Hickory Farms

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Cheese Barn, Inc. d/b/a Hickory Farms and Local 1105, Retail Clerks International Associa- tion, AFL-CIO. Case 19-CA-6519 March 8, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 30, 1973, Administrative Law Judge E. Don Wilson issued the attached Decision in this proceeding. Thereafter, Respondent filed 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. Pursuant to due notice, a hearing in this matter was held before me in Seattle, Washington, on September 25 and 26, 1973. All parties fully participated. General Counsel and Respondent filed excellent briefs on October 27, 1973, which have been fully considered. Upon the entire record 1 in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all times material, Respondent has maintained a place of business at Northgate Shopping Center, Seattle, Wash- ington, and has maintained other places of business in Washington where it has regularly engaged in the sale and distribution of cheese and specialty items. During the past year, in its regular business operations, it has sold and distributed at its stores in Washington products valued in excess of $500,000 and has purchased goods and materials valued in excess of $50,000, from sources located outside Washington. At all material times, it has been an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning 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 and hereby orders that Respondent, The Cheese Barn, Inc. d/b/a Hickory Farms, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. I These exceptions were limited to the Administrative Law Judge's recommending a bargaining order to remedy the unfair labor practices found by the Administrative Law Judge, and to his characterization of the demeanor and motives of Respondent's witnesses in testifying before him We find no merit to either exception DECISION STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: Based upon a charge filed July 3, 1973, and amended August 31, 1973, by Local 1105, Retail Clerks International Association, AFL-CIO, herein the Union, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint and notice of hearing on August 31, 1973, alleging that The Cheese Barn, Inc., d/b/a Hickory Farms, herein Respondent, by various acts violated Section 8(a)(3) and (1) of the National Labor Relations Act, herein the Act. i General Counsel's unopposed motion to correct the transcript is granted III. THE UNFAIR LABOR PRACTICES A. The Issues The issues before me include: (1) Is an appropriate unit herein one which includes all the employees of one of several stores of Respondent located in one county in Washington? (2) Has Respondent unlawfully refused to bargain with the Union since June 29, 1973?2 (3) Did Respondent's agents unlawfully keep a union meeting under "surveillance" on June 5? (4) On June 5, did Respondent's agents unlawfully instruct employees not to sign union cards for the Union? (5) On or about June 8, did Respondent unlawfully grant a 10-cent-an-hour across-the- board wage increase to its employees? (6) On June 30, did Respondent unlawfully reduce the working hours of Donna Edgar? (Gamache was her married name when she testified. She will be referred to as Edgar herein to accord with the bulk of the record. (7) On or about June 30, did Respondent unlawfully discharge Edgar? After her dis- charge did Respondent make a full and complete and proper offer of reinstatement to Edgar? (8) Were Respon- dent's unfair labor practices of such a nature as would require the Board to issue a bargaining order as part of a proper remedy? B. The Facts Counsel admirably stipulated to many facts herein, thereby saving time, effort, and much money. While the following statement is most unusual, I feel it is much in 2 Hereinafter all dates are 1973 unless otherwise stated 209 NLRB No. 85 HICKORY FARMS 503 order. The trial of this case was handled by the attorneys for both sides in a most admirable fashion. Their courtesy to each other and to me for long hours of each day was most outstanding. Their trained and exceptional legal ability was admirably used and never wasted. Each wanted to win and knew he might lose. Each submitted a brief which displays a high degree of legal acumen and skillful draughtsmanship. These facts, known to me, should not be concealed from others. Their conduct was exemplary. I am certain this statement will be slight solace to the loser, who labored as earnestly and honorably as did the winner. 1. Alleged surveillance The union campaign began in late May. Respondent was aware of it by or before June 1. At Respondent's Northgate store there were 11 employees and 3 supervisors within the meaning of the Act: Esther Sample, Louise West, and Marge Olson. Union Representative Claude Liday testified he went to the Northgate store on May 29, speaking there to West and employee Donna Edgar. He testified West told him she was either an acting or assistant manager. According to him, he told her he didn't know whether she'd "be eligible." He admitted telling her it was possible that only the manager would be excluded, he didn't know.3 Such a conversation would be novel to West and would likely remain in her memory. While I do not credit all of her testimony, I credit her testimony as to this conversation with Liday. Liday told her he was a union official. She replied she didn't know what it was all about. During the conversation, she told Liday he shouldn't be talking to her because she "was management." Liday replied there was only one manager and she'd be considered by the Union as a "head clerk," or "working supervisor." He thereafter spoke to Edgar for some time to the knowledge of West. Shortly thereafter, a notice4 of the Union was made public in the store. It read: Meeting, Tuesday, June 5, 9:45 p.m. Doubletree Inn, Dogwood Room to discuss the Union. Very important for all employees to attend. Pass the word on. West saw the notice in the store. Based on Liday's statement to her, she, in her innocent ignorance of labor law, had every reason and right to attend the meeting as would be true of Olson, her subordinate. I find Liday told West, even if he was innocently wrong, that only the manager, Sample, would be excluded from the Union. There was no secrecy about the fact that there would be a union meeting on June 5. Pursuant to the union notice, West and Olson attended the June 5 meeting which was also attended by employees from other stores as well as mole than several from Northgate. The positions of West and Olson were known to the Northgate and probably other employees. Liday saw West and no doubt Olson present. No one asked them to leave the meeting. They had no reason to believe they were not welcome guests. Liday made it plain to those in attendance that there was coffee present to dunk, if desired. West was not ruled out. Obviously, the union meeting was under the "surveil- lance" of West and Olson. They were there. And without protest from anyone after Liday, again perhaps innocently wrong, had advised Supervisor Olson's supervisor, West, that the Union would consider her only as a head clerk and inferred that only the manager (Sample) would be ineligible for the Union. I have not the slightest doubt that the presence of these supervisors, West and Olson, had an inhibitory effect upon the free exercise by the employees present of their Section 7 rights. That's what surveillance does. But West and Olson had every good reason to believe they were invitees of the Union and, although their presence was obvious, no employee or union representative even suggested or indicated that they depart. In fact, they were supervisors within the meaning of the Act and especially the Northgate employees knew they were "bosses," even if they did not know the refinements of the Act. General Counsel cites a variety of cases which he claims establish the unlawfulness of this "surveillance." Some, especially in words, lend some but little support to his position. He states Olson received no invitation. Although not gold-plated, I find the announcement of the meeting was a public invitation not only to "employees" but in the circumstances of this case to West and, of course, her subordinate, Olson. I know Sample knew they were going to attend the union meeting, but they were not directed so to do, especially as spies of any kind. I know they reported to Sample as to what occurred at the meeting. But I find no more than innocent conversation, not a "report" on successful spying activities. That Sample passed their information along to Respondent's president, Derby, is a fact having no relevance to their open and innocent attendance at a meeting to which they reasonably assumed they were invited .5 There is no evidence their attendance was surreptitious, nor that they exercised guile, nor that they made any effort to conceal their status with Respondent. Liday certainly was substantially aware of West's status. Any employee present could easily have completely briefed any union representative as to the positions of West and Olson. Had such occurred without the knowledge of West or Olson, there is no evidence that both would not readily have left by request with no disturbance of any kind. In the circumstances here present, I find no substantial evidence that Respondent, through West or Olson, engaged in "surveillance" as that term is used by the Board. The Union bears a substantial responsibility for their presence. I have no doubt that their mere presence tended to inhibit exercise by employees of rights guaranteed to them by the Act. But, in the peculiar circumstances of this case, I find no "surveillance." The "invitation" plus no objection to their presence by employees or union agents cannot be ignored. I find no justification for a finding that employees would have in any manner been offended or disturbed in any manner had West and Olson been asked to leave. Whatever the Union's intent may have been in draughting the notice of this meeting, especially in light of Liday's statements to West and the tacit acceptance of their presence at the meeting, 3 There is no doubt he spoke to many persons about the Union 1 am i Resp Exh 5 certain he could not possibly recall the contents of each such conversation 5 No protest from anyone about their attendance 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was ample justification for West and Olson believing they were present at the meeting as guests of the Union .6 Their subsequent activities with respect to Sample and what the latter may have reported to President Derby does not change their presence, as not unwelcomed guests at the union meeting. That they surveyed is obvious. There was no "surveillance" violative of the Act. 2. Did West and Olson unlawfully instruct employees not to sign union authorization cards at the June 5 union meeting? After distributing union authorization cards for the employees to sign at the meeting, the union agents left the meeting for a while so that the employees could discuss this matter among themselves. I have noted that, though there was no illegal surveillance of the meeting by West or Olson, their presence would tend to inhibit union activities by the employees. The fact is that certainly either West or Olson told the employees not to sign up with the Union until they heard Derby's side of the question. I find both of them so advised the employees. Mrs. West so admitted. Such advice having been given, no employee signed a card. Apparently, the employees said very little, if anything. I credit the testimony of Pamelo Colasurdo. Her demeanor impressed me most favorably. Her testimony was straightforward with no hint of animosity against Respondent or its agent, Olson. On the night of June 5 in Respondent's parking lot, in Colasurdo's car, Olson told her and two other Northgate employees not to sign anything because Olson's dad had been involved with unions and had really gotten messed up. Olson told them, then, to sign nothing. This was very shortly before the start of the June 5 meeting. On this occasion, Olson did not even mention hearing Derby's side Again to West's and Olson's instructions at the June 5 meeting. While 10 or more employees were in attendance at the meeting, not one signed a union card after West and Olson spoke.? Indeed, the record as a whole reveals to me that not one employee even opened his or her mouth in favor of the Unions The employees knew that West and Olson were their bosses even though they may not have known them to be "supervisors within the meaning of the Act." Whatever West or Olson may have thought, they were such supervisors and they knew they were the employees' bosses who regularly, day in and day out, told their employees what to do and what not to do. They had every reason to believe, as happened, that the employees would follow their instructions even at a union meeting. I find it was unlawful for either West or Olson or both of them as a management team to direct, instruct, advise, or suggest to the employees not to sign a union card until they heard from President Derby .9 While they may not have been engaging in unlawful "surveillance," they certainly, as Respondent's agents, unlawfully interfered with the em- ployees' rights at the June 5 meeting. I find Olson similarly violated the Act when she instructed the three employees in 6 At another union meeting on June 25, the union agents in their notice of the meeting made it especially clear that neither supervisors nor management were welcome to attend Resp Exh 6 7 The employees obviously had some interest in the meeting Otherwise they would not have traveled to it at 10 p in after working hours the car shortly before the meeting. Their instructions not only constituted interference but also coercion, as well as restraint, within the meaning of Section 8 (a)(1) of the Act. I am not concerned that their motivation may have been purer than Ivory Snow or an ecologist's dearest dream. They were bosses talking to their employees on matters of no concern of Respondent and its agents. They should not have trod upon the union affairs of the employees. That union activity continued after their statements at the June 5 meeting is amazing. I find West and Small at the June 5 meeting by their statements to employees violated Section 8(a)(1) of the Act and so did Olson when she spoke to three employees shortly before the meeting. 3. After the union meeting and about June 10, did Respondent unlawfully grant a 10 cent-an-hour across the board increase to its employees? I have found Respondent's president, Derby, was aware of union activity at Respondent's various stores shortly before June 1. He had much more knowledge as of June 5. Here N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964), controls. The credited evidence demonstrates that Respondent granted a 10-cent raise on or about June 8 for the purpose of undermining the Union. Employees were given "carrots," in the form of pay raises, so they would not choose union representation . The employees involved herein were in a low-pay category and 10 cents an hour was not without genuine significance and momeni to them. We must not ignore the timing-shortly after June 1 to June 5-on or about June 8, 10, and 11, and 14. Only the president, Rodger C. Derby, testified as to when he came to an undisclosed, to others, decision to give this raise. I most closely observed him. He appeared to be an intelligent, hard-working businessman . I find that when he testified he was much more influenced by stating what he thought would help his side of this case rather than in merely telling the truth, the whole truth, and nothing but the truth. If the truth hurt his case, in his opinion, he concealed it. If an untruth helped his case, in his opinion, he stated it.io Various employees testified about the speech given by Derby when he announced the raise. While they knew of this, they generally testified they just couldn't understand what else he talked about. I could share their predicament during parts of his testimony. Careful reading and rereading has brought about an understanding by me even though some of the inconsistencies in many parts of his testimony continue to be and are the occasion of some bewilderment. Derby's letter of June 1 which was brought to the attention of all employees was written in anticipation of the Union's June 5 meeting. He received reports on the 8 The inhibiting effect of West's and Olson's presence and remarks. 9 While they had reason to believe they were invitees, they had no reason to believe they could speak as to such activity. is 1 am certain his eminent counsel was in no way a conscious party to such deception as Derby tried to practice. HICKORY FARMS meeting from at least several persons including Sample, West, and Olson and at least one employee. it Derby then called an employee meeting where breakfast was served to the employees on June 14. All hourly employees of Respondent's four stores in King County were invited.12 His recitation of what he said to the employees is not very coherent, but he probably spoke at some length. Among many matters, he discussed possible increases in minimum wages by Congress and a speech by President Nixon about freezes or a possible speech, and a magazine article or two, he testified. There follows an example of his response to a simple question on direct examination: Q. Was there any discussion at that meeting of the wage freeze?13 A. Yes, I may have touched on it. I thought I did, that the, it really was not elaborated on to any great extent. At most I was attempting to say that my concern with the minimum wage hour would have a direct result depending on the freeze and what the President might do. We have only Derby's testimony as evidence of when he decided to give the employees a raise. Such testimony was obviously self-serving. He testified it "was decided back at the first of the year. As to the exact date, it was decided the first of June,14 probably about the 10th or 11th of June,15 but the plan for it initiated in my mind in January." As of just prior to June 14, he allegedly "was trying to find out what else was happening in the economy." 16 He discussed this with the employees on June 14. He began to examine Respondent's "slow decline" more closely on June 1. I credit entirely the testimony to the effect that the June 14 meeting was called so that the employees could learn how Derby "felt about the Union" and so that Derby could "give his side of the Union." 17 He testified that knowing of the union activity and that it had held a meeting he felt he had a right to talk to the employees about the Company and their employment.is I am, admittedly, a bit confused about his claim that he was motivated simultaneously by a possible increase in the minimum wage and a wage freeze, but such is really of no great moment. He certainly did not appear to have any expertise with respect to either subject. He testified he had to reduce labor costs. Yet he granted an across-the-board raise. He testified that he decided to give the raise because of the expected wage freeze, but President Nixon did not speak on this subject until June 13. "Across-the-board" wage increases were not customary in Respondent's operations. The raise announcement was made at the first "breakfast meeting" in 3 years. Derby's plan to increase wages, ifhe had one before June 14, was never revealed to the employees prior to its fait accompli announcement. 11 He expected Sample to keep abreast of employee activities at the Northgate store where there were only I I employees during these critical times 12 The Union was attempting to organize each Breakfast meetings were not a common event. 13 A "yes" or "no" or "I don't remeber" would have been a simple answer. 11 When he first learned of union activity. 505 The timing of this wage increase and all the circum- stances surrounding it, including the circumlocution of Derby, make it manifestly clear to me that the June 14 announcement of a raise and its effectuation as of June 8 were violative of Section 8(a)(1) of the Act. Derby, by announcing and effectuating the raises seriously and gravely tended to undermine the strength and appeal of the Union in the eyes of the employees. Any reviewing body will note in going over Derby's testimony that he volunteered much, spoke of two or more things at a time, did not always give direct answers to simple, pointed questions calling for simple answers and appeared, in many instances, to have been intentionally evasive. I am convinced he tried by intentional loquacity to conceal all the truth as he knew it, solely to strengthen his case in his mind. I do not believe, based upon the entire record, that he had any intention or plan or had arrived at any decision to give his employees a raise, until he learned that the Union was attempting to organize the employees. His mere say so to the contrary is not credited. I find the raise was announced and given in an unsuccessful attempt to prevent successful employee organization by the Union. Such action by the Respondent violated Section 8(a)(1) of the Act. The raise is not to be withdrawn from the employees by Respondent. Respondent's able counsel in his excellent brief states, "The specific timing of the wage increase in question was not decided until approximately June 10 or 11." Even then, it was a well-kept secret from the employees. If Derby had a plan for a raise in January or before late May, it was at best ephemeral and lacking in substance of any kind. I in no way credit the testimony of Derby that the wage increase was not "tied" to the appearance of the Union. The timing of his action and his labored concocted explanations of his actions belie his claim of innocent and mere coincidence. The employees did not understand what Derby was talking about other than the raise announcement and his self-serving statement that in spite of stick and carrot that it was their "prerogative" to act as they pleased about the Union. Having heard Derby and having observed him, I am convinced the Derby, who I find was very intelligent, knew what he was saying to the employees and knew what he was testifying. Before the employees and before me, he was obfuscating, excepting when he announced the raise and spoke of "prerogatives." I find no probative and substantial evidence that Derby decided upon the pay raise before he was well aware of the Union's activities. I am sure he thought, in substance, that as an apple a day keeps the doctor away, so would the raise keep the Union away. Derby was in no "dilemma" when he announced the raise. I find his "plan" of January, or before June 10 or 11, was lacking in probative substance. The organizational efforts by the Union were stark realities to Derby when he 15 After he knew the details of the first union meeting. 1 "Business Week." etc. 17 At the meeting, Derby told the employees it was their "prerogative" to act as they chose about the Union. The carrot extended at this meeting and the stick used at the June 5 union meeting and the unlawful discharge of Donna Edgar, which I shall find, make these mere "weasel" words 1s And to announce a raise as of June 8. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced the raise, as a benevolent gift from on high, to his employees.19 They had no prior advice of such beneficence. The announcement had the natural tendency to diminish union enthusiasm on the part of the employees. The announcement and the granting of the raise were violative of Section 8(a)(1) of the Act. 4. The reduction of the working hours of Donna Edgar and her discharge Edgar impressed me as a most honest and forthright witness, and I credit her testimony. Sample, West, and Olson impressed me as pleasant, nice ladies who unfortu- nately felt obliged to testify in such fashion as would aid Respondent's case rather than to tell only the unblemished truth. Some of their gross exaggerations were obvious. I credit none of their testimony where it materially conflicts with that of Edgar 2° I also shall find that the alleged reasons, given partly in combination, by Derby, Sample, West, and Olson for reducing Edgar's hours and for discharging her were pretextual, especially in light of Edgar's seniority, her many admittedly good working assets, her ready availability for work, and most especially in light of the timing of Respondent's action with respect to her. With a rank-and-file group of employees, but "employ- ees with at least" four supervisors.21 including Derby, this was obviously a "small shop" as the Board uses the term. I am convinced that everyone in the shop, employees and supervisors, were aware, on a daily basis, of even trivial activities of each other. I am convinced each supervisor was well and fully aware of Edgar's union activities when her hours of work were drastically reduced and she was terminated after making normal and respectful comments about such reduction.22 I accept it as a fact that Respondent had good economic reasons for reducing manhours of work at Northgate for the week of July 7.23 Edgar was a relatively highly paid employee when her hours were reduced on June 30, at $2.10 an hour. Indeed, she was one of the highest paid employees at Respondent's four stores in King County. When she was discharged, only employees with much less seniority and wage scales were let go. The exhibits do not reveal that when Edgar was discharged, and when her hours were reduced, a full-time management-trainee was taken aboard at Northgate. I agree with General Counsel that comparisons of Respon- dent's treatment of Edgar with that of its treatment of employees at other stores are odious to Respondent, but I find no need to elaborate on the subject. The records reveal that, at Northgate, 160 of the total working hours of 270 in July were covered by salaried people in the first week of July, although at the Southgate store salaried employees worked only 120 of the total of 360, in the first week in July. Originally, Edgar's hours were to be reduced 44 percent for the first week in July, while the hours of employees with less seniority were to be increased and one was to have no change. The reduction next to that of Edgar's was to be only 20 percent. Cathy Peterson, who regularly worked substantially the same number of hours as Edgar, had her work hours increased.24 Sample gave two reasons for Edgar's discharge: her complaint about the reduction in hours and her alleged refusal to work them.25 Sample also testified West told her Edgar was "slow."26 Sample testified she knew Edgar was "Slow." 27 "We had tried to encourage her in many ways to no avail." "She had always been slow." 28 "From the time she started to work." "I would say [Edgar] could be a good worker. " She was a "good worker," "aside from being slow. " Sample complimented Edgar on occasions "for a job well done." Sample tried never to find fault with Edgar in the presence of someone else. In more than 1 1/2 years, Sample found fault with Edgar's work, according to Sample, " several times." She couldn't say how often in the last 6 months of Edgar's employment. When asked by me to state in what way Edgar was "slow," was it in walking, in the use of her fingers, or in her observations, Sample swore Edgar was slow in "every movement." Sample could not recall if Edgar was slow when first employed. Sample could not recall if Edgar was "slow" in the first month of her employment. "Generally speaking," swore Sample, Edgar was "slow" throughout the whole course of her employment. I asked Sample why she did not terminate Edgar long before June 30 because of her "physical slowness" as compared with the other employees she had. Sample's reply was, "Your Honor, I felt that she worked sufficiently at the time that I employed her and she started to give her employ- ment "29 I again asked Sample why she didn't fire Edgar, who allegedly was always "physically slow," long prior to June 30. She then replied she didn't fire Edgar because she was physically slow. She testified she allegedly fired her because she said, "I cannot live on 19 hours," and said she didn't think the reduction was "fair." Allegedly she told Edgar "we had been carrying [Edgar] for a long time." i0 Sample then testified she wouldn't say the fact that Edgar said she couldn't live on 19 hours' work a week, was the reason she fired Edgar. She testified she asked Edgar to come in on Monday and talk and Edgar refused and then Sample fired Edgar. I specifically do not credit this testimony. I find this was, at best, a figment of Sample's imagination, in an effort to justify what I will find was an illegal discharge by Respondent. Sample then, after all her testimony about Edgar's "slowness," testified she didn't fire Edgar because she was "slow," but because "she would not work the hours scheduled" and "because she said she 19 Derby simultaneously complained of the alleged dire economic slump he was in during and poor to June 20 Which was given a variety of corroboration 21 1 make no finding with respect to the legal status of Cathy Peterson. 22 West and Olson saw her at the June 5 union meeting 23 But not for selecting Edgar for a most drastic cut and discharge 24 I am not slightly impressed by "titles" allegedly assigned Peterson 25 There is no truth to the latter. 26 Edgar worked for Respondent over 1-1/2 years and averaged about 33 hours per week in the last 6 months of her employment. Only Peterson averaged a trifle more time a week. 27 This alleged "slowness" wat first brought up at this trial, obviously as an alleged reason for the cut in hours and termination. 28 Almost "three years"? 29 I'm still waiting for an answer to a simple question. 30 Edgar's alleged statements seem most innocuous and straightforward and to be a normal reaction HICKORY FARMS couldn't live on 19 hours a week." She then testified Edgar's hours were cut because of "efficiency and productivity." What "did it," swore Sample, was that Edgar said she could not live with 19 hours' work.31 She testified every employee was faster than Edgar, probably. "32 She testified she would not "define" that Edgar was slow with her fingers, "to that degree." I asked her what she visualized, saw, observed that indicated to her that "Edgar was physically slow." The answer was, "Well, I can give a girl, I can give two girls tasks, the same thing, on alternate days."33 She swore this was the means of her comparison. "One could have done it in an hour, the other would take an hour and a half, two hours. This is what I mean." I pointed out that one who did the job in an hour could do a poor job and one who took longer could do ajob of beauty and perfection. She replied, "they would both have to be efficient jobs to have a fair comparison." She compared Edgar with no person in particular. No regular employee in a year and a half was as "slow" as Edgar. She said she would have to "look over the records" to see if there were an employee faster than Edgar. She talked to Edgar about her lateness "in getting on the floor."34 Edgar then ceased being late. Edgar was "generally cooperative." She had "no trouble with customers." She had no trouble with fellow employees. She was "respectful." She was available for work,35 and she was pleasant, and she got along with people.36 The slowness was bad,37 so when cuts come these are things that stand out in your mind. Donna Edgar worked with direction, slowly, but worked with it. "At Christmas she was valuable because there's never without customers." Sample complimented Edgar in keeping "Gift Pack" records. Sample testified Edgar talked to her boyfriend, mother, and others during working time more than other employees. Considering the entire record, I find this to be untrue, even though corroborated by some other witnesses. Sample swore Edgar let other employees carry her load. The credited testimony establishes Edgar per- formed her job most creditably at all material times. Sample said she spoke to Edgar about letting other employees carry her load and Edgar "responded favora- bly," at least "for a period." She found Edgar responded favorably to West, "but it was very easy to lapse back into the old."38 Sample testified she attempted "to keep on top of things at the store, what's going on with [Sample's] employees."39 Sample or West or Olson or Peterson was always on the "floor" 40 with the employees. On June 26th, 33 Sample never asked Peterson if she could live on 19 hours 32 Edgar, in the courtroom , throughout long hours of trial , appeared to me to be physically normal and active in every way 33 An answer? 34 Working 35 She lived very near the Northgate store 36 All as testified by Sample. 37 For over I 1 /2 years9 38 The last three words of 1 1, p 449, should be spelled "facdls decensus averno " 36 Edgar signed up a majority of the employees at a union meeting in her home 2 days before Sample says she fired Edgar and Edgar signed up the seventh employee, at work, I day before Sample claims to have fired her Peterson, "head clerk," or what have you, knew of the June 28 meeting at Edgar's home, but did not attend 40 Work area 41 From the time Derby first learned of union organizing, I am convinced not only that each supervisor had a great interest in the 507 Sample, to the extent possible, had each employee in her office and discussed a letter from the Union with each such employee.41 She told each employee that Derby wanted her to advise the employee about the union letter.42 According to West, Sample told her to use her own judgment about attending the June 5 union meeting. After the meeting she discussed it with Sample when Sample phoned her long distance from Yakima.43 She told Sample who attended the meeting, including Edgar. West prepared the schedules for each workweek. She was not told by Sample, until after she had made out the original schedule for the first week in July, to prepare a new one which would provide for dismissals of new hires and those with very short hours per week and a drastic reduction for Edgar.44 This was between 4 and 5 p.m. West testified that the reduction in hours for Edgar from 33 to 19 wasjointly decided upon by Sample and West. She immediately testified she couldn't remember who made the decision and it "wasjust the way it worked out." Peterson was left at her usual hours because she was "head clerk" and had senionty.45 Edgar told West she could not work 19 hours and West referred her to Sample. West testified she worked with Edgar throughout the latter's employment. She didn't remember when she started to discuss Edgar's work with Sample. She swore that in the fall of 1972, in the Christmas rush, and in January, Edgar failed to greet customers as they arrived and was "slow" to get to the customer.46 Then West couldn't remember the year. It might have been 1971. Sample complimented Edgar for her Christmas packing work in 1972. West testified she asked Sample to speak to Edgar about her work and Edgar improved "for a time."47 West "talked" to Edgar about talking "on the floor when there were customers" West testified. She didn' t "remem- ber" any such time in 1973. The two particular faults West found with Edgar were failure to greet customers and she talked too much to noncustomers 48 Also she never got around to keeping up the candy section which was part of her assigned job. Then West referred to Edgar's alleged "slowness." I inquired what kind of slowness, suggesting arthritic, to which West replied no. She gave the same answer when I inquired if the "slowness" were due to "palsy," or mental retardation. To the latter, West replied Edgar "was a very likeable girl, and I liked her." Edgar, she added, got along well with her fellow employees and with West. She "listened" when West spoke to her. Or told her to "perk up." Edgar would try and cooperate and as far as organizing, but also that each employee regularly engaged in conversations about the Union, at least pro and con Should the latter not be a fact it would be contrary to human nature 42 Such private conversations took place even though there was a bulletin board where the letter could have been posted and each employee could readily have perused it Sample must have consumed a lot of valuable worktime when the economy of the business was allegedly very poor 43 No evidence that anything else was discussed. 44 This was the Saturday Sample says she fired Edgar In fact, Edgar was not fired until the following Monday when she reported to work for her reduced number of hours 45 She and Edgar worked substantially the same number of hours There is little evidence as to Peterson's capabilities as compared with Edgar 46 According to Sample, as I understood her, Edgar got along well with customers 47 Days, weeks, months9 48 What about "physical slowness"? 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD West was concerned she "was just as good as she could possibly be." West thought it might have been the second week in June that she learned of the June 8 pay raise. During Edgar's employment, West recommended Edgar for pay raises, "perhaps" a couple of times. She testified she recommended Edgar's discharge from her job "about a year and a half ago," but it was not followed.49 She did not remember whether she ever again recommended Edgar's discharge. West worked with Edgar more than did Sample and testified Edgar "and I had a good relationship. When we worked on the floor we got along. I mean, if something bothered me about her work, I would come up and tell her and she'd smile and attempt to cooperate. She got along well with her fellow employees and with the customers and when she did herjob she did it to the best of her ability." It was well done. All this, from the assistant manager. As, an employee, I find Edgar was like a pearl of great price. I utterly and completely reject as abject falsehoods the testimony about her "physical slowness." I am convinced from the whole record that she spent no more time speaking to noncustomers than any other employee. I find she was a crackerjack who until she held the union meeting at her home on June 28, and obtained a union majority, was treated on the same basis as Peterson. I have no reason to find that her work was not at least equally as good as Peterson's. Peterson's "title" of "head clerk" was, I find, bestowed for the purposes of this trial. West later remembered that it was Christmas of 1970 when Edgar's work wasn't very good. She did not reduce the working hours of Edgar until 2 days after Edgar's union meeting, and then at Sample's direction. After the reduction in hours at the end of June, there were six "employees" and four "supervisors." She guessed that in this "small shop," as assistant manager, she was a sort of "house mother" or "den mother." 50 She testified, "I think I know what' s going on in my store." I find she did, and was well aware of what happened at Edgar's home on June 28 and what Edgar did in the store on June 29 5i Edgar was not the only employee to whom West spoke about unsatisfactory work. West was "very outspoken." She corrected employees even "on the floor." She was sure employee Aletta didn't know about the Union, because she wasn't at the June 5 meeting.52 In a pretrial affidavit to the Board, she swore, "I believed that Donna [Edgar] favored the Union from impressions because the union official [Liday] spent about a half hour talking to her while I was waiting on customers."53 The affidavit was given in the presence of Respondent's attorney. In the past, cuts in hours were based on seniority and performance. I find Edgar's performance, based on the whole record, was excellent. 49 Recommendation of assistant manager of a small store 50 I have no doubt that the essential details of the June 28 union meeting at Edgar's house came to her attention 51 The same for Sample, Olson, and Derby 52 Of course, Edgar was 53 When Liday first entered the store. 54 I still find no illegal "surveillance" in the circumstances of this case 55 They wore out this poor record 56 I've made my finding on that Olson testified Sample "encouraged" her to attend the June 5 union meeting.54 West never discussed with Olson any reduction in the working hours of Edgar, or that she was going to be terminated. Edgar was "a good employee when she worked," but she was "a slow employee." 55 Olson said Edgar spent a lot of time talking to friends .56 She falsely stated other employees did not do as much such talking. She falsely testified-Edgar was "slow" throughout 1972 and slow through 1973 until she was terminated. "She did work when she was working, if there was incentive there." She falsely stated Edgar was "just a slower worker than a lot of other people." 57 "[Edgar] was good when she did work." She was a "slow" worker, testified Olson, during January, February, March, and April 1973.58 Olson never recom- mended a reduction in hours for Edgar or her discharge. The only time Sample mentioned Edgar's talking in the store was January or February 1973. Sample never found fault with Edgar in Olson's presence. She didn't know specifics but she was sure Sample and West had compli- mented Edgar. She did not know whether West had ever corrected Edgar when she was not doing what she was supposed to do, in January, February, March, or April 1973. Early in 1973, she found fault with Edgar for talking to her boyfriend excessively. Again, Edgar was "physically slow." "She was slow, it took her longer to go through a cheese case, wrap the cheese , this type of thing."59 "She was a good worker in that she was available when we needed her, did know the routine of the store, and did know her job." Obviously, despite the exaggerated fabrica- tions of Sample, West, and Olson, Edgar was a most desirable employee. She did not make mistakes. She was not deformed so as to account for slowness. I asked many questions in a vain attempt to find out from Olson in what way Edgar was "slow" or an undesirable employee. She was a "slow wrapper." "Basically she is just a slower person." Olson didn't know if she had ever reprimanded Edgar for being "slow." She did not recall any specific reprimand by West, but "she probably did." She had no recollection of a similar reprimand by Sample 60 Olson thought it was in the "springtime," Edgar was reprimanded for speaking too long to her boyfriend on the floor. Sample complimented Edgar for doing a good job on gift packs and on their records at a sales meeting in June, around Father's Day6i She only thought West had reprimanded Edgar. West told people when they were doing wrong, including Olson. Olson agreed she herself had "been a good, hard working, conscientious, dedicated loving employee during these many years." She had been praised, complimented, and promoted, but West found fault with her because she did not like Olson's coat. West probably reprimanded her 62 Sample found fault with Olson on 51 Who? 58 Why were her hours not reduced or why was she not then fired') 59 "Haste makes waste." Maybe Edgar did a perfectjob throughout her long period of employment so It is almost ludicrous to conceive of a "physically slow" Edgar never being found fault with or encouraged to speed up in over 1 -1/2 years 81 Obviously not long before the drastic cut and discharge. sz Sounds fantastic to me. HICKORY FARMS 509 several occasions, but Olson agreed she hadn't done anything wrong. It is inconceivable to me that Respondent fired Edgar because she said she couldn't "live on 19 hours a week," immediately after, with no warning of any kind, she found her usual hours of 33 a week were suddenly cut to 19. I find she was in every way an employee much to be desired, especially when her ready availability for work and her overall dependability and good personality are considered. I find it contrary to the truth that at such time she stated she "refused" to work 19 hours per week. When Edgar was discharged she was told it was because she "was not doing her job," which the entire record reveals was contrary to fact. No one had ever found substantial fault with her or her work. When discharged, she asked why they had "waited three years." She was given no particulars about any alleged shortcoming. There had been no complaints about her work. When she stated she could not work on 19 hours, she did not believe she was then terminated, but, rather believed she was to work and was ready to work the 19 hours she was still listed to work on the schedule during the following week. She did not learn her name had been taken off the schedule until a fellow employee told her on the next day, Sunday. Even after such advice, she went to the store on Monday, to make sure. Early on Saturday morning when she went to work, Sample directed her to go home and bring back the "gift pack records." Edgar did so and inquired of Sample if she was to get them back and continue to keep them for the rest of the year Sample replied in the affirmative. This is clear and abundant evidence that the discharge resulted not from deep considerations of economics, but rather was an abrupt decision of Respondent based on other consider- ations. The gift packs were not mentioned when she was told of discharge. She had always kept these records during her employment. "Slowness" was never mentioned to her as a reason for discharge. I find West, Sample, and Olson testified about "slowness" in an unsuccessful effort to make white black. Such testimony emphasizes the illegality of the cut in hours and discharge. She returned to the store the Monday immediately after Saturday night, June 30. She had not been told she was terminated on June 30. On this Monday, she was told she was terminated by West. She asked West if she were still on the schedule63 and West told her she wasn't 64 Sample had told Edgar she would have to terminate Edgar when she complained about being scheduled for only 19 hours for the next week. On Monday, she was told only that she was not on the schedule for work. She was told on June 30 only that she "would be" terminated for poor work.65 She reasonably assumed she would continue to work at least 19 hours in the following week. On June 26, Edgar saw two schedules on West's desk, one giving her 19 hours and the other 34 hours of work for the following week. The one 83 The Sunday phone call 64 She was, when she left Saturday night 65 The entire credited testimony in the record reveals she was a good and most pleasant employee throughout her employment 88 These were "probationary" employees or those who worked but very few hours per week, about 3 or 4 listing her for 19 hours eliminated entirely some other employees.66 When, on June 30, she first talked to Sample about her reduction in hours, she said she'd like to know why her hours were cut back. Sample replied she'd like to talk to Edgar about it and suggested Edgar come in on Monday to talk about it 67 Edgar asked if they could talk about it then, June 30. Sample agreed. Sample said Edgar hadn't been doing her work and business was down and Edgar would have to be terminated 68 She did not say when the termination would occur. Edgar believed she would work at least the scheduled 19 hours in the following week. She did not refuse to work the scheduled 19 hours. In May, Sample told her that after her honeymoon she would be promoted to supervisor and would train new employees.69 The concocted reasons for discharge given at this trial were obviously pretextual, especially in light of shifting reasons therefor. The discharge was most precipitous and followed her union meeting almost immediately. I have pointed out Respondent' s intimate knowledge of Edgar's attendance at the June 5 union meeting. I find Edgar was the moving force among the employees in the union organization.70 Admittedly West and Sample tried to keep up on what was going on among the II employees. One considered herself as a den mother or house mother. With no chauvinism, I am convinced the employees could not have remained silent about union activities and Edgar's leading role therein. The "head clerk," Peterson, who was a "floor supervisor," was the only one who did not sign a union card, upon invitation. The circumstances of this case, if no other, demand the use of the Board's oft invoked "small shop doctrine." Edgar's union activities must have been known to all of supervision. Sample's, West's, Olson's and Derby's denials of knowledge of Edgar's strenuous union activity are not credited by me, especially in the circumstances of this case. The pretexts offered as defense emphasize that Edgar was discharged because of her union activity. West and Olson used the stick on June 5. Derby used the carrot on June 14. Respondent again resorted to a "club" when it discharged Edgar either on June 30, or 2 days later. (For backpay purposes, Respondent should be stuck with its claim that the discharge occurred on June 30, even though Edgar was unaware that it was effected at the end of that workday.) 5. The "offer of reinstatement" and its subsequent refusal by Edgar In late August, Respondent offered to rehire Edgar for 17 hours' work per week.71 Edgar properly refused it. Such was not a valid offer of reinstatement. There is no evidence as to the number of hours worked by Peterson or more junior employees at such time. Respondent failed utterly to establish that the offer of 17 hours per week work to Edgar was a valid offer to reinstate Edgar to her "former position" with all rights and privileges and seniority. 67 As found above, Edgar did so 68 I find Edgar had been doing her work in commendable manner 69 Fired the next month , without any warning and precipitously. 70 Witness that she signed up seven employees for the Union on June 28 and June 29, and was fired on June 30. 71 Edgar's regular hours for the first 6 months of 1973 averaged about 34 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Exhibit 2 for the month of July is irrelevant to the August "offer." 6. The employees at the Northgate Store constituted an appropriate bargaining unit 72 Respondent urges that only its four stores in King County are an appropriate unit. Presumptively, the unit at Northgate is an appropriate unit for bargaining. This presumption has not been successfully rebutted. There is no past history of any collective bargaining at any or all stores. Operations at each store are handled by the manager under the general and remote direction of Derby. There is no evidence of central labor control. Hirings and firings are done by each manager. There is minimal interchange of employees among the stores and apparently for most special reasons. I find a glaring lack of evidence that the employees in the four stores have a community of interest. Each manager had day-to-day control of the work of employees at each particular store. No union seeks a unit wider than the Northgate unit. Respondent's original store in Tacoma, Pierce County, and its headquarters and Federal Way store are much closer than the other stores in King County. Respondent, with eight stores, does not operate on a countywide basis. There is an absence of the administra- tion of benefits on a general basis. Derby or any other officers have very little contact with employees. There is very little exchange of goods among the stores. Hours during which work is performed vary from store to store. Hours of work are scheduled by the supervision of each store. The Northgate store employees, I find, constitute an appropriate unit, excluding supervisors and guards. 7. In the circumstances of this case a Gissel remedy is essential. In light of the most pervasive and destructive unfair labor practices I have found hereinabove, I conclude the holding of a Board election at Northgate would be a futile act. The memory of stick, carrot, and club will long linger in the minds of employees, even should there have been or will be drastic turnovers in employment. As things stand, Respondent's outrageous unfair labor practices will long- permeate the atmosphere of employment. The effects of the gross unfair labor practices can be eliminated only by issuance of an Order that Respondent bargain with the Union. The past unfair labor practices and their lasting effects on the minds of employees cannot be even slightly eradicated by more traditional methods. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), almost mandates rather than merely encourages a bargaining order here. Respondent has made it impossible for the employees to voice their true sentiments even in a secret Board election. Each employee will continue to fear Respondent's next antiunion move. The Union had 7 of 11 employees signed up through the efforts of the so pleasant and competent Edgar, and "pop" went Edgar in almost immediate response by Respondent. A burned child dreads the fire. 72 1 have already found the Union represented a majority of the employees in this unit, 7 of the I 1 employees 73 1 most respectfully recommend that the Board reconsider its prior Posting reams of notices by Respondent would effectuate nothing, without an order that Respondent bargain with the Union. Respondent has made it clear to present employees and those who may follow that it is adamantly opposed to a union in the Northgate store. Edgar's discharge goes to the very heart of the Act. Of great relevance, in combination with the club of Edgar's discharge, are the June 5 stick and the June 14 carrot. Absence of a bargaining order, in this case, would ignore the reasoning of Gissel, supra. Edgar will continue to be a vivid symbol of what Respondent does to a union supporter, even if reinstated with backpay. I am convinced that only an order that Respondent bargain with the Union, along with other traditional remedies, will remedy Respondent's illegal efforts. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that about the end of June or beginning of July Respondent discharged Edgar because of her umon and other protected concerted activities, I shall recom- mend that Respondent offer Edgar full and complete reinstatement to her former position, or if it no longer exists, then to a substantially equivalent position, without prejudice to her seniority and other rights and privileges. I shall also recommend that Respondent make Edgar whole for any loss of pay she may have suffered by reason of her discharge in violation of Section 8(a)(3) and (1) of the act, in the manner set forth in F. W. Woolworth Company,90 NLRB 289, with interest on backpay computed in the manner described in his Plumbing & Heating Co., 138 NLRB 716 73 t shall further recommend an Order that Respondent bargain with the Union, on request, with respect to the hours of employment, wages, and other conditions of all the employees at the Northgate store, excluding supervi- sors and guards, that group constituting an appropriate bargaining unit. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: rulings, in light of our present drastic inflation , and most high rates of interest, and increase the traditional rate of interest on Edgar's backpay. HICKORY CONCLUSIONS Or LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging Edgar on June 30, or July 2, and thereafter failing and refusing to reinstate her, all because of her union or other protected activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By ordering or suggesting that employees refrain from signing union cards until Respondent's president was heard from and by granting an across-the-board raise to its employees in order to discourage their union support, Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the entire record, including the foregoing findings of fact and conclusions of law, I hereby issue the following recommended: ORDER 74 Respondent, The Cheese Barn, Inc. d/b/a Hickory Farms, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating or otherwise discriminating against any of its employees because of their support for or assistance to a union or because they engage in any union activities, or any other activities protected by the Act. (b) In any other manner, interfering with, restraining, on coercing any employee in his right to join, assist, or support the Union or any other labor organization or engage in any activity protected by the Act, or to refrain from so doing. 2. Take the following affirmative action which, I find, will effectuate the policies of the Act: (a) Offer Donna Edgar Gamache immediate and full reinstatement to her former position, or, if that position no longer exists, to a substantially similar position, without prejudice to her seniority or other rights and privileges. (b) Make Donna Edgar Gamache whole for any loss of earnings she may have suffered by reason of Respondent's discrimination against her, in the manner set forth in the "Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or any of its agents, all records necessary or useful to determine or compute the amount of backpay due Donna Edgar Gamache, if any. (d) Bargain collectively in good faith, respecting wages, hours. and working conditions of its employees, with the Union as the collective-bargaining representative of all the employees, excluding supervisors or guards, at its North- gate store, such employees constituting an appropriate bargaining unit. (e) Post at its Northgate store copies of the attached notice marked "Appendix." 75 Copies of said notice on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, mclud- FARMS 511 ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. 74 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate or otherwise discriminate against any of our employees because of their support for or assistance to Local 1105, Retail Clerks Interna- tional Association, AFL-CIO, or any other labor organization, or because they engage in any union activities or any other activities protected by the National Labor Relations Act. WE WILL NOT, in any other manner, interfere with, restrain, or coerce any of our employees in their rights to join, assist, or support the above-named Union or any other labor organization or engage in any other activity protected by the Act, or to refrain from so doing. WE WILL offer Donna Edgar Gamache immediate and full reinstatement to her former position, or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges. WE WILL make Donna Edgar Gamache whole for any loss of earnings she may have suffered by reason of our illegal discrimination against her, in violation of the National Labor Relations Act. WE WILL bargain collectively, in good faith, with respect to the wages, hours, and working conditions of our employees, with Local 1105, Retail Clerks Interna- tional Association, AFL-CIO, as the collective-bar- gaining representative of all our employees. excluding supervisors and guards, at our Northgate store, such employees constituting an appropriate bargaining unit, and if an agreement is reached, we will, on request, reduce it to writing and sign it. THE CHEESE BARN, INC. D/B/A HICKORY FARMS (Employer) Dated By (Representative) (Title) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions may be directed to the Board's Office, 10th This notice must remam posted for 60 consecutive days Floor, Republic Building, 1511 Third Avenue, Seattle, from the date of posting and must not be altered, defaced, Washington 98101, Telephone 206-442-7472. or covered by any other material.