Cook's Discount Store

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cook United, Inc., d/b/a Cook's Discount Store and Retail Clerks International Association , Local 156, AFL-CIO. Case 6-CA-6551 January 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PFNELLO On September 4, 1973, Administrative Law Judge Sydney S. Asher issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the. General Counsel filed a brief in reply. 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 briefs 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. Respondent takes exception to the Administrative Law Judge's conclusion that Supervisor Bailey created the impression that the union activities of employee Dutton were under surveillance by Res- pondent and that Bailey's comment to Dutton regarding insurance coverage for part-time employ- ees constituted an implied promise of benefits. We find merit in these exceptions and reverse the Administrative Law Judge's Decision insofar as it finds these remarks of Bailey's to constitute viola- tions of Section 8(a)(1) by Respondent. With respect to Bailey's assertion to Dutton on the eve of the election that he knew that she and Terry, another employee, were "for the Union," the record establishes that this was but a statement of what both Bailey and Dutton knew to be common knowledge around the plant. Dutton testified that her union activities were "very open" and well known to Respondent and to the other employees and that she made no attempt to hide the fact of her union support from the store management. The record also shows that Bailey had observed her speaking with nonemployee union representatives and leaving the store with them on a number of prior occasions, and that other store employee previously had volunteered information concerning Dutton's union activities to Bailey. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence Inasmuch as Dutton was well aware that her views were known to Respondent and the record leaves no doubt that the supervisor's knowledge of Dutton 's union activity was acquired by normal observation of employee activity and by information volunteered by other employees, we cannot infer that Dutton assumed from Bailey's statement that her union activities were under surveillance . In this context, we conclude that Bailey's statement was intended as no more than an introduction to a conversation with Dutton about the Union in which he told her, inter alia, that he did not want to try to talk her out of the way she wanted to vote , but that she should give the matter serious thought, as the Respondent "had been pretty fair" to the employees and he did not believe they needed a union . We therefore find, contrary to the Administrative Law Judge, that Bailey's remarks did not violate Section 8(a)(1) of the Act. Schrementi Bros., Inc., 179 NLRB 853; Frank S. Malek and Azzetta G. Malek, Partners, d/b/a Precision Tool and Die Mfg. Co., 205 NLRB No. 66, fn. 2. The allegation of an implied promise of benefit stems from the same above-described conversation with Dutton during which, when Dutton asked Bailey why the part-timers had no insurance cover- age, Bailey replied that he thought it was "probably a mistake and should be remedied soon." There is uncontroverted evidence that the part-time employees had been covered by Respondent 's group insurance plan, that a hiatus in coverage had resulted from Respondent's change of insurers in November 1972, and that coverage had been restored and in effect for 1 month at the time of the hearing. Dutton and Bailey both testified that there had been some confusion in the store about whether the part-timers were covered . Dutton herself had commenced employment with Respondent as a part-timer and, in accordance with company rules , had become insured after 90 days of employment . Bailey, who had no involvement with nor authority regarding the insur- ance program, had learned of the hiatus in coverage from a part-time employee. In our view, Bailey was merely stating his understanding of a situation which had created confusion around the store and which he thought should be remedied soon. In these circum- stances, we view his statement as a protected expression of opinion, rather than an implied promise of benefit. See AAA Lapco, Inc., 197 NLRB 274. Accordingly, we shall dismiss the allegations of the complaint concerning surveillance and a promise of benefit. convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544. enfd 188 F.2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings 208 NLRB No. 16 COOK'S DISCOUNT STORE 135 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, Cook United, Inc., d/b/a Cook's Discount Store, Benwood, W. Va., its officers, agents, successors, and assigns, shall take the action set forth in the said Order as so modified. 1. Delete paragraphs 1(b) and (c) and reletter paragraph 1(d) as I (b). 2. Substitute the attached notice for that recom- mended by the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF IHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT prohibit employees of the grocery side of our store from becoming involved in organizing employees of the discount side on behalf of Retail Clerks International Association, Local No. 156, AFL-CIO, or any other union, or otherwise indicate to them that union activities are inconsistent with continued employment by us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join or assist any union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh , Pennsylvania 15222, Telephone 412-644-2977. DECISION SYDNEY S. ASHER, Administrative Law Judge: On February 5, 1973, Retail Clerks International Association, Local No. 156, AFL-CIO, herein called the Union, filed charges against Cook United, Inc., d/b/a Cook's Discount Store, Benwood, West Virginia, herein called the Respon- dent.' An amended charge was filed on February 12, 1973, and a second amended charge on March 27, 1973. Based on these charges and amended charges the General Counsel of the National Labor Relations Board, herein called the General Counsel, on April 26, 1973, issued a complaint alleging that since on or about December 15, 1972, the Respondent-has interfered with, restrained,,and coerced its employees in certain specified respects. It is alleged that this conduct violated Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et. seq. ), herein called the Act. The Respondent filed an answer admitting the jurisdiction of the Board but denying that the Respondent had committed any unfair labor practices. Pursuant to notice a hearing was held before me at Wheeling, West Virginia, on May 31 and June 12, 1973, and at Pittsburgh, Pennsylvania, on June 26, 1973. All parties were represented and participated fully in the heanng. At the start of the hearing the General Counsel was permitted to amend his complaint and the Respondent was permitted to amend its answer. At the close of the hearing the Respondent moved that the complaint be dismissed in its entirety because of the failure of the General Counsel to establish a prima facie case. Ruling on this motion was reserved; it is now granted in part and denied in part, in accordance with the Decision herein. After the close of the hearing, the Respondent filed a brief which has been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: COOK UNITED, INC., D/B/A COOK'S DISCOUNT STORE (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been, 1 The name of the Respondent appears as amended at the heanng. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional stand- ards; 2 and that the Union is, and at all material times has been, a labor organization as defined in the Act. B. The Setting The Respondent's Benwood store is a separate building with its own separate parking lot; it is not part of a shopping center. There are two sides to the store: the grocery side where food is sold and the discount side where soft goods are sold. Both sides are reached by the public through a common lobby which contains the key depart- ment, some automatic coin-operated vending machines, and some public telephones. There is entirely separate and distinct management and supervision for each of the two sides. Approximately 50 employees work on the grocery side. During all material times, the Union has been the collective-bargaining agent for the employees on the grocery side, except employees of the meat department, who are represented by the Meat Cutters' Union Local 590, herein called the Meat Cutters. The grocery side is open around the clock, 7 days a week, 361 days a year; it is closed only 3 days each year. Approximately 100 workers are employed on the discount side. Normally the discount store closes at 9:30 p.m. In May 1971 the Meat Cutters filed a petition with the Board seeking to represent the employees on the discount side; the Union intervened (Case 6-RC-5825). An election was held in January 1972.3 Neither union won; a certificate of results ultimately issued in August 1972. Another campaign among the discount employees was begun by the Union in August 1972. In December 1972 the Meat Cutters filed a second petition seeking to represent the employees on the discount side; the Union intervened (Case 6-RC-6359). An election was held in February 1973 but the ballots have been impounded and no tally of ballots has yet issued. The events with which we are here concerned, which took place in December 1972 and January and February 1973, must be viewed against the backdrop of the above- related facts. C. The Conduct of Joel Morrison 1. Facts On December 14, 1972, at about 11 p.m. two nonemploy- ee representatives of the Union and three employees of the grocery side stood in the lobby and handed out pamphlets and union cards on the Union's behalf to employees of the discount side then coming off duty. (The discount store apparently closed at 11 p.m. that night, somewhat later than usual.) Among the employees of the grocery side who participated in this activity was Lawerence J. Evans, the 2 The Respondent is, and at all material times has been, an Ohio corporation, operating a chain of retail department stores in various States One such store, the only one involved in this proceeding, is located in Benwood, West Virginia. During the 12-month period immediately prior to April 26, 1973, the Respondent's gross revenue at its Benwood, West Virginia, store exceeded $500,000 During the same period, the Respondent received goods valued at more than $50,000 at its Benwood, West Virginia, Union's shop steward, who was at that time off duty. The two nonemployee solicitors were arrested for trespassing on the complaint of a representative of the Respondent. The next morning at about 10:30 a.m., while Evans was on duty in the grocery store, he was called to the office of Joel Morrison. then manager of the grocery store, admittedly a supervisor as defined by the Act. According to Evans, Morrison asked if Evans "had been helping out on the other side" the previous night; Evans answered that he had helped union organizers hand out pamphlets; Morrison remarked that he (Morrison) had been instructed to inform Evans "to either work for the Union or work for the Company, one or the other"; and Morrison added that if Evans "kept on getting involved on the other side [Evans] could wind up getting myself in ajam and lose my job"; Evans answered, "Okay," and the conversation ended. Evans further testified that during his talk Morrison stated that he did not want any of his employees organizing for the Union on company time, or bothering any other employee who was on company time; Evans replied that "that was fine with me." Morrison's version of this conversation was different. According to Morrison, he asked Evans what he had been doing the night before; 4 he (Morrison) told Evans "that what he did on his own time was his business, but if any of his people were locked up and they didn't show up for work the next day and they didn't report in, they could end up losing their job"; and that Evans replied that he (Evans) "would get a hold of his union representative and get an answer back to me on whatever he was doing." Morrison denied telling Evans he would either have to work for the Union or work for the Respondent, or that he had to take his choice. Evans impressed me as a more accurate and reliable witness than Morrison; therefore I find that the conversation took place substantially as related by Evans, and I specifically do not credit Morrison's denial that he told Evans to choose between the Union and the Respondent. Later that day Evans and Leo Rawlings, a nonemployee representative of the Union, approached Morrison in the grocery store. According to Rawlings, Rawlings asked Morrison if he had prohibited Evans from assisting in organizing "on the other side" on his own time; Morrison replied that "employees on the grocery side were to stay on their side, not to get involved in the discount organizing side" [sic]; Rawlings asserted that employees had a "right to help organize the unorganized on their own time and not on company time"; and threatened that should Morrison persist in this prohibition, Rawlings would file charges against the Respondent; and Morrison replied: "I guess you know what you're doing." Evans generally corroborat- ed this version, except that he testified that Morrison's final remark was that Morrison did not want to get involved and would rather let the Respondent's personnel office take care of it. Morrison's version of the conversation was as follows: store which were shipped there directly from sources outside the State of West Virginia 3 Meanwhile, in June 1971, the Meat Cutters had filed charges against the Respondent (Case 6-CA-5538) and so had the Union (Case 6-CA-5559). Both cases had been settled in September 1971 4 Prior to this conversation Morrison had checked Evans' timecard and ascertained that Evans had been "off the clock" the previous night COOK'S DISCOUNT STORE 137 Q. (By Mr. Williamson) Tell us what transpired during this conversation? A. I believe that Mr. Rawlings carried the conver- sation and he told me that whatever these people did on the other side I had no control on it and that they wouldn't do it while they were on the clock, which I knew they were not. That was pretty much the bulk of the conversation. Q. What did you say to him? A. I agreed with him. Q. Do you recall him at any time or did he at any time ask you whether you were threatening Mr. Evans? A. Not that I recall. Q. Did he at any time threaten you with charges before the Board? A. I don't recall this either. I find that the conversation occurred essentially as described by Rawlings, who impressed me as a forthright and candid witness. 2. Contentions of the parties The complaint alleges, and the answer denies, that on or about December 15, 1972, Morrison "threatened employ- ees with loss of employment if they engaged in activities on behalf of the Union." In support of this allegation the General Counsel contends that what Morrison told Evans the morning after Evans helped hand out pamphlets for the Union "constitutes a threat of loss of employment directed toward Mr. Evans because of his activities on behalf of the Union." The Respondent, conversely, maintains in its brief that "there exists not a shred of credible evidence upon which it could be concluded that Morrison threatened Evans." Moreover, the Respondent argues that "the solicitation that prompted Morrison to [speak to Evans] had taken place in the lobby-unquestionably a part of the Discount selling area and while customers were in the Discount Store." 3. Conclusions I agree with the General Counsel that Momson violated Section 8(a)(1) of the Act by stating to Evans on December 15, 1972, at approximately 10:30 a.m., that Evans must "either work for the Union or work for the Company, one or the other. Recently, in Padre Dodge, 205 NLRB No. 39, a management representative told an employee that he knew that the employee was proumon. then asked the employee: "if he wasn't happy where he was working, why did he continue employment?" The Board stated, "Such remarks clearly convey to an employee the threat that management considers engaging in union activities and continued employment incompatible" and held these remarks violative of Section 8(a)(1) of the Act. Here, the choice Momson gave Evans was, in substance, give up helping the Union organize the discount employees, or leave. On the authority of Padre Dodge, I conclude that this constituted a warning that organizing employees on the discount side was incompatible with continued employ- ment on the grocery side, and threatened discharge should such activities be continued. Morrison's illegal conduct did not end there. Later that day he informed Rawlings, in Evans' presence, that "employees on the grocery side were to stay on their side, not to get involved" in organizing the discount side. Morrison thereby iterated the illegal warning he had given Evans earlier that day. The Respondent points out that the lobby, where Evans solicited on his own time the night of December 14, 1972, was a selling area. Presumably, although the Respondent does not clearly spell it out, the Respondent would have me conclude from this that Evans' solicitation that night was not protected activity and that Morrison therefore had a right the next day to warn Evans that a repetition of such conduct might call for disciplinary action. I do not reach this argument because that is not what Evans was told. Morrison did more than merely warn against a repetition of the previous night's activities in a selling area. He went much further and prohibited all cooperation between the grocery employees and those who solicited support for the Union from employees on the discount side. Thus, the prohibition was overly broad and unjustifiably hampered the employees in the exercise of their legitimate right to help organize the unorganized. For this reason, I decline to determine, as immaterial, whether the lobby constituted a nonselling area of the store. It follows, and I conclude, that so far as Morrison's conduct is concerned, the Respon- dent's motion to dismiss the complaint must be denied. D. The Conduct of Charles Bailey 1. Facts On February 22, 1973, the day before the Board- conducted election, Charles Bailey, assistant manager of the discount side, approached Marsha Dutton, an employ- ee of the discount side, while she was at work. Bailey stated that he knew that Dutton and Patsy Terry, another employee of the discount side, were for the Union. He said he wouldn't try to talk Dutton out of voting the way she wanted, and advised her that she should vote whatever way she wished, but admonished her "to think about it because it made a difference how [she] voted." He added that the employees "really don't need a union" because the Respondent "has been pretty fair" to them. Dutton asked why part-time employees did not have insurances Bailey replied: "it was probably a mistake by the company and that it should be remedied very soon." 7 2. Contentions of the parties The complaint alleges, and the answer denies, that on or about February 22, 1973, Bailey "created the impression s I do not intend to imply that Momson's warning to Evans regarding organizing on working time was in any way improper 6 Dutton had previously been a part-time employee, but at this time was a full-time employee. Part-time employees had at one time been covered by the insurance program but this coverage had ended sometime before this conversation took place. despite a company policy not to withdraw existing benefits. 7 The findings of fact regarding this conversation are based on a synthesis of the testimony of both participants. who were basically in agreement Although Bailey did not testify that Terry's name was mentioned, he did not deny Dutton's testimony that it was 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among . . . employees that Respondent was keeping their activities on behalf of the Union under surveillance" and also "promised employees economic benefits in order to dissuade them from joining or assisting the Union or selecting it as their bargaining representative." Pointing to the remarks of Bailey to Dutton, set forth above, the General Counsel maintains: "This statement constituted first an implication of surveillance . . . and the rest of the statement concerning the insurance coverage implied promise of benefits to the employees." The Respondent admits that Bailey was a supervisor within the Act's definition, but in its brief, argues: .. . in mentioning Dutton's support for the Union, Bailey was merely stating the obvious. Under the circumstances, the statement could not possibly have been coercive. . . . One cannot spy on what people are not trying to hide . . . Bailey's alleged isolated statement to Dutton simply does not contain the restraining and coercive elements prerequisite to an 8(a)(1) violation. As to the statement concerning insurance, the Respon- dent argues (1) "In commenting that the mistake should be corrected, Bailey did no more than suggest to Dutton that the Company should honor its policy against withdrawing benefits that have been extended to employees"; and (2) "In any event it is undisputed that Dutton was a full-time employee and already covered by the hospitalization program." 3. Conclusions I conclude, in agreement with the General Counsel, that by stating to Dutton that he knew that she and Terry were supporters of the Union, Bailey created the impression that their union activities were under observation. It is true that Bailey was not shown to have obtained this information illegally; other employees had apparently volunteered to him that Dutton and Terry were prounion and he himself had seen Dutton in the company of nonemployee union representatives. It is also true that he was neither required to shut his eyes to what went on openly nor to stop his ears against information volunteered to him. His vice, however, was in telling Dutton what he knew, thus emphasizing the importance the Respondent placed on such matters and necessarily tending to impede her willingness (and that of Terry) to continue such activities in the future. And this is so even if the past union activities of Dutton and/or Terry had not been furtive. Accordingly, Bailey's conduct constituted coercion proscribed by the Act. As for Bailey's remark concerning insurance, this reference to remedying a "mistake" constituted an implied promise to improve the lot of the part-time employees, whether the past lack of insurance is looked upon as deliberate or accidental. The Board's announced test regarding the legality of benefits promised during the pendency of an election is as follows: "What is unlawful 8 Hudson Hosiery Company, 72 NLRB 1434, 1437 See also Tonkawa Refining Co, 174 NLRB 619, enfd. 434 F.2d 1041 (C.A 10, 1970); and Stoner Lumber, Inc, 187 NLRB 923, 930 enfd. in pertinent part 80 LRRM 2767 (C A 9, 1972) under the Act is the employer's granting or announcing such benefits (although previously determined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collective bargaining."s The Supreme Court, in N.L.R.B. v. Exchange'Parts Co., 375 U.S. 405 (1964), approved this principle. Let us apply this rule to the case before us. Although Bailey purported not to be trying to persuade Dutton to vote against the Union in the forthcoming election, this is precisely what he was attempting to do. His purpose in approaching Dutton, an eligible voter, and telling her that the Respondent had been good to its employees must have been to win over her vote; otherwise there would have been no point to it. In the light of Bailey's belief that the Union would not be a good thing, his seeking out Dutton the day before the election and commencing a conversation about the Union, and in the context of his contemporaneous creation of the impression of illegal surveillance, I am convinced and find that Bailey's implied promise that the Respondent would extend insurance coverage to part-time employees was made for the purpose of influencing Dutton not to support the Union. And the fact that Dutton personally did not stand to gain from the promised benefit does not require a different result. Accordingly, the Respondent's motion to dismiss the complaint, insofar as Bailey's conduct is concerned, is denied.9 E. The Conduct of Terry E. Kelley 1. The incident in mid-December Prior to the matters here relevant James E. Hayman had been an employee of the Respondent at its store in Columbus, Ohio. While so employed, Hayman had joined the Union's Columbus local, and obtained a membership card which he carried in his wallet. Later, after intermediate transfers, Hayman was trans- ferred to the Respondent's Benwood store, where he worked on the discount side. In m.d-December 1972, at the beginning of the workday, Hayman had a conversation with Terry E. Kelley, manager of the discount store, an admitted supervisor within the Act's definition. According to Hayman's testimony on direct examination, Kelley approached him while at work in the major appliance department and asked if Hayman knew that representa- tives of the Union had been in the store the night before (a reference to the pamphleting in the lobby, described above); Hayman answered in the affirmative. Kelley remarked that he had had the Union's representatives jailed for soliciting. Hayman stated he had a union card; Kelley asked to see it and Hayman gave it to him. Kelley asked Hayman who was David Rittenhouse (whose signature was on the card) and also the difference between Local 1059 and Local 156; Hayman's answer to both questions was that he did not know. Kelley then made a telephone call while Hayman was only 5 feet away; Hayman overheard Kelley ask the person at the other end of the line the difference between Local 1059 and Local 9 In so holding, I do not mean to imply any illegality in Bailey's remark to Dutton that Dutton should think about the Union "because it made a difference how [Dutton] voted " COOK'S DISCOUNT STORE 139 156, and who Rittenhouse was. Hayman could not hear the answers. When the telephone call had been completed, Kelley returned Hayman's union card to him and left. On cross-examination Hayman testified that Kelley opened the conversation by asking what Hayman thought of the Union; Hayman replied that he had previously belonged to it and he was in favor of it; when Kelley asked why, Hayman responded that it had obtained good benefits for the employees. Kelley then asked whether Hayman had talked to other employees of the Respondent about the Union and Hayman answered that he had; Hayman handed Kelley Hayman's union card and Kelley "got on the telephone and called somebody." Kelley's version was quite different. According to Kelley, he was directed by one of his superiors to find out whether the Union's local in Columbus and in Wheeling were the same ; while walking through the store Kelley stopped at the major appliance department to use the telephone there to call Morrison to see if Morrison knew the answer; Kelley asked Morrison the question over the telephone; Hayman, who was standing nearby, volunteered to Kelley that that was the local he had once belonged to in Columbus, its number was 1029, and pulled out his wallet. Kelley testified further that he could not recall saying anything at all to Hayman. Karl Wolford, then manager of the major appliance department at the Benwood store, generally corroborated this, but added that Hayman made a gesture as if to offer his billfold to Kelley, and Kelley said no, he (Kelley) did not want to see it.10 2. The incident in January The second incident related by Hayman allegedly occurred in mid-January 1973, between noon and 1 p.m., while Hayman and Kelley "were just walking through the store." According to Hayman, Kelley asked if Hayman knew the difference between the Union and the Meat Cutters; Hayman answered that he knew they were two different unions; Kelley asked why Hayman favored the Union; Hayman replied that he had been in the Union and liked their "better benefits"-on which he elaborated. Kelley inquired whether Hayman had been questioned about the Union by other employees; Hayman said he had been asked by his fellow workers "what they [the Union] had to offer." Kelley inquired whether Hayman had attended any union meetings; Hayman answered "No." Finally, Kelley asked if Hayman knew of anyone who had attended such meetings; once more Hayman's response was negative. Again, Kelley's version differs radically from that of Hayman. According to Kelley, Kelley was walking through the store and when he approached the major appliance department Hayman volunteered that organizers for the Union had been at his home the previous night "bother- ing" him to sign a card; Kelley did not reply and kept on walking. Kelley's version was corroborated in substantial part by the testimony of Wolford, who was present. Wolford, however, could not recall any mention of the Union "trying to get him [Hayman] signed up." 10 Kelley also testified to an antiunion remark Hayman made to him about 2 weeks earlier. Wolford corroborated this I deem it unnecessary to 3. The alleged incident in February The final episode was allegedly enacted in February 1973. Hayman had attended a union meeting on February 7. The next day, February 8, he was due to start work at 12:30 p.m. According to Hayman, at the start of his workday, Kelley said to him: "I understand that you attended a meeting last night"; Hayman answered, "Yes." Kelley asked who had attended and whether Hayman knew of anyone who had signed a card or whether he himself had done so. Hayman replied "No." Kelley then asked Hayman what he thought the Union's chances of winning the election were and Hayman responded that he "really didn't know," but if any union were to get in, he (Hayman) would "most definitely" prefer that it should be the Union, and explained why. Kelley testified that he did not recall any conversation with Hayman around this date. He denied that he had asked any employee what his or her feelings were regarding the Union. 4. Contentions and conclusions The complaint alleges, and the answer denies, that Kelley "interrogated employees concerning their union membership, activities and sympathies, and the union membership, activities and sympathies of their fellow employees" on or about December 15, 1972, in January 1972, and on or about February 5, 1973, and in addition that on the later date he had also "created the impression among [the Respondent's] employees that Respondent was keeping their activities on behalf of the Union under surviellance." The General Counsel's entire case as to Kelley's conduct depends solely on the uncorroborated testimony of Hayman, which was contradicted in large part by the testimony of Kelley and Wolford. Kelley seemed to me to be a forthright and candid witness whose testimony made sense. On the other hand, Hayman impressed me as an unreliable and undependable witness. His testimony was difficult to follow and this was not because he was inarticulate but rather because he kept changing his description of events in important respects. Moreover he was a disgruntled former employee. I am of the opinion that Hayman's testimony lacked sufficient probative weight to carry the General Counsel's required burden of proof. Accordingly, the Respondent's motion to dismiss the complaint is granted, insofar as the conduct of Kelley is concerned. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Cook United, Inc., d/b/a Cook's Discount Store, is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local No. 156, AFL-CIO, is, and at all material times has been, a discuss the testimony of these witnesses concerning this earlier event 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization within the meaning of Section 2(5) of the Act. 3. By prohibiting employees of the grocery side of its store from becoming involved in organizing employees of the discount side, or otherwise indicating to its employees that union activities were inconsistent with continued employment by the Respondent; by creating the impres- sion that it was engaging in surveillance of its employees' union activities; and by promising benefits to its employees in order to discourage them from supporting the above- named labor organization; thereby interfering with, re- straining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in or is engaging in any unfair labor practices other than as found herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i ORDER" Cook United, Inc., d/b/a Cook's Discount Store, Benwood, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting employees of the grocery side of its store from becoming involved in organizing employees of the discount side, or otherwise indicating to its employees that union activities are inconsistent with continued employ- ment by the Respondent. (b) Creating the impression that it is, or has been, engaging in surveillance of its employees' union activities. (c) Promising benefits to its employees in order to discourage them from supporting any labor organization. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its store in Benwood, West Virginia, copies of the attached notice marked "Appendix." 12 Copies of such notice, on forms provided by the Regional Director for Region 6, after being signed by an authorized representa- tive of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed, insofar as it alleges that the Respondent violated the Act other than as found herein. ii In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections shall be deemed waived for all purposes i2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "