardelle and recom- mended that Ms. Sheckells be discharged. Cardelle instruct- ed Ms. Spittel to have Ms. Sheckells report to him first thing Monday morning. When Ms. Sheckells failed to appear on Monday, the meeting was rescheduled for Tuesday, Sep- tember 19. On her return from her vacation, Ms. Sheckells received word to report to Ms. Spittel first thing Tuesday morning. She went to Respondent's main office as instructed. Car- delle and Ms. Spittel were unable to see her immediately because they were tied up in a buyers' meeting. While she was waiting, Ms. Sheckells received a message from her husband that he needed some tools which were in the trunk of Ms. Sheckells' car. Consequently, Ms. Sheckells left to take the tools to her husband. When the buyers' meeting ended in mid-morning and Cardelle was ready to see her, Ms. Sheckells was not in the office. She returned around lunchtime. She went to lunch with Ms. Spittel in the office cafeteria. They did not discuss the fact that Ms. Sheckells was about to be discharged. Immediately after lunch Ms. Sheckells reported to Cardelle in his office. Cardelle dis- charged her. Late that afternoon Ms. Sheckells stopped by store 53. As she was leaving, she told Crossney that she would not be coming in any more because she had been fired. Crossney asked why. Ms. Sheckells said, "Well, I think that they couldn't find me half the time, but I think it was more my union connection." Crossney said, "Union connection?" Ms. Sheckells said, "Yes, I was having meetings at my house and soliciting in the stores. But I don't care." Crossney said, "What are you going to do now?" Ms. Sheckells said, "I am going to get pregnant and stay home and raise a family." 2. Analysis and conclusions Whether Ms. Sheckells' discharge violated the Act turns on what Cardelle said to Ms. Sheckells when he discharged her. According to Ms. Sheckells, the interview went like this: Well, I went in and I sat down and he came in and I was so nervous because I had to talk to him and he was talking about something. I really didn't hear what he was saying, but he ended up saying that because of the new company policy, because of my union activi- ties and my tardiness and absenteeism, that I was ter- nunated and he gave me a check for 15 hours. I was, like, really shocked and I said "I can't believe that you are firing me." I just couldn't believe, so I jumped up and thanked him and left. According to Cardelle, it went like this: I greeted her and said, "hello, Mrs. Schekells", and asked her to have a seat, which she did. I sat at my desk and I said to her, "Things have not worked out well, and we are going to have to terminate you." At that point I was cut off, and Mrs. Scheckells rubbed her hands and said, "Hey, that's great" with a big smile on her face. * She said, "Hey, that's great. When is this effective?" I said, "Immediately. As a matter of fact I have a check," and I reached into my pocket, "paying you through today " Then I handed her the check. She said, "Is that all? Is there anything else?" And I said, "No, not unless you would like an explanation, or you have any questions." With that, Mrs. Scheckells got up, said "Thank you very much", and left my of- f ice. I credit Cardelle over Ms. Sheckells as to this crucial conversation. In doing so I rely principally on Ms. Shec- kells' conversation with Crossney later that afternoon. Ms. Sheckells was first asked about this conversation on cross- examination during presentation of the General Counsel's case in chief. She was only asked about the pregnancy part of the exchange, which she readily admitted. Crossney testi- fied as a witness for Respondent during presentation of its case in chief. He testified as I have found at the end of the "Facts" section above. Ms. Sheckells subsequently returned to the stand as a rebuttal witness for the General Counsel. She was not asked any questions at that time about this conversation. If, in fact, Cardelle had told her she was being discharged for union activities, she would not have told Crossney "I think it was more my union connection." The fact that the General Counsel did not attempt to dispute Crossney's testimony that those were the words she spoke even though she was recalled to the stand for purposes of rebuttal convinces me that she was uncertain about why she had been discharged when she spoke to Crossney. Her attri- buting the specific words "because of my union activities" to Cardelle is simply another example of the postdischarge rationalization which caused her to tell Crossney "I think it was more my union connection." The basic issue with respect to the discharge of Ms. Shec- kells is not whether Respondent, in the persons of Ms. Spit- tel and Cardelle, had knowledge of Ms. Sheckells' union activities (although I credit their denials that they had such knowledge), for the knowledge of Crossney, gained from his READ'S, INC. conversation with Ms. Sheckells in late August , can be at- tributed to Respondent and would be technically sufficient to support a finding of violation if all other elements were present. The basic issue is, rather, motive. Since there is no evidence of any officials other than Ms. Spittel and Cardelle participating in the decision to discharge Ms. Sheckells, it turns on whether the General Counsel has proved that they were discriminatorily motivated . If I had credited Ms. Shec- kells over Cardelle as to what he said when he discharged her, that would be the end of the matter , for "because of my union activities" is an admission of a discriminatory motive. Once Cardelle is credited over Ms. Sheckells , the question arises of whether Respondent's stated reasons for discharg- ing Ms. Sheckells are a pretext masking a discriminatory motive. Cardelle was asked why he discharged Ms. Sheckells, thus: Q. How would you summarize your reasons for discharging Mrs. Scheckells? Q. Primarily based on the report which I got from Mrs. Spittel, who was one of six buyers at the time. Buyers hold very responsible positions, and they are primarily responsible for the supervision of the detail- ers. Mrs. Spittel has had a long record of integrity and loyalty with the Read's company . When she came to me and stated these problems, I had no reason to be- lieve that they were not true exactly as she reported them to me. I can recall Mrs. Scheckells-would you restate that question again? JUDGE BLACKBURN He wants to know why you fired her? What was your reason for firing her? THE WITNESS Because of absenteeism . Because on many occasions, much more than being absent, the buyer, Mrs. Spittel in this case , could not locate her during the working day, the fact that she left early, she would not comply with our policies in terms of filling out the reports on a regularly scheduled basis, she did not submit her schedule on time on a regular basis as all detailers are supposed to do, and as an aftermath, and I think probably "the straw that broke the camel's back" you might say, was the fact that she arbitrarily did not show up on Friday or Monday without report- ing to her immediate supervisor. All of the sins of omission and commission cited by Cardelle are true. In fact, Ms. Sheckells admitted them . But those which occurred prior to Ms. Sheckells' vacation avail Re- spondent little, for it is clear from the record as a whole that Ms. Scheckells differed from other detailers in these re- spects, if at all, in degree only. But they do explain the nature of Ms. Spittel's relationship with Ms. Sheckells so that when the straw of Ms. Sheckells' extended vacation was added to her burden, Ms. Spittel's recommendation that Ms. Sheckells be discharged takes on crucial significance. It is possible to argue that "the straw that broke the camel's back" is pretextual for two reasons. The first is that Ms. Sheckells was absent on Friday , September 15, and Monday, September 18, with permission, relying on the undisputed facts that Ms. McLaughlin told her it was all right for her to start on the former day and that Ms. Shec- kells told Ms. McLaughlin she might take on an extra day 305 at the end. But the question here is not whether Ms. Shec- kells acted with Ms. McLaughlin's permission or even whether Ms. McLaughlin had authority to grant her that permission. The question is whether Ms. Sheckells acted with Ms. Spittel's approval . That she did not is uncontro- verted. Therefore, the fact that Ms. Sheckells may have acted innocently in absenting herself on 2 days when Ms. Spittel expected her to be on the job does not make Ms. Spittel's reaction to that absence any less bona fide. Second, it is possible to argue that Ms. Sheckells was entitled to 7 days of vacation time rather than 5 days and was, therefore, off on Friday, September 15, and Monday, September 18, as a matter of right. (The General Counsel took this position during the hearing, although no mention of Ms. Sheckell's vacation appears in his discussion in his brief of why the discharge should be found violative of the Act; rather, the General Counsel relies solely on Ms. Shec- kells' version of the exit interview.) This argument is based on a misreading of Respondent's vacation policy as set forth in its employees' manual. It reads, in pertinent part: Read's vacation policy is as follows: The employee's anniversary date determines his eligi- bility for: 1-week's vacation after 12 months of service have been completed; 2-week's vacation after 2 years completed service; 2. General [i.e., nonretail] personnel may take vaca- tions at any time approved by the person to whom the individual is responsible. Vacation must be taken within 365 days of the time in which it is earned . There will be no "carry over" from one year to another or any payment permitted for vaca- tion time that is not used. As can be readily seen, vacations are given on a calendar year basis. (The only other possible explanation of "within 365 days of the time in which it is earned" and "from one year to another," i.e., that Ms. Sheckells was entitled to only one 1-week vacation between November 1971 and Novem- ber 1972, is fatal to the General Counsel's case, for it would mean that Ms. Sheckells was AWOL in September for 7 days, not just 2. The fact that Respondent gave her 5 days' vacation, of course, demonstrates Respondent's calendar year practice .) Since Ms. Sheckells was hired in November 1970, she qualified for a 1-week vacation in 1971 , provided she took it, as she did, before the end of the year. If she had elected not to take a vacation in 1971, she would have been entitled to a 1-week vacation in 1972 anytime prior to No- vember and to a 2-week vacation if she elected to wait until November or December. There is nothing in Respondent's written vacation policy or in any of the testimony adduced from officials of Respondent to justify a finding that Re- spondent prorates a second week of vacation when an em- 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee elects to take a vacation during the calendar year in which his second anniversary falls but prior to his anniver- sary date. Therefore, when Ms. Sheckells elected to go on vacation in September , she was entitled to I week (i.e., 5 working days) off, no more and no less. Whether, in fact, Respondent would have permitted her to take a second week in November or December (a point not fully devel- oped in the record) is irrelevant to the question of the seri- ousness of her absenting herself on Friday, September 15, and Monday, September 18, in weighing for evidence of pretext Respondent's ostensible reason for discharging her. I conclude that the uncontroverted and undisputed facts immediately surrounding the discharge of Ms. Sheckells gave Ms. Spittel cause to recommend her discharge and Cardelle cause to accept that recommendation and dis- charge her Absent any evidence from which Ms. Spittel's or Cardelle's knowledge of Ms. Sheckells' union activities prior to her discharge can reasonably be inferred, I con- clude that the reasons advanced by Respondent for dis- charging her are not a pretext. Since the General Counsel has failed to establish a discriminatory motive by a prepon- derance of the evidence, I find that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging Virginia Sheckells on September 19. The complaints also allege an independent violation of Section 8(a)(1) in that , on or about August 18, Donald Crossney interrogated an employee. This allegation is based on the predischarge conversation between Ms . Sheckells and Crossney at store 53 in which Crossney asked how the Union was doing and Ms. Sheckells replied, in effect, that she could give him a better answer after the meeting she was planning to hold in her home. I find no violation of the Act in this brief exchange . Crossney's query was a passing re- mark from one friend to another . It contained no coercive overtones whatsoever. C. The Discharge of Karol Florio 1. Facts Allen Cohen manages Respondent's store number 16 in Baltimore. In the latter half of September, Louise Scott, his cosmetician , gave notice that she was going to quit. Cohen sent a request for an experienced cosmetician to replace her to Respondent's central personnel office, where it was post- ed in accordance with Respondent's usual procedures. A cosmetician is a clerk whose primary responsibility is sale of cosmetics . A knowledge of fashions in cosmetics and a capacity to model them are useful but not essential attrib- utes of a cosmetician. When his request to the personnel office failed to produce any immediate results and Louise Scott left, Cohen placed a "help wanted-apply within" sign in the store window. Karol Florio, a married woman in her early 20's who lived in the neighborhood, applied. She spoke to the assistant manager and, at his request, filled out an application form. When she got to the part of the form which asked about her work experience , she explained to the assistant manager that she had no prior experience as a clerk in a retail store. She did not mention that she had worked for short periods of time as a bookkeeper for Mil-Spec Fasteners Corporation and Pimlico Furniture Company. On the form, she left blank three sections which asked where she was last em- ployed, where before that, and where before that. In the remarks section she wrote, "I have never been employed by anyone outside of my home. I have worked during the sum- mer when I was attending school, but for relatives doing typing, filing etc. I also worked for my sister in a beauty salon two years ago." Cohen interviewed Ms. Florio and hired her for the cosmetician's job on Wednesday, October 11. She went to work that evening. During the interview, Cohen told Ms. Florio about the union organizing campaign that was going on. He explained the situation with respect to the in-store hassles between organizers and Respondent and told Ms. Florio to let him know if she was approached by organizers in the store . He also asked her to vote against the Union when an election was ultimately held. Ms. Florio explained that the job was not vital to her and that her main interest was in working near her home. She asked Cohen what were the chances that Respondent might transfer her to another store. Cohen told her that there was a possibility if the Union succeeded in organizing the stores, but that she should not worry about it. He explained that, in the event unionization led to higher operating costs for Respondent, thus forcing it to close some of its marginal stores, employ- ees in those stores with seniority over her might be transfer- red to store 16, thus taking her place. After he hired Ms. Florio, Cohen did not cancel the request he had on file with the personnel office for an experienced cosmetician. A union organizer approached Ms. Florio in store 16 on the morning of Wednesday, October 18. She talked to him and a colleague in a car on the parking lot outside the store during her lunchbreak. She signed an authorization card for the Charging Party and took a number of blank cards to distribute to other employees. When she returned to the store, she talked to other employees about the Union, invit- ing them to a meeting with the organizers at her home on Saturday, October 21. On Thursday morning, October 19, Cohen asked Ms. Florio whether union organizers had been in the store the day before. She told him they had, without, however, reveal- ing her own union activities. Cohen asked her what she thought about the Union. She said she did not think any- thing yet. Following this conversation, she canceled the meeting she had scheduled in her home. (She apparently took this step the next day, although the record is not clear.) On that Thursday morning Cohen received telephone calls from Willard Gilbert, Respondent's director of securi- ty and personnel, and Eugene Balcerak, Respondent's dis- trict supervisor with jurisdiction over Cohen's store. They informed him that Mary Bray, an experienced cosmetician who had become excess to the needs of store 12 due to a reduction in the size of the store, was being transferred to fill Cohen's request and would report for work the next day. Sometime during the day Ms. Florio conferred in the store with Jo Cozzi, a saleswoman for the Revlon company, about her role in ordering Revlon cosmetics . (Respondent's stores stock Revlon and other high fashion lines of cosmet- ics directly from the manufacturers , as distinguished from so-called budget cosmetics which are ordered through Respondent's centralized purchasing system. Consequently, READ'S, INC. store cosmeticians deal directly with the representatives of such suppliers as Revlon.) Following their conference, Ms. Cozzi told Cohen that, while inexperienced, Ms. Florio showed promise as a cosmetician. (Ms. Florio is an attrac- tive, stylish young woman who possesses the capacity to model cosmetics effectively.) That evening, as Ms. Florio was preparing to leave the store for the day, Cohen spoke to her again . He told her the personnel office had located an experienced cosmetician that morning as a result of his request , and that she was being transferred to the store the next day. Ms. Florio asked whether her work had been satisfactory. Cohen said that it had. Ms. Florio asked whether this meant she was dis- charged . Cohen said not necessarily, Respondent might be able to find a place for her in another store . Ms. Florio said she would telephone Cohen in the morning and left. When Ms. Florio called Cohen on the morning of Friday, October 20, he instructed her to call Gilbert. She did so. She explained to Gilbert that Cohen had hired her for the cosmetician's job at store 16, that she had worked for 6 days, that Cohen had laid her off because an experienced cosmeti- cian had been transferred into the store , and that she was calling because of Cohen's suggestion that Respondent might be able to transfer her to another store . Gilbert said the posting board indicated an opening at the Mondawmin store. Ms. Florio asked whether it would be a regular Mon- day-through-Friday, daytime schedule such as she had en- joyed at store 16. Gilbert said no , she would have an alternating schedule which would require her to work some evenings . Ms. Florio said she would accept thejob neverthe- less. Gilbert asked her to hold on while he checked to make sure the job was still open . Gilbert contacted the manager of the Mondawmin store . The latter's request was for an experienced drug clerk. They discussed Ms. Florio and con- cluded she would not be suitable for the job. Gilbert re- turned to the line on which Ms. Florio was waiting . He told her that the Mondawmin job was not available . He asked her whether she wanted to be put on Respondent 's place- ment list in case a job opened up for which she might be qualified. Ms. Florio said she would let him know. She subsequently called Gilbert back and asked to be placed on the list. Gilbert filled out a personnel status form and placed it in Ms. Florio's file. He dated it October 20. On it he indicated that Ms. Florio had worked at store 16, that her last day worked and paid for was October 19, and that her date of employment was October 11. As reason for termination he checked a box labeled "laid off (lack of work)." In response to the question "would you reemploy?" he checked a box labeled "yes." In a section labeled "detailed explanation for above action" he wrote, "Refered [sic] to me by store man- ager when supervisor transfered [sic] full time employee from # 12-no opening-will wait for opening." Mary Bray reported to store 16 on October 20 as sched- uled. She worked into the following week when she was in an automobile accident. She has not worked since. At the time of the hearing she was still on sick leave. The position of cosmetician at store 16 remained unfilled (although, of course, the cosmetics department was manned by noncos- metician clerks) until Kandy Canavan was given the title 3 weeks before the hearing when she went from part -time to 307 full-time clerk. When Ms. Florio learned that Ms. Bray was not working at store 16, she called Gilbert and asked for her job back. Gilbert turned her down on the ground that Cohen had not requested a cosmetician to take Ms. Bray's place. (Whether this conversation took place before or after Gilbert ordered a background investigation on Ms. Florio on October 26 is not clear in the record.) Ms. Florio made several subsequent attempts to contact Gilbert by telephone without success. On Thursday, October 26, Cohen received a phone call from a woman who identified herself as Angela and said that she was from the Labor Board. The caller said that Cohen was being sued for firing Ms. Florio and asked him to come downtown to answer some questions. When Cohen demurred, the caller asked if she could come to the store to talk to Cohen . Cohen refused. (I have no reason to think that this call was made by Angela Anderson , counsel for the General Counsel in this proceeding. The charge in Case 5-CA-5830 that alleged the discriminatory termination of Ms. Florio was dated October 26 by the Charging Party. However, it was not filed in the Regional Office until Mon- day, October 30. Ms. Anderson stated at the hearing she had no knowledge of the matter . Who actually made the call to Cohen is a mystery.) Cohen immediately telephoned Gilbert and told him about the call he had received. Gilbert had previously looked at Ms. Florio's application for employment when he talked to her on October 20. He had been struck at that time by the anomaly of a 22-year-old woman in good health who had no prior employment record . Now suspicious that Ms. Florio had been planted in store 16 by the Charging Party as part of its organizing campaign , he telephoned a private detective agency which Respondent uses and ordered a background investigation of her. Ms. Florio went into store 16 on Friday, October 27, to pick up her paycheck. Cohen told her about the telephone call he had received the day before and asked her what she knew about it. Ms. Florio told him she thought she had been treated shabbily but denied knowing anything about suit being filed against Cohen . She said she thought it might be something her husband had done. The charge in Case 5- CA-5830 involving the discharge of Ms. Florio was filed on October 30. A copy was mailed to Respondent at store 16 that day. It was received by Cohen on Friday, November 3. (Why it took a registered letter from Monday to Friday to travel from the Federal Building in downtown Baltimore to the Drumcastle Shopping Center on York Road in north Baltimore is unexplained in the record.) Cohen forwarded it to Respondent's office. On November 3 Marshall Meyer, director of the detective agency retained by Respondent, called Gilbert and reported Ms. Florio had worked for two companies , Mil-Spec Fas- teners and Pimlico Furniture , before being hired by Cohen. Meyer asked Gilbert to send him a copy of Ms. Florio's application and a written authorization so that he could get on with the investigation. Gilbert did so. He also retrieved the personnel status form he had placed in Ms. Florio's personnel file on October 20 and wrote across the face of it in red ink "DO NOT USE FALSIFIED APPLICA- TION." As reason for termination he checked the box la- beled "other." In response to the question "would you 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reemploy?" he checked the box labeled "no." Both x's were made in red ink. He returned the form to Ms. Florio's file. On November 21 Ms. Florio called the detective agency and protested to Meyer that she was being harrassed. She offered to tell Meyer anything he wanted to know about her. In the course of the conversation she told Meyer that she had worked for a short time at a Holiday Health Studio, as well as off and on for Mil-Spec and Pimlico. Meyer submitted his written report on Ms. Florio, dated November 22, to Gilbert on November 28. 2. Analysis and conclusions The complaints, parroting the charge, allege that Respon- dent "terminated the employment" of Karol Florio on or about October 19. The General Counsel elected to try the case on that theory. Viewed from that perspective, the issues which must be resolved are the state of Respondent's knowl- edge of Ms. Florio's union activities as of October 19 and its motive for telling her at that time that she could no longer work as a cosmetician in store 16. Reduced to its simplest dimensions, Respondent's knowledge becomes Cohen's knowledge, Respondent's motive becomes Cohen's motive, and the ultimate issue is whether the General Counsel has established by a preponderance of the evidence that Coehn's ostensible motive for laying Ms. Florio off at store 16 was a pretext masking a motive growing out of her union activities. But it is obvious from uncontroverted parts of the Respondent's case that Ms. Florio's employee relationship with Respondent did not cease until November 3 when Gilbert decided that she would not be called back to work when a job opened up for which she could qualify. Viewed from the perspective of a "termination on or about Novem- ber 3," Gilbert's knowledge and motive become the issues on which Ms. Florio's case turns. At their heart lies a credi- bility conflict between Cohen and Gilbert. Because of the approach taken by the General Counsel at the hearing, Cohen was Respondent's key witness in de- fending the Florio aspect of this proceeding. (The General Counsel's theory, as it finally evolved in his brief, involves a plot among Cohen, Gilbert, and Balcerak, as of October 19, to get rid of Ms. Florio because they were suspicious that she had been planted in store 16 by the Charging Party, with the transfer of Mary Bray from store 12 to store 16 arranged to give them a pretext on which to lay her off.) I found Cohen to be an honest man. The only part of his testimony which caused me any doubt was his denial that, on the morning of October 19, he asked Ms. Florio whether union organizers had been in the store the day before. As indicated by my findings in the "Facts" section above, I have credited Ms. Florio over him as to this important detail. I was partic- ularly impressed by Cohen's frank admissions that he heard a rumor in the store on October 19 that Ms. Florio was going to hold a union meeting in her home and that the mystery phone call he received on October 26 caused him to think Ms. Florio had been planted in his store by the Union. In light of my overall impression of Cohen's honesty and forthrightness, I can only attribute his disagreement with Ms. Florio about what he said on the morning of October 19 to a lapse of memory. In all other respects, I have credited his testimony. The conflict between Cohen and Gilbert concerns what Cohen said to Gilbert on October 26 when Cohen reported he had received the mystery call. It is vital because the question of Gilbert's knowledge as of the moment he decid- ed to discharge Ms. Florio on November 3 hinges on it. (Gilbert testified he was not sure whether Meyer, the private detective, had telephoned him on November 3 or 4. My finding that the call, and the consequent changing of Ms. Florio's personnel status form, occurred on November 3 is based on the note, in evidence, which Gilbert sent to Meyer with a copy of Ms. Flono's application. The note is dated November 3.) Gilbert testified that he did not become suspi- cious that Ms. Florio was a union plant until after Novem- ber 3, thus: Q. When did you find out that NLRB charges had been filed or had first been filed against Dr. Cohen's store? A. I think I first discovered it about two days after the results of the investigation on [her]. Q. And when would that be? A. It would have either been Tuesday the 4th or Wednesday the 5th. Q. What I really want to know is if you have any idea if you ever became suspicious that Carol Florio may have been a union plant. MR BUCHSBAUM Objection. JUDGE BLACKBURN Overruled. No argument, Mr. Bu- chsbaum. A. I think when we learned that Miss Florio had signed a complaint with the NLRB and in view of our wondering about this original Labor Department com- plaint, the feeling was-my feeling was anyway that Mrs. Florio may have been planted there by the union. Gilbert's reference to "this original Labor Department com- plaint" grows out of his prior testimony that Cohen had indicated to him on October 26 that the mystery caller mentioned the Labor Department, i.e., the Maryland De- partment of Labor and Industry's Wage and Hour Division, and that he assumed Ms. Florio had gone to that agency because she claimed wages were due her, a not uncommon event when employees are laid off. Respondent's position that Gilbert terminated Ms. Florio on November 3 before the possibility that she was a union plant entered his mind is based on Gilbert's testimony above that he only became aware that Ms. Florio had gone to the Labor Board after his telephone conversation with Meyer on November 3. (Gilbert's reference to "Tuesday the 4th or Wednesday the 5th" is an obvious error November 4 was a Saturday, No- vember 5, a Sunday.) Whether Gilbert was aware prior to November 3 that Ms. Florio had gone to the Labor Board and not the Labor Department thus becomes the key ques- tion. Gilbert's testimony as to the call he received from Cohen on October 26 about Cohen's mystery telephone call is as follows: Q. Did Dr. Cohen call you later? A. I spoke to him the following week [i.e., the week after October 19]. Q. About when did you speak to him the following week? A. It would have been Thursday [October 26] when READ'S, INC. he called my office. Q. And what did he tell you? A. He told me that he had had a call, a telephone call from the Labor Department, someone representing themselves as being from the Labor Department and that he was being sued, a complaint had been filed against him and he asked me what the company's posi- tion would be and I told him that if he had any further calls to refer them to my office because we were accus- tomed to handling the calls from the Labor Depart- ment and I asked him who he was told was suing him and he said, Miss Florio. Q. Did he say Labor Department or National Labor Relations Board? A. I think he said the Labor Department. Cohen's testimony was as follows: Q. And can you relate to us, if you would, the first occasion on which you saw [Ms. Florio] after the 19th? A. She came in Friday, a week later, to pick up her paycheck and either Thursday or Friday of the same day, earlier in the day, I had received a telephone call from persons unknown but purporting to be from the NLRB stating that a suit was being instituted and charges were being filed against myself and Read's, since I did not know who I was speaking to, I told them "That's very nice; goodby," and I called the office and reported that. Then Friday-whether I received the call Thursday or Friday is not clear in my mind-when Carol [sic] came in to pick up her check, I asked her what she knew about it, and she told me that she thought that she had been treated shabbily, was the polite way of putting it. Q. Did you suggest [to] anyone of upper manage- ment at Read's that they should do . . . an investiga- tion [of Ms. Florio]? A. Of course not. I did call my office as soon as I heard somebody from the NLRB was suing me because I wanted to know what was going on and I asked what the company's position would be, if in fact, a suit had been filed against me. For the reasons already set forth, I credit Cohen over Gilbert. Therefore, I find that Cohen told Gilbert on Octo- ber 26 that he had received a call from the National Labor Relations Board about Ms. Florio; Gilbert did not misun- derstand the import of what Cohen said to him; and Gilbert ordered a background investigation of Ms. Florio that day because he suspected she was a union plant. Gilbert's suspicion that Ms. Florio was a union plant prior to and thus at the time he terminated her supplies the requirement of "knowledge" of her " union activities." (She was, in fact, not a plant, having applied for the job at store 16 without any prior knowledge that a union organizing campaign was underway. As she cogently testified, she fell in with the organizers' plans and decided to hold a meeting in her home because she decided she "wanted to be a Joan of Arc of York Road. That is the answer. I wanted to do something. That's all.") The only remaining question is 309 whether that suspicion motivated Gilbert on November 3 when he terminated her. I find that it did. I am persuaded primarily by the blatant speciousness of his attempt to ex- plain away any such suspicion until after November 3 on the ground that he thought Ms. Florio had gone to the Labor Department instead of the Labor Board when weighed against Cohen's frank admission that the specific message he conveyed to Gilbert was that she had gone to the Board. I am also persuaded by the weakness of his ostensible reason that he terminated Ms. Florio because she had falsified her application. While it is true that the private detective's investigation turned up two prior employers, Mil-Spec Fasteners and Pimlico Furniture, whom Ms. Flo- rio had failed to list on her application, the information he developed is not inconsistent with what Ms. Florio told the assistant store manager when she filled out the application, namely, that she had no prior experience as a retail sales- clerk. (The detective's written report states that Ms. Florio worked for Mil-Spec from 1969 until 1971 as a clerk typist, for Pimlico Furniture from April to June 1972 as a clerk. The context indicates that the latter word is used in the sense of an office clerical rather than a salesclerk.) Her application is, therefore, "false" only in the most technical sense. It is significant, I think, that while the report is derog- atory in that both former employers indicated they would not rehire Ms. Florio, Gilbert relied only on her failure to mention the former jobs on the form she filled out, not any shortcomings as a worker on thosejobs. I am also persuaded by the general situation prevailing between Respondent and the Charging Party in late October and early November. The battle lines were fully drawn. Emotions were at a fever pitch on both sides. Gilbert would not, I think, have even bothered to order an investigation if he had not been moti- vated by his suspicion that Ms. Florio was a union plant. His action was triggered on October 26 by Cohen's message that Ms. Florio had gone to the Labor Board. His ordering an investigation was simply another manifestation of the attitude of Respondent's officials toward the Charging Party's efforts to organize its employees which is exempli- fied by the hassles and the store diaries. Finally, I am per- suaded by Gilbert's admission that, when he received Meyer's initial report on November 3, he did not bother to check with Ms. Florio whether Mil-Spec Fasteners and Pim- lico Furniture were the relatives she had worked for as an office clerical before he discharged her, even though he was aware that her application contained such a statement. He thought she was a union plant. The information turned up by Meyer gave him a good excuse for refusing to put her back to work. He seized on that excuse to change her status from laid-off employee with a reasonable expectation of employment in the near future to discharged employee with no such expectation, thus ending the possibility that a union plant might get back into one of Respondent's stores. I find, therefore, that Respondent violated Section 8(a)(3) and (1) of the Act on November 3, 1972, when Willard Gilbert discharged Karol Florio. (As to the General Counsel's theo- ry, I find that Ms. Florio was not discriminated against on October 19 because the ostensible reason advanced for her layoff at that time by Cohen was Respondent' s real reason. The fact that Cohen's and Gilbert's suspicions were not aroused until October 26 precludes a contrary finding.) 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaints also allege an independent violation of Section 8(a)(I) in that, on or about October 19, Allen Cohen interrogated an employee. This allegation is based on Cohen's conversation with Ms. Florio on the morning of October 19 in which he asked her whether organizers had been in the store the day before, I find that a violation occurred when Cohen asked this question. Unlike the ques- tion which Donald Crossney posed to Virginia Sheckells in late August, this was no passing pleasantry from one friend to another. When coupled with the explanation of hassles which Cohen had given to Ms. Florio when he hired herjust the week before and his instructions that she should let him know if she was approached by organizers, Cohen's query was an unwarranted intrusion on an employee's right to be prounion if she chose and thus coercive. Midwest Hanger Co. and Liberty Engineering Corp., 193 NLRB 616, enfd. 474 F.2d 1155 (C.A. 8, 1973). D. Surveillance at Store 16 The complaints in this proceeding allege two surveillance episodes at store 16 involving Allen Cohen, one on or about October 19 and the other on or about November 2. One charges that Cohen created the impression of surveillance, the other that he actually engaged in surveillance. As the record developed, however, it became clear that there was no important difference between the two incidents, regard- less of whether they were considered from the standpoint of actual surveillance or merely creating such an impression. There is no essential dispute about what occurred, although, of course, the parties take opposite views of what legal significance attaches. Around October 19 union organizers undertook to hand- bill store 16 at closing time. The store closed at 9:30 p.m. Around 10 p.m. the employees left in a group. Half an hour is not an unusually long time for employees to spend closing out their cash registers at the end of the day. It is also not unusual for them to leave in a group, as they did on this occasion. Cohen let them out of the store and stood there as they walked to their cars. None of them accepted any of the literature the organizers were attempting to hand to them. It is not unusual for Cohen to open the locked front door to let employees out or for him to watch them to their cars. Earlier that evening Cohen had mentioned to Dianne Roycroft, one of the clerks, that organizers were outside the store and that he would watch to make sure they did not harass her when she left. On November 10 essentially the same thing happened. Dianne Roycroft and Kandy Canavan were let out by Co- hen, who stood in the door as they walked to their car. They accepted a handbill from the organizers. The handbill an- nounced a union meeting to be held on November 16. Ms. Canavan asked Cohen whether she should go to the meet- ing. Cohen told her to do what she wanted to do. Ms. Roycroft and Ms. Canavan attended the meeting and signed authorization cards. Cohen never raised the subject of their union activities with either one of them. I find nothing violative in either of these incidents. As I have already indicated, I found Cohen to be a reliable wit- ness. I credit his denial that he intended to engage in surveil- lance or to create such an impression in the minds of the employees at his store. I credit his assertion that what he did on these two evenings did not depart from his usual, but not invariable, practice as he closed up his store at the end of the day. Relying especially on the General Counsel's failure to produce any evidence offsetting the latter fact, I find that Respondent did not commit surveillance type violations of Section 8(a)(1) of the Act by the activities of Allen Cohen. Franklin Stores Corporation, 199 NLRB No. 10. (An allega- tion of the complaints that Samual Cooper, who supervises the food operations in 17 of Respondent's stores, engaged in surveillance at store number 13 is discussed in the section entitled "Other Interrogation" below.) E. Respondent's No-Solicitation Rule Respondent has had a no-solicitation rule in its stores for a number of years. Prior to the organizing campaign out of which this proceeding grows, it was set forth in an inconspi- cuous sign in most of the stores which read "Non-employees are not permitted to solicit or trespass for any purpose in- side this store, its building, or on its property." When the hassles over union organizers soliciting in the store devel- oped, Respondent had this rule reprinted in a large format and placed copies in the windows of and in conspicuous locations inside all its stores. Under this rule, Respondent permits its employees to speak to but not to be solicited by nonemployee organizers in the stores. However, it assumes that any employee seen talking to an outside organizer is being solicited and thus is in violation of the rule. Whether the employee is on or off duty at the time is immaterial. Respondent's enforcement of its rule gave rise to an inci- dent at store 13 which is alleged in the complaints as an independent violation of Section 8(a)(1) of the Act. Once again, there is no essential dispute about what occurred. On October 16 Clinton Dilworth, one of the Charging Party's organizers, went into store 13 to meet Barbara Cher- ry, who worked in the food department. Dilworth and Ms. Cherry are personal friends. They were scheduled to go to a party together when Ms. Cherry got off work. Dilworth sat down in a booth in the fountain area. Three clerks, who were on their dinner break, were eating in another booth. Dilworth asked them if they were planning to attend an upcoming union meeting. One of them, Antoinette Kues, immediately reported to Margaret Henry, store manager, that an organizer was in the store and soliciting employees. (The statement in Respondent's brief that Dilworth was in violation of Respondent's rule at this point is not accurate. Ms. Kues and her companions were not on duty when Dil- worth spoke to them. Thus, as developed below, Ms. Kues was giving Respondent's published rule the same too-broad interpretation that Ms. Henry gave it when she reprimanded Ms. Cherry.) Ms. Henry went to the area and posted herself where she could keep an eye on Dilworth. When Ms. Cherry's shift ended, she came out of the kitchen in her uniform and headed for the place in the building where she had left her street clothes. Her route took her past the booth where Dilworth was sitting. She sat down and started talk- ing with him. Ms. Henry came to the booth and asked Ms. Cherry to accompany her. She took Ms. Cherry aside and reprimanded her for talking to Dilworth in the store, con- trary to Respondent's rule. Ms. Cherry explained that Dil- READ'S, INC. worth and she had not been talking about the Union at all. Ms. Henry said it did not make any difference what they were talking about. Respondent's no-solicitation rule pops up at several points in this record. There are, for example, the instruc- tions Allen Cohen gave to Karol Florio when he hired her on October II that she should let him know if any organiz- ers tried to talk to her in the store. There is also the episode at the Mondawmin store around this time in which three organizers were arrested and prosecuted for trespassing. Neither of these is alleged as a violation in the complaint, nor is there any allegation that the rule as posted is invalid. Consequently , no effort was made to litigate issues that might have been raised in these areas . An argument might be made that Cohen's instructions to Ms. Florio violated the Act on the authority of Morrison Cafeteria Company, Inc., 179 NLRB 593, 596, 602. (The legality of other things Cohen said to Ms. Florio on October I I is considered in the section entitled "Respondent's Election Campaign" below.) There two new employees were requested by the supervisors who interviewed them to report to management if anyone spoke to them concerning the Union. However, in Morrison this was treated as an invalid no-solicitation rule. Here, under the precedents which control no-solicitation rules in retail stores, Respondent's rule as published is clearly valid. Cen- tral Hardware Company, 181 NLRB 491, and cases cited at footnote 3 therein. That point is enough to distinguish the Cohen-Florio conversation of October 11 from those set forth in Morrison, even if the issue were said to have been fully litigated though not alleged. A finding that Respondent's rule is valid does not, of course, dispose of the Henry-Cherry allegation. In Mont- gomery Ward & Co., Incorporated, 162 NLRB 369, 375, 379, an incident on all fours with this one was found to be the promulgation of an unlawfully broad no-solicitation rule. Here, Ms. Henry did not promulgate a no-solicitation rule, thus there is no basis for requiring Respondent to abrogate its basic rule. She did, however, apply a valid rule in an invalid manner. I find, therefore, that Respondent violated Section 8(a)(1) of the Act when, on October 16, Margaret Henry reprimanded Barbara Cherry for talking to a union organizer in one of Respondent's stores at a time when Ms. Cherry was not on duty. F. Other Interrogation I have already found, in the section entitled "The Dis- charge of Karol Florio" above, that Respondent committed an interrogation type violation of Section 8(a)(1) on Octo- ber 19 when Allen Cohen asked Karol Florio whether union organizers had been in the store the day before . Other alle- gations in the complaints raise the same issue. The first involves a credibility conflict between Samuel Cooper, a district food supervisor whose jurisdiction includ- ed store 13, and Barbara Cherry. Cooper denied that the conversation relied on by the General Counsel to support the allegation in the complaint ever took place , describing an earlier, nonviolative conversation with Ms. Cherry as the only occasion when the organizing campaign came up be- tween them . Ms. Cherry recalled the earlier incident as well as the later, agreeing that Cooper's version of the former 311 was accurate. The conflict, thus, is between a witness who says that a certain conversation took place and one who says that it did not. I have no reason to doubt Ms. Cherry's veracity or power of recall. Therefore, I have credited her over Cooper. Early in the campaign Ms. Cherry carried a supply of the Charging Party's literature and authorization cards into the kitchen at store 13 and placed it on a shelf. Cooper found it there. He said, "What the hell is this?" Ms. Cherry said, "I don't know, I just got it. I haven't even had a chance to read it." Cooper said that Respondent's employees already had all of the benefits outlined in the literature. He threw the mate- rial into a trash can. Around October 18 Cooper again came into the kitchen while Ms. Cherry was working. He said, "Barbara, how do you feel about the Union?" Ms. Cherry said she did not have any feelings one way or the other at that time. Cooper then walked over to Ella McDonald, a dishwasher who was working nearby, and asked her the same question. Unlike the Crossney-Sheckells exchange in late August, Cooper's question was not a casual pleasantry between friends but, like the Cohen-Florio conversation, an unwar- ranted intrusion by a supervisor into employees' Section 7 rights. I find that Respondent violated Section 8(a)(1) of the Act around October 18 when Samuel Cooper interrogated employees about their interest in the Charging Party. The complaints also allege that Cooper engaged in sur- veillance at store 13 in September and October. In support of this allegation the General Counsel called as a witness Mary Scelsi, manager of store 13's food department at the time. Ms. Scelsi testified to a conversation with Cooper in September in which he asked her to find out which of the employees were for the Union and which were against it. Cooper denied that such a conversation took place. I credit Ms. Scelsi over Cooper to find that it did. In the course of a dispute over admissibility of evidence, counsel for Re- spondent took the position that Ms. Scelsi was a supervisor within the meaning of the Act. Counsel for the General Counsel took the position that she was not. (However, the complaint was subsequently amended to add an allegation of an interrogation type violation by Respondent in the person of Mary Scelsi.) On the basis of Respondent's posi- tion and Ms. Scelsi's description of her duties and responsi- bilities, I find that she was a supervisor. On cross-examination, Ms. Scelsi testified , in part, as follows about her own activities at store 13 during the organizing campaign: Q. Were you in the hearing room when Mrs. Cherry testified? A. Yes, sir. Q. Did you hear her testify? A. Yes, sir. Q. Did you push the union? A. No, sir. Did I push the union? Q. Yes. A. No, sir. I asked questions about it, but I never pushed it. Q. Who did you ask questions? A. Barbara, anybody, you know, the cooks in the kitchen, what they felt about it and things like that; but 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I never pushed the union. Q. Were you in favor of the union? A. The truth? Q. Yes. A. No. Q. Did you tell them you were in favor of the union? A. No, I never told them one way or the other. Once again, there is no indication that there was anything casual or friendly about the questions which Ms. Scelsi put to the employees who worked under her. I find that Respon- dent violated Section 8(a)(1) when Mary Scelsi interrogated employees about their interest in the Charging Party. As to the surveillance aspect of the complaints, I also credit Ms. Scelsi's testimony that she did not mention Cooper's request to her to employees and that she did not report to Cooper who was for and who was against the Charging Party. The evidence of surveillance or creation of an impression of surveillance at store 13 is thus reduced to a conversation between two supervisors to which no em- ployee was privy. I find, therefore, that Respondent did not commit a surveillance type violation of Section 8(a)(1) at store 13 through the activities of either Samuel Cooper or Mary Scelsi. G. Respondent's Election Campaign The remaining independent 8(a)(1) allegations in the complaints grow out of Respondent's efforts to persuade its employees to vote against the Charging Party. They are that Allen Cohen, on several occasions, threatened employees that, if the Union won, the Respondent would close "slow- er" stores and either terminate or transfer less senior em- ployees; that Merlin Miller, Respondent's executive vice president and general manager, on or about November 21 at Cohen's store "promised that Respondent's employees would receive a pay increase should the Union be unsuc- cessful in its organizing campaign"; and that Harry Genda- son, a district supervisor over 13 stores, on or about November 11 at store 43 "threatened an employee with discharge should the Union be successful in its organiza- tional campaign." As to the first, I had already found that, during his Octo- ber 11 interview with Karol Florio, Cohen explained to her that, in the event unionization led to higher operating costs for Respondent, thus forcing it to close some of its marginal stores, senior employees in those stores might take the places of less senior employees in stores that remained open. Cohen also admitted making the same point to Dianne Roycroft and other employees at store 16. (Where there is disagreement between the testimony of Cohen and Ms. Roycroft as to what was said between them, I have credited Cohen. Therefore, I find that Cohen did not, on November 23, tell her flatly, in the presence of a truckdriver named Lou Sedlak, she would probably be laid off if the Union got in.This credibility resolution played no part in my granting of Respondent's motion to strike the 8(a)(3) and (1) allega- tion with respect to changes in Ms. Roycroft's hours at the end of the General Counsel's case in chief, of course, for, at that point, Cohen had not yet taken the witness stand to deny making any such statement. I deny the "request" con- tained in the General Counsel's brief that I reverse that ruling.) The second of these three allegations is based on Ms. Roycrof is version of a long conversation she had with Mill- er on November 21 at store 16. Miller admitted that the conversation took place, having talked to each employee in the store that day as part of Respondent's campaign. (Where there is disagreement as to what he said, I have credited Miller over Ms. Roycroft.) The thrust of his mes- sage was that a victory for the Charging Party would not automatically lead to increased benefits for employees but only to bargaining. He said bargaining could be a long process during which working conditions would stay the same while the results could be either up or down, depend- ing on the give and take of negotiations. On the subject of wages, Miller mentioned that employees were about to get a raise by operation of law in a short time anyway when Congress enacted an increase in minimum wages that was then pending. The possibility of a raise without the intervention of a union cropped up in other places. In a third conversation between Samuel Cooper and Barbara Cherry around Octo- ber 20 at store 13 which the General Counsel does not contend was violative, Ms. Cherry asked Cooper for a raise. Cooper replied, "Well, everybody is going to get a raise the first of the year." He explained that a higher minimum wage law would take effect at that time and that Respondent was already budgeting for a 20-cent-an-hour raise for everybody as a result. He pointed out that her dues, in the event the Union got in, would be $8 per month and that the 20-cent raise would be hers whether the Union got in or not. Prior to this, Cooper had instructed Mary Scelsi to figure on a 20-cent raise when she figured her 1973 budget for the food department at store 13. As events turned out, the 92nd Congress adjourned without raising the minimum wage. Respondent's employees got no raise in January 1973. The third allegation is based on an incident at store 43 on November 1 l or 18 when Harry Gendason spoke to Patricia Lang, a waitress. Gendason was on a mission similar to Merlin Miller's at store 16 on November 21. He spoke to various employees about why they should vote against the Charging Party, including Ms. Lang. (Where there is dis- agreement as to what was said, I have credited Gendason over Ms. Lang.) He mentioned the possibility of a 20-cent pay raise the first of the year when the minimum wage was due to go up. As he was trying to explain to Ms. Lang the benefits already offered by Respondent, she said that she was dissatisfied. He asked her what was wrong. She com- plained about her schedule and said that the fountain man- ager was picking on her. Gendason said, "Look, Pat, you've been with Read's 15 years and you've got all these benefits and yet you seem to be so dissatisfied, but if you think you can better yourself, I wouldn't stand in your way. I don't have a ball and chain around you." Respondent conducted (and is still conducting) a vigor- ous campaign to keep the Charging Party from winning representation rights in its stores. As part of that campaign, prior to January 1973, it told its employees, truthfully, it was making the necessary plans to give them a raise if, as was anticipated at the time, Congress raised the minimum wage by 20 cents an hour. As another part of that campaign, it told its employees that senior employees would have prion- READ'S INC. ty over junior employees in the event it could not afford to keep marginal stores open following bargaining with the Charging Party. This was not a contingency solely within Respondent's control but a reasonable prediction of one possible consequence of unionization. N.L.R.B. v. Gissel Packing Company, Inc., 395 U.S. 575 (1969); J. J. Newberry Company, 202 NLRB No. 53; B. F. Goodrich Footwear Company, 201 NLRB No. 46. Neither message went beyond the parameters of free speech laid down in Section 8(c) of the Act. Harry Gendason did not tell Patricia Lang she would have nojob if the Union got in. I find, therefore, that Respondent did not violate Section 8(a)(1) of the Act by threatening its employees or promising them benefits. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Read's, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 692, AFL-CIO, affiliated with Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Karol Florio on November 3, 1972, because it thought she had been planted in one of its stores by the Charging Party, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By interrogating its employees on various dates in Sep- tember and October 1972 about their interest in the Charg- ing Party, Respondent has violated Section 8(a)(1) of the Act. 5. By reprimanding an employee on October 16, 1972, for talking to a union organizer in one of its stores at a time when the employee was off duty, thus applying too broadly its valid written no-solicitation rule, Respondent has violat- ed Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. The allegations of the complaints that Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of Virginia Sheckells on or about Septem- ber 19, 1972; that it violated Section 8(a)(1) of the Act by Donald Crossney's interrogation of an employee on or about August 18, 1972, concerning her membership in, ac- tivities on behalf of, and adherence to the Charging Party; and that it violated Section 8(a)(1) by the acts of various supervisors at various times in threatening employees, promising them benefits, engaging in surveillance of their union activities, and creating the impression that it was engaging in surveillance of their union activities have not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is neces- sary that Respondent be ordered to cease and desist from the unfair labor practices found and remedy them. For the 313 discrimination practiced against Karol Florio, I will recom- mend the usual remedy of reinstatement and backpay com- puted on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. If it had been possible to find that Ms. Florio's tele- phone call to Willard Gilbert in which she pointed out that Mary Bray had been injured and was not working came before November 3, but after Allen Cohen's October 26 call to Gilbert which aroused Gilbert's suspicion that Ms. Florio had been planted in store 16 by the Charging Party, I would have found that Respondent terminated her employment when Gilbert failed to recall her at that time. Absent evi- dence on which to base such a finding, there is no ground for finding that Gilbert was discriminatorily motivated until he took the decisive action on November 3 of altering her personnel records to show that she would never be recalled from layoff. However, the job to which Ms. Florio shall be recalled under the terms of my recommended Order is that of cosmetician at store 16, provided that job still exists and is not being filled by Mary Bray. (Since Respondent's rea- son for laying off Ms. Florio on October 19 was not discri- minatory, Ms. Bray's claim to that job is greater than Ms. Florio's.) In the event that the cosmetician's job at store 16 no longer exists or in the event Ms. Bray has returned to work and is filling that job, reinstatement shall be to a substantially equivalent job at store 16. Only in the event that no substantially equivalent job is available at store 16 shall reinstatement be to a substantially equivalent job at another of Respondent's stores. If it is possible, during the compliance stage, to establish that Ms. Florio' s conversa- tion with Gilbert about Ms. Bray took place on a date after October 26 and before November 3, the backpay period shall begin on that date. If not, the backpay period shall begin on November 3, 1972. I will also recommend that Respondent be required to post appropriate notices in all its stores. Since I agree with the General Counsel that Respon- dent did not embark "on a campaign of massive and fla- grant unfair labor practices" but merely "crossed the line which separates the legal from the illegal" through the "ov- erzealousness that supervisors and management may be ov- ercome by when trying to beat the union at the polls," I will recommend a narrow rather than a broad order. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Read's, Inc., its officers, agents, successors, and assigns, shall: 2 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 shall be deemed waived for all purposes 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discharging employees because it thinks they are or have been engaged in union activities. (b) Interrogating employees about their interest in a union. (c Reprimanding employees for talking to union organiz- ers in its stores at times when the employees are off duty. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Karol Florio immediate and full reinstatement to her former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her sen- ionty or other rights and privileges, and make her whole for any earnings she lost, plus interest, as a result of the discri- mination against her in the manner set forth in the section entitled "The Remedy" above. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its stores in Maryland, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representa- tive, shall be posted by it 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 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaints be dismissed insofar as they allege Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of Virginia Shec- kells on or about September 19, 1972; that it violated Sec- tion 8(a)(1) of the Act by Donald Crossney's interrogation of an employee on or about August 18, 1972, concerning her membership in, activities on behalf of, and adherence to the Charging Party; and that it violated Section 8(a)(1) by the acts of various supervisors at various times in threatening employees, promising them benefits, engaging in surveil- lance of their union activities, and creating the impression that it was engaging in surveillance of their union activities. 3 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 " Dated By NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging Karol Florio because we thought she had been planted in one of our stores by the retail clerks union, by interrogating em- ployees about their interest in the Union, and by repn- manding an employee for talking to a union organizer in one of our stores at a time when the employee was off duty, we hereby notify you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge you because we think you are or have been engaged in union activities. WE WILL NOT interrogate you about your interest in a union. WE WILL NOT reprimand you for talking to union or- ganizers in our stores while you are off duty. WE WILL NOT, in any like or related manner, interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Karol Florio immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any earnings she lost, plus interest, as a result of our discrimination against her. All our employees are free, if they choose, to loin Retail Store Employees Union, Local 692, AFL-CIO, affiliated with Retail Clerks International Association, AFL-CIO, or any other labor organization. READ'S, INC (Employer) APPENDIX (Representative) (Title) We will notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. READ'S, INC. 315 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone . its provisions may be directed to the Board's Office, Federal This notice must remain posted for 60 consecutive days Building, Room 1019 , Charles Center, Baltimore , Maryland from the date of posting and must not be altered , defaced, 21201, Telephone 301-962-2822. or covered by any other material.