Fotomat Corp.

FOTOMAT CORPORATION 461 Fotomat Corporation and Jewell Newton and Brenda Meyers. Cases 9-CA-7245-1 and 9-CA-7245-2 November 20, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 30, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions, and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein. We do not agree with the Administrative Law Judge's finding that the discharge of Jewell Newton was not violative of the Act. The following are the pertinent facts as found by the Administrative Law Judge based on his credibility findings, which we are constrained to accept. Jewell Newton initiated the organizational activity on July 25, 1972.1 On July 26, she solicited her fellow employees (referred to as Fotomates) to attend a union meeting which she held on July 27. At the meeting she distributed pamphlets and authorization cards; she received signed authorization cards from all 17 employees who attended the meeting. The next day Robert Green, the Respondent's area manager, spoke to Newton, by telephone, about the previous night's organizational meeting. Although the Admin istrative Law Judge generally did not credit' the testimony of Green or Newton, finding them both unreliable, he found: The complaint also alleges . . . [Green] unlaw- fully interrogated her about her union activities. Even accepting Green's version of the incident, I find such violation was proved. According to Green, he telephoned Newton and inquired with reference to the union meeting.... informed her that he knew that she had been soliciting on company time and cautioned her against such activity. The Administrative Law Judge found Green knew about-the union campaign from the beginning and that Respondent opposed the organization of its employees.2 Green relayed the information about the Union to his immediate supervisor, Roger Thompson, who called an employee meeting on August 5. Newton, who was on vacation, did not attend. However, when Thompson inquired at this' meeting as to who presided over the July 27 organizational meeting, someone named Jewell Newton. At the employees' meeting, Brenda Meyers, who was discharged on August 10, "carried- the ball" for the prounion employees. The Administrative Law Judge, rejecting the numerous reasons offered for Meyers' discharge as pretextual, found her discharge violative of Section 8(a)(3).3 In so finding he noted that, "the discharge of an unabashed, vocal exponent of the Union within a month after the commencement of its organizational campaign was the most effective method of undermining the Union's organizational effort."4 He found Green was not a credible witness stating: - I am of the opinion that he permitted his concern about the outcome of this litigation to affect his testimony. It is my opinion that the testimony he gave was contrived to fit the Company's defense and was not a straightforward account of the events as they happened. Likewise, crediting Meyers and discrediting Green as unreliable, the Administrative Law Judge found Respondent violated Section 8(a)(1) by telling her on August 4, "I have everybody that was [at that organizational meeting] and I know everything that they said," and on August 10, "You don't fool me. I know who the ringleaders are." Late on August 7, the date she returned from vacation, Newton,called a vice president of Respon- dent, Scott Fitzgerald, to complain about certain matters. She was referred to Roger Thompson, who talked to her by telephone on August 9. Thompson conceded he knew of Newton's union activity since August 5.5 According to Thompson, Newton com- plained about overtime pay that had not been realized by the girls, about a situation where Green had forced another young girl into an insurance program, about certain girls being given preferential treatment, and about Green "snowing" the girls. Thompson, after discussing these complaints, on his 1 Unless otherwise indicated all dates are 1972. i Certainly the same could be said with respect to the employee who 2 See Fotomat Corporation, 199 NLRB 732, and 202 NLRB 59, where began the campaign, Newton. 8(a)(1), (3), and (5) violations were found. s The Administrative Law Judge credited Thompson's version of what 3 The Respondent, as more fully discussed below, likewise offered happened over Newton's. We have accepted that version numerous and contradictory reasons for Newton's discharge. 207 NLRB No. 65 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD own initiative admittedly turned the discussion to the union question and, in detail, expressed his views about the disadvantages of the Unions Thompson characterized the conversation as productive and fruitful. He did not testify that he felt Newton slandered Green, or that he told Green he felt Newton had slandered him. Green, after learning from Thompson about Newton's call, visited her at her store on August 11.7 Green noted that Newton was not wearing her uniform and told her she could be discharged for not wearing it. Green then asked Newton why she had called Thompson and told Thompson lies about him. He then called her vicious and a liar .8 As more fully set forth in the Administrative Law Judge's Decision, Green left after about 45 minutes of acrimonious discussion. Green discharged Newton without warn- ing 5 days later on August 16 for not wearing her uniform and because she had lied about him to Roger Thompson. Although the Respondent, as is usual in a pretext case, alleged numerous reasons for discharging Newton,9 the Administrative Law Judge did not mention any of them except the failure to wear her uniform . Despite the numerous reasons advanced for Newton's discharge, he found the overriding reason to be Newton's report to Thompson, which Green considered to be lies. The Administrative Law Judge stated: If Newton's report to Thompson alone . . . was the proximate, efficient cause for her discharge then Newton's termination does not violate the Act. By the way of explanation in footnote 14, he stated: The purpose of Newton's telephone call .. . was to satisfy a personal complaint and was not related to the union campaign or to the promo- tion of any purpose in concert with other employees. . . . [T]he features which angered Green, after a report of the discussion had been made to him by Thompson, and led him to discharge Newton did not concern the Union or the employees' concerted activities. Green was troubled by what he deemed to be slander against him as person and as a supervisor. The Administrative Law Judge then indicated that Respondent was disposed to terminate persons who actively aided the Union's campaign, as is demon- strated by the discharge of Brenda Meyers.lo However, he rejected this possibility with respect to Newton, and crediting Green (the only time he did so in his Decision) found the reason Green discharged Newton was because he believed Newton had lied about him to Thompson and was trying to under- mine his position with Respondent. He therefore concluded the General Counsel had not met his burden of proof and dismissed the 8(a)(3). We disagree with the Administrative Law Judge's finding, which is based on the only credibility finding he made in Green's favor. Without that finding this case, in our opinion, presents a classic example of a pretextual 8(a)(3) discharge. The Respondent had union animus and was disposed to terminate union adherents, as evidenced by the discharge of Brenda Meyers, the only other union activist. In addition, Respondent acknowledged it had knowledge of Newton's union activity from the beginning, and in fact the Administrative Law Judge found that Green's interrogation of her violated Section 8(a)(I). As in most pretext cases, Respondent offered numerous reasons for the discharge. The Administra- tive Law Judge inexplicably not only failed to draw any adverse inference from the Respondent's obvi- ous attempt to build a case against Newton but totally ignored all of the reasons alleged by Green for her discharge except two.l l 6 Discrediting Newton, the Administrative Law Judge found Thompson made no statements violative of Sec. 8(a)(l), contrary to the allegations of the complaint . We accept these findings. 7 On direct Green testified he visited Newton after learning of her call to Thompson. On cross he testified the visit was just one of the periodic visits he makes to all stores for the purpose of seeing "how things were." The Administrative Law Judge made no mention of Green's contradictory testimony in this regard. 8 Although Green accused Newton of lying about him to Thompson, Thompson had described his conversation with Newton as "fruitful and productive." Apparently, however, he neglected to tell Green that. Furthermore, Thompson also apparently neglected to tell Green that Newton had accused him of making social advances to the Fotomates, which was probably the most serious accusation Newton allegedly made against Green ; at least Green never mentioned it to Newton or in his testimony. 9 At the hearing and in his affidavit Green alleged that one of the reasons for firing Newton was that she was late for work as much as 15 minutes on July 29 and previous occasions. On July 29 Newton was on vacation. No other evidence that Newton was tardy or had been warned for tardiness was adduced. Green also alleged that on one occasion the clock used for indicating when she would return for lunch had not been removed from the window, although she had returned from lunch . Green indicated the clock could have confused customers. Yet Green admitted Newton was there when he visited the store and his concern with the clock was no more than speculation . Green also testified that on one occasion Newton was doing something to her face with a mirror propped up in her window. Newton had no customers at the time. Yet, as the General Counsel points out, Fotomates were supposed to be attractive and "something special" and it appears Respondent would be interested in Fotomates maintaining their attractiveness . At the hearing Green said another reason he decided to terminate Newton was that she did not make a deposit on July 20 when she was supposed to. However, Newton testified without contradiction that she made the deposit on July 20 but the bank misplaced it until a later date. Green, while testifying that this was a reason for her termination , conceded he never brought it to her attention and, in fact , only found out about the deposit after he had decided to terminate her. 10 See also 199 NLRB 732, and 202 NLRB 59. 11 With respect to one of the reasons alleged by Green-that Newton was not wearing her uniform-Green admitted that this was not sufficient reason to terminate an employee . Green also alleged, as with Meyers, that he was concerned with the breakdown of the "employer-employee relationship" and about her poor attitude . Yet, as the General Counsel notes, prior to Newton's organizational activity there is no indication that FOTOMAT CORPORATION Thus we are left with the so-called primary reason, as testified to by Green and credited by the Administrative Law Judge, that Newton lied about Green to Thompson.12 Even accepting the Administrative Law Judge's credibility finding, however, we find Newton's discharge was violative of Section 8(a)(1) and (3). For it is clear on the basis of testimony (of Thompson) credited by the Administrative Law Judge that Newton, was engaged in protected concerted activity when, she called Thompson. Thus the Administrative Law Judge states, based on the credited testimony of Thompson: She complained to him about overtime pay that had not been realized by the girls, about a situation where a young lady had been forced into an insurance program, that certain girls were given preferential treatment because they, in essence, were playing ball with Green and that Green was "snowing" the girls. In this connection we note that the Administrative Law Judge's finding that, "If Newton's report to Thompson alone . . . was the proximate, efficient cause for her discharge then Newton's termination does not violate the Act," is without precedent.'3 It is clear that when Newton spoke to Thompson she was relaying, in addition to her own complaints, com- plaints of fellow employees which had come to her attention in her role' as spokesman for the Union. In this connection Thompson admitted he had -known since August 5 that Newton had instigated the organizational drive. Thus, the Administrative Law Judge's statement (fn. 14) that the Newton-Thomp- son conversation had nothing to do with union activities appears to be contrary both to the evidence and his own findings of fact. Moreover, Thompson testified that after Newton relayed her complaints, he, himself, initiated a discussion of the Union and attempted to dissuade Newton from union activity by pointing out the alleged disadvantages thereof. Newton was engaged in protected concerted notes, prior to Newton's organizational activity there is no indication that she had any problems in this respect 12 While we have grave reservations concerning this credibility finding, in the circumstances noted above and particularly since the Administrative Law Judge discredited Green in every other instance and found him an unreliable witness, we are, of course, constrained to accept this credibility finding 13 See The Barnsider, Inc., 195 NLRB 754. Assuming that the Adminis- trative Law Judge's fn 14 is intended to explain the above statement by indicating that Newton's call was to satisfy a personal complaint that explanation must be rejected as being inconsistent with his own finding of what Newton actually'told Thompson (see also Carbet Corporation, 191 NLRB 892) 14 While relaying employee complaints Newton did not have to vouch for their authenticity. Nor is it relevant that Green may have been troubled by what he deemed to be slander against him or that he believed Newton was seeking to undermine his position with the Respondent (While's Gas & Appliance, Inc, 202 NLRB 494). Nor, since Respondent did not show that Newton, in fact, lied with respect to Green, do we deem it necessary to 463 activity during her conversation with Thompson; yet the Administrative Law Judge, in essence, finds that she was discharged for having engaged in such conversation.14 The rule adopted by the Administra- tive Law Judge is clearly contrary to precedent, otherwise every time an employee voiced his com- plaints or those of fellow employees, he would be subject, at the whim of the employer, to discharge because the employer considered the complaint made to be untrue. Finally, while Newton, was clearly engaged in protected concerted, activity during her telephone conversation with Thompson, it also appears that as the spokesman for the Union her protected concert- ed activities cannot be separated from her organiza- tional activities. We, therefore, find that Newton was discharged in violation of not only Section 8(a)(1), but also Section 8(a)(3).15 CONCLUSIONS OF LAW 1. By discriminatorily discharging Brenda Meyers on August 10, 1972, and Jewell Newton on August 16, 1972, in order to discourage concerted and union activities, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 2. By reason of , the foregoing conduct and by reason of Respondent's unlawful interrogation of an employee, described above, and Respondent's un- lawful conduct in creating the impression among employees that it was engaging in surveillance of their union activities, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. discuss whether our result would be different had Newton purposely slandered Green and tried to undermine his position . On this subject Green's testimony is at best vague and , sketchy. As to the insurance complaint Green did not deny that Respondent at times hired underaged girls. In fact he admitted that girls are known- sometimes to up the age a little bit It can thus be inferred that he condoned the practice of sometimes hiring underaged girls. With respect to the overtime complaint he accused the girls involved of altering their own timecards to avoid an overtime situation, as opposed to Newton's contrary testimony that Green told them to do so. In any event, even assuming the veracity of Green's testimony, he apparently condoned the practice since he at no time forbade it or disciplined the girls involved Finally, the Administrative Law Judge made no credibility finding on this issue , we note, however, that he generally did not credit Green. 15 Accordingly, we shall order that Jewell Newton, like Brenda Meyers, be offered immediate reinstatement and backpay in accordance with the Board's long-established principles as more fully set out in the section of the Administrative Law Judge's Decision entitled "Remedy.. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below, and hereby orders that Respondent, Fotomat Corporation, Louisville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following as paragraph 1(a): "(a) Discharging or otherwise discriminating against any employee in regard to hire, tenure of employment, or any term or condition of employ- ment in order to discourage concerted protected activities or union activities and membership." 2. Substitute the following as paragraphs 2(a) and 2(b): "(a) Offer Brenda Meyers and Jewell Newton immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. "(b) Make Brenda Meyers and Jewell Newton whole for any loss of earnings they may have suffered by reason of Respondent's unlawful dis- crimination against them in the manner set forth in the `Remedy' section herein." 3. Substitute the attached notice for the Adminis- trative Law Judge's. MEMBER KENNEDY, dissenting: I am unwilling to sign the majority opinion which professes to accept the credibility findings of the Administrative Law Judge but disregards those findings. If the Board believes that the record does not support the credibility resolutions of an Adminis- trative Law Judge, it should reject them. We should not engage in a "semantical exercise in conceptual- ism of gossamer calibre." See Indiana Metal Products, A Div. of Textron, Inc. v. N. L. R. B., 442 F.2d 46 (C.A. 7, 1971), denying enforcement of 180 NLRB 606. Newton was discharged because of her long distance telephone call to a vice president of Respondent in LaJolla, California. The purpose of the call was to satisfy a personal complaint and was in no way related to union or concerted activities. The findings of the Administrative Law Judge were correct and I would adopt his Decision in its entirety. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees concerning their union membership or union activities. WE WILL NOT give the impression of having engaged in the surveillance of our employees' union activities and we will not engage in the surveillance of our employees union activities. WE WILL NOT discharge or otherwise discrimi- nate against any employees in regard to hire, tenure of employment, or any term or condition of employment, in order to discourage protected concerted activities or union activities and mem- bership. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL offer Brenda Meyers and Jewell Newton immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and we will make them whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them. FOTOMAT CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed in each of the above-numbered cases, on August 18, 1972, a complaint, dated September 29,,1972, was issued alleging that Fotomat Corporation, herein called the Company, has engaged in and is engaging in FOTOMAT CORPORATION 465 unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the complaint alleges that the Respondent on August 10, 1972, unlawfully discharged Brenda Meyers and on August 16, 1972, unlawfully discharged Jewell Newton because of their sympathies for activities on behalf of Teamsters and Local Union No. 783, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and by reason of said discharges and other conduct set forth in the complaint, Respondent also has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. Respondent's answer to the complaint, as amended at the hearing, denies that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Louisville, Kentuc- ky, on January 23, 1973. Subsequent to the hearing, General Counsel and Respondent filed briefs which have been considered. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Fotomat Corporation, a Delaware corporation, is en- gaged in the business of selling photographic supplies and film processing services in various States of the United States. The facilities involved in this case are located in Louisville, Kentucky. During the 12 months preceding the issuance of the complaint, which period is representative of the Company's business activities, Respondent had gross revenues in excess of $500,000 from the sale of goods and the performance of services. During the same period, Respondent purchased goods and materials which were in excess of $50,000 from suppliers located outside the State of Kentucky and which were shipped through channels of interstate commerce directly to Respondent's locations in Louisville, Kentucky. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This case stems from an abortive union drive among Respondent's sales employees in the Louisville, Kentucky, area. The Company opposes the organization of its employees.' Roger Thompson, the director for its south- eastern region, testified that the Company believes "we can do as good a job [for the employees] as a union." The i See Fotomat Corporation, 199 NLRB 732, where the Company recently was found to have engaged in violations of Sec. 8(a)(l) and (3) of the Act in connection with organizational activities by its employees in several California countries. See also Fotomat Corporation, 202 NLRB 59, where the Company recently was found to have engaged in violations of Sec. 8(a)(1), (3), and (5) principal questions here are whether Jewell Newton and Brenda Meyers were terminated for their union activities and sympathies or for causes unrelated to their self- organizational interests. The Company conducts its retail business from small freestanding booths located in shopping center parking lots. It employs only women as salespersons who are required to wear a distinctive uniform when at work and who are referred to as "fotomates." Two fotomates, who work on successive shifts, are assigned to each location. The first shift normally is from 9 a.m. until 3 p.m. and the second shift is from 3 p.m. until the booth is closed. When an employee requires a break for meals or for other reasons, she closes the booth and places in the window a clock-type sign which indicates when she will return. The Company operates 14 such facilities in the Louisville, Kentucky, area and employs approximately 30 salesgirls to operate them. The organizational activities were initiated by Jewell Newton. On July 25, 1972 she telephoned a Mr. Webber, an official of the Union. After some discussion about what employees must do to secure union representation , Webber suggested that Newton come to the union office for additional instructions and for authorization cards. That afternoon Newton went to the union hall where she obtained union authorization cards and explanatory pamphlets. The next day, Newton telephoned five foto- mates and inquired whether they would be interested in attending a meeting at which a union official would talk about union representation. She also asked these women to speak to other salesgirls about the subject. Newton made most of her telephone calls from the salesbooth although she knew that she was not supposed to use the telephone there for personal matters. The initial organizational meeting was held on July 27. About 17 fotomates attended. Newton told the assembly what she had learned from Mr. Webber and distributed union pamphlets and authorization cards. All the persons present signed authorization cards. The cards were returned to Newton who mailed them to the Union the next day.2 Apparently no one from the Union attended the meeting and before the meeting adjourned Newton informed the women that there would be another meeting at which a union official would be present who would answer their questions. The next afternoon Robert A. Green, the Company's area manager, telephoned Newton at her place of work and spoke with her about the previous night's organizational meeting. There is some conflict between Newton and Green as to what was said. Newton testified as follows: "Well, he asked me how my party went. And I said that I had no party. He said, `Well, then how did your meeting go?' And I said, `It was okay.' And he asked me what the girls thought. And I told him that . . . they were interested. And he said . . . that he thought the union thing would fall through because the girls came and went so frequently they of the Act in connection with organizational activities by its employees working at its Hicksville, New York, facility. 2 In addition to the authorization cards that Newton received at the meeting. the next day she picked up signed authorization cards from two salesgirls at their respective places of work. These were included in the cards which Newton mailed to the Union 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't stay at their jobs , long enough to hold a union together. And he went ahead to say that it would cost us. And he, said that if the union thing fell , through that I would be out looking for another job. And he asked me why I was doing all of this, why I was causing so much trouble." Green also informed Newton , according to her version of their conversation , that she should not use the telephone in connection with her union activities. Green testified that there were complaints about Newton soliciting for the Union on company time . He received complaints directly from salespersons and also from his administrative assistant, Terry Lowe, who relayed to him complaints she had heard from fotomates. Green testified that his purpose in calling Newton was to inform her that he "had been told that she was soliciting other girls in regard to , the union, both while she was working and while they were working." According to Green, he opened the conversation by inquiring, "How was your party last night?- 3 Newton responded by asking, "What do you mean party?" Newton then acknowledged that the employ- ees had had a meeting the previous evening. Then Green told her "that I knew that she had been soliciting on company time and that she knew that she wasn 't supposed to do that." Newton acknowledged that what she had done was wrong and said she would not do it any more. Green further testified that he made it a point to tell Newton that what the girls did on their own time was their own business . Green specifically denied that he had threatened Newton with discharge. Green knew about the organizational drive from its inception. In denying that he had engaged in covert surveillance of the employees' union activities, he testified, "We wouldn't have had to. We were informed of every move they made by girls just voluntarily calling in the office. Gossip moves very fast." Green told his immediate superior, Roger Thompson, of the developments and it was decided that Thompson would meet with the employees in Louisville on Saturday, August 5. Brenda Meyers testified that on August 4 she received a telephone call from Green who said that he had heard that the employees were dissatisfied and were organizing a union and that Roger Thompson was coming to Louisville to explain both sides of the question to them . Green asked Meyers to tell Kathy Ragland, who works the evening shift in the same location, to attend the meeting. Meyers mentioned that Ragland had not attended the earlier union meeting. Green contradicted her and said that he knew that Ragland had been there . He asserted, "I know everybody that was there and I know everything they said." When Meyers persisted that Ragland had not attended the union meeting, Green said it made no difference he wanted everyone to attend the August 5 meeting. The meeting began at 7:30 p.m. Present were Thompson; Green; his administrative assistant, Terry Lowe; and about 22 salespersons .4 Jewell Newton was on vacation that week and was not in attendance. Green introduced Roger Thompson and said that the purpose of the meeting was to help the -employees make up their minds as to whether or not they wanted a union. The decision, he explained, was up to them . During the meeting, Green remarked that the girls always complained about money and he pointed out that union benefits are not free and that the employees will have to pay union dues. Thompson asked who had presided at the employees' organizational meeting. Some- one named Jewell Newton . Thompson said the employees could raise questions freely and asked what their griev- ances were. Someone complained that they had not received any raises: Green responded, that the minimum wage rate was going to be increased and the employees would get the benefits of the raise "without having to pay a cent anyway." Meyers objected that many of the employ- ees were already being paid at the higher minimum rate, so that when the statutory increases became effective, they would not receive any benefit. Green explained that it was the Company's policy to give - raises when raises were deserved. Meyers then complained that the Company was not providing relief persons when a fotomate wished to take time off and that the fotomate had to find her own relief. Green replied that it was Company policy for an employee who wanted a relief person to call the office and the office would try to find someone. In regard to possible representation by a union, Thompson said that negotia- tions might take up to a year and during this time employees would lose what they had because the bargain- ing would start from the bottom . In response to a question, Thompson said that employees of the Company in other areas had tried to obtain union representation, but, after hearing the facts, they found that union representation was not for them. Brenda Meyers was the most outspoken employee at the meeting. According to Thompson, "She pretty much carried the ball . . . . Most of them (the employees) were very quiet . . . as I remember, the majority of the questions were asked by Brenda Meyers." A. Termination of Brenda Meyers Respondent's position, stated by counsel at the opening of the hearing, is that Brenda Meyers was not discharged, but that she quit her employment. Roger Thompson testified that fotomates are part-time employees who normally work approximately 29 hours per week. For the most part, girls in school and marred women accept these positions in order to supplement family 'income. As a consequence, there is a high rate of employee turnover. For the Company as a whole, foto- mates are replaced at the rate of 129 percent per year. Louisville, which has a better record than the company average, has a turnover rate of approximately 100 percent. By these standards, Brenda Meyers was a relatively long term employee. She first began to work for the Company in January 1970 and left its employ in August of that year to go to college. She began working again for the Company in May 1971 and remained until she was terminated on August 10, 1972. The circumstances leading to her termination turn about Meyers' interest in obtaining employment at a department 3 Green explained that the employees , on July 27, met at the Cape employees "eat and have a get together there " Codder restaurant where Green held monthly sales meetings with the 4 Thompson made a special trip to Louisville from Atlanta, where he employees and which meetings were referred to as parties because the maintains his office, to participate in the meeting. FOTOMAT CORPORATION 467 store known as Stewarts. With respect to the subject, Meyers testified as follows: In the morning of July 31, 1972, the day Meyers returned from her vacation, Terry Lowe, Green's administrative assistant, whom Meyers considered to be her friend, called her ands Meyers told Lowe that Stewarts had telephoned about ajob opportuni- ty and that she was going to the store for an interview. Lowe responded that when Meyers found out something definite, she should call back. Later that day, after she returned home from her interview at Stewarts, Meyers telephoned Lowe and informed her that Stewarts had nothing worthwhile to offer and that she was not going to take the job there. Undenied is Meyers' testimony that she had no further conversation with Lowe about the subject until the date of her termination .6 Brenda Meyers was terminated on August 10, 1972. Robert A. Green came to her store as she was leaving for the day and told her that he had heard she had another job and that she had given her 2 weeks' notice and he was holding her to the notice. Meyers asked him where he had received his information and Green replied from Terry Lowe. Meyers then said that there was a misunderstanding and offered to telephone Lowe. Green responded that it was unnecessary and that he was going to hold her to her notice to quit. After Green observed a paper on the cash register'which had on it the Union's name and address, he asked Meyers what that was and she said , "It's no secret we're going to hold a meeting there. You know I'm for it." There was further discussion during which Meyers inquired whether she was being terminated because of the Union and Green denied the fact saying, "You gave your two week's notice. I'm going to hold it to you." Finally, Green said, "Well, your work has been dropping anyway." Meyers asked how he could say that when she had been designated "Fotomate of the Month" before she went on vacation, which is an award for outstanding work. Green then referred to eight envelopes which were in the drawer and ' should have been sent to another store. Meyers protested that it must- have happened while she was on vacation and she did not know anything about the matter. 5 It is Lowe's practice to telephone each location almost every morning in order to be sure that the salesperson assigned to the store is at work. As only one person works in each location at any one time , if the fotomate fails to appear the store will not be opened for business. 6 As a- witness, Brenda Meyers appeared to be unreservedly candid. Her testimony was given forthrightly without hedging, with conviction, and with the semblance of complete integrity. I find Brenda Meyers' testimony is reliable and to the extent that it differs from the testimony of other witnesses, particularly that of Terry Lowe and Robert A. Green, I credit Meyers' Lowe's version of the conversation described above differs to some degree from Meyers' version According to Lowe: In the afternoon of July 31, Meyers telephoned and informed her that Stewarts had called Meyers, that she had a job with that company, and that she was giving her 2 weeks' notice and Lowe should tell this to Mr Green. Meyers also said that she would call again after she had her interview at Stewarts to let Lowe know if Meyers could give the full 2 weeks' notice before leaving the Company's employ. The same evening, Lowe informed Green about her conversation with Meyers. Then, according to Lowe, when she telephoned Meyers the next morning, Meyers informed her that she had decided not to take the position with Stewarts. Lowe told Meyers that she would tell Mr Green that Meyers had changed her mind. The same day, Lowe informed Green that Meyers had changed her mind about taking a Job with Stewarts. 7 I credit Meyers' version of her final conversation with Green Accordingly, I find that Green did not include among the reasons he gave Meyers for her discharge that she had reported to work 25 minutes late that The conversation then reverted to where it began by Green saying, "You gave your two week's notice . . . I'm here for the key [to the store ]." As Meyers was leaving, Green said, "I don't want you to leave upset. You call me when you get home . . . I do want to give you a good recommendation if you get another job." After Meyers again protested that she had done nothing which warranted her termination, Green said, "Well, you did give your two week's notice, but I want to give you a good recommendation. So call me." 7 Green alone was responsible for the decision to termif nate Meyers. Green testified that, on July 31, Terry Lowe informed him that Meyers had another job and was giving 2 weeks' notice, but was uncertain as to whether she would be able to remain for the full 2 weeks. The next day, Green learned from Lowe that Meyers had decided not to take the other job and would stay with the Company. Nevertheless, from August 1 until August 10, the day Meyers was discharged, according to Green, he -"was contemplating what to do about her situation ." During this period, Green did not speak to either Lowe or Meyers about the possibility that Meyers might quit her job with' the Company. Green finally decided to terminate Meyers on August 10. That day Meyers came to work about 25 minutes later and, according to Green , this provided "the occasion ... to hold her to her resignation."9 Green gave as the reasons for Meyers' discharge :' "[T]hat she was twenty-five minutes late that morning and the store was closed while she was late and because . . . in the past of finding her taking the TV into a store10 and . . . the fact that she had twenty . . . envelopes of film that belonged to one of our other stores in her drawer and it had to be there for sometime and that she had initialed the invoices that' were billed to the other store . . . and also ' because of her attitude and . . . more than anything else . . . because she had resigned." Green further explained that Meyers "called up and said she was quitting , wanted to give her two week's notice and the next day she called back and said that she decided not to take the other job. Of course I can't afford to sit around .- . . when somebody has let us know that they are going to leave or are actively seeking day or that she had once attempted to bring a television into a store. s Lowe testified that Meyers explained she had overslept Lowe further testified that Meyers had been late 5 or 10 minutes on several prior occasions, but never before as long as 25 minutes. and that she does not consider Meyers a tardy employee. 9 Green testified that Meyers "admitted to Terry Lowe and to myself that she overslept She made no bones about that . . In fact, she was very nonchalant about it." 10 According to Green, about I or 2 months before Meyers' termination, Meyers had been asked to work on a Saturday morning at another location in Clarksville, Indiana. Green was at the store before opening time When Meyers arrived, he observed her carrying a -small portable television into the store He inquired why she had it and she said that she was afraid someone would steal it from her cal. Green instructed her to leave the television in the car because the automobile was within sight, being parked about 12 feet from the store. Contrary to Green, this incident could not fairly have contributed to the decision to terminate Meyers. First, it does not appear that Meyers had done anything improper At most, Green suspected that, had he not intervened , Meyers might have watched television in the store. Second, the event occurred a substantial period of time before Meyers' termination and there is no indication that Green had any basis,for suspecting that Meyers had again done anything of a similar nature . Third, thereafter, Meyers was given the "Fotomate of the Month" award. The resurrection of this inconsequential incident to justify Meyers' discharge is symptomatic of the inadequacy of Green 's'entire explanation. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment elsewhere . . . Sometimes the girls don't give me any notice at all when they quit. . . . I can't afford to sit around and have a girl call me today . . . and say, `Well, I'm not coming in any more.' Then I'm faced with getting somebody in there." During the 10 days that intervened between the time Meyers informed Lowe that Meyers was considering another position and August 10, when Meyers was terminated, Green testified that he "was contemplating what to do about her situation. . . . When she did come in twenty-five minutes late I thought that was just the straw that broke the camel's back." However, Green testified, "I did want to give her a good recommendation... . Because I didn't want to hurt her chances ... of getting another job." On cross-examination, when asked what caused him to decide to hold Miss Meyers to her resignation, Green answered, "Two things mainly. One, the fact that I , had finally made the decision that I could not wait any longer, that I had to definitely have somebody for that store, that I couldn't afford to sit around and wait for her to decide when she was going to stay and when she was going to leave. And also the fact that she was late that morning. And with all of that in connection with the other things she had done I thought it best that we go ahead and part company at that time." When asked whether one of the reasons for Meyers' termination was her poor work performance, Green answered, "No." In summary, Green's testimony is that he did not terminate Meyers because her work performance was bad. (Presumably that would have been hard to do as Meyers won the "Fotomate of the Month" award the previous month.) He referred to Meyers being 25 minutes late on August 10 as a reason for her discharge, but this does not appear to have been a significant contributing cause because Lowe testified that Meyers was not considered a tardy employee and even Green testified that this event merely provided the occasion "to hold her to her resignation." Thus, the remaining ostensible reason was that Meyers had indicated an interest in seeking other employment and Green did not want to be faced with having to find a replacement without any notice. This explanation is not plausible in the circumstances. Accord- ing to Green, many salespeople leave without notice. Thus, while a sudden departure might cause temporary inconven- ience, with its high turnover rate the Company undoubted- ly has learned how to accommodate itself to such happening. Furthermore, when Meyers was considering other employment, she informed Administrative Assistant Terry Lowe of the possibility that she might quit. This suggests that she would again give notice should she later consider leaving the Company's employ. Green gave no reason for a contrary belief on his part. In addition, Meyers previously had quit the Company's employ in August 1970. As Green seemed to have had no complaint in that instance, presumably Meyers then had given the Company adequate notice. There is no reasonable basis in this record for Green's indicated apprehension that Meyers would one day quit the Company's employ without giving advance notice. Of more significance in ascertaining the operative reason for Meyer's discharge is Green's testimony that between August 1 and August 10 he was "contemplating what to do about [Meyers'] situation." It was during this period, on August 5, that the Company held the meeting at which it sought to dissuade the fotomates from pursuing further their union activities and at which Meyers, who Thompson testified was the most outspoken employee at the meeting, made it known that she favored the Union. Where, as in this case, the explanation given for the discharge of a worthy employee is implausible, it is logical to assume that the employer advances such excuse because he seeks to hide the true basis for his action. The Company unconc- ealedly opposed the organization of its employees. On August 5, it discovered that Meyers was an outspoken advocate of the Union. Only 5 days later, when Meyers, a normally prompt employee, for the first time reported for work 25 minutes late, she was precipitately discharged. That Meyers' tardiness could not have been a proximate factor in the decision to terminate her is reflected by Green's inconsistent explanations. On the one hand, he testified that he discharged her because he was afraid that one day she might quit without giving any notice. Then, on the other hand, although completely unrelated to such fear, Green testified that Meyers tardiness was "the straw that broke the camel's back" in a case where the Company's camel was not carrying the burden of an incompetent, unreliable employee, but of an award-winning fotomate. I find that Meyers did not voluntarily quit her job, as the Company contends, nor was she terminated because of the probability that one day she might leave without giving notice, as Green testified, but that she was discharged because of her outspoken advocacy of the Union. The discharge of an unabashed, vocal exponent of the Union within a month after the commencement of its organiza- tional campaign was a most effective method of undermin- ing the Union's organizational effort. In the circumstances, Meyers' discharge served to discourage membership in the Union. I find that by discharging Brenda Meyers on August 10, 1972, the Company violated Section 8(a)(3) of the Act and also interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1). Meyers testified that on August 10, during her conversa- tion with Green, when the latter saw the piece of paper on the register with the Union's name and address on it, he said to her, "You don't fool me. I know who the ringleaders are." ii Also, on August 4, Green told Meyers, "I know everybody that was [at the organizational meeting] and I know everything they said." These remarks created the impression that Respondent had, engaged in unlawful surveillance of its employees' union activities. Regardless how Green may have acquired knowledge about the organizational meeting or who the ringleaders 11 Green denied that he advised Meyers that he was aware of the identity a reliable witness I am of the opinion that he permitted his concern about of the chief union adherents. Green testified, "I told her . . I knew that the outcome of this litigation to affect his testimony. It is my opinion that there had been certain girls who were calling the other girls and soliciting. the testimony he gave was contrived to fit the Company's defense and was And I told her I didn't want her engaging in that on company time." I credit not a straightforward account of the events as they happened. Meyers rather than Green. Unlike Meyers, I do not consider that Green was FOTOMAT CORPORATION 469 were, his quoted statements to Meyers created the impression that the Company had been spying upon its employees' union activities. Employees' rights are jeopard- ized virtually as much by an employer who creates the impression of surveillance as by an employer who engages in actual surveillance. For, either necessarily interferes with employees' freedom to organize by indicating that the employer is anxious, to find out about union activity which the employees wish to conceal from him to avoid retaliation.12 Accordingly, by reason of Green's described conduct, I find that the Company has engaged in further violations of Section 8(a)(l) of the Act. B. Discharge of Jewell Newton Jewell Newton worked as a fotomate for Respondent from April 1972 until she was discharged on August 16, 1972. The Company knew that she was responsible for the union activities among its employees. The significant events culminating in Newton's discharge took place following her return to work on August 7 from a 1-week vacation. In the late afternoon of that day, Newton at her own expense telephoned the office of Company Vice President Scott Fitzgerald, which is located in LaJolla, California. The reason she placed the call was that in early July she had worked overtime and had not been given premium pay for the time she worked in excess of 40 hours during the week in question and allegedly had been instructed by Green to report the excess hours on another employee's time record. The amount involved was approxi- mately $5. Newton testified that she had not asked Green for the money, but had called Fitzgerald "because that's what I thought would be best to do at the time." She testified that she had learned from Union Representative Webber that the offense of which she wished to accuse Green constituted a violation of the Wage and Hour Law and was relatively serious. When questioned why she would telephone California to collect $5, Newton testified that the reason was "not necessarily [to] get [Green] in trouble." She explained, "It was the principle that I worked, that I would work overtime and they wouldn't pay me a little measly five dollars that I'd worked." Jewell Newton normally worked only 32 hours per week. According to Newton, on the Monday of the week during which she allegedly worked overtime, in addition to her own shift, at the request of Teresa Norman, who worked the second shift at the same location, she also worked Norman's shift. Newton knew that employees were not supposed to change their work shifts without first clearing with Green or Lowe. However, on this occasion she did not inform either Green or Lowe of the switch. Newton testified, "I felt that . . . it wasn't my position to call Mr. Green and tell him. It was Teresa Norman's to call and tell 12 The court has held that: "Surveillance becomes illegal because it indicates an employer's opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer's anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc." Hendrix Manufacturing Company, Inc., v. N.L.R.B., 321 F.2d 100, 104, fn. 7 (C.A. 5). 13 Jewell Newton appeared to be passionately involved in this litigation. him ... she was going to be off." Later in the same week, Newton was asked to work an additional shift for another girl. Thus, with the unapproved shift she worked for Norman, Newton worked two extra shifts during the week in question for a total of 46 hours. According to Newton, when she called Green and informed him that she had worked overtime hours, he told her "to put it on Teresa Norman's time sheet and have [Norman] pay [Newton] for the hours worked." According to Newton, this is what was done. Green's version of the event is at variance with Newton's. He testified that one morning, when a telephone call was made to the store, it was discovered that Teresa Norman was at work instead of Newton. Norman explained that "Jewell was going to be out of town and that they had arranged between themselves that Teresa would work all day both Monday and Tuesday and they would hope that we wouldn't find out about it. And I said, `Well, that's going to cause you to have overtime,' And she said, `Well, I know,' she said, `but I'm going to put the hours on Jewell's time card.' And I said, `Well, you know that's strictly against company policy and it's also illegal by wage and hour.' " Green did not testify as to whether any overtime was paid to either Norman or Newton or what was done about their plan to falsify the timecards. Newton did not speak to Scott Fitzgerald when she placed her telephone call to him in California. Instead she was connected with his secretary who referred her to Roger Thompson. Subsequently, there was a telephone conversa- tion between Newton and Thompson. There is some conflict between the testimony of Newton and Thompson as to when they spoke and what was said. I credit Thompson and the summary below of their conversation is based upon Thompson's testimony.13 Scott Fitzgerald's secretary telephoned Thompson on August 7 and asked him to communicate with Mrs. Newton because Fitzgerald was unavailable. Thompson had previously been informed about Newton's union activities. He telephoned Mrs. Newton the same afternoon and spoke with her for about 20 minutes. She complained to him about overtime pay that had not been realized by the girls, about a situation where a young lady had been forced into an insurance program, that certain girls were given preferential treatment because they, in essence, were playing ball with Green and that Green was "snowing" the girls. Thompson then turned the conversation to the union question. After some discussion of the subject, Thompson mentioned to Newton that he thought their talk was fruitful in that he felt she was listening to what he had to say. Among the things he said to Newton were (1) that the Company had given benefits to its employees based upon its ability to do so, (2) that it would continue to respond to the needs of the girls; and (3) that he didn't feel that a third I suspect it may be due as much to her concern with vindicating the rights of employees, which probably with great sincerity she believes have been violated by the Company, as with the direct benefits she personally might receive from the favorable outcome of this litigation . However, her objectivity seems to have been affected by her involvement. My impression is that in her testimony she was seeking more to describe her feelings and attitudes than to recount the pertinent facts. I find that Newton was not a reliable witness. On the other hand, although Thompson has an important stake in the outcome of this case, his testimony was straightforward and carefully given. I find that Thompson was a credible witness. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD party could do as good a job as the Company could. He reminded her of the need to pay union dues and that the employees might have to participate in other union activities such as walking picket lines which was not in keeping with and would not further their needs or their jobs. Also, he said that when a union comes into the picture the starting point with respect to employee benefits is not what they had with additions, but bargaining begins at ground zero and the union must negotiate for all benefits so that the result may be that the employees will end up with the same, with fewer or with greater benefits. Thompson also cautioned Newton against engaging in organizational activities on company time. Before conclud- ing the conversation, Thompson remarked that, while he didn't have all the answers, there were a few things about the impact of the Union that he had pointed out to Newton of which she might not have been aware. Thompson reported his conversation with Newton to Green. Subsequently, about 1:40 p.m. on August 11, Green visited Newton at her store. She testified that when he arrived he appeared to be angry and upset and she is sure that it was because she had gone over his head to speak with company officials. Green remained about 45 minutes during which time they had an acrimonious discussion. Contrary to rules, Newton was not wearing the company uniform. Green reminded Newton that she could be fired for not wearing the uniform. Then, according to Newton, "And he asked me why I took it upon myself to call Roger Thompson and tell him the lies that I told him. And he said that I was vicious and I was a liar and that he wanted me to take a polygraph test. And I told him that I would, that I would make the arrangements for it. And he said, no, that he would make the arrangements for it. And it dropped there. And he was just very upset and angry with me. And I told him about the instance of the insurance. And I asked him why he had done it, why did he make her sign the papers. . I said, 'I guess that's money in your pocket.' And he got very mad at me and he said for me not to ever say anything like that again." Green discharged Newton on August 16. The decision was his alone. Newton testified that Green said he was discharging her because she had not worn her uniform and because of the lies she told about him to Roger Thompson. Then, according to Newton, "I was very mad and I called him some names." Regarding Newton's discharge Green testified, "The main things to me were the fact that she had taken it upon herself to lie to my superior about me, to state things that I knew to be lies to undermine my relationship in this company, and possibly to terminate my employment. And also the fact that she has been extremely surly in my presence. It was plain that I could no longer deal with this girl on an employer-employee relationship. The attitude in my presence was that she was almost no longer under my supervisory control." Green testified that when he notified Newton of her discharge he "told her also because of lateness and not wearing a uniform, but mainly because of telling [Thompson] lies." Green also testified about other deficiencies on the- part of Newton in the performance of her work, but these matters were only small contributing reasons leading to her discharge. Green believed that Newton had lied to Thompson "for the purpose of destroying" him. His testimony in effect is that the single, overriding reason for his decision to discharge Newton was her report about him (which Green considered to be lies) to his superior, Roger Thompson. If Newton's report to Thompson alone (or together with Newton's other alleged derelictions in the performance of her work) was the proximate, efficient cause for her discharge then Newton's termination does not violate the Act.14 However, if a contributing factor to the decision was Newton's leadership in the organizational drive among the Company's Louisville employees, then her discharge constitutes an unlawful infringement upon employees' statutory rights. That Green and the Company were disposed to terminate persons who actively aided the union campaign is demonstrated by the discharge of Brenda Meyers. It is not unreasonable to assume that the Company would seek an opportunity to rid itself of Jewell Newton who had been promoting the Union even more strenuously than Meyers. However, the fact that the Company might welcome an opportunity to discharge Newton does not make her discharge unlawful if, in fact, she was discharged for a reason which would have brought about her discharge absent her union activities. Newton placed a telephone call to Company Vice President Fitzgerald to voice a complaint against Green. Ultimately, she spoke to Thompson. Thompson told Green of the conversation. The latter considered the complaints made about him to have been lies. More importantly, he fairly concluded that Newton was seeking to undermine his position with the Company. In these circumstances, I believe that the reason given by Green for discharging Newton is plausible and true. Despite the contrary suspicions adverted to above, I find that General Counsel has failed to prove by a preponderance of the evidence that Newton was discriminatorily discharged. C. Other Alleged Interference The complaint alleges that Roger Thompson in the course of his telephone conversation with Jewell Newton coercively interrogated her about her union activities and created the impression that the Company had engaged in surveillance of its employees' union activities. I find that the credible evidence adduced at the hearing does not support this allegation. The complaint also alleges that in connection with the conversation between Green and Newton at her place of work on August 11, the Company attempted discriminato- rily to require her to take a polygraph test in order to harass her. Based upon the evidence discussed above concerning the incident, I find that General Counsel has failed to prove the alleged unlawful discrimination. 14 The purpose of Newton's initial telephone call to Scott Fitzgerald was Newton's overtime pay complaint, the features which angered Green, after a to satisfy a personal complaint and was not related to the union campaign report of the discussion had been made to him by Thompson, and led him or to the promotion of any purpose in concert with other employees. The to discharge Newton did not concern the Union or the employees' call was referred to Thompson . Although the.conversation on August 7 concerted activities. Green was troubled by what he deemed to be slander between Newton and Roger Thompson covered more subjects than just against him as a person and as a supervisor. FOTOMAT CORPORATION 471 The complaint also alleges that on the same occasion, on August_ 11, Green threatened Newton with discharge because of her activities on behalf of the Union. Newton testified to such effect and Green denied Newton's testimony. It is my opinion that neither was a reliable witness. In the circumstances, I find that General Counsel has failed to prove by a preponderance of the evidence that the alleged threat was made. The complaint also alleges that in connection with Green's telephone call to Newton on July 28 he unlawfully interrogated her about her union activities. Even accepting Green's version of the incident, I find such violation was proved. According to Green, he telephoned Newton and inquired with reference to the union meeting, "How was your party last night?" He informed her that he,knew that she had been soliciting on company time and cautioned her against such activity., In context, Green with not too much subtlety was seeking to get Newton to reveal what had occurred at the union meeting. Such effort to secure information which "could be useful for discrimination or harassment, without an explanation of any legitimate purpose for asking the question and without giving Newton any assurances against reprisal, particularly in this case where the Company revealed its opposition to the unionization of its employees shortly after the commence- ment of the organizational activities and quickly dis- charged one of the outspoken sympathizers of the Union, was clearly coercive.15 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Company unlawfully discharged its employee Brenda Meyers on August 10, 1972. I shall recommend that the Respondent offer Brenda Meyers immediate and full reinstatement 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 loss of earnings she may have suffered by reason of the discrimination against her by payment to her by a sum of money equal to that which she normally would have earned from the aforesaid date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings 15 N.L R.B. v. Camco, Inc., 340 F2d 803, 804-807 (C.A. 5, 1965), cert. dented 382 U.S. 926. 16 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, during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum. shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716. For the reasons which are stated in Consolidated Industries, Inc., 108, NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact and, upon the entire record in this case I make the following: CONCLUSIONS OF LAW 1. By discriminatorily discharging Brenda Meyers on August 10, 1972, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By reason of the foregoing conduct and by reason of Respondent's unlawful interrogation of an employee, described above, and Respondent's unlawful conduct in creating the impression among employees that it was engaging in the surveillance of their union activities, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. , The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not engaged in any violations of Section 8(a)(3) of the Act by the discharge of Jewell Newton on August 16, 1972, and has not engaged in the violations of Section 8(a)(1) of the Act alleged in the complaint except insofar as such violations were specifical- ly found above to have taken place. Upon the basis of the foregoing findings of fact, the conclusions of law, and the entire record in this proceeding and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:16 ORDER Respondent, Fotomat Corporation, Louisville, Kentuc- ky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in regard to hire, tenure of employment, or any term or condition of employment in order to discourage membership in Teamsters Local Union No. 783, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or in any other labor organization. (b) Coercively interrogating employees concerning their union membership or activities. 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. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Engaging in the surveillance of the union activities of its employees or creating the impression among its employees that it is keeping their union activities under surveillance. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Brenda Meyers immediate and full reinstate- ment 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. (b) Make Brenda Meyers whole for any loss of earnings she may have suffered by reason of Respondent's unlawful discrimination against her in the manner set forth in the section of this Decision entitled the "Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 17 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 payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its places of business in Louisville, Kentucky, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."