Breaux Mart, Inc.

BREAUX MART, INC. 485 Breaux Mart, Inc. andRetail Clerks International As- sociation, AFL-CIO, Local 548. Case 15- CA-5371 April 22, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 11, 1974, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Specifically, we find merit in the General Counsel's exceptions to the find- ing that David Dennard was not discharged for reasons proscribed by the Act. The Administrative Law Judge found, and the re- cord shows, that David Dennard was employed by the Respondent as a stock clerk on July 6, 1974,' at its Metairie, Louisiana, store, and was assigned to work with the night crew under the direct supervision of John McConnell. On his application, Dennard, a recent high school graduate with plans for entering Tulane University, noted his 2 years of clerking experience at two grocery stores, and submitted a letter from the manager of his last employer, a Safeway store in Cali- fornia, stating that he, Dennard, was an "excellent stock clerk." Dennard had been a member of a union at his last employer and thought that the Respondent's 70 full- and part-time employees might be interested in a union. Toward this end, Dennard, on July 10, dis- cussed organizing procedures with the Union's vice president, Ronnie Ricard, and thereafter began to so- licit support from his fellow employees on the night crew as well as 8 to 10 employees on the day shift. Dennard's union activities soon came to the atten- tion of McConnell and Store Manager Tony Moreland. Thus, on July 15, while on their regular 10 p.m. breaks, Dennard and several other stock clerks were discussing the Union. Dennard was explaining his favorable expe- rience and advantages that unions offered when McConnell joined the group and stated that a union 1 Hereinafter all dates are in 1974. was not I ^ssible at the Respondent's store, and ended the discussion by adding that if the employees organ- ized "Mr. Breaux would rather close the store than have a union in it . . . [Mr. Breaux] didn't like people pushing him around." At or about the same time, McConnell separately ordered stock clerks Paul Manale and Victor Leggio to stop talking to Dennard about the Union and to stay away from him. Based upon the foregoing credited testimony the Administra- tive Law Judge properly found that by threatening store closure and ordering employees to stay away from Dennard the Respondent violated Section 8(a)(1) of the Act. The Administrative Law Judge also found that on Sunday, July 21, McConnell happened to visit with Tony Moreland, who had just returned to New Orleans earlier that day following a week's vacation out of town. During the course of their conversation in More- land's apartment, McConnell admittedly related Den- nard's talkativeness at work, which included, as the Administrative Law Judge found, Dennard's recent union advocacy. Moreland replied that he intdnded to take a "closer look" at Dennard over the coming week. During the first 2 weeks of his employment, from July 6 to 22, Dennard was assigned to the paper goods aisle which was 1 of the 10 or so grocery and dry-goods aisles under McConnell's supervision. There is little dispute that during this time Dennard performed his work well, as judged by his fellow employees and his supervisors. Indeed, it is undenied that during the fol- lowing week both Moreland and the Respondent's as- sistant store manager praised Dennard's work and said they would try to get him a raise. On Monday, July 22-the day after Moreland vowed to take a "closer look"-Dennard reported for work at 7 p.m., his normal starting time, and was informed by McConnell that he had been scheduled to come in earlier that day to do price changes. McConnell told Dennard that his name was on the roster posted in the store the previous week. Dennard stated that he had been told that if his hours were changed he would be orally notified and McConnell had not previously noti- fied him of the changes scheduled for Monday. McConnell then spoke to Moreland who told Dennard that it was not important, not to worry about it, adding that Dennard could make up the time that week. On the following day, Tuesday, July 23, Dennard reported for work at 2 p.m. and started doing price changes in the paper aisle. However, Moreland reas- signed him to the liquor aisle which, unlike the other aisles in the grocery store, was the direct responsibility of Moreland and not McConnell. Moreland explained that the liquor aisle was in bad shape, and Dennard could see that the shelves were bare. Indeed, the regular liquor aisle stock clerk, Eddie Gammon, had not 217 NLRB No. 56 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked since the previous Friday and was not expected to' return that week. Moreover, the 60 or so cases of wine and an undetermined number of cases of liquor ordered by Moreland each week were normally re- ceived on Tuesday, Wednesday, and Thursday, and "spotted" (i.e., deposited) by the supply house delivery- men at the end of the liquor display aisle. Dennard also noticed that there was already quite a large back stock in the liquor storeroom waiting to be shelved on the display aisle. Briefly, Moreland explained to Dennard, who was unfamiliar with the operation of a liquor aisle, that the invoices for each delivery were left with the cashier, the Respondent's prices were written on the invoices from the store's own liquor price book, the prices were then stamped on the merchandise, the bot- tles were placed on the display shelves, and after he had finished with the invoices they were to be returned to the cashier. After giving these brief instructions Moreland left, but by his estimation he returned every 10 to 15 mi- nutes to see how Dennard was progressing. According to Moreland, nothing appeared to be out of order. Dennard followed the same routine on Wednesday and Thursday, splitting his time between the liquor and paper aisles. In all, he spent about 7 hours on the liquor aisle, or about one-half of the time the regular stock clerk would have spent over a comparable period. Aside from experiencing some difficulty in reducing the back stock that was already in the liquor storeroom when he took over on Tuesday, and finding space in the storeroom for the shipments received that week, Den- nard encountered no problems. When the night crew left the store late Thursday night everything appeared to be in order; Dennard testified without contradiction that the liquor aisle had been properly "fronted" and was in good order, and, as was customary, all empty boxes were removed from the aisles and burned by the night crew. Again, it is uncontroverted by the assistant store manager (who took over for Moreland in the latter's absence all day Wednesday and from- 3 p.m. on Thursday), and McConnell, and the employees that there was nothing out of order on the liquor aisle. The same could be said for the liquor storeroom where Dennard had stacked some 30 cases of wine and liquor, leaving some 12 to 15 of these cases on his flatcar. Indeed, employees who had occasion that week, includ- ing Thursday, to enter the liquor storeroom, which also housed cigarettes, candies, and drugs, noticed nothing out of order. Upon leaving the store late Thursday night, several of the store clerks, including Dennard, who was not scheduled to work the-following day, remained in the parking lot, and, over a few beers, discussed a number of subjects of common interest. McConnell joined the group. At some point, after discussing Mardi Gras, Dennard began relating his interest in the Union, stat- ing that if a majority designated the Union as their bargaining representative the matter would be "out of Mr. Breaux's hands." McConnell, by his own admis- sion, replied, "man, if you do-that, Mr. Breaux would probably close the store down." Dennard concluded this part of the discussion by announcing that the em- ployees "were going to have a meeting that Sunday with [Union Vice President] Ronnie Ricard." The following morning, Friday, July 26, Moreland decided to discharge Dennard, and informed Dennard when he reported for work on Saturday night. Accord- ing to Moreland, he told McConnell "the specific rea- sons I wanted him to fire Dave," and ordered McCon- nell to fill out Dennard's termination slip. The slip, which was filled out on Saturday, noted the following: "Dismissed: did not show up for work-mispriced liq- uor shipment." However, the only time Dennard "did not show up for work" was on the previous Monday and, as men- tioned above, the Respondent conceded that that inci- dent was forgotten. As for mispricing the liquor ship- ment, Moreland testified that late Friday morning a checkout cashier, Barbara Fletcher, brought to his at- tention three bottles of Sangria each bearing different, prices, $1.57, $1.51, and $1.59. Previously, the same cashier had called his attention to two bottles of liquor each having different prices, and another instance of a mispriced bottle of liquor was also discovered. More- over, when Moreland went to the liquor aisle, he found a couple of other mispriced bottles of Sangria. More- land "assumed" that Dennard, and not Gammon, was responsible for each error. In any event, it is undisputed that other stock clerks had mispriced as many as 15 cases of goods and were not disciplined-let alone discharged-in any way. Indeed, the incidence of mis- priced items was far from uncommon : Barbara Fletcher testified that discovery of an improperly priced item occurred with every 9 or 10 customers, and was not usually reported to a supervisor. Confronted with these circumstances, Moreland conceded, that without more, he "would not fire someone for making several minor mistakes [and, shifting the explanation for the discharge to a much graver reason, added] but someone who had completely destroyed a section in a store, I would have no recourse but to fire him." At this point it is obvious from Moreland's own testimony that the mispricing incidents, standing alone, were not sufficient reasons for the discharge. And, as Dennard's alleged tardiness was admittedly a forgotten matter, the Respondent failed to provide any plausible explanation for the discharge. Of course, this circum- stance, coupled with the fact that Dennard was a good employee, twice praised by his supervisors within 2 days of his sudden termination, raises and clearly sup- BREAU,X MART, INC. ports the inference that the real reason for his discharge lay elsewhere. Against this background, we are con- vinced that Dennard's union activities contributed at least in part to his discharge. Accordingly, we find that the General Counsel sus- tained his burden of making out a prima facie case of unlawful discrimination . Thus, within the 10 days preceding the discharge , the Respondent became aware of Dennard's union activities, obviously took strong exception to his efforts by unlawfully threatening store closure and twice ordering employees to avoid Den- nard and not to talk to him about the Union, and, on the very eve of his discharge, again threatened to close down if the employees exercised their lawful right to designate a bargaining representative. Throughout, Dennard was the Union's leading, if not sole, advocate, and within hours of his discharge he announced that he and his fellow employees were planning to meet with the Union. Knowledge, union animus, the timing of the discharge, and the failure of the stated nondiscrimina- tory reasons to withstand scrutiny, all support our con- clusion. The Administrative Law Judge apparently agreed that a prima facie case had been established. But he found that, on balance, the Respondent had at least met its burden in rebutting the General Counsel's case by supplying additional reasons for the discharge. We disagree. The additional and shifting reasons for the discharge are no more convincing than the initial stated reasons. As mentioned above, Moreland found that "some- one . . . had completely destroyed" the liquor section of the store and, without making any effort to investi- gate or confront Dennard with this charge, simply "as- sumed" Dennard was solely responsible . Bearing in mind that the Administrative Law Judge found that Moreland was given to "overstatement," this is his version of what he found late Friday morning when he investigated the mispriced bottles of wine: Upon going on the liquor aisle, it practically made me sick. There were empty boxes thrown about the liquor aisle. There were full bottles stacked up. There were loose liquor bottles, wine bottles, thrown about the aisle . I found 3 or 4 invoices stuffed in an empty box that if it had been burned we would have lost those invoices. Between the kitchen aids, there were other invoices behind there. Behind the Gallo wine there were invoices which seemed as though they were practically hid- den behind there. There was a whole week's in- voices. - None of them had been turned in. So I said, God, this mess, so I went in the liquor room, and I was going to try to start working myself, when I went 487 in the liquor room, the liquor room was a complete disaster area, like a hurricane hit. There were bot- tles thrown about. There were broken liquor bot- tles. Someone had stacked full cases of bottles upon half cases of bottles. They had fell [sic]. Cases of bottles had broken. The place was just a mess. There were even empty boxes in the liquor room. We couldn't get through to get our drugs. We couldn't get through to get the cigarettes. It was a complete disaster area . Never in my life have I seen a bigger mess than this was. Despite this "complete disaster," which, if it existed, surely posed some danger or at least inconvenience to store personnel and customers, Moreland stated that he could not assign any one of the store's employees to clean it up until 1 day later because the store was busy. Moreland himself, who was directly responsible for the liquor section, candidly admitted that he could not spare any of his time that day to work on the "disaster area" and, instead, returned to the task of bagging groceries at one of the store's eight checkout counters because "my customers came first." There is no evi- dence that any supervisor, employee, or even a cus- tomer ever noticed anything amiss in the liquor aisle and reported to Moreland. Nor is there any evidence that Moreland even discussed this "disaster area" with anyone on Friday. Assuming, as Moreland did, that the mess was caused on Thursday night, no reason was advanced why the assistant manger, McConnell, or any other members of the night crew responsible for clean- ing up the store had failed to detect anything. Likewise, neither of the two porters who swept and washed the floors before the 8 a.m. opening on Friday reported any mess in the liquor aisle. Moreover, none of the em- ployees who regularly visited the storeroom to obtain supplies of candies, cigarettes , and drugs noticed any- thing wrong in the liquor section . Indeed, the Respon- dent's own witness, Barbara Fletcher, had been in the storeroom that day and her testimony makes no refer- ence to any alleged disorder. In addition, as far as the record reveals, Moreland never investigated the matter, or even sought any explanation from McConnell for the damage supposedly done by a member of his crew. Finally, and perhaps most telling of all, no mention of the "disaster area" was made on Dennard's termina- tion slip although it was prepared on Moreland's "spe- cific" instructions 1 day later. Some of these circumstances troubled the Adminis- trative Law Judge, but he also found, based on cor- roborative testimony, that there was some disarray, although certainly not of the magnitude Moreland de- scribed. We do not disturb this finding, but we note that in each instance these witnesses testified to circum- stances as they appeared long after the decision to dis- charge Dennard had been made . Thus, Eddie Gammon 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visted the store on Friday night and happened to notice that the liquor aisle, after a busy day when no one was assigned to care for the area, was in disarray . On Satur- day and Sunday bag boy Steve Murphey spent consid- erable time cleaning up the storeroom, checking prices on the liquor aisle, and marking some of the bottles Dennard had left untouched in the storeroom the previ- ous Thursday. Cashier Kay Hood assisted Murphey on Sunday. - Finally, when Gammon returned on Monday-4 days after Dennard had last worked-he noticed mismarked and misplaced bottles on the liquor aisle. But it is clear that by this time less-experienced employees had had their hand in working this unfamiliar section of the storeroom and the liquor aisle. Therefore, we must return to Moreland's descrip- tion, albeit overstated, of the condition of the liquor section on Friday. To repeat, according to Moreland, he found filled and partially filled cases of liquor and wine bottles in the liquor aisle. In this regard, Respond- ent made no effort to consider a most plausible reason for this circumstance; namely, that the invoices submit- ted in evidence show that at least two deliveries were made on Friday, consisting of 2 cases and 19 bottles of 6 different kinds of wine. Indeed, Moreland, who al- ways ordered the liquor, would have known that deliv- eries would be made on Friday and , according the usual procedure, would be "spotted" in the display aisle. Dennard could hardly be blamed for the presence of the liquor and wine in the aisle because he was not on duty that day. Moreover, Moreland did not try to ascertain from McConnell, or anyone else, how empty boxes could have been left behind by the night crew. As for the invoices, the Administrative Law Judge specifically found that Moreland had never explained to Dennard their real significance. We agree and note that, al- though he was told to return them to the cashier when he was "finished," Dennard explained that he was not "finished" with them and intended to use them again in stocking shelves . In any event, no invoices were lost, and even if they had been lost, Respondent's own wit- ness, Gammon, testified the cashier kept a duplicate copy of each invoice. Finally, it is undisputed that broken bottles were normally kept in boxes on the storeroom floor for the purpose of submitting claims against the liquor supply company which delivered them. Dennard testified that there were about 30 boxes of liquor in the storeroom on Thursday. Of these boxes, some 12-15 had been delivered that day, and Dennard placed them- on a flatcar which he wheeled to the store- room. Yet there is no mention of the flatcar in More- land's testimony. If Dennard had risked the chance that another clerk in need of a flatcar would damage goods while unloading it,-this was not explained to him by Moreland. Indeed, it does not appear that Moreland gave Dennard any instructions at all with regard to the operation of, and work to be performed in, the store- room. Finally, contrary to the Administrative Law Judge, we find that on Saturday evening when Dennard re- ported for work he was informed by McConnell and then Moreland that he had done a poor job on the liquor aisle. It appears that Dennard then demanded to see the aisle and, after Moreland refused this request, the discussion became heated. This circumstance, and all of the foregoing evidence , convinces us that the Respondent seized upon a pretext for Dennard's dis- charge, and was really motivated by his union activi- ties. Based on the foregoing and after a review of all of the evidence, and the inferences which can be reasonably drawn therefrom, we conclude that the Respondent violated Section 8(a)(3) and (1) of the Act by discharg- ing David Dennard on July 27, 1974, at least in part because of his union activities. In view of the foregoing violations of Section 8(a)(3) and (1) of the Act, we shall issue a new Order as provided below. ORDER Pursuant to Section 10(c) of the National Labor Re- lations-Act, as amended, the National Labor Relations Board hereby orders that Respondent, Breaux Mart, Inc., Metairie, Louisiana, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that the store will close if they select a union to represent them. (b) Instructing employees not to discuss unions with each other. (c) Discouraging membership in, or activities on be- half of, any labor organization by discharging em- ployees or otherwise discriminating against them in any manner, with regard to their hire and tenure of employ- ment, or any term and condition of employment, be- cause of their union activities. (d) In any other manner interfering with, restraining, or coercing any employee in the exercise of his rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer David Dennard immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent job, without preju- dice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay due to the discrimination against him by awarding him backpay from the date of his discharge to such time as he re- ceives a valid offer of reinstatement, the computation BREAUX MART, INC. of such moneys to be in accord with the Board's Deci- sion in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its store in Metairie, Louisiana, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 15, after being duly signed by Respon- dent's authorized representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT discourage membership in, or ac- tivities on behalf of, any labor organization by 489 discharging employees or otherwise discriminat- ing against them in any manner, with regard to their hire and tenure of employment, or any term and condition of employment, because of their union activities. WE WILL NOT threaten to close the store if em- ployees select a union to represent them. WE WILL NOT instruct employees not to discuss unions with each other. WE WILL offer David Dennard immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights, and make him whole for any loss of pay suffered by reason of the unlawful conduct against him. BREAUX MART, INC DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: This case was heard at New Orleans, Louisiana, on October 8 and 9, 1974.' The proceedings were initiated by unfair labor practice charges filed July 30 by Retail Clerks International Association, AFL-CIO, Local 548 (the Union). Based on these charges a complaint issued August 30 alleging that Breaux Mart, Inc. (Respondent) had committed unfair labor practices in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act, as amended (the Act). The Re- spondent filed an answer admitting jurisdiction but denying the commission of unfair labor practices. The issues are whether Respondent unlawfully threatened employees with store closure if they unionized, ordered em- ployees not to talk to union adherent John David Dennard, and whether_Dennard was fired because of this union activity. Upon the entire record, including my observation of the witnesses and consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent is a Louisiana corporation engaged in the op- eration of a chain of retail grocery stores in Jefferson Parish, Louisiana, including a store at Metairie, the only facility involved in this case. In the operation of its business Respond- ent annually receives gross revenues in excess of $500,000 and purchases and receives goods and services valued in excess of $50,000 directly from points outside Louisiana. It is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent's Metairie store is described in the record as a large supermarket. The market includes a grocery depart- ment, a produce department, and a meat department. The selling area, exclusive of the meat department, consists of 14 aisles where goods are displayed. Eight checkout counters are 1 All dates herein are in 1974 unless otherwise indicated. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arranged across the front of the store. The number of cashiers manning these checkout counters varies depending on the volume of business. The store employs about 70 employees, many of whom are teenagers who work part-time or at night. They are not repre- sented by a union. The management team consists of Store Manager Tony Moreland who has overall responsibility, an assistant manager who is in charge when Moreland is not on duty, a produce manager, a meat department manager, and manager-trainee John McConnell. McConnell is in charge of the night crew of stock clerks who place the merchandise on - shelves in the store aisles. McConnell is a supervisor within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is an unincorporated association which admits to membership employees of various employers , including employees of Respondent , and which represents employees with respect to wages, hours, and other terms and conditions of employment. It is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Threats, Coercion, and Restraint 1. The issues The complaint alleges, and the answer denies, that Re- spondent, in the person of its supervisor, John McConnell, violated Section 8(a)(1) of the Act in two regards: Firstly, that on July 15 and 26 he threatened employees that the owner,of the store would close it down if the Union organized the employees; secondly, that on three occasions in late July he ordered employees not to talk to, nor to discuss union activities with, a known union advocate. The evidence estab- lishes that the union advocate in question was the alleged discriminatee John David Dennard. At the hearing Respon- dent's counsel admitted, and the testimony of witnesses in- cluding McConnell indicates that McConnell in fact had di- rected employees not to talk with Dennard. The issue on this second allegation, therefore, is whether such managerial limi- tation on discussion among the employees was an unfair labor practice. I fmd below that on the first issue Section 8(a)(1) was violated as alleged, and on the second issue Section 8(a)(1) was violated on two of the three occasions alleged. 2. The hiring of Dennard Respondent employed Dennard as a stock clerk during a 3-week period from July 6 to 27. At the time of the hearing he was 19 years of age. Prior to his employment with Respondent Dennard had almost 2 years' experience working in supermarkets. Thus, during the preceding 2 years he had worked at a Safeway store in Houston, Texas, as a bagboy for 2-1/2 to 3 months and as a stock clerk for 8-1/2 months. Following this he had worked at another Safeway in San Diego, California, as a bagboy for 3 months and as a stock clerk for 8 months. None-- of this experience involved the pricing of merchandise nor did any of it involve the handling of liquor merchandise. In applying for employment with Respondent, Dennard cited his past experience and offered a laudatory letter of recommendation from-his Safeway store manager in San Diego. Respondent's Store Manager Moreland hired him as an experienced stock clerk relying on his claim of experience and also on the letter of recommendation. Although the letter was not offered in evidence, Moreland testified without objec- tion that the letter "stated that Dave Dennard was an excel- lent stock clerk and there was nothing in the supermarket that he couldn't master and do an excellent job of." 3. Dennard's union activity During his employment with Safeway Dennard had been a member of the Union. He thought Respondent's employees, who were unrepresented, would be receptive to the idea of union representation . On July 10 he contacted the Union's vice president, Ronnie Ricard, and generally discussed with him the procedures for organizing the store employees. Thereafter he talked to all of his fellow workers on the night crew, as well as 8 or 10 on the day crew, telling them about the Union and endeavoring to learn if they would be receptive to union representation. Store Manager Moreland testified that prior to the time of Dennard's discharge he had no knowledge of his union activ- ity. As detailed hereinafter, however, the record establishes that manager-trainee McConnell was present on some occa- sions when Dennard discussed the Union. His knowledge of Dennard's union activity is attributable to Respondent. 4. Threats that the store would close a. The mid-July conversation in the store During the 10 p.m. breaktime on the evening of Monday, July 15, some of the stock clerks on the night crew, including Dennard, Donald Comeaux, Steve Childress, and possibly two others, gathered in the vicinity of the checkout counters in the front of the store to engage in casual conversation. Dennard was telling Comeaux about the advantages of union representation. He talked about the benefits he had received as a union member in California, including vacation benefits and higher wages. He expressed the view that the union operation in Safeway was superior to that of Respondent. During this conversation McConnell joined the group. Ac- cording to Dennard's testimony McConnell stated he did not think a union at Respondent's store was possible. Dennard replied that it was economically feasible because stores in California had unions, their employees enjoy higher pay, and the stores also make a profit. McConnell then stated that Mr. Breaux would rather close the store than have a union in it and he did not like people pushing him around. Comeaux testified that when Dennard was telling about how the union operation in Safeway was a lot,better than at Breaux Mart, McConnell said Respondent's operation was not that good, that its chain was not as big as Safeway and a union would not work; that Mr. Breaux was a millionaire and could afford to close it. McConnell denied that he had such a conversation or that he'made such statements. I do not credit his denial. Based on the testimony of Dennard and Comeaux I fmd that on the BREAUX MART, INC. evening of July 15 McConnell told them in substance-that the Union could not work in Respondent's operation and that Respondent's owner would close the store rather than have a union in it. I base this finding on the fact-that both Dennard and Comeaux were clear about the occasion of the conversa- tion and in general supported each other respecting what was said. The testimony of each suffers from possible bias; Den- nard because he was later discharged and is an interested party in the present matter, and Comeaux because he too was later discharged and because his father was a union supporter in another industry. On the other hand some bias may be imputed to McConnell because of his supervisory status with Respondent. I further find that McConnell, by suggesting to employees that Respondent would close the store rather allow the em- ployees to unionize, interfered with, restrained, and coerced them in the exercise of their rights guaranteed in Section 7 of the Act and thereby committed an unfair labor practice pro- hibited by Section 8(a)(l).. At the time of the July 15 conversation Moreland was on vacation in Atlanta. When he returned to New Orleans on Sunday, July 21, McConnell met him at his apartment to report on conditions in the store. Among other- things McConnell told him that Dennard had been B-S-ing a lot and had not been carrying his freight. This news did not prompt Moreland to do anything, but he determined to have a closer look at Dennard's performance during the coming week. b. The July 26 session in the parking lot On Thursday, July 25, the night crew and a few from the day shift worked through the evening hours, finishing up ° shortly after midnight. As they were not scheduled to work Friday they decided to get some beer and relax in the parking lot for what is described in the testimony as a "bull session." Those present included McConnell, Dennard, Comeaux, Paul Manale, Victor Leggio, Pat Voss, Ed White, and some of the' day shift clerks. There is dispute in the testimony regarding which Thursday night this get-together occurred. McConnell placed it during the prior week which would have been the 19th of July. I find he was mistaken about this. Dennard was fired on Saturday, July 27, and he testified that the parking lot meeting was after work on the Thursday before he was fired. He is corroborated by Manale who testi- fied it occurred around inventory time. Inventory was taken Sunday, July 28, the day after Dennard was discharged. Co- meaux did not place the time although he testified about what happened. Leggio, who according to McConnell was present, was not asked about the parking lot session although he testified about other matters. I credit the testimony of Den- nard and Comeaux and find that the parking lot session occurred in the early hours of Friday, July 26. The group talked of many things. The longer time residents of New Orleans told Dennard about Mardi Gras which he had never seen. They talked of cars, girls, the cashiers, and sex. According to Dennard, whom I credit, they discussed racial problems including unemployment among Blacks in the New Orleans area. Dennard then brought up the subject of the Union arguing that if-people were paid adequate wages they could afford to feed their families and would not need 491 unemployment compensation. He spoke of how the Union in California had gotten him $400 in backpay. According to Comeaux, whom I credit, Dennard compared Respondent's store with Safeway stores, contending that Safeway, a union- ized operation, used superior methods for stocking the stores. He said employees could get more money with the Union and that they should get 51 percent of the employees in all of Respondent's stores and then the matter would be out of Mr. Breaux's hands. According to Dennard he also told the group that on the following Sunday he was meeting with Union Organizer Ronnie Ricard. According to McConnell, whom I credit, Dennard talked ,about his union, how he liked it, how it had gotten him some money. McConnell testified that he responded as follows, "and I told him, man, if you do that, Mr. Breaux would probably close the store down . .. . Based on these admitted comments by McConnell, a super- visor, I find that on July 26 Respondent committed an unfair labor practice in violation of Section 8(a)(1) by threatening employees that the store would probably close if the Union should organize them. Even though the comments were made in a social situation by a supervisor as young as many of the ordinary employees, they were coercive. Although it was after working hours, they were still in the environs of the store. In spite of his youth, McConnell was in charge of all stock clerks working at, night. During the hours after the store was closed to the public, he ordinarily was the only management official on the scene. To the night crew he was the boss. He was the one who told Dennard on Saturday July 27 that he was discharged. It is unlikely that ordinary em- ployees would take his comments lightly. The risk that they would not was part of his responsibility as a supervisor. Lucy Ellen Candy Division of F & F Laboratories, Inc., 204 NLRB 121 (1973). 5. Management directs employees not to talk with Dennard The complaint alleges and the answer denies that Respond- ent independently violated Section 8(a)(1) of the Act when on three separate occasions during the latter half of July McCon- nell ordered employees not to talk to a known union advocate and not to discuss union activities with him. The known union advocate was Dennard. As noted earlier McConnell was in charge of the night crew of stock clerks whose job it was to move merchandise from the warehouse area in the rear of the store to their respective aisles and to stock the shelves with priced merchandise. The stock clerks are all young men in their late teens. McConnell himself is only 19. McConnell's testimony indicates that excessive conversation among these stock clerks was a con- stant problem. He admitted that he frequently admonished each stock clerk to stop talking and to get on with his work. According to him he told them not to talk with anyone while working. a. Instructions to Comeaux Thus, McConnell testified that although Comeaux was one his best workers, he had to speak to him every night about the talking, not just with Dennard, but with anyone. He 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finally took action with respect to Comeaux by taking him off of the night crew during thethird week of Dennard's employ- ment. According to McConnell, Comeaux had been talking excessively for a month. It is not alleged that this transfer of Comeaux was an unfair labor practice. Comeaux testified, as noted earlier herein, respecting the incident on July 15 when McConnell indicated that the store might close if the employees unionized. He further testified that following this incident on July 15 he returned to work in his aisle and McConnell came back to him saying, "I don't want you talking to David (Dennard) anymore." Comeaux asked him why and McConnell replied, "Because you can talk to him on breaktime." Comeaux admitted that he had been earlier warned about talking too much. The evidence respecting the warning to Comeaux not to talk with Dennard does not amount to an unfair labor prac- tice. None of the evidence other than the timing involved indicates that it was a warning not to discuss union activities with Dennard. On the contrary the evidence indicates that he had permission to talk without limitiation during breaktime and McConnell was only trying to keep him working and not talking during working time. b. Instructions to Leggio McConnell also admitted talking nightly to Victor Leggio, warning him to quit talking and to quit goofing off. He testi- fied Leggio was talking in the aisle and also in the furnace room. He took no action respecting Leggio because he did not consider it serious. Leggio, a youth of 18 years, testified that around mid or late July on an occasion when he was in the stockroom in the rear of the store, McConnell told him, "Don't be talking to Dave about the Union." He said okay. Leggio admitted that McConnell had had to speak to him more than once about talking, telling him to stop talking and to work. But he fur- ther testified that on this particular occasion McConnell made no mention of his work. Leggio was a credible witness. McConnell denied generally that he had told any stock clerk to stop talking to Dennard because they were talking about the Union. He admitted, however, that he heard Den- nard talk of the Union during his second week of employment and also during the incident in the parking lot. I credit Leggio over McConnell because in his demeanor he appeared to be a more forthright witness. He was more disinterested in the litigation than McConnell, who was a supervisor. And as already found herein, McConnell had expressed his view that the store would close if the employees organized and had committed an unfair labor practice in doing so. I find that he committed a further unfair labor practice by instructing Leggio not to talk to Dennard about the Union. The form of this instruction was such as to allow Leggio to talk about other things to Dennard while barring him from conversing about the union topic. This was an invasion of employee rights to discuss the topic. c. Instructions to Manale McConnell also admitted that he talked to Paul Manale almost nightly about his excessive talking and finally dis- charged him in August. According to McConnell excessive talking was one of several reasons for the discharge. Manale, 18 years of age, testified that on one occasion prior to the discharge of Dennard when he was loading a flat car with merchandise in the warehouse area of the store. He asked McConnell if he had heard about the Union and McConnell replied that he had. According to Manale, McConnell added, "I would advise you to stay away from Dave." Manale's recounting of the language used by McConnell was specific but he was vacillating and unclear about when it occurred. He first testified that the incident was not long after Dennard was hired. On cross-examination he referred to his pretrial affidavit in which he had placed the incident around August 1. At that point Dennard had already been discharged. He explained this by saying he was unsure of the date. He then again placed the incident shortly after Dennard had arrived. He later testified that his recollection at the time he gave the pretrial affidavit was better than at the time of the hearing and he placed the incident around the latter part of July. Later he said it was around August but he was certain it was before Dennard was discharged. In sum Manale was clear about what was said, but very vague about when, other than that it was sometime during the employment of Den- nard. McConnell did not specifically deny making this statement to Manale. On balance I find that Manale should be credited in that the incident occurred during the period Dennard was an employee. Because the advice to stay from Dennard fol- lowed immediately upon his answer to Manale that he knew about the Union, I find that he was advising him to stay away from Dennard, the union advocate. Being a supervisor and making these remarks during working hours at Manale's work station, I find that they amounted to an instruction from McConnell to Manale to stay away from Dennard. This was an interference with employee protected rights and there- fore an unfair labor practice. There is no question about whether Mc Connell was within his rights to direct employees to keep working during work- ing hours and to avoid talking which interfered with work if such restrictions were applied evenhandedly to all conversa- tions irrespective of whether they involved the topic of union- ism. However, in the two incidents above found to be viola- tions, McConnell either explicitly or in context singled out the union advocacy of Dennard and attempted to interfere with other employees associating with him. B. The Alleged Discrimination 1. The issue The complaint alleges, and the answer admits, that on July 27 Respondent discharged Dennard and has since refused to reinstate him.2 The Complaint also alleges that Dennard was discharged and thereafter not reinstated, because of his union activity. Respondent denies this motive, contending that he was discharged for cause. I find below that there is 2 During the hearing Respondent amended its answer to allege the date of discharge as July 26, but then at a later point offered evidence that the date of discharge in fact was July 27. 1 find it was July 27. BREAUX MART, INC. insufficient evidence to establish that he was unlawfully dis- charged. 2. Dennard's regular duties Because of his past experience Dennard was hired as a stock clerk. For about 2 weeks he worked on aisle 4 stocking paper goods. McConnell was his regular supervisor. According to fellow workers he was a competent stock clerk. Paul Manale considered him faster than some other clerks. Donald Comeaux had heard both McConnell and Store Manager Moreland say Dennard was a good worker. And McConnell himself testified that during Dennard's first week he did a good job. But, according to him, during the second week-he had trouble finishing his work and was doing lots of talking with other clerks. During his first 2 weeks Dennard's regular hours on Mon- day were 7 p.m. to midnight, and on Tuesday and Friday 7 p.m. to 2 a.m. He was not regularly scheduled to work at other times unless verbally instructed by McConnell. A writ- ten schedule of hours for stock clerks was ordinarily posted on the door of the manager's courtesy booth: However, Den- nard relied instead on verbal instructions from McConnell and did not look at the schedule. For the Monday of his third week Dennard was listed on the written schedule as due to report for work at 2 p.m. According to McConnell, he had told Dennard the previous Friday to report on Monday at 2 p.m. to do price changes. Dennard denied that he had been so instructed by McConnell and I credit his denial. After he reported at his regular time on that Monday, McConnell asked if he had done the price changes and he replied no. McConnell then showed him his name on,the written schedule which called for him to appear at 2 p.m. but told him not to worry about it. McConnell took no action because of Dennard's alleged failure to show up at 2 p.m. He testified, "I didn't deem it necessary. What was done was done." Dennard continued to work. At the end of the week when he was discharged McConnell made a written entry on an employees's status change report indicating as one of the reasons for his dismissal that Dennard "Did not show up for work." In view of Dennard's continued employ- ment after Monday, particularly his assignment on Tuesday to the added responsibilities of the liquor aisle, any failure on his part to report on time on Monday was condoned. As a basis for discharge, this reason was clearly dredged up. 3. The liquor aisle and stockroom Supervision of the liquor aisle and the stockroom where unshelved liquor was stored were the direct responsibility of Store Manager Moreland. The liquor stockroom was a small room at the front of the store where drug items and cigarettes as well as liquor were stored. Liquor deliveries to the store come regularly on Tuesdays, Wednesdays, and some on Thursdays. Liquor supply house deliverymen would spot the cases of merchandise delivered at the end of the liquor aisle. The stock clerk assigned to the liquor aisle would then shelve as much merchandise as possi- ble directly from these cases using a copy of the distributor's invoice and the store liquor price book as guides in pncing the merchandise. At the end of his shift the liquor clerk 493 moved excess merchandise, whether in open or unopen cases, to the liquor stockroom. As with other types of merchandise, empty boxes were burned by the stock clerks. The regular stock clerk assigned to the liquor aisle was Eddie Gammon, a 16-year-old part-time employee. He testi- fied that when first assigned to liquor aisle he received train- ing from Store Manager Moreland and also from the man who had preceded him as liquor clerk. His training lasted between 3 and 4 hours. Because of illness Gammon did not work during the week of July 22-27, although he did show up on Friday night, July 26, to find out if he was to work the following Monday. The last previous occasion on which he had worked was Friday, July 19, at which time, according to him, he had left the liquor aisle and the liquor stockroom in good condition. 4. Assignment of Dennard as temporary liquor clerk On Tuesday, July 23, Dennard reported at 2 in the after- noon for the purpose of making price changes in the paper aisle where he was regularly assigned. Moreland, however, instructed him not to work his price changes on the paper aisle that day, that someone else could do it. Moreland stated that the liquor aisle was in bad shape and he wished Dennard to straighten it out in preparation for inventory the following Sunday. Although Dennard was an experienced stock clerk, he had not previously worked with liquor, so he was unfamil- iar not only with the aisle, but also with the merchandise. When Dennard first observed the shelf and the liquor aisle on Tuesday, the shelves were quite bare. According to him his orientation in working the liquor consisted of Moreland showing him the backstock in the liquor stockroom, the merchandise stacked in the aisle, the invoices obtained from the office with the prices written on them, and the instructions from Moreland, "Now, have at it." This is obviously an understatement. On the other hand Moreland, who was inclined to overstate, testified that he trained Dennard. According to him he had a cashier write the prices on invoices for him, gave him the liquor price book, and spent between 45 minutes to an hour in the liquor aisle explaining the operation to him, including the importance of the invoices. He testified that he specifically told Dennard to bring the invoices to the office girl when he finished to avoid loss. It does not appear that he explained to Dennard the legal consequences of a failure to pay for the liquor within 15 days of delivery which would result in the purchaser being stop- listed and unable to purchase liquor from any distributor in the state. Dennard did understand that he was supposed to turn the invoices into the office when he was finished with them. But, the importance of doing this as he finished with each invoice apparently escaped him because he kept all of them in the aisle where he was working for the balance of the week. 5. Dennard's performance as liquor clerk a. Condition of the liquor aisle After his initial orientation of Dennard, Moreland re- turned to him every 10 or 15 minutes on Tuesday to see how he was doing. Moreland did not observe anything out of 494 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD order. Dennard told him he was getting along okay. Bearing in mind that the liquor operation was the immediate responsi- bility of Moreland, I think he would have been quick to notice anything significantly wrong with the liquor operation on Tuesday afternoon. Because he did not, I infer that on that day things were substantially in order. After he worked on the liquor aisle during the afternoon of Tuesday, Dennard continued to perform his regular duties on the paper aisle during the evening hours. He did the same thing on Wednesday and Thursday. Wholesale liquor deliveries to the store were made on Tues- day, July 23, Wednesday, July 24, and also on Thursday, July 25. Ninty percent of Dennard's work on the liquor aisle was pricing and shelving the newly received merchandise. As he finished working on the liquor aisle each day he put the invoices received up to that point on the shelves behind the bottles instead of turning them in to the girl in the office. There is no evidence to indicate that things were not in order when he finished working the aisle on Wednesday. McConnell had been in the store on both Tuesday and Wednesday, he testified that he never checked the liquor aisle. Moreland was not on duty Wednesday. But the assist- ant manager (who did not testify) was on duty. According to the uncontradicted testimony of Dennard, after they had finished work in the evening the assistant manager showed Dennard some grocery shelves that had been poorly stocked by another clerk. The assistant manager told him that he, another clerk named Rick, and McConnell were the only ones in the store really worth having. He said he would try to get Dennard a pay raise. There were no reports that day that the liquor aisle was in disarray. I infer that as of that point, except for the invoices left in the aisle, it was in order. Dennard also testified that the next afternoon, which would have been Thursday, Moreland came to him during his lunchbreak and told him he thought he was one of the best stockboys he had ever seen and would try to get him a raise. This testimony also is not contradicted. Moreland was in the store that day. For the first hour he was in the courtesy booth; for the next 4 hours he was in aisles 1 through 8 "ordering the store." This brought him to within one aisle of the liquor which was number 9. Moreland had lunch from 12:30 to 1:30. From 1:30 to 2:30, according to him, he was all over the store, but mainly was bagging grocer- ies at the cashier's checkout counters. At 2:30 he left for a doctor's appointment and did not return that day. Consider- ing that he was working near the liquor aisle during some of the morning and in the early afternoon was at some point all over the store, I infer that at the time he left at 2:30 the liquor aisle was not in obvious disarray. If, as I find below, the liquor aisle was in disarray on Friday in terms of having boxes and cases strewn around, it must have gotten that way after 2:30 Thursday afternoon. Dennard admitted that on Thursday he did not get every- thing out on the liquor shelves. He left 12 to 15 unfinished cases on a flat car at the back of the aisle. He testified that he blocked out the shelves so that they looked full even where they were not and left them neat; that everything he put up was priced; that he burned all the empty boxes and did not leave any in the aisle. But he kept the invoices and the price book in the aisle because he had more work to do. Dennard also testified that when he left on Thursday night the liquor aisle was straight, prices were okay, and no boxes were stacked in the aisle. He said, "I am saying that I did not mess that aisle up." He further testified, `-lo, sir, I did not mess that aisle up intentionally or by accident. I know what I am doing and I can stock it. It is a pretty basic thing." Yet the evidence is overwhelming that on Friday the liquor aisle was in considerable disarray. According to Moreland the problem surfaced between 10 and 11 on Friday morning after cashiers brought to his attention three incidents of mis- priced liquor. This caused him to inspect the liquor aisle. He testified he found several bottles of mispriced Sangria, loose liquor bottles strewn around, opened cases apparently left over from the night before still sitting in the aisle, whole cases which had not been moved to the liquor stockroom, empty boxes which had not been burned, and invoices for the entire week's deliveries, some behind merchandise on the shelves and a few in an empty box where there was a risk they would be inadvertantly burned. Eddie Gammon, the regular liquor clerk corroborated Moreland as to the condition of the liquor aisle. Gammon had been out all week but called at the store on Friday evening to see if he could go to work on Monday. At that time he looked at the liquor aisle and found it "in disarray." He testified, "I couldn't believe what I had seen." According to him, there were several items on the aisle with three different prices, wine was in the liquor section, bourbons were in the whisky sections and whisky was in the bourbon section, bot- tles which should have been priced with a stamper had been priced with a label gun in a manner which would allow prices to be altered by a customer. And Steve Murphey who worked in the liquor stockroom the next day (Saturday) testified that during that day when he was in the liquor aisle obtaining prices or moving cases from the aisle to the stockroom, two or three customers complained to him about mispriced mer- chandise. The problem may have been complicated by additional deliveries of liquor on Friday. Although the "received" stamp on them is not entirely clear, three of the liquor invoices in evidence appear to be for goods delivered on Friday. Under normal practice such merchandise would be spotted by the delivery man at the end of the liquor aisle. I find that on Friday the liquor aisle was not in satisfactory condition, although not in as bad condition as Moreland's testimony indicates. I make this limited finding because his demeanor as a witness and his testimony as a whole indicate he was given to overstatement. Further, he did nothing to correct the situation until the next day. There was some reason for this because the store was busy on Friday and, although it was also busy Saturday, Moreland had more peo- ple working on that day. Nevertheless, if the liquor aisle was in as disastrous shape as Moreland's testimony indicates, he would have done something about it immediately. As it was, he let it go until Saturday morning when he put a couple of extra cashiers and stock clerks on the liquor aisle in the liquor stockroom with instructions to clean them up. b. Condition of the liquor stockroom Dennard testified that when he left on Thursday night the liquor stockroom was neat and straightened out and that it BREAUX MART, INC., was ready for inventory except that unopened cases had not been marked. Opened cases were marked on the outside. He admitted he had not gotten to all incoming stock on Thurs- day. He also admitted that the room was full of back stock. He testified it looked messy because there were 30 boxes on the floor, but then said, however, that they were stacked neatly. He also stated that there was a box half filled with broken bottles saved for the purpose of making claims to the liquor distributors. On Friday one of the cashiers who doubled as drug clerk complained to Moreland that she could not get back to the drugs in the liquor stockroom. After inspecting the liquor aisle Moreland also inspected the stockroom. He described what he found as "a disaster area-a mess." According to him bottles were thrown about, full cases had been stacked on half cases and had fallen over resulting in broken bottles, and there were empty boxes in the room, all of which impeded access to the drug and cigarette supplies. He testified it was then that he decided to terminate Dennard. Other evidence also corroborates Moreland regarding the condition of the liquor stockroom. Gammon saw it Friday night and found it in disarray. On Saturday morning Mur- phey was instructed by Moreland to straighten out the liquor stockroom. According to Murphey, whom I credit, most of the cases were not marked with the price in preparation for inventory, there were broken bottles on the floor, different types of liquor had been put in the same boxes, unmarked bottles had been placed on the shelves, various types of liquor had been scattered in different places so that all the same types of liquor were not together. In Murphey's words, "It was just a mess." He spent 2 hours working there Saturday and did not finish, and Sunday he worked an additional 5 to 6 hours, with help for 3 to 4 hours from a cashier, before the place was cleaned up. 6. The discharge of Dennard The circumstances of Dennard's discharge are substan- tially undisputed. On Saturday evening, July 27, he came to the warehouse area of the store shortly before 7 p.m. when he was scheduled to start work. Moreland, who had come to the rear for coffee, told him he did not like the job he had done on the liquor aisle; that it was one of the worst he had ever seen. Dennard explained he had done the best he could. Moreland apparently left without saying anything further. McConnell then came back and told Dennard he had done one of the worst jobs he had ever seen on the liquor aisle, and besides, he had misworked it. McConnell continued that he had also been late on Monday so they no longer needed him. Dennard testified that he was angry, shakey, and frustrated at being fired and that heated discussion resulted. Moreland, returning to the scene, told Dennard that he thought he was one of the worst stock clerks he had ever seen. Dennard demanded they take him to the liquor aisle and show him his mistakes. But Moreland refused. Dennard accused him of firing him because of his union activity. Moreland denied it, saying he knew nothing about the Union. Dennard again asked to be shown the liquor aisle and Moreland again refused. Moreland told him to leave the store. The heated discussion, within hearing of customers, continued from 5 to 10 minutes while Moreland and McConnell gradually ush- 495 ered him out through the front of the store. Dennard was not shown the employee status report prepared by McConnell which indicated he was dismissed because he "did not show up for work-mispriced liquor shipment." The fact that the report was not shown to him is immaterial inasmuch as sub- stantially the same information was given to him verbally. 7. The motive for the discharge Some of the circumstances in this case indicate that Den- nard's activity on behalf of the Union, including his talk of the advantage of union representation, and his attempts to interest other employees in the Union and to arrange a meet- ing of employees with a union official, motivated Respondent to discharge him. Thus, the violations of Section 8(a)(1) by McConnell in twice stating that the store would probably close if the Union came in, and his admonitions to two other clerks not to discuss the Union with Dennard, all show an antiunion attitude on the part of management. Respondent is chargeable with 'knowledge of Dennard's union activity. It is undisputed that McConnell knew of his union activity. Respondent contends that Store Manager Moreland made the decision to discharge and he did not know. The record shows that Moreland made the decision. His testimony and that of McConnell indicates the decision was his and not anyone lower in management. The record is silent on whether he discussed the matter with higher man- agement. In support of its contention that Moreland was ignorant of Dennard's union activity Respondent points to Moreland's denial of knowledge both in his testimony and at the time of discharge; McConnell's testimony that he did not pass on his own knowledge to Moreland because he did not want him to know he was drinking beer with the boys; and the evidence that Moreland was away on vacation during the second week of Dennard's employment. But Dennard's testimony, which I credit, indicates he was talking union during all 3 weeks of his employment. During the third week Moreland was on duty during part of two day shifts when Dennard worked. Although McConnell indicated he was embarrassed to tell Moreland about the "bull session" on July 26, it should be noted that that was during the third week. As already found herein, McConnell knew of the union activity in mid-July, during Dennard's second week while Moreland was in At- lanta. When Moreland returned on Sunday, July 21, McCon- nell conferred with him in his apartment. This itself seems unusual since the record does not indicate anything but a business relationship between them. It is inconceivable that McConnell did not then apprise Moreland about his own knowledge of the union activity. -McConnell felt strongly enough about the Union to have already declared his senti- ments to employees and to have committed unfair labor prac- tices in so doing. In these circumstances I do not credit Moreland's denial of knowledge, even though he also made it at the time of discharge, nor McConnell's testimony that he did not fill him in on this subject. If on the Sunday he filled him in about other store conditions, he would also have men- tioned this topic. I find that at the time of discharge both McConnell and Moreland knew of Dennard's activity. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another circumstance tending to show discriminatory mo- tive is the timing of the discharge, without notice to Dennard, shortly after the "bull session" of July 26 and shortly before a proposed meeting the next Sunday with a union official. The timing, together with the other circumstances noted above, would sustain a finding of discriminatory motive if the record stopped there, but it does not. As noted above, there is substantial evidence of cause for discharge. In his testimony Moreland may well have exag- gerated the cause, but his testimony does not stand alone. There is adequate evidence corroborating him on the proposi- tion that Dennard had demonstrated incompetence in han- dling the liquor. I exclude from this demonstrated cause his failure to show up early the previous Monday afternoon because, as noted earlier herein, I find Respondent's reliance on that incident to be pretextual. - The General Counsel urges that Respondent's reliance on Dennard's mishandling of the liquor was also pretextual. He contends that Moreland did not confront Dennard and obtain his explanation for the alleged incompetence. But Dennard's own testimony establishes that before McConnell gave him the,word Moreland told him he thought he had done a poor job and Dennard gave as his explanation that he had done the best he could. This was a confrontation of sorts. In fairness to Dennard it must be noted that he apparently was given more to do than he could handle. Moreland may well have made a managerial misjudgment in sending a boy on a man's job and in failing to insure that adequate supervision was given. But inequities unrelated to protected conduct are of no concern in an unfair labor practice case. The General Counsel also emphasizes that Moreland refused to show Dennard his mistakes on the liquor aisle. This might be persuasive if the record did not show that Dennard had become loud and obstreperous within hearing of customers. Moreland had no practical alternative but to usher him out of the store. It is possible to speculate that Respondent mounted an elaborate scheme to set Dennard up by sabotaging the liquor aisle and stockroom. But it is unlikely that Moreland would have run the risk of damage to store business that such a scheme would have involved. The issue of motive boils down to some evidence of dis- criminatory motive and clear evidence of cause for discharge. There is nothing in this case which justifies a finding that Respondent ignored the lawful reason and acted on the un- lawful one. In these circumstances there is insufficient evi; dence to sustain a finding that Respondent acted substantially from a discriminatory motive. John C. Mandel Security Bureau,Inc., 202 NLRB 117, 121 (1973). Thus the General Counsel has failed to establish by a preponderance of evi- dence that the motive for the discharge was one forbidden by Section 8(a)(3). Absent a finding of unlawful discharge, there is no basis for finding an obligation to reinstate. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connection with the operations described in sec- tion I, above, have a close,' intimate, and substantial relation- ship to trade, traffic, and commerce between the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. They are unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has committed, and is committing, unfair labor practices within the meaning of Section 8(a)(1) of the Act by: (a) telling employees that the store would close if they selected a union to represent them, and (b) instructing em- ployees not to discuss the Union with a known union advo- cate. 4. Respondent has not committed an unfair labor practice in discharging and in failing to reinstate, John David Den- nard. - 5. The unfair labor practices found above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act, including posting appropriate notices at its premises. [Recommended Order omitted from publication.]