Shop Rite Foods, Inc.

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shop Rite Foods, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, AFLr- CIO, Local No. 171. Case 23-CA-4835 January 22, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On June 17, 1974, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order except as modified herein.2 The Administrative Law Judge found that the statement in Respondent's letter of April 19, 1974,3 that all reinstated employees would be terminated on April 26,4 constituted a threat in violation of Section 8(a)(1) in that such statement was "calculated to induce Prince, Garcia and Alvarez to cease to participate in the further prosecution of the unfair labor practice claims made in their behalf . . . ." The Administrative Law Judge also found that Respondent violated Section 8(a)(4) of the Act by discharging Prince for 2 days pursuant to its letter of April 19, in that the letter was "calculated to influence reinstated employees, who, perhaps had greater interest in their jobs, than further backpay," to stop cooperating with the Board in this proceed- ing. We disagree. Contrary to the Administrative -Law Judge, we do not view Respondent's April 19 letter either as a threat calculated to dissuade employees Prince, Garcia, and Alvarez from utilizing the Board's processes to prosecute alleged unfair labor practices 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 convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge, apparently through inadvertence, recommended that backpay be awarded to Mary Alvarez from the date of the discrimination against her until a date 5 days after a valid unconditional offer of reinstatement was made to her. We hereby , in accord with our usual practice, modify the "Remedy" so as to provide that Respondent's backpay 216 NLRB No. 43 committed against them, or as proof that Respond- ent denied Prince employment for 2 days to discourage her from testifying at an unfair labor practice hearing. Thus, it appears from the record and the letter itself that the offers of reinstatement were extended to the three employees in anticipation of, and conditioned upon, the Regional Director's approval of a settlement agreement negotiated between Respondent and the Charging Party. When the Regional Director later declined to approve the proposed agreement, the Respondent withdrew its offers of reinstatement and so notified the employees via the April 19 letter. In our view, the Respondent's action, based as it was on the failure of settlement negotiations, did not in any way discriminate against the employees because of their resort to Board processes. The Respondent at that time was not under any legal obligation to offer reinstatement to any of the three employees, but did so solely as part of a proposed settlement to avoid costly litigation of the issues. Respondent's offer of reinstatement, therefore, was conditioned on, and in anticipation of, the Regional Director's approval of the proposed settlement agreement. When such approval did not materialize, the Respondent was free to revoke the offers of reinstatement without incurring a new legal liability.5 In these circumstances, we cannot find that the Respondent violated Section 8(a)(4) and (1) of the Act by terminating the conditionally reinstated employees. Nor can we view the April 19 letter as a threat to take unlawful action. In addition, we disagree with the Administrative Law Judge's theory that Respondent's April 19 letter violated Section 8(a)(4) with respect to employees who acted to their detriment upon it because such letter was "calculated to influence employees not to cooperate with the Board" and to "cease to participate in . . . prosecu- tion." While conduct so motivated may, under circumstances not present herein, be violative of Section 8(a)(1), we do not believe it is the same as the proscription in Section 8(a)(4) against ". . . dis- charge or . . . discriminat[ion] against an employee because he has filed charges or given testimony ..." or (as found in Plate Manufacturing Company, 197 responsibility to Alvarez terminates as of the date of its valid unconditional offer to her of reinstatement. 3 All dates herein are in 1974 unless otherwise indicated. 4 These employees had previously been offered reinstatement in conjunction with Respondent's proposed settlement of the instant charge. The Regional Director had refused to approve the proffered settlement primarily because it did not provide backpay for Prince, Garcia, and Alvarez, the employees affected by the settlement and reinstatement offers. S Of course, this conclusion in no way affects the remedy provided herein for the discharge of Alvarez which we have found to be violative of Sec. 8(ax3) SHOP RITE FOODS, INC. 257 NLRB 793, 802 ( 1972)) because he is named in a charge. Accordingly, for the reasons above stated, we shall dismiss those portions of the complaint which allege that the Respondent, by its April 19 letter, violated Section 8(a)(1) and (4) of the Act. AMENDED CONCLUSIONS OF LAW 1. Shop Rite Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters & Butcher Work- men of North America , AFL-CIO, Local No. 171, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Mary Alvarez because of her union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. Respondent has not violated Section 8(a)(1) of the Act by failing to submit lists of employees' names and addresses in conformity with the Board's Excelsior policy, by implementing new benefits, by laying off Virginia Carlisle, by threatening Jesus Diaz, or by misrepresenting the election voter eligibility date. 5. Respondent has not violated Section 8(a)(3) and (1) of the Act by issuing formal reprimands to Juan Lopez, Elmira Prince, and Joe Escobedo, by reducing the hours of Elmira Prince, or by discharg- ing Alfonso M. Garcia. 6. Respondent has not violated Section 8(a)(4) and (1) of the Act by its letter of April 19, 1974, or by any action it took pursuant thereto. 7. The unfair labor practices found above have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, Shop Rite Foods, Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(a): "(a) Discharging employees because of their union activity." 2. Substitute the following for paragraph 2(a): "(a) Make Mary Alvarez whole for any loss of pay she may have suffered by reason of the discrimina- tion against her in the manner set forth in the section of this Decision entitled `The Remedy.' " 3. Substitute the attached notice for that of the Administrative Law Judge. ACTING CHAIRMAN FANNING , concurring and dis- senting in part: I agree with my colleagues to the extent they affirm the Administrative Law Judge's findings and conclu- sions. Contrary to my colleagues, I would adopt the Administrative Law Judge's finding, for the reasons stated by him, that the Respondent violated Section 8(a)(1) of the Act by stating in its April 19 letter that employees Prince, Alvarez, and Garcia would be terminated on April 26 if the Regional Director for Region 23 failed to approve Respondent 's proposed settlement agreement of outstanding unfair labor practice charges involving, inter alia, these employ- ees. I would also adopt the Administrative Law Judge's finding that Respondent violated Section 8(a)(4) of the Act by causing employee Prince, who acted upon the April 19 letter, to lose 2 days of work on April 27 and 28. In addition, I would find, contrary to the Administrative Law Judge and my colleagues, that Respondent also violated Section 8(a)(4) by its conduct vis-a-vis Alvarez whose employment opportunities were adversely affected by Respondent's April 19 letter. The Administrative Law Judge found that Alvarez called Respondent's district manager, Tidwell, on April 24, the day she received the April 19 letter, because she had been told to speak to Tidwell concerning Respondent's earlier offer of reinstate- ment. When Tidwell offered her reinstatement at her former location as of April 19, Alvarez told him that the letter she had just received stated that she would be discharged on April 26. After Tidwell denied knowledge of the letter , Alvarez stated that she thought someone was "playing games" with her, and the conversation ended. Because of Respondent's April 19 letter, Alvarez did not return to work on April 29. Alvarez was eventually offered reinstate- ment at the hearing herein. In my view, Tidwell offered Alvarez reinstatement as of April 29. The credited testimony indicated that, because of the letter, Alvarez thought the offer of reinstatement a nullity, inasmuch as the offer was not to take effect until April 29 and the letter explicitly stated that she would be terminated on April 26. Thus, it seems clear that she did not return to work because she reasonably believed that Tidwell's offer had been revoked by the letter. Accordingly, I would find that Alvarez' employment opportunities were impaired as a result of the letter and that Respondent thereby violated Section 8(a)(4) and (1) of the Act with respect to her inasmuch as the letter was designed to induce her to refrain from further cooperating with the Board in this matter. 258 DECISIONS OF 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 discharge or otherwise discrimi- nate against our employees because they have engaged in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL make Mary Alvarez whole for the earnings she lost by reason of our discrimination against her. SHOP RITE FOODS, INC. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This proceeding was heard on April 30 and May I and 2, 1974, in San Antonio, Texas, upon an original charge filed on July 23, 1973, and a complaint issued March 13, 1974, as amended on March 26, 1974, alleging that Respondent engaged in certain independent violations of Section 8(a)(1) of the Act; violated Section 8(a)(1) and (3) of the Act by discharging Alfonso M. Garcia and Mary A. Alvarez and by issuing reprimands to Juan Lopez, Elmira Prince, and Joe Escobedo, and by reducing the work hours of Elmira Prince; and violated 8(a)(4) and (1) of the Act by threatening to discharge employees Garcia, Alvarez, and Prince to discourage them from testifying in the instant proceeding. Respondent duly filed an answer denying that any unfair labor practices were committed. After close of the hearing, briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record in this case, including the posthearing briefs and my observation of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Texas corporation, with the principal office and place of business of its San Antonio district located in San Antonio, Texas, from which it is engaged in the retail grocery business on a chain-store basis. During the 12-month period preceding issuance of the complaint, a representative period, Respondent in the course and conduct of said operations, sold and distributed goods valued in excess of $500,000, and purchased and received goods and commodities at its San Antonio facilities valued in excess of $50,000, from suppliers located outside the State of Texas. The complaint alleges, the answer admits, and I find that Respondent is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find that Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 171, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The instant litigation arises against a background of longstanding efforts on the part of the rival Meat Cutters and Retail Clerks Unions to obtain representation rights on behalf of the previously unorganized grocery employees located in the various retail food markets within Respond- ent's San Antonio district. Thus, on August 27, 1969, the Charging Party herein, Local 171 of the Meat Cutters Union, filed a representation petition in Case 23-RC-3344. The Retail Clerks either intervened or filed its own petition, but in any event appeared on the ballot in all ensuing elections. The first election was conducted on March 27 and 28, 1970. Thereafter rerun elections were directed on the basis of preelection misconduct, with the second conducted on August 20 and 21, 1972, and a third, on April 27 and 28, 1973. After a hearing, objections to the third election filed by the Retail Clerks were sustained by the Board, which directed a fourth election by Decision of January 9, 1974. The fourth election was scheduled for April 1974, but the question concerning representation was subsequently vacated when pursuant to agreement of the Meat Cutters, Retail Clerks, and the Respondent, the Meat Cutters on March 15, 1974, requested withdrawal of its petition in Case 23-RC-3344, and disclaimed any further interest in the unit. Following said agreement, the Retail Clerks requested a card check, which Respondent accepted, and when said check demonstrated that Retail Clerks repre- sented a majority in the appropriate unit, Respondent granted recognition to the Retail Clerks. Through contract, having an effective date of April 28, 1974, the employees in the unit, which for some 5 years had been the subject of conflicting representation claims, are now covered by a collective-bargaining agreement. This complaint involves alleged violations of Section 8(a)(1) and (3) based on events preceding the grant of recognition to Retail Clerks. The bulk of the independent 8(a)(1) allegations are based upon objections to the third election, which were filed by the Retail Clerks, but, interestingly enough, were opposed by the Meat Cutters, the Charging Party herein. All the 8(a)(3) allegations involve alleged discrimination directed at Meat Cutters' supporters. An 8(a)(4) allegation is also included in the amended complaint and is based on events which immediately preceded the hearing in this proceeding. SHOP RITE FOODS, INC. B. Interference, Restraint, and Coercion 1. The Excelsior issue The complaint as amended, alleges that in Cases 23-RC- 3344, 3347, and 3390, "the Board ordered Respondent to furnish a list of eligible voters and their addresses in accordance with its policy as set forth in Excelsior Underwear, Inc., 156 NLRB 1236 (1966)," and further that "On or about April 13, 1973 Respondent knowingly submitted an eligibility list . . . which was grossly inaccurate and incomplete, and thereafter refused to correct and complete said list." The amended complaint goes on to relate that this alleged noncompliance with Excelsior constituted an independent violation of Section 8(a)(1) of the Act. The General Counsel cites no Board authority to the effect that a noncompliance with the Excelsior requirement constitutes a per se violation of Section 8(a)(1). Indeed, the Board, in enunciating the policy requiring preelection lists of names and addresses, specifically stated: Whether or not an employer's refusal to disclose employee names and addresses after an election is directed would constitute "interference, restraint, or coercion" within the meaning of Section 8(a)(l) of the Act, despite the existence of alternative channels of communication open to the union, is a question on which we express no view because it is not before us.i Now some 8 years after issuance of Excelsior, that issue is squarely presented under this complaint. For the reasons set forth below, it is my opinion that the failure to submit a timely accurate list of names and addresses does not constitute a per se violation of Section 8(axl). Over the years the Board has established standards for the conduct of an election, designed to enhance employee opportunity for a free and reasoned choice.2 Upon noncompliance with such standards "the Board will set aside an election even though the conduct does not constitute an unfair labor practice." 3 Examples of the type of conduct which, though grounds for setting an election aside, do not constitute 8(a)(l) violations are gross misrepresentations,4 captive audience speeches within 24 hours of an election,5 extreme racial propaganda,6 and the systematic removal of small groups of employees from their place of work to the locus of managerial authority for purposes of communicating noncoercive antiunion propa- ganda.7 I view the Excelsior requirement as subject to enforce- ment on the same limited basis as the above categories of preelection misconduct. In the 8 years that has lapsed since adoption of the Excelsior requirement the Board has not indicated a disposition to utilize complaint sanctions to enforce that policy. The remedy for noncompliance with Excelsior has been the direction of rerun elections. I i Excelsior Underwear, Inc., supra, 1245-46. In the instant case, the General Counsel has made no showing that alternative means of communication were not available to the Unions , and hence it is plain that the issue raised by the amended complaint is one specifically left open by the Board in Excelsior, supra. 2 "The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly [are] matters which Congress 259 perceive of no salutory objective to be gained by reaching into the arsenal of unfair labor practice remedies to regulate this area. The furnishing of names and addresses only accomplishes the objective underlying promulgation of the Excelsior policy, where the lists are available during the preelection period. The use of unfair labor practice remedies hardly constitutes a practical means of assuring that result as against recalcitrant employers. More expedi- tious procedures are already available to compel such compliance. Pursuant to Section 11, the Board's subpena powers have been invoked to obtain court-enforced orders requiring production of the lists in far more timely fashion than would be the case in a Section 10 unfair labor practice proceeding. In sum, I see no administrative advantage inuring from addition of Excelsior to the already heavily taxed system of determining and remedying unfair labor practices. There are also serious substantive questions that arise if nondisclosure of names and addresses is to rise to the level of a per se unfair labor practice. Significant differences exist between presumptions that may be relied upon by the Board in fashioning standards designed to assure an election atmosphere conducive to a free and reasoned choice, and presumptions that may properly support an unfair labor practice finding. The character and degree to which the Board relies upon presumptions in administering the Excelsior policy is evident from the following quote from Son Farrel, Inc., 188 NLRB 969, 970 (1971): As the Employer points out, our adoption of the Excelsior requirement was rooted in the hope of insuring a "fair and informed" electorate. An employ- er's submission to the petitioning union of a list of names and addresses of all eligible employees was deemed to be a proper administrative mechanism to achieve that end. To look beyond the question of the substantial completeness of the lists, however, and into the further question of whether employees were actually "informed" about the election issues despite their omission from the list, would spawn an adminis- trative monstrosity. The Excelsior rule imposes a simple duty upon employers which can be satisfied by the application of a reasonable amount of diligence. We perceive no sound basis for granting the opportunity of prolonged litigation to an employer whose more attentive concern with the rule would have obviated the need for any such litigation in the first place. We shall therefore presume, as the Excelsior case intended, that the Employer's failure to supply a substantially complete eligibility list had a prejudicial effect upon the election, without inquiry into the question of whether the Union might have obtained some additional names and addresses of eligible employees prior to the election or whether the omitted employees might have garnered sufficient information about the issues to have made an entrusted to the Board alone." N.LR.B v. Waterman Steamship Corpora- non, 309 U.S. 206,226 (1941). 3 NVFCompany, Hartwell Division. 210 NLRB 663 (1974). 4 Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962). 5 Peerless Plywood Company, 107 NLRB 427 (1953). 6 Sewell Manufacturing Company, 138 NLRB 66 (1962). 7 Peoples Drug Stores, Inc, 119 NLRB 634 (1957). 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intelligent choice. Accordingly, we find that the Employer's exceptions raise no material or substantial issue of fact or law which would warrant reversal of, or a hearing on, the Regional Director's findings on the objections, which we hereby adopt. Presumptions, such as referred to above, though quite a proper basis for promulgating and administering rules governing the election process, must be regarded with greater scrutiny where the predicate for an unfair labor practice finding. For as stated by the Board: "The test of conduct which may interfere with the 'laboratory condi- tions' for an election is considerably more restrictive that the test of conduct which amounts to interference, restraint, or coercion which violates Section 8(axl)."8 In my opinion, it would be improper to presume, without more, that in each and every instance a failure to supply a complete, accurate or any list at all, impairs employee exercise of Section 7 rights. Even if the Section 7 rights "to self organization, to form, join, or assist labor organiza- tions" are construed as embodying the right to do so on an informed basis, it would not follow that each and every Excelsior noncompliance impedes that right. The lists themselves merely provide the means by which the Union may reach employees, but beyond that the lists do not ,guarantee an informed choice . Whether or not an employ- er's withholding of all or part of the list can be, causally related to an interference with Section 7 rights depends vitally on whether the Union will use the lists, how they will be used, or whether the names and addresses were previously available to the union . In an unfair labor practice proceeding an actual impairment or tendency to impair Section 7 rights should not be assumed on presumptions not necessarily indicative of actual interfer- ence, restraint, and coercion of employees. In sum, I conclude that in the absence of any remedial advantage to the further burdening of the administrative process by duplicating the enforcement of Excelsior through complaint proceedings, the statutory policy underlying Excelsior is best implemented through postelec- tion representation procedures , and, further that any noncompliance with that policy is too remote from Section 7 rights to constitute ipso facto interference, restraint, and coercion within the meaning of Section 8(axl) of the Act. Accordingly, I shall recommend dismissal of this allegation of the complaint. 2. Misstatement of the eligibility cutoff date The complaint, as amended, sets forth an 8(aXl) violation based upon allegations that shortly before the third election, "Respondent knowingly advised its employ- ees in writing that they would not be eligible to vote in the forthcoming Board-conducted election unless they were employed before March 10, 1973, which date was substan- tially different from the actual eligibility cutoff date." Although the General Counsel made certain factual representations in connection with this allegation, no evidence was offered in support thereof. Furthermore the factual assertions underlying this allegation are limited to s Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1%2). a See, e.g., Glazers Wholesale Drug Co., 209 NLRB 1152 (1974). Cf. the type of preelection misconduct, which, though grounds for setting an election aside, is not a violation of Section 8(a)(1) of the Act .9 Accordingly, I shall recommend dismissal of this allegation of the complaint. 3. The alleged grant of benefits The complaint alleges that Respondent further violated 8(a)(1) on April 15, 1973, by announcing "the implementa- tion of major improvements in employee benefits in the context of discussion of the forthcoming representation election." The only evidence offered in support of this allegation is a document, which was concededly posted on company bulletin boards and directed to "All Personnel," with the designated subject thereon being "Sick Leave." The document lists qualification standards and benefits, under the Company's sick leave policy and includes a detailed discussion of the workings of that policy. There is no indication whatever that this publication resulted in a net increase in benefits, a net decrease in benefits, or for that matter, whether the contents thereof merely represent- ed a clarification of existing policy. At the hearing when these deficiencies were called to the General Counsel's attention by Respondent's attorney, I called on the General Counsel for a statement of position. The following ensued: JUDGE HARMATZ: Mr. Boss? MR. Boss : Well, I think the facts speak for itself that a revised policy concerning insurance benefits on April 15, 1973, 12 days before the election was an improve- ment of the existing benefits. We don't have it prior-any prior statement of it but- JUDGE HARMATz: How do you know it was-it wasn't a deprivement? How do you know it wasn't an increase in eligibility requirements and a decrease in benefits. Ma. Boss : We have it in the context of a spirited election, which on three previous occasions had been run off and set aside, and it was horribly contested with two Unions competing. We just say that the inference is that at the last minute the company was coming up with this statement of benefits. JUDGE HARMATZ: In other words, the theory is the company was fighting Unions and, therefore, it wouldn't have amounted to anything that wouldn't have given greater benefits to the- MR. Boss: I think that's the inference that is warranted. JUDGE HARMATz: But you can't point to any specific evidence aside from the fact-you can't point to any specific evidence apart from the inference you seek me to draw that would support a finding that these were benefits, new benefits, enhanced benefits? MR. Boss : Just the recent inference from the attendant circumstances. Aldon, Inc., 201 NLRB 579 (1973). SHOP RITE FOODS, INC. The inference which the General Counsel urges upon me is highly speculative and unsoundly premised. Further- more, it would be plainly inappropriate were Ito substitute inference, where reasonable investigation could readily develop the direct evidence necessary for presentation at a hearing, that is, if the actual facts in truth are consistent with the allegations in the complaint. In his brief, the General Counsel refers me to the rejected exhibit file, consisting of excluded transcript extracts from the postelection hearing on the Retail Clerks' objections to the third election. The General Counsel claims that the testimony of Virginia Carlisle and Jesus Diaz, which was given in that proceeding, substantiates the existence of an allegedly illicit grant of benefits. Here, as in the case of paragraphs 7 and 8 of the complaint, discussed under 4 below, such testimony given in the representation case but not presented in the instant proceeding is not the equivalent of the affirmative proof required to establish an alleged unfair labor practice . Accordingly, I find that the General Counsel has failed to prove that benefits were increased during the preelection period, and I shall recommend dismissal of this allegation in the complaint. 4. Paragraphs 7 and 8 of the complaint At the hearing, I dismissed paragraphs 7 and 8 of the complaint from the bench. Paragraph 7 alleges unlawful- ness both in the layoff of Virginia Carlisle and her rehire at a reduced schedule of hours . Paragraph 8 alleges a threat of discontinued benefits addressed to employee Jesus Diaz. These allegations are of a type which would turn on an assessment of oral testimony. Nevertheless not a single witness was called to testify before me with respect to these allegations. Instead, the General Counsel after representing that these witnesses were subpenaed, but not available because they resided at locations distant from the hearing, urged that I make findings with respect to paragraphs 7 and 8 based upon testimony given by these witnesses at the hearing on objections to the third election in Cases 23-RC- 3344, 3347, and 3390. I granted Respondent's motion to dismiss those allegations for want of competent substanti- ating proof. In his posthearing brief, the General Counsel both requests that I reconsider my ruling and makes extensive argument in support of that request. Aside from my view as to the evidentiary defect underlying these allegations, in the circumstances, I am not entirely sure that I would recommend a remedy on this minor part of the case were I to agree totally with the General Counsel. In this connection, I note that these allegations involve 8(axl) conduct directed at supporters of the Retail Clerks Union and are derived from that Union's objections to the third election. These objections were at all times opposed by the Meat Cutters, the Charging Party herein. This raises an interesting issue under Section 10(b) of the Act, for the Retail Clerks objections to the election were not the subject of an independent unfair labor practice charge . While it might be said that an unreasonable burden is not imposed upon the Employer where required to preserve all facts as to matters relating to the Meat Cutters charge, I question whether such thinking can be extended to conduct directed at a 261 union other than the Charging Party, under circumstances where the Charging Party has contended, as a matter of record, that no such misconduct occurred. Aside from the 10(b) problem, there is the further question of whether in the face of the present bargaining relationship between the Retail Clerks and the Respondent, it makes any sense at all, from the standpoint of statutory objectives, to remedy preelection offenses directed at that Union by provisions which might well serve as an irritant to that relationship. In view of the foregoing it is my opinion that the existing bargaining relationship between the allegedly offended Retail Clerks and Respondent makes it idle to belabor this point. Nonetheless the General Counsel's persistence in this regard makes necessary further comment with respect to the basis for my dismissal of these allegations. First, it should be made clear that the issue here is not the admissability of evidence but rather relates to the quality of evidence necessary to substantiate an alleged unfair labor practice. Even if I had admitted the excluded material, the defect in these allegations would remain. Authorities cited by the General Counsel hardly support his claim that upon extra record evidence taken in a representation proceeding before unfair labor practices involving parole testimony may be predicated solely a hearing officer. Paint, Varnish & Lacquer Makers Union, Local 1232, AFL-CIO, 120 NLRB 1425, 1427 (1958), involved evidence and findings from a representation case which were used solely for background purposes and were not the sole evidence offered in support of an unfair labor practice allegation. In General Seat and Back Manufactur- ing Corp., 117 NLRB 1223, 1229 (1957), and Credit Bureau, 189 NLRB 574, 594 (1971), representation case evidence was considered as prior inconsistent testimony hearing upon credibility. In Thomas Products Company, 175 NLRB 776 (1969), the documentary evidence in the representation case was authenticated and made a part of the record in the unfair labor practice proceeding. In my opinion, the General Counsel, without support from precedent, seeks to nullify the right to a hearing accorded persons charged with unfair labor practices by virtue of Section 10(c) of the Act. This is particularly so, where, as here, the reliance upon secondary evidence would preclude an assessment of parole testimony and resolution of issues of credibility by an administrative law judge having an opportunity to observe the witnesses. For the reasons indicated, I reaffirm my ruling dismissing these allegations. C. The Alleged Discrimination 1. The reprimands to Escobedo and Lopez Joe Escobedo. The complaint alleges that on June 1, 1973, Joe Escobedo was issued a reprimand in violation of Section 8(a)(3) and (1) because of his activities on behalf of the Meat Cutters Union. Escobedo was hired by Respond- ent in 1968 as a produce helper. A few weeks later he was promoted to the nonsupervisory position of produce manager. As produce manager, Escobedo was responsible, inter alia, for rotation of produce to avoid spoilage, and the ordering of produce and frozen foods. At all times material, Escobedo was an active protagonist of the Meat 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cutters Union. He participated as an observer on behalf of the Meat Cutters at all three elections. Both before And after the third election of April 27 and 28, 1974, Escobedo regularly wore a Meat Cutters badge in the store. Prior thereto, Escobedo solicited union authorization cards and engaged in handbilling in his own and other stores in Respondent's San Antonio district on behalf of Meat Cutters. Escobedo credibly testified that his union activi- ties were conducted in the presence of certain of Respond- ent's supervisors, including Calvin Prater, the produce supervisor for Respondent's San Antonio district, and Buster Tidwell, Respondent's San Antonio district manag- er. Produce Supervisor Prater admits to knowledge of Escobedo's activities on behalf of the Meat Cutters Union. The circumstances surrounding issuance of the repri- mand reveal that on June 1, 1973, Escobedo, while unloading a truck, observed Calvin Prater, inside the produce cooler in his store. Prater apparently was checking the produce in Escobedo's department. At that time, Prater said nothing to Escobedo, but returned about 4 o'clock that same afternoon and informed Escobedo that he wished to talk to him and Store Manager Martinez. In the ensuing conversation, Prater told Escobedo that he was going to give him a reprimand for overstocking the produce cooler and for failure to properly rotate his merchandise. A written reprimand to that effect was given to Escobedo which he signed. Escobedo at that time made no defense to Prater and offered no explanation for the conditions cited as objectionable by Prater in the repri- mand. With respect to the status of his department on June 1, Escobedo initially testified that the conditions prevailing in his department that morning were no different than those on any other Friday which, according to Escobedo, is a very heavy -day. Later, in his testimony, however he referred to the fact that he had been off the previous Monday, the Memorial Day holiday, and this loss of 8 hours from the normal workweek caused him to fall behind. When this explanation was pursued further, Escobedo admitted that conditions in the produce depart- ment on June 1 were somewhat worse than on previous Fridays in the sense that he had insufficient time to rotate merchandise and therefore there was spoilage and also that there was overstocking. On the basis of Escobedo's own testimony I am satisfied and find that the content of the reprimand was not at odds with the facts. There is no showing that such condition had been condoned in the past by Respondent without issuance of reprimands. Since, as produce manager, Escobedo was responsible for the rotation of produce as well as ordering, I cannot conclude that the reprimand was issued for reasons other than good cause. It is true that Escobedo was a known protagonist of the Meat Cutters Union and that the reprimand was issued some 7 weeks after the third election. However, these factors hardly provide sufficient basis for inferring that Prater's action, with respect to Escobedo on June 1, was either union related or predicated upon anything other than the sound exercise of managerial authority. Accord- ingly I find that the General Counsel has not established by a preponderance of the evidence that Respondent issued a reprimand to Escobedo in violation of Section 8(a)(3) and (1) of the Act and hence I shall recommend dismissal of this allegation of the complaint. Juan Lopez. As in the case of Escobedo, the General Counsel contends that a formal reprimand issued Lopez in the week following the third election was based upon discriminatory considerations and therefore violative of Section 8(a)(3) and (1) of the Act. Lopez is also a produce manager and has been in Respondent's employ since 1965. He first signed a Meat Cutters' authorization card in 1969 and has actively supported that Union in all three elections. His activities included the wearing of a Meat Cutters' badge during these elections until several months after the third election. He was also an observer at all three elections, and was a roving Meat Cutters observer in the third, which required him to perform his functions in connection with that election in four different stores. As these union activities were engaged in openly and in the presence of management representatives, including Prater and Tidwell, I find that Lopez' support of the Meat Cutters was a commonly held fact within management. The circumstances surrounding the issuance of the reprimand show that on Wednesday, May 2, Prater was in the produce department managed by Lopez and that he gave Lopez a check list which noted certain deficiencies in his department; namely, that the frozen food section was low, with a few items completely missing. Lopez concedes that at that time his frozen food section was lower than normal. He attributes this condition, however, to the fact that he did not work on the previous Saturday because he acted as observer at the election conducted that day. Lopez also cites his other responsibilities in the department, and the fact that his helper was on vacation that week. Lopez testified that sometime in the course of his conversation with Prater, the latter referring to Lopez' union badge, stated: "I don't think you're supposed to be wearing that anymore, but I'll find out." Lopez responded that Prater should let him know when he finds out. Lopez continued to wear the button and Prater never again mentioned the matter. No reprimand was given Lopez that Wednesday. The next day, on Thursday afternoon, Prater called a meeting of all produce managers from the various stores in the San Antonio district which was held from 2 to 4 p.m. At that meeting Prater again raised the issue of the frozen food section to Lopez. He told Lopez to return to his store after the meeting and to work on the frozen food section until midnight if necessary. According to Lopez' testimony, he returned to the store and did some work that Thursday evening, but did not finish the job until Friday. On Friday Prater again appeared at the store and presented Lopez with a formal, previously typed-up reprimand signed by District Manager Tidwell, and stating as follows: Cause of Reprimand & Disciplinary Notice . . . Failure to properly maintain the frozen food section of the Produce Department allowing the inventory to be depleted on numerous items, and that due to his negligence, could have caused loss of sales and customer dissatisfaction. Action Taken SHOP RITE FOODS, INC. 263 Reminded employee of policy on care and rotation of products in the frozen food cases . Reminded him of his responsibility and job. Any further negligence on his part will subject him to more stringent action. According to Lopez, after reading the reprimand, he advised Prater that the condition of the frozen food department was not his fault since he did not work the previous Saturday. Prater is alleged to have replied "Well it's not the Company's fault you weren't here on Satur- day." Prater asked Lopez to sign the reprimand which the latter refused, stating that as far as he was concerned he was doing his job. According to Lopez, Prater then said "Well I don't really want to do this, but I have to." Lopez further testified that at the time of his encounter with Prater on Friday morning he had reworked the frozen food section and that Prater had remarked that "everything looked real good." Prater and Tidwell credibly testified that this reprimand originated with Tidwell , who, after visiting the store in the middle of that week and observing the condition of Lopez' frozen food section, contacted Prater and instructed him to issue the reprimand. The accuracy of this testimony is enforced by Lopez' indication that Prater, on delivering the reprimand, stated that he really didn't want to, but was obligated to do so. The origin of the reprimand renders immaterial certain conflicts in the testimony of Prater and Lopez bearing upon the condition of the frozen foods section on Friday, May 4, and conflicting versions of their conversations during that week. Thus, the established facts show that on and before Wednesday, May 2, the frozen food department for which Lopez was responsible was low generally and out of certain stock. I accept as plausible Respondent's expressed concern that such a condition could result in a loss of sales and constituted poor merchandising. I further find that the reprimand was given at Tidwell's insistence. I also regard as unpersuasive Lopez' explanation that his not having worked the previous Saturday furnished an acceptable excuse for the condition of his frozen food case the following week.10 It is true that Lopez was known to be an aggressive advocate of the Meat Cutters Union, and that the reprimand was issued on the heels of the third election. But these facts hardly support a fmding of illegality where, as here, the action of management seems entirely plausible, is based upon established facts, and is not shown to have been disparately applied . Accordingly, I find that the General Counsel has failed to sustain his burden of proof with respect to the 8(aX3) and (1) allegations relative to the Lopez reprimand, and, accordingly, I shall recommend dismissal of this allegation of the complaint. 10 Saturday is a heavy sales day. Such sales would always result in heavy depletion of stock so as to require replenishment on days to follow. Thus, an absence on Saturday would not seem to be unusually critical to proper maintenance of frozen food stocks. 11 There is testimony in the record relative to Pence's dissatisfaction with her failure to attain full-time employment . However no issue pertaining 2. The reprimand to and reduction of Elmira Prince's work hours Elmira Prince was hired in November 1972 as a cashier on a part-time basis.11 By her own testimony Prince concedes that she was one of the last employees to join the Meat Cutters and, apart from her wearing a Meat Cutters' badge on a single occasion, the first day of the third election, the record does not disclose that Prince engaged in overt activities on behalf of that Union. The reprimand. The complaint alleges that a formal reprimand was issued Prince in violation of Section 8(a)(3) because of her union or protected activity. The disputed reprimand, which was dated May 26, 1973, and issued by Store Manager Marvin Toombs recited that it was based on the following: "Failure to call prices when checking customers [sic]." Prince concedes both that Toombs observed her failure to call prices and that other girls had received reprimands for such an offense. Aside from the minimal union activity attributed to Prince, her testimony that, despite the date appearing on the affidavit, she received it prior to the April 26 election and before she wore the Meat Cutters' badge further weakens any basis for inferring that the reprimand was based upon union considerations. In the posthearing brief of the General Counsel, the following statement appears: "General Counsel is not contending at this time that the reprimand awarded to Elmira Prince on or about May 12, 1973 was violative of the Act." I shall recommend dismissal of this allegation. The reduction of hours. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act by reducing Prince's hours from between 20 and 30 hours per week to 8 hours per week. Undisputed documentary evidence demonstrates that during the payroll period ending June 9, 1973, Prince's hours were reduced to about 8 hours weekly. In prior weeks, during calendar 1973, Prince had worked a high of 42 hours and a low of 26 hours weekly. The Company concedes that the reduction in question was not attributable to a normal decline in manning requirements, but nevertheless argues that this action was directed at Prince for reasons unrelated to any activity protected by the Act. Thus, it appears that some time in the spring of 1973, Prince, on report of an unidentified fellow employee, was suspected by management (namely, Marvin Toombs, her store manager) of checking out relatives and giving them discounts in violation of what is conceded to be company policy. As a result, Prince and another employee, who was the object of similarly based suspicion, were required to take a polygraph test.12 Toombs informed Prince of the suspicions which created the need for the test. Prince agreed to the polygraph, and concedes that in the course of the test, she made the polygraph operator "mad." Accord- ing to Prince, the operator accused her of lying in response to questions concerning her giving discounts and checking to her status in this regard was raised, none can be said to have been fully litigated and hence this matter is regarded as collateral to the questions presented by this complaint. 12 The other girl declined to take the test and never again returned to work. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out relatives and she, further, concedes that when he repeatedly questioned her as to whether she would like to set a price on what she had taken from the Company, she informed the operator : "If there's nothing else, could we finish the test? . . . Because I have a lot of other things to do." The operator then said "I bet you do." On that note, the test apparently ended. The "Confidential Report" of the polygraph operator was forwarded to the Company under date of May 12, 1973. The contents of this report were never divulged to Prince. The report on Prince states as follows: Evaluation of the poly grams resulting from this subject's examination, reveals to this examiner signifi- cant criteria that would indicate deception when this subject states that she has never eaten saleable merchandise on the job without paying for it, has never discounted to anyone, has never checked out a relative and has answered all questions truthfully. Toombs, himself, never saw the report. However the results as reported to Toombs, by Grocery Supervisor Lopez, were regarded as not sufficiently conclusive to warrant discharge. However, Toombs' suspicion was not allayed and he felt that some discipline was in order. According to his testimony he decided to cut Prince's hours in the hope, among other things, that she would subsequently quit.13 I have no reason to doubt Toombs' testimony as to the basis for his action . Prince was not questioned in the proceeding as to whether she did or did not engage in the indiscretions of which she was suspected, and which the Company argues were the sole basis for the action taken against her. The General Counsel has offered no proof that provides a fair basis for disbelieving Toombs , or otherwise leading to a reasonably based inference that the reduction in hours was not in truth an act of managerial judgment unrelated to any union activity. In these circumstances, and since the usual factors pointing to pretextual discipline are not present in this case, I find that the General Counsel has not met his burden of proving unlawful discrimination with respect to Prince's reduction in hours . Accordingly, I shall recommend dismissal of the 8 (a)(3) and (1) allegation based upon this incident. 3. The Alleged Discriminatory Discharges a. Alfonso M. Garcia Garcia was also a produce manager. Hired in 1968, he was discharged on June 15, 1973. The General Counsel contends that this discharge was in reprisal for Garcia's activities on behalf of the Meat Cutters Union. Respondent defends on grounds that the discharge was based upon legitimate considerations, both including and growing out of Garcia's failure to report for work on June 14 , 1973. The General Counsel seeks to put pretext to the justification assigned by Respondent by relying, in essence, upon 13 1 note that Prance did quit her job in the fall of 1973 The reasons behind her quit are not a matter of record , and the General Counsel does not contend that she was at that time the object ofa constructive discharge. 14 As will be seen, infra, I shall discredit Garcia's testimony that he Garcia's testimony to the effect that Albert Guerra, Garcia's store manager, gave him permission to take that day off, and that Calvin Prater knew this at the time that he terminated Garcia. Garcia was active on behalf of the Meat Cutters in all three elections. His activities included the solicitation of signatures to authorization cards of that union, and he acted as a union observer at all three elections . He also, during the campaigns, wore a Meat Cutters' badge . Prater admits to knowledge of Garcia's union learnings . Accord- ingly, I am satisfied and find that Respondent was fully mindful of Garcia's activities on behalf of the Meat Cutters Union. The circumstances surrounding his discharge show that according to Garcia's normal work schedule, he is only to work from 8 a.m. to 12 noon on Thursdays. On the week of June 11 , he wanted to take off Thursday morning, June 14. Garcia first testified that on Monday, June 11, when he told this to Store Manager Guerra, the latter replied that as long as Garcia did his job and had everything worked out in the produce department Garcia could take the day off. Garcia subsequently testified that Guerra at that time stated "Ok. I'll go ahead and call Mr. Prater up." Thereafter on both Tuesday and Wednesday, Garcia asserts that he again reminded Guerra of his intention to take Thursday off. Garcia does not indicate in his testimony that Guerra ever informed him whether the latter had in fact discussed Garcia's request for time off with Prater or whether Prater had made any response. Nor does Garcia testify that he inquired of Guerra as to whether Prater had approved the request.14 Garcia further testified that he took Thursday off and about 3 p.m. that day he received a phone call from Guerra stating that Prater had been in the store and was disturbed because the produce rack was low. Guerra informed Garcia that Prater had his timecard and that he was to report the next day, Friday morning, to Prater's office. Garcia went to Prater's office the next morning and found Guerra there. According to Garcia, although it is vague as to just when this latter incident occurred, he overheard district grocery supervisor, Joe Anthony Lopez, reprimand Guerra for failing to report Garcia's taking time off to the office.15 In any event it is Garcia's further testimony that apparently some time thereafter Prater came into the office and asked Garcia what had happened on Thursday. Garcia said he was off. Prater asked why Garcia didn't notify anyone at the office. Garcia said he informed Guerra of his request to take the time off. Prater then asked Garcia whether he didn't know that he was supposed to call the office when taking a day off. Garcia was then given a reprimand based on his failure to report to work on Thursday, June 13, without first obtaining permission to take the day off or requesting a replacement. The reprimand under the section entitled "Action Taken" states: The employee is reminded that it was his responsibility to obtain permission from the store manager and the obtained permission from Guerra to take Thursday off. 15 As indicated infra, I credit Guerra's denial that such a conversation occurred. SHOP RITE FOODS, INC. 265 produce supervisor before he could take off on a scheduled workday-warning-further occurrences of this nature could be cause for dismissal. That reprimand was signed by Buster Tidwell and Calvin Prater. After Garcia read the reprimand, Prater asked him to sign it, which he did. Prater then gave Garcia a second reprimand based upon Garcia's having worked off the timeclock the previous day and his failure to make an "ad loss" report.16 When Prater requested that Garcia sign this final reprimand Garcia refused to do so stating "you mean I'm fired, right at that moment." According to Garcia he also advised Prater in the presence of Guerra that Guerra had given him permission to take the day off. As a result of this interview, Garcia was terminated. On the basis of the foregoing it is apparent that the immediate reasons assigned for Garcia's discharge by Respondent consisted of Garcia's taking time off without permission, his failure to fulfill his responsibilities in connection with the "ad loss report," and his working off the clock. Garcia denies that in taking Thursday off he did so without permission and under circumstances violative of company policy. He admits, however, that he did not take the inventory necessary to the final preparation of the "ad loss report" and also admits that while off the clock he placed his order for additional produce and frozen food from his home on Thursday morning. In this latter connection, though Garcia admits knowledge of the company policy against performing any work while not on the timeclock, he testified that he did not know that phoning in an order while not working was violative of that policy. According to his testimony he informed Prater during the discharge interview that this phone call only took 3 minutes.17 Unlike the ad loss report and off-the-clock aspects of the discharge which, at least factually, are conceded by Garcia, the circumstances surrounding his taking time off are the subject of a sharp conflict in testimony. His former store manager, Guerra, who later quit Respondent's employ, testified that on each occasion when Garcia told him of his plan to take off that Thursday, Guerra told him to check with Prater. All agree that Garcia never did so. Concerning 16 The functions of a produce manager with respect to the ad loss report was to compile an inventory on Thursday mornings and Saturdays of sale items appearing in newspaper advertisements on previous days, referred to as an ad cycle. Thus, Respondent advertises various "leaders" in the Sunday and Wednesday papers. The items covered in the Sunday newspaper are on sale on Sunday, Monday, Tuesday, and Wednesday with those appearing in the Wednesday paper being in effect on Thursday, Friday, and Saturday. The ad loss report, which was prepared by the various produce managers, was designed to give the company an idea of the merchandise cost of its sales. An inventory of the quantity of ad items would be on hand at the beginning of the ad cycle and the produce manager upon termination of the ad period, would again take an inventory of those items to determine the quantities sold. This inventory was to be taken on Thursday morning and Sunday morning. Garcia admits that he had been previously criticized for failure to submit his ad loss report on a timely basis and that Store Manager Guerra had reported to him on one such occasion that Prater had been inconvenienced because of his failure to do so. There is no question that due to his absence on Thursday, June 14, Garcia was unable to take the closing inventory necessary to accurate completion of his "ad loss report." 17 Garcia's testimony as to the amount of time worked off the clock is somewhat confused by his account of the portion of the discharge interview dealing with how Garcia would be compensated for time spent off the clock. the discharge interview, Guerra flatly denies that, as asserted by Garcia, he that morning had any conversation with or was rebuked by District Grocery Supervisor Lopez. He also denies that Garcia, during the discharge interview, told Prater that he, Guerra, had given Garcia permission to take off that Thursday. According to Prater, at that interview, during an exchange between Garcia and Guerra, Garcia stated that he had asked Guerra for the day off, but Guerra, then and there, corrected Garcia, stating that Garcia told him he was going to take the day off and that Guerra informed him "to check with Mr. Prater first." I am unwilling to credit the testimony of Garcia where contradicted by that of Prater and Guerra. Guerra, who now works for one of Respondent's competitors, was a highly persuasive witness who testified as if having no interest whatever in the outcome and related his responses to counsel's interrogation in a straightforward, direct manner. I was also impressed with the demeanor of Prater whose account, as corroborated by Guerra, was more consistent with the probabilities than that of Guerra. On the other hand I regarded Guerra as unreliable and impelled to express his version of crucial incidents in a manner that would further his cause. His testimony was marked by frequent contradictions, including an attempt to create the impression that his history of employment with Respondent was unblemished, when in fact, this was not the case at all.is In addition Garcia's testimony reflected a tendency on his part to transfer to others what quite obviously was his own responsibility. Thus, though Garcia had previously received a reprimand on April 5, 1973, for failure to make price changes correctly and on time, when questioned as to whether he subsequently made these changes on the day he took off, Garcia attempted to explain this away by testifying that effecting price changes was the store manager's responsibility. In the face of these contradictions, my distrust of Garcia's demeanor, and what I regarded as an attempt by Garcia to tailor his testimony in a manner consistent with his self-interest, I regard his testimony as unworthy of belief. Based on the foregoing, particularly the credited testimo- ny of Prater and Guerra, I find that the reasons assigned by Respondent for discharging Garcia are factually substantiated and constitute valid cause. The indiscretions Thus, through his testimony Garcia seems to draw a distinction between preparation of the order and the actual telephone call, so as to create the impression that the only off-the-clock work he performed was the telephone call However, his statements to Prater apparently were not to that effect. For, Garcia concedes that Prater paid him for an hour's work on Thursday. The only sensible interpretation I can place on this extra compensation is that it related to the time consumed by Garcia in the work performed off the clock. Prater only agreed to pay this compensation when he was informed by Garcia that preparation of the order took I hour. It is my impression from the entirety of Garcia's testimony that he did not, in his conversation with Prater concerning this matter, convey that his time off the clock was limited to a 3- to 5-minute phone conversation Is For example, Garcia first testified that he never had any problems keeping his produce rack full, and repeatedly , on questioning by the General Counsel, denied that he had ever received a formal reprimand. Later, however, Garcia admitted that he had been transfered to a smaller store in the past because he had been unable to maintain his department's volume of business in the larger store. Furthermore , Garcia admitted, when confronted with documentary evidence on cross examination, that he had previously received written reprimands on January 2, 1970, January 1972, and April 1973 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attributed to Garcia involved a serious infraction of company rules,19 and there is no showing that Respondent ever had condoned such misconduct or that its policy was disparately applied to Garcia because of his support of the Meat Cutters Union. Accordingly, I find that the 8(aX3) and (1) allegations relative to his discharge are lacking in merit and I shall recommend their dismissal. b. The discharge of Mary Alvarez Alvarez was hired on October 23, 1972, and assigned to Store # 126 where she worked until her discharge on July 18, 1973. At the outset of her employment she worked as an "office girl." In such capacity, Alvarez was responsible for relieving the store manager of paperwork. She also performed such utility functions as the making of signs, the ordering of tobacco and candy, the training of new checkers, and filling in as a checker when needed. Despite the greater responsibilities and broader aptitudes required of those in the office girl position, it was Respondent's policy that this is a prestigious job with great opportunities for enhancing skills, and that therefore office girls should feel privileged with such status though compensated at the same pay level applicable to ordinary checkers. Alvarez did not regard this pay parity with checkers as fair, and at some time in early 1973 she sought a wage increase. She discussed this with Store Manager Peterson and Assistant District Manager Lutich. When she received no definite responses she eventually contacted District Grocery Manager Lopez. During this meeting with Lopez, some time in March 1973, Alvarez explained that she felt it to be unfair that ordinary checkers and office girls should be paid at the same wage level. She indicated that she had heard nothing from other management officials concerning her prior requests for an increase. Lopez told Alvarez that office girls do not automatically earn at higher rates than checkers and that if she was not interested in the prestige of her position, she could cease to function as an office girl and revert to the status of a checker. Alvarez stated that she wished more money, and indicated that she wanted to transfer to another store where the girls earned more. Lopez said that she would not have to transfer, but that she could earn more by working the 10 p.m. to 7 a.m. shift, making her eligible for a 10 cents hourly differential.20 Alvarez declined to accept this suggestion, as she was the mother of five children. After this conversation, Store Manager Peterson in- formed Alvarez, after Lopez discussed the matter with him, that she was no longer an office girl, and that upon posting of the new schedule, she would be put on the 10 p.m. to 7 a.m. shift. In addition, Alvarez, who, to supplement her 39 I find that company policy applicable to produce managers required that a request for time off be addressed to Prater in order that he might obtain a replacement should he assent. I rely, in this regard on the testimony of Prater, Guerra, and Produce Manager Serna, who though an aggressive supporter of the Meat Cutters and a witness for the General Counsel, testified that obtaining the assent of Prater was a prerequisite for the taking of time off and was standard operating procedure . 1 note, however, that this finding is not necessary to the result reached , since I find that Guerra instructed Garcia to check with Prater before taking off, a step admittedly neglected by Garcia . It is plain therefore that Garcia took off Thursday, June 14, without authorization. earnings, had been working in another of Respondent's stores on Sundays, was informed that she no longer could work at that location. The threatened shift change did not in fact materialize, and Alvarez continued to work the day shift. Although no longer holding the title of office girl, Respondent did not replace Alvarez with any one in that classification. Accordingly, Alvarez was repeatedly called upon to perform the paperwork associated with that job. Alvarez was discharged on July 18, 1973. Prior thereto Peterson, in mid-June had taken his vacation, and was replaced by Assistant Store Manager Ramos. During this period, Alvarez contacted the main office for advice in connection with a problem she had with an invoice. Subsequently Lopez telephoned Ramos, who thereafter informed Alvarez, that Lopez did not want her performing office work, since she had been unhappy as an office girl and Lopez did not want her to be unhappy any more. Nonetheless, Ramos continued to ask her to perform such duties when the work piled up, for, other than Ramos, there was no one else to do it. Subsequent to his telephone call to Ramos, Lopez appeared in the store, and Alvarez attempted to clarify her responsibilities with respect to the store's paperwork. Lopez told her she would have no problems if she continued to abide by the instructions of the assistant store manager, On Monday, July 16, Alvarez had volunteered to work the night shift because of a personnel shortage at the store. About I a.m., Lopez arrived at the store, purchased something, and checked out through Alvarez' register. Alvarez was then, in addition to checking out customers, engaged in some paperwork. She checked out Lopez, they engaged in small talk, and apparently nothing further of consequence occurred at that time. Alvarez was next scheduled to work at 7 a.m. on July 18. She arrived at the store and observed Store Manager Peterson talking to a "new" girl. Peterson then left and Alvarez was approached by the "new" girl who asked what had happened to the store's former office girl, also stating that she was there temporarily until the Company trained a replacement. During this conversation Peterson returned, stating that he would like to talk with Alvarez. Alvarez was then informed of her termination, which Peterson attribut- ed to a need to cut down on full-time people, the assertion that she had asked to transfer and wasn't happy in the store, that she had criticized company policy, that she had created low morale among other employees in the store, that she had divulged confidential office information to other employees, and that, while she was friendly with regular customers, she acted as a "zombie" towards others. Alvarez during her employment with Respondent had a commendable attendance record, had never received a In my judgment, the seriousness of Garcia's absence is pointed µp by the various special duties that produce managers are called upon to perform on Thursday mornings. These include completion of the ad loss report for the prior ad cycle; ordering merchandise for Friday, Saturday, and Sunday; and the changing of prices to reflect changes in advertised items. All were in addition to normal daily duties and were neglected by Garcia in taking off that day. 20 Based upon the crgdited testimony of Alvarez. Reference to the night- shift wprk was emitted from the testimony of Lopez, and in this regard, I do not regard h1y account of the above conversation with Alvarez as in direct conflict with the latter's version. SHOP RITE FOODS, INC. reprimand, and from the specifics of her testimony, impressed me as being a highly capable, work-oriented individual who would not hesitate to volunteer her employment services when conditions in the store itidicat- ed a need. Lopez conceded that Alvarez was a good mechanical worker. Alvarez was initially indifferent towards union activity and, while informing her original store manager, Henning, of this, she also advised that she would let Henning know if she had a change of heart. When she joined the Meat Cutters Union in February 1973, Alvarez informed Henning that she had done so. Alvarez was the only Meat Cutters supporter in the store. Employees at that store were described by her as weakly oriented towards organization. As a result, and on advice of a Meat Cutters' official, she neither wore a badge nor engaged in overt union activity. However, some 2 weeks after the election of April 26, 1973, Alvarez did circulate a petition in the store for employee signature which was sponsored by the Meat Cutters and aimed at prompting the NLRB to direct an immediate rerun election. If any doubt exists from the foregoing of Respondent's knowledge of Alvarez' union activity, that fact and Respondent's specific animus towards Alvarez is clearly established through the credited, uncontradicted testimony of Leonard Serna relative to a conversation he had with Store Manager David Gandin. Both were at that time assigned to the store in which Alvarez later worked the extra Sunday shift. Prior to the election in April 1973, Alvarez came into that store to shop. Serna saw her and said "Hello, Mary." Gandin asked Serna if she were the Mary who worked at store # 126. Serha replied in the affirmative. Gandin then said "Yes, Oh, she's involved with that Union too much. She can get fired for it.,, 21 In my opinion, the foregoing is ample to substantiate, prima facie,the General Counsel's contention that Re- spondent, in terminating Alvarez, acted to rid itself of a Meat Cutters supporter in a store where other employees had not then been responsive to that Union's organization- al efforts. This sudden termination of a known union affiliate, with a previously unblemished work record, and without prior notice or warning, strongly suggests that the action taken against Alvarez was in implementation of the disposition on the part of management implicit in Store Manager Gandin's remark to Serna. The inference of discrimination that flows from the above is hardly diminished by Respondent's explanation 21 Serna was a produce manager and a highly active employee organizer for the Meat Cutters Union. Within Respondent's management, Serna was regarded as a highly capable employee with a reputation for honesty I was highly impressed with Serna, and find him entirely credible. Gandin did not testify. I discredit Lopez' denial of knowledge of the union activity of Alvarez. I was not impressed with Lopez' demeanor, and, on other matters, regarded Alvarez as a far more persuasive witness who presented her testimony in a straightforward fashion , free ofany suggestion of coloration. Further as will be seen infra, I regard Lopez' account of the reasons underlying this discharge as totally unbelievable . Thus, I have also credited Alvarez where her testimony conflicts with that of Lopez. 22 Lopez previously demonstrated a propensity to make quick , unreason- able assumptions as to Alvarez' happiness with her job. Thus when Alvarez questioned the fairness of management's policy of not paying office girls more than checkers, Lopez took this as indicating that Alvarez was unhappy as an office girl. 23 Peterson did not testify and hence there is no direct evidence that the problem concerning her attitude had ever been mentioned to Alvarez. I 267 for the action taken against Alvarez. District Grocery Manager Lopez testified as to the circumstances surround- ing the discharge of Alvarez. According to his testimony, the sole basis for that action was a poor attitude reflected by Alvarez in her dealings with other employees and customers. While such misconduct would be open and engaged in within the view of others, I note with interest that not a single witness was called to corroborate Lopez in this regard. According to Lopez, through his frequent visits to Store # 126, he had opportunity to observe Alvarez in the performance of her duties. On such occasions he noted that Alvarez did "not convey a friendly attitude toward .. . customers," and that she acted "not in such a manner that you could see that she was happy with her work or that she was happy with her job,"22 and that "she seemed to be doing it as something that had to be done rather than something she wanted to do, sort of a distasteful approach to it." Despite this, Lopez concedes that he never discussed these impressions with Alvarez. Instead he claims to have discussed the matter several times with Peterson, request- ing Peterson to talk to her. According to Lopez, Peterson subsequently indicated to him that he had done s0.23 Just prior to the discharge, Lopez asked Peterson whether Alvarez had improved. When Peterson replied in the negative, Lopez suggested termination and Peterson agreed. Peterson then effected the discharge. I find Lopez' testimony completely unbelievable. It is incredulous that a good worker would be terminated under such conditions and on such flimsy grounds.24 This is particularly the case when one considers Respondent's cautious policy toward discharges evident from the testimony of Toombs and Lopez, himself, in connection with the treatment of Elmira Prince.25 The discharge of Alvarez hardly squares with these expressions of manage- ment's reluctant approach to this form of discipline. There is also the question of why, Lopez, though.the moving influence in the discharge decision, at no time, despite, his frequent confrontations with Alvarez, voiced any criticism to her based upon his own experience with her attitude or that of Peterson, other employees, or customers.26 Indeed, this failure of Lopez to counsel her, or to obtain more direct evidence assuring that she had been counseled, is also difficult to understand in the face of his admission that Alvarez was a good mechanical worker.27 Also curious is the absence of any explanation as to what provoked the credit her denial that any such discussions took place with Peterson , Lopez, or anyone else 24 Alvarez' uncontradicted and credited description of the reasons for the discharge related to her by Peterson indicate that Peterson cited several items which Lopez repudiated as not entering into the discharge decision. The variance between Lopez' testimony and Peterson's statements in discharging Alvarez is perfectly consistent with an attempt on Peterson's part to exaggerate and make more persuasive to Alvarez the justification for the action against her. 25 Note also the three reprimand policy described by Prater in his testimony concerning the discharge of Garcia. 26 Lopez testified to only one instance in which, from secondary sources, he heard that a customer had complained that Alvarez acted in an abrupt and rude fashion. 2T The record as a whole leaves me with the clear impression that those occupying the position of office girl bung greater skills to their jobs than ordinary checkers, and if effective in their work, are valuable employees. While the competence of Alvarez in performance of her duties is not (Continued) 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge conversation between Lopez and Peterson, since the record is devoid of evidence imputing misconduct to Alvarez at times proximate to that incident. In sum, Respondent points to no incident which would explain the timing of the action against Alvarez and its entire defense rests on vague general testimony more in the nature of accusation, than substantiated fact. It would seem that termination of a good worker would be subject to far more convincing proof that has been offered here; that is, unless the true reason for Respondent's action lay elsewhere. Indeed, I find the latter to be the case, and that Alvarez was terminated to eliminate a potentially aggres- sive individual from influencing others, in a nonunion store, to support the Meat Cutters. I find that Respondent thereby violated Section 8(a)(1) and (3) of the Act. D. The Alleged Interference with Board Processes In mid-April 1974, Respondent offered reinstatement to Elmira Prince,28 Alfonso Garcia, and Mary Alvarez. Prince and Lopez, pursuant to these offers, returned to work. Mary Alvarez initially declined to accept reinstatement because, in her case, the offer was not to her former location, but to a store located at some distance from her residence. Following the transmittal of these offers of reinstate- ment, a letter dated April 19, 1974, over signature of Respondent's counsel, Durwood D. Crawford, was sent to the Regional Director for Region 23, with copies to Prince, Garcia, and Alvarez. The letter recited as follows: "Dear Sir: In an attempt to settle and resolve the substance of the above Complaint, which is presently set for trial on April 30th, the Company officials and the officials of the Meatcutters Union, the Charging Party, met and worked out the following settlement: Mary Alvarez, Alfonso Garcia and Elmira Prince would be offered reinstatement by the Company to the positions they previously held, but such reinstatement would be without any back pay. The Company would remove the reprimands issued to Juan Lopez, Almira Prince and Joe Escobedo. No NLRB Notice would be posted, in line with the Company's contention-which it still maintains-that it did not violate the Act. This information was conveyed to your office. You now advise that in order for the Complaint to be dismissed and eliminate the trial, back pay in the amount of 80% of lost revenue must be paid to each of the three individuals . This involves approximately $480.00 to Mary Alvarez, $1,240.00 to Alfonso Garcia and $716.00 to Elmira Prince. This information was conveyed to the undersigned on April 18th, at which time you further advised that the reinstatement offer to Mary Alvarez was to Store No. 121, which was 26 miles from her residence and unacceptable as a reinstatement offer. The offer to re- questioned by Respondent, her value is affirmatively indicated by the fact that she continued to perform office work, without need for a new office girl to replace her, even after she was stripped of that title 2$ Elmira Prince had previously quit her employment in the fall of 1973. The complaint raises no issue as to the legitimacy of her separation at that time and therefore the offer of reinstatement made to her could not be employ her at Store No. 121 apparently occurred through an intra-Company communications breakdown. This has already been corrected and she has been advised that the offer is to Store No. 126-the store where she previously worked. Also, the Company has offered reinstatement to Elmira Prince, although this remedy was not sought in the Complaint. However, in light of the information given to me, that the 23rd Region will not approve a settlement on this basis, but would require the Company to pay approximately $2,436.00 in back pay, the Company regards the settlement proposal as being rejected and, therefore, null and void. Accordingly, the reinstatement offers will be withdrawn effective Friday, April 26, 1974, and the employment of these persons will be terminated as of that date, although Mr. Garcia has already returned to work and Ms. Alvarez and Ms. Prince may have done likewise by the time this letter is received. In order that the reasons for the Company's actions will be understood, I am sending copies of this letter to all involved parties, including the three named employees involved to advise them that, unless they are notified to the contrary, their employment with Shop Rite Foods will be terminated as of such date. VERY TRULY YOURS, DURWOOD D. Cn wi of DS " Based upon this letter, the complaint was amended on request of the General Counsel at the outset of the hearing to allege that Respondent threatened to discharge Garcia, Alvarez, and Prince "unless the Board would approve reinstatement without backpay as a remedy for the prior discrimination practiced against them . . . , to discourage said employees from further participating, or from testify- ing at the ULP Hearing before a duly designated ALJ." The amendment went on to allege that by virtue of said conduct, Respondent violated Section 8(a)(4) and (1) of the Act. The threshhold issue in connection with this allegation is whether Respondent discharged or otherwise discrimi- nated against Prince, Garcia, and Alvarez within the meaning of Section 8(a)(4).29 In this regard the facts show that Elmira Prince, having received a copy of Crawford's letter, did not report to work on April 27 and 28, 1974, because she thought she had been terminated on Friday, April 26, as indicated in the letter. Alvarez, after receiving said letter, called District Manager Tidwell on April 24, 1974, in connection with indications she had received that the Company on discovering that it inadvertently offered her reinstatment to an unacceptable location, was willing to modify that offer to accommodate her. When Tidwell offered her a job as of Monday, April 29, 1974, at a more appropriate location, Alvarez referred him to Crawford's letter and its declaration that she would be immediately discharged. Tidwell denied knowledge of the letter. After Alvarez indicated to Tidwell that she felt that the regarded as an attempt to fulfill any statutory obligation attributed to Respondent through the instant complaint 29 Section 8(a)(4) makes it an unfair labor practice to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act. SHOP RITE FOODS, INC. 269 Company's offer of reinstatement in the face of Crawford's letter amounted to "somebody . . . playing games" with her, the conversation ended. Prior to the hearing, which opened on April 30, 1974, Alvarez had no further conversation with company representatives concerning her reinstatement. Garcia testified that he was reinstated on Tuesday, April 23, 1974, and apparently was not influ- enced by Crawford's letter since he reported for work on Saturday, April 27, 1974, and the record does not suggest that he lost any work in consequence of the representations made on behalf of the Company in that letter. I am satisfied that Crawford's letter of April 26, 1974, had no effect whatever upon the job tenure or terms of employment of Garcia. Further, the evidence as to Alvarez hardly indicates that her reinstatement was delayed by virtue of that letter, since, following its receipt, she continued to seek clarification of aspects of the original offer of reinstatement which she found objectionable.30 As I am satisfied that the General Counsel has not established that either Garcia or Alvarez lost work or otherwise had their employment opportunities impaired as a result of Crawford's letter, I cannot find that they were objects of discrimination as required by Section 8(aX4).31 On the other hand, Prince, as of April 26, 1974, was actively employed, and did not work the following weekend because, through counsel, the Company had declared that her employment would end on that date. As I read Crawford's letter, that declaration was manifested in absolute, unconditional terms, and Prince could hardly be said to have acted unreasonably in assuming was terminat- ed. The record indicates that she received no indication that that effective April 26, 1974, "unless . . . notified to the contrary," she she had not been terminated until Monday, April 29, 1974. I fmd that Crawford's letter effectively led Prince to believe that she was discharged as of April 26,32 and that her failure to work during the ensuing weekend was attributable to that representation. I am also satisfied that said discharge was based upon a motivation proscribed by Section 8(aX4) and (1) of the Act. Though, perhaps, a tactical maneuver on the part of Respondent to induce the Region to accept the terms of the private settlement agreement, the letter set forth above was also calculated to influence reinstated employees, who, perhaps had greater interest in their jobs, than further backpay, to no longer cooperate with the Board, and, possibly to decline to testify at the hearing scheduled for the following week. The fact that Prince subsequently did testify at that hearing neither neutralizes the unlawful motivation underlying her loss of 2 days' work nor precludes a remedy for such discrimination . Accordingly, I find that Respondent violated Section 8(aX4) and (1) of the Act, by, in effect, denying Prince employment to discour- age her from testifying at an unfair labor practice hearing. 30 On this issue, I regard as immaterial the question of whether the original offer of reinstatement was legally sufficient to impose a duty of acceptance upon Alvarez, on pain of loss of further backpay. All that concerns me here is whether, by virtue of Crawford's letter, the tenure of Alvarez' employment was adversely affected. 31 My failure to find this additional violation as to Alvarez in no way is intended to affect the backpay to which she may be entitled as a result of her earlier discharge, which I heretofore have found to have violated Section 8(ax3). My failure to find the additional 8(aX4) violation is based solely upon the absence of any showing that Alvarez sustained an additional loss I also find that the statement in Crawford's letter that all reinstated employees would be terminated on April 26, 1974, at the very least, constituted a threat, plainly calculated to induce Prince, Garcia, and Alvarez to cease to participate in the further prosecution of unfair labor practice claims made in their behalf, thereby independent- ly violating Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Shop Rite Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 171, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening discharge of reinstated employees under circumstances tending to discourage them from testifying in an unfair labor practice proceeding, Respond- ent has violated Section 8(a)(l) of the Act. 4. By discharging Mary Alvarez because of her union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 5. By terminating Elmira Prince, and thereby causing her to lose 2 days' work, under conditions calculated to discourage Prince from testifying in an unfair labor practice proceeding, Respondent has violated Section 8(a)(4) and (1) of the Act. 6. Respondent has not violated Section 8(a)(1) of the Act by failing to submit lists of employees names and addresses in conformity with the Board's Excelsior policy, by implementing new benefits, by laying off Virginia Carlisle, by threatening Jesus Diaz, or by misrepresenting the election voter eligibility date. 7. Respondent has not violated Section 8(a)(3) and (1) of the Act by issuing formal reprimands to Juan Lopez, Elmira Prince, and Joe Escobedo, by reducing the hours of Elmira Prince, or by discharging Alfonso M. Garcia. 8. The unfair labor practices found above have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practices found, and from any other like or related misconduct, and to take the affirmative action described below and set forth in the recommended Order. Having found that Respondent engaged in unlawful discrimination which resulted in Elmira Prince's failure to report to work for a period of 2 days, I shall recommend that Respondent make her whole for any loss of earnings as a result of Crawford's letter. 32 My finding in this regard is made with full consideration of a stipulation made at the outset of the hearing to the effect that Respondent took no action with respebt to Crawford's letter but had "deferred any action to reterminate." As I construe that stipulation, it merely means that further affirmative steps to effectuate the discharges were not taken. However, since the last paragraph of that letter was never rescinded , and the discharge statement therein was absolute, the stipulation in no way bars an 8(ax4) finding based upon an employee's reliance on the original forecast of discharge. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she may have suffered by reason of the discrimination against her by payment to her of a sum equal to that which she would have earned as wages on April 27 and 28, 1974. It having been found that Mary Alvarez was discharged in violation of Section 8(aX3), I shall recommend that Respondent make Alvarez whole by payment to her of a sum of money equal to that which she would have earned from the date of the discrimination against her to a date, 5 days after May 2, 1974, when a valid, unconditional offer of reinstatement was made to her. As all parties concede that said offer was valid and proper, I shall not recommend that Respondent again be directed to offer Alvarez reinstatement. The backpay due to Prince and Alvarez shall be computed in accordance with the formula set forth in F.W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER33 Respondent, Shop Rite Foods Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening, discharging, or otherwise discriminating against employees either in a manner discouraging them from giving testimony under the Act, or because of their union activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 33 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. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make Elmira Prince and Mary Alvarez whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request , make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of the amount of backpay due under the terms of this recommended Order. (c) Post at its San Antonio, Texas, places of business copies of the attached notice marked "Appendix." 34 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint not found to have been established by a preponderance of evidence herein be, and they hereby are, dismissed. s+ 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. "