Hogue & Knott, Inc.

HOGUE & KNOTT, INC. 565 Hogue & Knott, Inc. and Retail Clerks Local 1529, AFL-CIO, affiliated with Retail Clerks Interna- tional Association. Cases 26-CA-5103 and 26-CA-5175 April 29, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On December 20, 1974, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, General Counsel and Respond- ent filed exceptions and supporting briefs. 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Hogue & Knott, Inc., Memphis, Tennes- see, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Or- der. "The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 Walt 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. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge : These con- solidated cases involve allegations that the above-named Re- spondent violated Section 8(a)(1) and (3) of the Act by certain acts of interference, restraint, and coercion by issuing written warnings to one employee, and by discharging six employees. The proceeding was initiated by the charge filed by the above- named Union in Case 26-CA-5103 on May 13, 1974,1 which charge was amended on June 17. Pursuant thereto, complaint issued on June 19. Thereafter , the same Union filed the charge in Case 26-CA-5175 on June 27, which charge was first amended on June 28, and amended a second time Unless otherwise indicated, all dates hereinafter are 1974. on July 15. On July 26, the cases were consolidated and a consolidated complaint was issued. On September 10, 11, and 12, hearing was held in Memphis, Tennessee. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I hereby make the follow- ing: FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent operates five grocery supermarkets in Mem- phis, Tennessee,' Hugh Hogue, Sr., is president of the Com- pany and his son Hugh Hogue, Jr., is general manager of the five stores which are numbered 1, 3, 4, 6, and 10. With one exception, the alleged unfair labor practices involve store No. 10, a new store located in a shopping mall. The store began operations on April 10, with a staff of employees who were nearly all new employees of Respondent. Only the employees of the grocery department are involved in this proceeding! These employees fall into three classifications: sackers, stockers, and checkers or cashiers. Jerry Wilson was a sacker who had been hired to work at Store No. 10 on Thursday, May 2. His first day of work was Friday, May 3. He testified that on Monday, May 6, after he had finished work, he was accosted on the parking lot by a man who turned out to be Union Representative Bill Underwood. Un- derwood asked him if the store was organized and when Wilson told him no, he gave Wilson some union cards to distribute. Wilson did so on the sidewalk outside the mall building, but admittedly no supervisors could see him hand- ing out cards at the location. He entered the store and passed out cards to employee Don Edwards and a cashier, but there is no direct evidence he was seen. According to Wilson, after he left the store, but while still inside the mall building, he gave a card to employee Gailor King and he observed that Hugh Hogue, Jr., who was about 25 feet away, was looking towards them. Wilson testified that on Wednesday, May 8, about 2 p.m., Assistant Store Manager Kenneth Crawford asked him if he had signed a union card. Wilson had not and told Crawford he had not, but that he was thinking of it. On Friday, May 10, Underwood entered store No. 10 and, according to King, spoke to King, saying that not enough cards had been signed. This was shortly before King's lunch- break and King punched out at 1 p.m. and met Underwood outside the store. King testified that he walked with Under- wood down the corridor which leads to the mall exit and that they were followed by Hogue, Jr., for a distance of about 30 2 Both General Counsel and Respondent have filed motions to correct official transcript. No objections having been made, the motions are hereby granted and they are made part of the record as A.LJ Exhs. 1 and 2, respectively. 3 Jurisdiction is not in issue. The complaint alleges, the answer admits, and I find that Respondent meets the Board's standard for assertion ofiunsdic- hon over retail stores 4 The supermarkets generally consist of three departments . meat, pro- duce, and grocery. 217 NLRB No. 92 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feet to the mall exit door On the sidewalk of the mall, Under- wood gave King some union cards. King returned to the store and about 30 minutes later, Hogue, Sr., approached him, pulled him aside so nearby employees could not hear and in a whisper asked King who he was working for, Hogue & Knott or the Union. King replied he was working for Hogue & Knott. Tyrone Daniels, another sacker, also spoke to Underwood in the store on Friday about 3 p.m., when Underwood walked through the register line Daniels testified he asked Under- wood if he had more union cards and Underwood replied he did, but he couldn't give him any because the man was look- ing. The man was Assistant Store Manager Kenneth Craw- ford with whom Underwood had been talking earlier. Patricia Ford, a cashier, also spoke to Underwood on Fri- day. According to Ford, as Underwood passed through the register line he asked her if she had turned her card in and she said she had. She testified Crawford was nearby at the time where he could hear everything At some time that day, Ford had been talking about the Union with another cashier, Sheila Sermons, and Crawford had been nearby. Later that same day, Jerry Wilson, Terry Daniels, Gailor King, Donald Edwards, and Patricia Ford were laid off for lack of work.' Carol Sue Sasseen did not work on May 10, and on Saturday, May 11, she called in sick. Crawford told her it was okay and when she asked him when she was scheduled to work again he told her to check later, that the schedule was not made up. Instead, Sasseen went to the store on Monday, discovered her name was not on the work schedule, and left the store without checking about it. On Thursday, she picked up her paycheck, again spoke to no one about her job, and has not worked since. Henrene Butler is employed at store No. 10 as a cashier. She testified that on June 15, Crawford called her to the rear of the store and he referred to the Union and remarked "that they had got to me, you know, had already started talking to me and he told me that the Union, it wasn't what it was put up to be." On June 18 and 26, Butler received two written warnings, the first for her behavior towards Assistant Manager Craw- ford, the second for excessive absenteeism on Saturdays. Wilbur Davis, a former employee of Respondent at store No. 1, testified that on June 19 he was called into the office of Store Manager Ronald Childers. Hugh Hogue, Sr., was there and he proceeded to tell Davis the Union could do nothing for him but take his money, that "they" wasn't doing anything for him and "they" couldn't give "us" no raises until they got some money in the treasury. Assistant Store Manager Burcham entered the office and he said if "they" do give you a raise, your dues will go up, and by the time "they" get through taking so much dues, you won't have a raise. Childers told him he was up for a raise, but he hadn't gotten around to it. Hogue, Sr., said "they would give us a raise every week if they wanted to." Davis testified that on June 23, on his way out of the store, he asked another employee for a dollar and as he passed by Childers, Childers asked him if he wanted any money and 5 Ford testified she was laid off on a date after May 10, but her timecard indicates May 10 as her last day of work gave him $5 saying "if the Union don't make it, you can pay me back whenever you want to." B. Analysis and Conclusions 1. The independent 8(a)(1) conduct a. The conduct of Childers Paragraph 9 of the complaint contains, seven allegations of 8(a)(1) conduct by Childers, but the only conduct attributed to him was that described by Wilbur Davis of his being called to Childers' office on June 15 and of receiving a $5 loan from Childers on June 23. Childers denied talking to Davis about the Union and denied lending him any money. I credit Child- ers and shall recommend dismissal of the allegations of para- graph 9. During the investigation of the unfair labor practice charge filed against Respondent, Davis gave a sworn statement to a Board agent in which he stated that Childers had loaned him $18, not $5. At the hearing, he claimed the Board agent had erred in taking his statement, yet on the face of the statement there appeared a correction showing a change of the amount of the alleged loan from $20 to $18. I cannot believe that a Board agent would make two errors on a single point. I note also that the loan was allegedly made by Childers because he overheard Davis ask another employee for a $1, and the other employee was not called for corroboration. b. The conduct of Kenneth Crawford Paragraph 8 of the complaint contains three allegations of 8(a)(1) conduct by Crawford. Subparagraph (a) alleges interrogation on May 8 and is based on the testimony of Jerry Wilson described above that on May 8, in the employee lounge, Crawford asked him if he had signed a union card, with Wilson replying no, but he was thinking of it. Subparagraph (b) alleges interrogation of an employee on June 15-and that Crawford created an impression of surveil- lance. The allegations are based on the testimony of Henrene Butler described above that on June 15 Crawford called her to the rear of the store, referred to the Union, and remarked "that they had got to me, you know, had already started talking to me and he told me the Union, it was [not] what it was put up to be." No evidence was offered in support of subparagraph (c). Crawford denied having either of the conversations de- scribed above, and, although I was not impressed by his demeanor, I am constrained to credit him with regard to the allegations against him based on Butler's testimony. As de- scribed more fully below, Butler received written warnings on June 18 and 26. The warning on June 26 was occasioned by absence on several Saturdays and Butler's testimony about those absence was, in my judgment, plainly incredible, lead- ing me to conclude she was not a credible witness in any particular. As between Wilson and Crawford, however, I am disposed to credit Wilson. The fact that he placed the interrogation on May 8 which was Crawford's day off is insufficient basis to discredit him. True, Wilson is an alleged discriminatee and HOGUE & KNOTT, INC a finding of interrogation helps his case; however, if he were fabricating the conversation why not testify he told Crawford he had signed a card instead of telling him he was thinking of it. On balance, I conclude Wilson was a credible witness, that he was interrogated as he described, and that such inter- rogation, which had no discernible lawful purpose and was unaccompanied by assurances against reprisal, had a tend- ency to coerce Wilson in the, exercise of Section 7 rights and was violative of Section 8(a)(1) of the Act. c. The conduct of Hugh Hogue, Sr. Paragraph 7 of the complaint contains four allegations of 8(a)(1) conduct by Hugh Hogue, Sr., but evidence was ad- duced only as to subparagraphs (a) and (c). Subparagraph (c) is predicated on the testimony of former employee Davis described earlier wherein Hogue, Sr., Childers, and Burcham were alleged to have spoken to him in Childers' office in store No. 1. Hogue, Sr., did not testify and the statements at- tributed to him by Davis were not denied by him. Neverthe- less, I shall recommend dismissal of this allegation because Davis was not a credible witness and Childers and Burcham both denied that an incident such as that described by Davis ever occurred.6 The allegation of subparagraph (a) is based on the tes- timony of Gailor King that on May 10, on his return from lunch, Hogue, Sr., whispered to him "who was I working for, Hogue & Knott or for the union." This testimony was un- denied and was partly corroborated by Delores Israel, an employee who was not a union supporter. Accordingly, and as` King and Israel impressed me as credible witnesses, I find that Hogue, Sr., interrogated King in the manner described by King. Such interrogation, on the heels of King's meeting with Underwood, would convey to King that his union activi- ties were under surveillance, and, when couched in the words used by Hogue, Sr., would clearly tend to coerce King in the exercise of Section 7 rights in violation of Section 8(a)(1) of the Act. d. The issuance of written disciplinary warnings The complaint alleges that on or about June 18, at store No. 10, Respondent instituted the practice of issuing to its employees written disciplinary warnings and that Respond- ent did so in order to discourage its employees from support- ing the Union. The complaint further alleges that on June 18 and 26 Respondent issued written warnings to Henrene But- ler because she assisted the Union or engaged in other union activity. The facts respecting these allegations are substantially un- disputed. Hugh Hogue, Jr., testified that the stores had once had a practice of issuing written warnings, but the practice had been allowed to lapse by the spring of 1972. In June 1974, the practice was reinstituted after soliciting the advice of counsel after the instant charges had been filed. The reason for reinstituting the practice assertedly was simply to make a record of a legitimate discussion with an employee about a matter relating to his employment. It was pursuant to this 6 II note that according to Davis he was not the only employee called to Childers' office, yet, he was the only one to testify about being called in. 567 practice that Butler was given a written warning on June 18 about disrespectful behavior toward Assistant Manager Crawford, and another written warning on June 26 for exces- sive absenteeism, including absences on 4 of 11 Saturdays. Considering first the allegation that Butler was given writ- ten warnings because she assisted the Union , I conclude that the evidence is insufficient to-support it. This conclusion is dictated by the fact that Butler did not assist or support the Union. The extent of her union activity-if it can be called that-was to reply to an unidentified employee who asked her how she felt about the Union that she thought "it was cool." This hardly constitutes proof of support or assistance to the Union, even if, as Butler testified, Crawford was standing behind her at the time in a position to overhear her remark. It is true that this occurred on June 8 and Crawford was alleged to have remarked to Butler about the Union on June 15 "that they had got to me." However, as set forth earlier, I have not credited Butler's testimony in this particular. An additional circumstance militating against finding the written warnings to have been based on Butler's support of the Union is the fact that both warnings were given for good cause. She was absent from work on several Saturdays and her testimony about her reasons for the absences is not de- serving of credence. Nor was I impressed by her description of the incident of June 15. - General Counsel asserts that Butler was treated disparately from another employee, Carol Sasseen. According to General Counsel, Sasseen was absent from work on four successive Saturdays and received no written warnings. The record does not support this assertion. General Counsel's Exhibit 10 on which the assertion is based consists of Xerox copies of Sas- seen's timecards for a 6-week period. The pay period ending date is not shown on one card, but I assume it was the week ending Saturday, April 6. According to a handwritten entry "SA," Sasseen worked 4 hours on Saturday in that pay period. She did not work on Saturday the next 3 weeks, but there is no evidence she was scheduled to work. More impor- tantly, according to Sasseen 's own testimony, she was sched- uled to work on a Saturday, around the first of May, appar- ently May 4, the last Saturday she worked, and when she called to say she would not be in because she was tired she was told if she didn't come in she would no longer have a job. Such testimony belies disparate treatment. Despite the foregoing conclusion, the written warnings to Butler may nevertheless have been violative of the Act if they were issued in implementation of a written warning system unlawfully instituted. Whether or not it is unlawful for an employer to institute a written warning system during an organizational campaign is a question which has been an- swered two ways. In Schwab's Foods, Inc., 197 NLRB 1068 (1972), the Trial Examiner stated "Notwithstanding that the CAR system may have been motivated by employee organi- zational activity, I would not find the mere institution of such a system to be in and of itself an unfair labor practice. The Act may not be read as dictating an employer's practice in this regard and, to the extent relevant at all, such a practice is scarely subject to legitimate criticism, absent discrimina- tory application." This finding was not excepted to and was adopted by the Board. In Mississippi Tank Company, Inc. 194 NLRB 923, 925 (1972), the Trial Examiner took an opposite view, and his 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision was adopted by the Board. As he pointed out, the matter of using a warning system as part of a disciplinary procedure is within the exclusive discretion of the company, subject to the statutory prohibition against discrimination, adding, however, "The question again, therefore, is whether the company's resort to this procedure was in response to the protected union activities of the employees ." In other words, as in the case of so many management prerogatives, the ques- tion is not one of management's rights, but management's reason or purpose for a change in employee working conditions.' As General Counsel points out, employees nor- mally regard a written warning as a more serious form of discipline than an oral warning. In my judgment, the rationale of Mississippi Tank is the correct one and the question to be decided is whether Re- spondent was unlawfully motivated in reinstituting a written warning system. There is no direct evidence of unlawful pur- pose here, but General Counsel would have me infer an un- lawful purpose from the mere fact that the system was rein- stituted during an organizational campaign . I am not persuaded that circumstance alone is sufficient to support an inference of unlawful purpose. For one thing, there is no showing precisely when the decision was made to reinstitute a written warning system, but it was not made until after the filing of an unfair labor practice charge alleging that certain employees had been unlawfully discharged. It is a matter of common knowledge to those experienced in labor relations that during an organizational campaign questions of fact frequently arise about employee misconduct, including: not only whether the employee was guilty of mis- conduct, but also whether he was warned prior to any disci- plinary action. To issue written warnings to avoid any ques- tion of fact that warnings were given, in the event of future unfair labor practice charges, would therefore appear to be an act of prudence. True, such prudence cannot be used as a cloak to build up a record to sustain a contemplated discharge for union activity, but whether such was the purpose in any given case would be for the trier of fact to decide. In the final analysis, in this case, there is no showing that written warnings were given without just cause and as a pretext to coerce employees; in fact, only Butler was shown to have received any warnings. In light of these circum- stances, I conclude General Counsel has failed to establish by a preponderance of the evidence that the written warning system was reinstituted to discourage union activity. 2. The alleged discriminatory discharges As described earlier, on Friday, May 10, five employees were told they were being terminated . In effect, all were told they were being terminated for lack of business . A sixth em- ployee, Carol Sasseen, was terminated (according to Respon- dent's records) on May 12, but, as described earlier, she was never told of her termination but surmised she had been terminated from the absence of her name on the work 7 In General Automation Mfg., 167 NLRB 502 (1967), the Trial Examiner found that the institution of a written warning system was unlawful, but he did so because he found the change from an oral to a written system tends to interfere with employee rights The Trial Examiner deemed the em- ployer's purpose or reason for instituting the change not to be relevant I disagree. schedule. General Counsel contends that the six terminations were attributable to the incidence of union activity at Respon- dent's store No. 10 . Respondent asserts the terminations were attributable to business considerations. In my judgment, the record as a whole supports the conclusion that the termina- tions were attributable to the union activity and not to busi- ness considerations. A threshold question in cases of alleged discharges for union activity is company knowledge of the employees' union activity. Respondent denies having such knowledge, but ex- cept for Sasseen, there is sufficient direct and circumstantial evidence to support a finding of knowledge. Thus, Wilson, who as the first to obtain union cards, testified that on May 6 he gave a card to King about 25 feet outside the store from where he could see Hugh Hogue, Jr., who appeared to be looking toward him. Hogue, Jr., may not have known at the time what was being passed out, but it is noteworthy he was interrogated by Crawford sometime thereafter. Moreover, on Friday, May 10, King met Union Representative Underwood outside the store on his lunchbreak and he testified that as he and Underwood were walking away from the store towards the Mall exit Hogue, Jr., followed them. Hogue, Jr., denied observing Wilson on May 6, and following King on May 10, but I do not credit him. Wilson and King were friends (King -- recommended the hiring of Wilson) and if Hogue, Jr., did not know what Wilson was about on May 6, he could well guess what was going on when he saw King with Underwood on May 10. In addition, there is the fact that when King re- turned to work after his lunchbreak he was confronted by Hogue, Sr., with the query, "Who was I working for, Hogue & Knott or for the Union." Respondent did not deny that this confrontation occurred. Added to the foregoing is the fact that both Store Manager Knight and Assistant Store Manager Crawford spoke to Un- derwood in the store about 1 p.m. on May 10. Both knew Underwood's purpose in the store, and Knight called the general office for advice about Underwood's presence. As a result, he ordered Underwood to leave the store. Before Un- derwood left, Knight had seen him talking to King in the store and Crawford had followed him while he was in the store.' As Underwood left the store through the checkout lane he spoke to cashier Ford and sacker Edwards and Craw- ford was in a position to observe the exchange of words. Shortly afterwards, King left the store to meet Underwood. In my judgment, the conclusion is inescapable that these events were closely observed by Respondent's supervisors, and Hogue, Sr.'s remark to King is abundant proof of that. Based on all these circumstances , plus the fact that store No. 10 employed at a maximum 65 employees and could aptly be equated to a small plant, I conclude that an inference is warranted that as of May 10 Respondent knew or had reason to suspect that employees King, Wilson, Edwards, Ford, and Daniels were active on behalf of the Union or supporters of it. However, even were the record insufficient to warrant a finding of company knowledge as to all five employees ter- minated on May 10, a conclusion that their terminations were unlawfully motivated could still be made if the record sup- 8 Tttis finding is based on the credited testimony of employee Israel. Edwards also described Crawford following Underwood around the store, but he placed the date on May 8 He was clearly mistaken about the date. I do not credit Crawford's denial of following Underwood HOGUE & KNOTT, INC. ported a finding that upon hearing of the Union's organiza- tional activity Respondent laid off employees to discourage any further union activity-' In my judgment, the timing of the layoffs, scant hours after Underwood's visit to the store, and the pretextual reasons asserted therefor as discussed hereinafter warrant a finding that the layoffs were made to discourage union activity among the employees of Store No. 10. As noted earlier, store No. 10 is a new store which had opened on April 10. According to Hogue, Jr., the operation of the store had been designed to achieve for the grocery department a ratio of labor cost to sales of 8 percent. Every week, the general office handling the accounting for Respon- dent's stores would prepare a sales and payroll report (Resp. Exh. 9) showing the amount of sales, total labor cost, and ratio of labor cost to sales. For the week ending April 13, that ratio was 8.94 percent; the week ending April 20, 10.69 per- cent; the week ending April 27, 11.26 percent and the week ending May 4, 11.89 percent. Hogue, Jr., testified that on Wednesday, May 8, he re- ceived the report for the week ending May 4, noted the rise in labor cost percentage to 11.89 percent and immediately met with Store Manager James Knight. Hogue, Jr., told Knight, that same day he studied the matter and decided to achieve a reduction in labor cost by terminating six em- ployees, two sackers, two cashiers, and two stockers. Knight selected the six employees to be terminated and, as described earlier, on Friday, May 10, five of the six alleged dis- criniinatees were terminated for lack of work. They were not terminated earlier assertedly because of a company policy of not laying off in midweek. The foregoing contains two elements. one, the evidence of an economic justification for the terminations, the other, the testimonial 1 assertions concerning what occurred. I do not question the economic data adduced in support of the deci- sion to terminate employees, but I do question, and discredit, the testimonial assertions that this economic data motivated the decision or that the decision was made on May 8. Store No. 10 was not only a new store in Respondent's chain of stores; it was also designed to achieve certain operat- ing economies by utilizing new checkout equipment, new pricing and labeling methods, and the like. This design was not formulated overnight, nor was it brought to fruition over- night. To the contrary, it was conceived as far back as Decem- ber 1973 and the store did not open until April 10, 1974. Prior to opening, beginning March 25, Respondent had hired checkers and trained them in the new checkout equipment. After Respondent had devoted so much thought and effort to preparing for the operation of the new store, it is inconceiva- ble to me that data based on a mere 4 weeks of operation was adequate to form a judgment to terminate employees. In making such a judgment, I rely on several factors. Thus, I note that despite Hogue, Jr.'s assertions of weekly discus- sions and expressions of concern of Knight over the mounting labor cost ratio since the opening of the store, on May 3, 5 days before the asserted decision to terminate employees and 2 days after a weekly report showing a labor cost ratio of 11.26 percent, Respondent hired three new employees, al- legedly discriminatees Wilson and Daniels, and one Frank 9 NL.R B. v Piezo Manufacturing Corp., 290 F 2d 455 (C.A 2, 1961). 569 Lee.10 On May 4, Respondent hired sackers Jenkins, Mat- thews, Reynolds, and E., F. Williams." Such, hirings are completely inconsistent with expressions of concern over la- bor cost ratios. Respondent would justify such hirings on the ground that the new hires were replacements for employees who were terminated or had- quit, and Respondent's Exhibit 8 does indicate a substantial reduction in employees from the begin- ning of the opening of the store on April 10. Thus, nine checkers, six sackers, and two stockers were terminated be- tween April 10 and May 8, 1974. However, if a mounting labor cost ratio-was the measure of the size of the employee complement, and as the labor cost ratio had increased every week since the opening, Respondent should have welcomed the employee separations and not compounded its problem by new hires. Moreover, the substantial amount of attrition in a few short weeks was a clear indication to Respondent that it need not terminate employees in order to reduce its labor cost ratio; attrition would do it. As a matter of fact, except for the May 10 terminations Respondent has not ter- minated employees to reduce its labor cost ratio despite the fact that the ratio was 12.34 percent for the week ending May 11; 12.39 percent for the week ending May 25, and 12.31 percent for the week ending June 1. In the light of these given objective facts, the testimonial assertions of Hogue, Jr., and Knight are not entitled to credence. As part of the foregoing, there is the admitted fact that Knight could offer no explanation of how he arrived at the magic number of six employees to be terminated. Apparently, it could as well have three or nine. 11 This flexibility in manipulating the size of the work force is an indication that the increase in the labor cost ratio was not-the reason for the termination, but rather the excuse. In this connection, it should be noted that the labor cost ratio is only one-half of an equation; the other half is volume of sales. An increase in sales would have lowered the labor cost ratio. Of course, that is not always possible and experience may very well teach in a given situation that an increase in sales is either not possible or unlikely. The significant fact here, however, is that Re- spondent did not undergo a period of experience, but rather acted during what one would believe would normally be a shakedown or break-in period. There are yet other indications that the terminations herein were not based on an increase in labor cost ratio, nor was the decision made on May 8. Thus, cashier Ford testified without contradiction that when Crawford told her she was being terminated, he merely told her she need not bother coming in any more. He gave her no reason and when she asked for one, he still gave her none. This suggests that Crawford was not privy to the reason for the terminations, although he allegedly had been told on Thursday of the decision. In the to Respondent testified Lee was hired on May 3, but he did not start work until May 6. 11 This finding is based on Resp. Exh. 8. 12 The method of selecting employees is also questioned by General Counsel, but I am not persuaded the record permits a finding of discrimina- tory selection except in the case of Edwards. Seniority was essentially the same in all cases In Edwards' case, he had worked for Respondent on two occasions at another store and was apparently satisfactory because he was recommended for hire at store No 10 In light of this circumstance, his selection for termination is additional basis for finding the terminations were unlawfully motivated. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case of Sasseen, when she called in sick on Saturday, May_11, which should have been her last day of work if Knight had in fact decided to terminate her on May 8, Crawford did not tell her she had been terminated; rather, he told her to call later about the,schedule for the following week. Finally, in the case of King, he was-told of his termination about 4 p.m. (he clocked out at 4:22 p.m.) although he testified he was sched- uled to work until 6 p.m. This was contrary to the asserted company policy of permitting an employee to complete his work schedule. - These last few points are rather minor as evidence that the terminations were unlawfully motivated, but in cases of al- leged discriminatory discharges the proof of unlawful motiva- tion is rarely direct; rather, it is the circumstantial evidence and .the record as a whole which reveal the true motive. As the court stated in Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966), "Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact-here the trial examiner-required to be more naif than a judge." In my judgment, one would indeed be naive to believe the testimony of Hogue, Jr., and Knight. In this -connection, I have in mind the testimony that Hogue, Sr., played no part in the decision to terminate the five employees terminated on May 10. Hogue, Sr., is not only the owner of Respondent's stores, he is the father of Hogue, Jr., who is a young man with limited experience in the man- agement of retail supermarkets (although he has worked in the business several years while a student). Yet, I am asked to believe that Hogue, Sr., had no part in a decision to termi- nate employees, when those terminations occurred within hours of a visit to store No. 10 by Underwood, shortly after Hogue, Sr., had accused one of the terminated employees of working for the Union, and while Hogue, Sr., is present in the store (according to King's uncontradicted testimony). No explanation was offered for Hogue, Sr.'s presence in the store (he is not normally there), but it is noteworthy that earlier that afternoon Knight had telephoned the general office for advice about what to do about Underwood's presence in the store. In short, I am persuaded by the timing of the termination, the evidence of Hogue, Sr.'s animus against employee union activity, the fact that no other terminations for economic reasons were ever made, the flexibility and fluctuation in the labor cost ratio, the normal attrition in employee complement as a known factor to reduce payroll costs, and the short period of time store No: 10 had been open at the time of the terminations, that the terminations of Ford, Daniels, Ed- wards, Wilson, and King were attributable to the employees' union activities or support, and not to economic considera- tions. The record indicates that between May 10 and the date of hearing Respondent hired no replacements for the alleged discrimmatees. Respondent contends this fact supports its assertion that the terminations were motivated by economic considerations. I draw no such conclusion from that fact in light of the circumstances which I have just enumerated as supporting a finding of unlawful motivation. It is evident that the staffing and scheduling of employees in an operation such as a supermarket requires the exercise of a large degree of discretion, involving the use not only of regular full-time employees, but also regular part-time employees, the number of whose hours can be adjusted almost at will. In addition, the services provided the customers can be modified to dis- continue, for example, carryout service, or to require the cashiers to work without sackers, or to summon stockers to do sacking. Employees working in the office can be assigned to substitute as cashiers. The record indicates that after the terminations some, if not all, of these devices were used by Respondent. As Francis Postl, an adviser in supermarket operations, testified a supermarket may be operated as a "lean and mean" supermarket. Given this large degree of discretion, I conclude that the fact that alleged discriminatees were not replaced is insufficient to overcome the factors enumerated above which support a finding that the termina- tions were unlawfully motivated. The foregoing disposed of the terminations of Ford, Wil- son, King, Daniels, and Edwards. What of the allegation respecting Sasseen? Unlike the other laid-off employees, she engaged in no union activity. Nevertheless, I conclude that her termination is inseparable from the other terminations which I have found unlawful. Although Respondent's re- cords bear the notation she was terminated on May 12 for lack of business, as a matter of fact here last day of work was May 9 (according to G. C. Exh. 10). Thus, it appears that she was included in the Friday, May 10, decision to lay off em- ployees. As that decision was unlawfully motivated, the ab- sence of union activity on Sasseen's part is no deterrent to a finding of a violation. Arnoldware, Inc., 129 NLRB 228 (1960). Accordingly, I find that Sasseen's termination was also violative of Section 8(a)(1) and (3) of the Act. II THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with its operations described therein, have a close, intimate, and substantial, relation to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. III THE REMEDY Having found that the Respondent violated Section 8(a)(l) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. _ As I have found that Respondent discharged Donald Ed- wards, Gailor King, Patricia Ford, and Carol Sasseen be- cause of their union activities, I shall recommend that it be ordered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, 13 and to make them whole for 13 After hearing, Respondent moved to reopen the record to receive evidence that after the close of hearing it offered reinstatement to Edwards, who declined the offer, and to King, who accepted the offer and was rein- HOGUE & KNOTT, INC. any loss of earnings they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to that which they normally would have earned as wages, from the date of their discharge to the date of the offer of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As to Tyrone Daniels and Jerry Wilson, who I have found were also discharged because of their union activities, I shall not require Respondent to make offers of reinstatement as they had been reinstated to their former jobs prior to the hearing. I shall recommend, however, that they be made whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of reinstatement computed in the same manner as set forth above. CONCLUSIONS OF LAW 1. Hogue & Knott, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Local 1529, AFL-CIO, affiliated with Retail Clerks International Association, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activities, Respondent engaged in, and is-engaging in, unfair labor prac- tices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4, By discharging Tyrone Daniels, Donald Edwards, Pa- tricia Ford, Gailor King, Jerry Wilson, and Carol Sasseen because of their union activities, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. 5. General Counsel has failed to establish by a preponder- ance of the evidence the allegations of paragraphs 7(b), (c), and (d), 8(b) and (c), 9(a), (b), (c), (d), (e), (f), and (g), 11, and 13. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recomimended:, ORDER 14 Respondent, Hogue & Knott, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities in a manner or under circumstances constituting interference stated The motion to reopen is denied as any issues regarding reinstatement and offers thereof can be resolved in the compliance stage of this proceed- ing 14 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 4 8 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. 571 with and restraint and coercion of employees in their exercise of Section 7 rights. (b) Discouraging membership in, or activities on behalf of, Retail Clerks Local No. 1529, affiliated with Retail Clerks International Association, or any other labor organization of its employees, by discharging employees because of their ac- tivities on behalf thereof, or otherwise discriminating in re- gard to the hire or tenure of employment or any terms or conditions of employment of its employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Offer Donald Edwards, Gailor King, Patricia Ford, and Carol Sasseen, immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date of their reinstate- ment in the manner set forth in the section entitled "The Remedy." (b) Make whole Tyrone Daniels and Jerry Wilson for any loss of pay they may have suffered by reason of the discrimi- nation against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date they were reinstated in the manner set forth in the section entitled "The Remedy " (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records relevant and necessary to a determination of the amounts of backpay due under the terms of this recommended Order. (d) Post at its store No. 10 in Memphis, Tennessee, copies of the attached notice marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 In the event the Board's Order is enforced by a Judgment of the 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." 572 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER RECOMMENDED that the allegations of the - complaint found not to have been sustained by a preponder- ance of the evidence be dismissed. 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 both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. - WE WILL NOT ask employees if they have signed union - cards, nor about any other union activities. WE WILL NOT discharge employees because they join, assist or give support to Retail Clerks Local 1529, AFL-CIO, affiliated with Retail Clerks International Association, or any other labor organization. Since the Board found that we violated the law when we discharged Donald Edwards , Gailor King, Patricia Ford, Carol Sasseen, Tyrone Daniels, and Jerry Wilson, WE WILL offer to reinstate them, if we have not already reinstated them, and we will pay them for any loss of pay they may have suffered because we fired them. You are free to become and remain members of Retail Clerks Local 1529, AFL-CIO, affiliated with Retail Clerks International Association, or any other labor organization. HOGUE & KNOTT, INC