Furr's, Inc.

FURR'S, INC. 973 Fwrr's, Inc. and Retail Clerks Union, Local 368, AFL-CIO. Case 16-CA-5603 May 13, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO "(b) Rescind and physically remove from the person- nel file of Charlotte Royal any reference to the written warning issued to her on May 18, 1974, so that this warning shall not be used as a basis for any further disciplinary action against her." 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. APPENDIX On January 7, 1975, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge except as noted below' and to adopt his recommended Order, as modified. 2 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 as modified below and hereby orders that the Respondent, Furr's, Inc., Ama- rillo, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order of the Ad- ministrative Law Judge, as herein modified. 1. Add the following as new paragraph 2(b) and reletter paragraphs 2(b) through 2(d) of the Adminis- trative Law Judge's Order accordingly. I We do not adopt the Administrative Law Judge's 8(a)(3) rationale insofar as he relied, as evidence of Respondent's animus, on a finding that Store Manager Poteet had threatened a drug clerk with layoff if she signed a union card This finding is based entirely on hearsay evidence and, al- though the Administrative Law Judge's use of such evidence in the circum- stances here was not clearly wrong, we find it unnecessary to rely on this testimony to establish that Respondent's discharge of Royal violated Sec. 8(a)(3) of the Act 2 We find without merit Respondent's implicit allegations of bias and prejudice There is no basis for finding that bias or prejudice existed merely because the Administrative Law Judge credited only the General Counsel's witness As the Supreme Court has stated " . . total rejection of an op- posed view cannot of itself impugn the integrity or competence of a trier of fact.' N.L.R.B. v. Pittsburgh S. S Company, 337 U S 656 (1949) As to Respondent's additional argument that the Administrative Law Judge failed to give proper weight to the testimony of Brooks and Burgess because they were disinterested witnesses, we note that the Administrative Law Judge gave cogent reasons for discrediting their testimony It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry WallProducts, 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 credibility findings NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in the Re- tail Clerks Union, Local 368, AFL-CIO, or in any other labor organization of our employees, by dis- charging or laying off our employees or otherwise discriminating in regard to their hire or tenure or condition of employment. WE WILL offer Charlotte Royal immediate and full reinstatement to her former position or, if it no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of our discrimination against her. WE WILL rescind and physically remove from Charlotte Royal's personnel files any reference to the written warning issued to her on May 18, 1974, so that this warning shall not be used as a basis for any future disciplinary action against her. WE WILL NOT interrogate our employees concern- ing their membership in, or activities on behalf of, or sympathy for the above-named labor organiza- tion, or any other labor organization. WE WILL NOT warn our employees that they will be discharged or otherwise disciplined if they do not refrain from becoming or remaining members of the above-named labor organization. WE WILL NOT threaten our employees with dis- charge if they become or remain members or sup- port the above-named labor organization. WE WILL NOT keep under surveillance the meet- ing places, the union activity, or other concerted activities of our employees engaged in for the pur- pose of collective bargaining or other mutual aid or protection. WE WILL NOT issue untimely written reprimands to our employees prior to issuance of oral warn- ings contrary to our rules because our employees become or remain members of the above-named labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of 217 NLRB No. 161 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of the rights guaranteed them by the National Labor Relations Act. All of our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. - FURR'S, INC -- DECISION STATEMENT OF THE CASE MAuRIcE S. BUSH, Administrative Law Judge: Respon- dent Fun's, Inc., operates 10 supermarkets in Amarillo, Texas, and 3 in nearby towns, but the only stores here in- volved are 3 of its stores in Amarillo. These are Store Nos. 60, 64, and 54. The issues under the pleadings with respect to these stores are whether Furr's engaged in certain unfair labor practices in such stores in violation of Section 8(a)(1) of the National Labor Relations Act, such as unlawful employee interrogations , surveillance of union activities , and various warnings and reprisal threats against union sympathies and activities.' In addition there is an issue as to whether Charlotte Royal, an employee at Store No. 54, was unlawfully discharged be- cause of her union activities in violation of Section 8(a)(3) of the Act. About 90 percent of the testimony in the case re- volves around that issue and related 8(a)(1) issues . With re- spect to the alleged unfair labor practices under Section 8(a)(1) of the Act at Stores Nos. 60 and 64, the testimony offered by General Counsel in support thereof stands un- denied of record. The amended complaint herein was issued on August 13, 1974, pursuant to the original, first, second, third, and fourth amended charges filed and duly served on Respondent on May 30, June 13, July 15, and August 1 and 7, 1974, respec- tively. Respondent's answer denies the alleged unfair labor practices. The case was heard before me on September 11, 12, and 13, 1974, at Amarillo, Texas. Briefs filed by the parties on Octo- ber 16, 1974, have been carefully reviewed and considered. The page numbers of certain pages in the transcript stand corrected pursuant to the request of the court reporter. For reasons hereinafter indicated, Respondent is found in multiple violations of the Act as alleged in the complaint except for a failure of proof on two of such allegations as noted below. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS Respondent Furr's, Inc., A Texas corporation, with princi- pal office and place of business at Lubbock, Texas, is engaged in the sale and distribution of food and the operation of retail supermarkets. During the past 12 months, a representative period, Respondent in the course and conduct of its business I Not all of these alleged unfair labor practices relate to all of the three supermarkets here involved operations, purchased and received goods and merchandise valued in excess of $50,000 directly from points located out- side the State of Texas. It is admitted and found that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Retail Clerks Umon, Local 368, AFL-CIO, the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Company Operations Here Involved Fury's operates 13 supermarkets in the greater metropoli- tan area of Amarillo, Texas . Of these stores, 10 are located in Amarillotnd 3 are in nearby towns. Only 3 of the 10 stores located in Amarillo are here involved . They are Store Nos. 60, 64, and 54. B. First Stirrings of Union Activity in Respondent's Amarillo Operational Area The first express indication of record of union activity in Respondent's Amarillo division was a union organization meeting held by Respondent 's employees in the evening of May 14, 1974. The meeting was held in the home of Lois Green, age 40, who has worked at Respondent's Store No. 64 as a meat wrapper for the past 12 years. The meeting was attended by some 15 Furr's employees, all of whom signed union authorization cards. In addition to Lois Green among those in attendance at the meeting were Green's daughter, Charlotte Royal, age 20, who worked as a checker at Store No. 54, until her alleged discriminatory discharge on May 27, 1974; Imelda Scott, employed as a checker at Store No. 64; and Edwin Ray Brooks, age 19, a former employee at Store No. 54, who had worked as a stock-checker and as man-in- charge or manager of Store No. 54 on every third Sunday. Brooks not only signed a union authorization card at the meeting but was also very active the next morning trying to get other employees in his store, Store No. 54, interested in the Union. However, almost immediately thereafter he lost interest in organizing the store because of the fear of losing his job.2 Brooks testified in support of Respondent's defense for the termination of Charlotte Royal. Royal, Green, and Scott testified for General Counsel in support of various alle- gations of the complaint. C. Undenied 8(a)(1) Incidents at Store No. 60 Cecil Jackson is store manager of Respondent's Store No. 60 in Amarillo. He has supervision over Randy Lermon, age 18, an employee at Store No. 60. Lermon's credited and undenied testimony shows that the following occurred at an unremembered date in June 1974. Between the hour of 7:30 and 8:30 that night, the Company held a meeting of the employees of Store No . 60 at a restau- 2 The above finding on Brooks is based on the credited and undemed testimony of Charlotte Royal FURR'S, INC. 975 rant, the Camelot, where the employees were addressed by Robert Hurmence, Respondent's personnel director, on the subject of unionism and the Company's policies with refer- ence thereto, during the course of which Hurmence told the employees that all talk about having a union at the store had to be done on their own time and outside of the premises of the store.' After the meeting at the Camelot restaurant broke up, Lemon and Stan Stanbaugh, a checker, returned to Store No. 60 to sign out as the meeting had been on company time. Just as they were signing out,' Store Manager Jackson, who had also been at the meeting, asked them what they thought of the meeting. Both replied it was all right. Then Jackson asked them if they had signed union authorization cards. They untruthfully told Jackson that they had not. Jackson then ended the conversation by telling them that "if he seen or heard of anyone signing a union card that he would fire them." Respondent did not call Jackson or any other witness to controvert Lermon's testimony as summarized above. About 2 weeks later, Houchins came to Mrs. Scott's check stand and asked her to lock up and go with him to the backroom. This occurred immediately after Houchins had received a telephone call from an undisclosed source. In the backroom, Houchins informed Scott that she should not have anything to do with the Union, that the Union was not going to benefit her at all, that if the Union came in Respondent would have to drop its retirement and insurance benefits and lay off every employee under 18 years of age. A few days later Houchins approached the adjacent check stands of Mrs. Scott and Judy Quantana and there told the two ladies that because they were having something to do with the Union, Judy's husband, who was up for a promotion with the Company, would not get his promotion but would be discharged instead. Respondent did not call Houchins or any other witnesses to controvert the testimony of Mrs. Scott as summarized above. Conclusions Conclusions Based on the credited and undenied testimony of employee Lennon, I find and conclude that Respondent through its Store No. 60 manager and agent , Jackson, coercively interro- gated Lermon on whether he had signed a union authoriza- tion card and threatened to fire any employee in his store whom he found to have signed a union card in violation of Section 8(a)(1) of the Act. D. Undenied 8(a)(1) Incidents at Store No. 64 Relating to Store Manager Houchins Gene Houchins is store manager of Store No. 64 in Ama- rillo. Imelda Scott works under Houchins as head checker at Store No. 64; she had been a checker at the store for nearly 12 years and its head checker for the past 5 years. As heretofore noted, Mrs. Scott was one of Respondent's employees who attended the Union's first organizational meeting on May 14, 1974, at the home of coworker Lois Green, a meat wrapper at the same store for the past 12 years. Mrs. Scott's credited and undenied testimony shows the following conversations with Store Manager Houchins who attends the same church she does and whom she regards as closer friend than coworker Green. On the morning of May 15, 1974, after the previous night's union meeting at the home of Mrs. Green, Houchins called Mrs. Scott over to where he was working at the store and told her that he had heard that she had gone "to a union meeting last night" at the home of Mrs. Green. Houchins then asked Mrs. Scott if she had signed a, union card. Scott evaded his questions by telling him one of the things she had learned at the union meeting was that managers were not allowed to ask questions such as he was putting to her. 3 The complaint does not allege and General Counsel does not claim any violation of the Act by the speech or remarks made by Personnel Director Hurmence to Respondent's assembled employees of Store No 60 It is the events or incidents following Hurmence 's speech which are alleged to be violations of the Act. Based on the credited and undenied testimony of Mrs. Scott, I find and conclude that Respondent through its Store No. 64 manager and agent, Houchins , coercively interrogated Mrs. Scott on whether she had signed a union card, threat- ened the loss of existing company retirement and insurance benefits for employees if the Union came to represent the employees in Store No. 64, and kept under surveillance a meeting place of the Union and other concerted activities its employees engaged in for the purposes of collective bargain- ing or other mutual aid or protection in violation of Section 8(a)(1) of the Act. E. Further Undenied 8(a)(1) Incidents at Store No. 64 Relating to District Meat Department Supervisor Don Shirley Don Shirley is Respondent's district meat department supervisor. In that capacity he visits and supervises the meat departments in each of Respondent's 13 supermarkets in the greater metropolitan area of Amarillo. On matters relating to the meat department at Store No. 64 , Store Manager Hou- chins takes orders from Shirley. Both Shirley and Houchins in turn worked under the direction and supervision of Done- van Stafford, divisional supervisor of all of Respondent's 13 stores in the Amarillo district. Lois Green as heretofore noted has been employed in Store No. 64 as meat wrapper for the past 12 years and it was at her home that the Union's first organizational meeting took place on May 14, 1974. Mrs. Green's credited and undisputed testimony shows that Supervisor Shirley made a visit to Store No. 64 some 2 or 3 days after the union meeting at her home and called her into the backroom of the store for a private conference. There he said to her, "What's this I hear about you having union meetings at your home?" Surprised, Mrs. Green asked him where he got that information. Shirley replied that Divisional Supervisor Stafford had telephoned him from one of the other stores and directed him to come to Store No. 64 and "talk to" Mrs. Green, "and get the union business straightened out " Shirley also told Mrs. Green that Stafford had told him that 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if she was not happy as a Furr's employee, she could quit and go to work for Safeway or Piggly-Wiggly. Green asked Shir- ley if he wanted to fire her and he replied "No" because she was "too good an employee." During the course of the con- versation Shirley asked Green why the Furr's employees were interested in the Union and she replied "on account of the benefits and the retirement." Neither Shirley or Stafford or any other witnesses were called by Respondent to controvert Mrs. Green's testimony as outlined above. Conclusion Based on the credited and undenied testimony of Mrs. Green, I find and conclude that Respondent through its meat department supervisor, Shirley, coercively interrogated Mrs. Green concerning her union activities in violation of Section 8(a)(1) of the Act. F. Alleged 8(a)(1) Events and Alleged Discriminatory Discharge of Charlotte Royal at Store No. 54 Of the 662-page transcript of testimony in this proceeding, 585 pages relate to the alleged discriminatory discharge of Charlotte Royal from Store No. 54 and alleged related 8(a)(1) incidents involving her. Royal, a young married woman of 20, was hired as a checker cashier at Store No. 54 in February 1974 and ter- minated on May 27, 1974, by Store Manager Michael Poteet. She attended the union meeting held on the night of May 14, 1974, at her mother's home, the aforementioned Lois Green who as above noted is employed as a meat wrapper at another of Respondent's stores in Amarillo. Store No. 54 has nine check stands where customers check and pay for their pur- chases. Royal normally worked at Check Stand No. 3. Of all the employees in Store No. 54, Royal was the most active in efforts to organize the store in behalf of Local 368, the Charg- ing Party herein.4 At the umon meeting at her mother's home, she picked up five union authorization cards and passed them out to employees at the store, but never received any of them back. The next day after the union meeting at her mother's house, Store Manager Poteet asked Royal during her working hours if she had attended the meeting. She said "Yes" and he asked no further questions at that time. However, that night while Royal was in the store shopping for groceries on her own time, Poteet spotted her from his elevated office and summoned her over the store's loudspeaker to see him at his office. There he asked Royal her opinion about the Union and why she wanted to join the Union. She told Poteet that she was interested in the Union because she believed the Union could get better wages, insurance benefits, and job security for the store's employees. Poteet in turn told her of his intense dislike of unions because of his prior experience in observing violence erupting from a union's attempt to organize a shop. As for the benefits the Union was proposing to get for the employees, Poteet asked Royal to compare them against the Company's existing benefits and to let him know what her thoughts were on the comparison. Similarly, Poteet also 4 The above finding is based upon the credited and undisputed testimony of Royal under questioning by the administrative law judge herein asked Royal to reconsider her support of the Union and to let him know later what decision she had arrived at. He further told Royal that if the Union got in, the Company could not afford to keep as many employees as it had and would be forced to lay off or discharge some of its employees. The findings in the above paragraph are based upon the credited testimony of Charlotte Royal. Throughout her direct and cross-examination I was impressed with Royal's obvious integrity, her careful and honest answers to all questions put to her, and her straightforwardness in admitting lack of infor- mation on subjects or matters that were not within her knowl- edge. Store Manager Poteet while admitting that he had a 5-to- 10 minute talk with Royal on May 15, 1974, flatly denies that he made the statements attributed to him by Royal in her testimony as set forth in the above findings, except that he admits talking to Royal about the subject of having a union at the store, admits he asked her to compare the Union's proposed employee benefits against the Company's existing benefits for its employees, and admits that he told Royal that the distribution of union cards must be made off company premises and on the employees' own time under the Com- pany's no-solicitation rule. In view of Poteet's noted admis- sions and because of Royal's superior credibility, I discredit his,denials of the statements attributed to him by Royal as shown above. I further specifically discredit Poteet's tes- timony that it was Royal and not he who initiated the conver- sation about the Union at his conference with her on May 15, 1974. I specifically find that Poteet initiated the conversation with Royal on the subject of a union shop at the store and that the whole of his conversation with Royal related to his argu- ments with her on the demerits of having a union at Store No. 54 of which he was manager. Aside from the evidence more directly related to the al- leged discriminatory, termination of Royal but in the nature of circumstantial evidence bearing on that issue, the record shows that during the union activity at Store No. 54 Poteet threatened one of the employees in the store's drug depart- ment with a layoff if she signed a union card.' Within the week after Poteet's private talk with Royal about the union activity in his store, he issued to Royal two successive pink "Warning" notices and in the following week a blue "Disciplinary Termination" notice, discharging her as of May 27, 1974. ' The above finding is based on the credited and undisputed testimony of Royal under cross-examination by Respondent's counsel as follows Q (By Respondent's counsel) Do you know of anyone else in that store [Store No 54] against whom any action was taken because of union activity other than yourself? A. (By Royal) From hearsay; Edwin Brooks [the stocker-checker who was placed in charge of Store No. 54 every third Sunday, but had no authority to hire or fire employees] had told me that he [Poteet] threatened one of the drug girls that she would be laid off of her job if she signed a umon card (Tr 259) (Emphasis supplied.) It is clear from any reading of Royal's above testimony that the "he" she had reference to was Poteet, as it was he and not Brooks who had the authority to terminate an employee. Royal's characterization of the infor- mation she received from Brooks as "hearsay" is undoubtedly true although Royal is a layman, not a lawyer Nevertheless, I find that bit of testimony both credible and acceptable in evidence because there was no objection to it, no motion to strike, and no denial by either Brooks or Poteet that Royal's testimony, even if hearsay, was not true FURR'S, INC. The first pink warning slip, dated May 18, 1974, accused Royal of a 10-minute tardiness in reporting to work that day or, as stated in the notice, "Came to work at 11:10 and signed in at 11." Under the title "Who witnessed the Act" on the slip are the I signatures of Tim Cates, Karan Moore, and Mike Poteet. Of these three named persons, only Poteet testified as to Royal's alleged tardiness that day. Under the title of "What was said by the employee in his defense?", Royal wrote on the slip, "I thought my watch was set with store time." The warning shows that no prior oral warnings had been given to Royal for the same or a similar offense. The written pink warning notice given by Poteet to Royal was contrary to the Company's own printed "Store Rules" which states that an "Oral Warning" should be first given to employees for "violation of a relatively minor nature" such as "'tardiness" before a written warning is issued for a "con- tinuous repetition of conduct for-which an employee has been orally warned." The testimony on whether Royal was tardy that day is as follows. Poteet testified that he spoke to Royal about her tardiness and told her he could no longer tolerate her tend- ency to be tardy as he had talked to her once before about it. His testimony that he had orally warned her earlier about her tardiness is directly contrary to his aforenoted statement in the pink notice that no prior oral warnings had been given to Royal for the same offense. Royal, on the other hand, testified that on the morning in question she had reported to work at her assigned starting time, 11- a.m., according to her wristwatch, and was in the produce room for a period of about 10 minutes memorizing produce prices for the day as required of all checkers at the beginning of their shifts when Poteet summoned her to his office to give her her first pink warning slip. She testified that as she walked to Poteet's office one of the clocks in the store showed the time to be 11:10, but that she had already been at work since 11 o'clock that morning. I credit Royal's tes- timony that she reported to work on time that morning and discredit Poteet's testimony that she was late. I discredit Poteet because as noted heretofore I have found his testimony to be generally unconvincing and more particularly because his testimony that he had orally warned Royal about her tardiness prior to the issuance of the pink warning notice does not square with his own statement in the warning notice that Royal had never before been given any oral warnings about tardiness or any similar offense. Two days later, on May 20, Royal was given a second pink warning notice, this time for being "Incourtious (sic) to Cus- tomer" as of the date of the notice. The warning notice was signed by Tim Cates, the assistant manager of Store No. 54. The record shows that Cates issued the notice to Royal upon the complaint of a customer by the name of Esther Burgess, who testified herein in behalf of Respondent. However, Mrs. Burgess' testimony shows that in her complaint to Cates she was not complaining about any personal discourtesy by Royal to herself but of an alleged discourtesy she claims to have observed by Royal to another customer, a Mrs. Marjorie Boyd, who made no direct complaint to management, did not appear as a witness, and obviously as shown below had not asked Mrs. Boyd to make a complaint in her behalf. Mrs. Burgess testified that as she was having her groceries checked at Check Stand No. 7 she observed that Mrs. Boyd, a frater- 977 nal order friend, was having her groceries checked at Check Stand No. 5, operated by Royal and overheard what she described as a "bickering" between Mrs. Boyd and Royal over the difficulty of locating the misplaced cash register sales tape that Royal had run up on Mrs. Boyd's groceries which Royal needed before she could make change for Mrs. Boyd. Burgess, before leaving the store and before even talking to Mrs. Boyd, immediately went to the store's office and there complained to Cates that, "The girl in check stand No. 5, we don't need her at this store. I told him that they [Royal and Mrs. Boyd] were arguing back and forth and that she [Mrs. Boyd] was my Pythian sister and that she [Royal] wouldn't give her the slip. I know that much." It was not until after Burgess had left the store that she met and talked to Mrs. Boyd and heard her claim that she had not received the tape showing the total amount-of groceries she had pur- chased and was therefore uncertain that she had received the correct change from the large check she had presented in payment of her groceries. I do not credit Burgess' hearsay testimony that Boyd had not received a sales slip on her grocery purchases. As aforenoted the incident about the misplaced sales check took place on May 20, 1974. In September 1974 when this case was heard, Mrs. Burgess had not seen her Pythian friend, Mrs. Boyd, a woman in her sixties, since the May 20 incident, but testified that she had tried to contact her friend just prior to the hearing and found that she was out of town to attend a funeral. The second witness to testify about the misplaced sales slip incident was Charles H. Carlton, known as Rusty Carlton, age 20. At the date of the incident, Carlton was employed at Store No. 54 as a stocker-checker under the management of Poteet, but at the time of the hearing was working part time for another Furr's supermarket at Lubbock, Texas, a job that Poteet had helped him get to give him some earnings while attending Texas Tech in Lubbock. Carlton claims he was in the office with Cates when Mrs. Burgess complained to Cates about the alleged discourtesy of Royal arising out of the misplaced sales slip. As Carlton recalled Mrs. Burgess' com- plaint to Cates, she complained that she herself had been the subject of discourtesy by Royal over her own misplaced sales slip. This is completely contrary to Mrs. Burgess' testimony that she made the complaint to Cates over Royal's alleged discourtesy to Mrs. Boyd over her (Boyd 's) misplaced sales slip and not that of her own sales slip. I accordingly discredit Carlton's testimony and have serious doubt if Carlton was even present when Burgess spoke to Cates. For the same reason I will also discredit his testimony, hereinafter de- scribed in more detail, that on the Sunday before Royal's termination he saw her lock her check stand and walk away for a rest break despite the fact that the man in charge of the store, the aforementioned Brooks, had told her to wait a while. (Respondent contends that the immediate cause of Royal's discharge was that she took a rest break from her check stand without a clearance from the store manager con- trary to Respondent's Store Rules.) Although Cates was the store manager who gave Royal her pink warning slip for discourtesy to a customer, he was not called as a witness by Respondent and did not testify herein. Royal's testimony shows that when she was summoned to the office within the hour after the misplaced tape incident, the 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, pink warning notice for her alleged discourtesy to a customer was already made out, and that Cates would not hear her out when she offered to explain what had happened. Royal's explanation of what occurred in the misplaced sales tape incident is as follows. She testified that after she had checked out Mrs. Boyd's groceries for the total sum of about $25, Mrs. Boyd handed her a check for more than $200 out of which to pay for her groceries. Royal testified that she thereupon laid the sales tape on the counter while she went to another check stand to get the money required to cash the check. When she returned, she found the sales slip missing and therefore could not make the necessary change from the check as she needed to know the exact amount of Mrs. Boyd's grocery bill before she could give Mrs. Boyd her change. She looked for the tape in two of the customer's bagged groceries but could not find it. She then asked Mrs. Boyd if she had put the tape in her purse. When the customer said she had not, Royal made another search for the missing tape in the gro- cery bags and not finding it, she again asked the customer if she was sure she had not put the tape into her purse. Mrs. Boyd again said she had not In her third check through the customer's bags of groceries, Royal found the check which apparently had been placed there by the sacker and pro- ceeded to give Mrs. Boyd her change. As Royal was making the change, Mrs. Boyd said to her, "Young lady, I don't like to be insinuated that I am stupid." Royal said she hadn't meant any such insinuation. Not satisfied with that explana- tion, Mrs. Boyd told Royal that she was the one who was stupid. Royal told the customer that she did not want to argue with her but would let her talk to the store manager. Mrs. Boyd said that was not necessary but she told Royal that she would not shop at the store any more. She thereupon took her change and left the store. I credit Royal's version of the incident as set forth above. Cates within the hour after the misplaced sales check inci- dent gave Royal a pink warning notice for her alleged dis- courtesy to a customer and asked her to put in writing thereon her "defense." In the place provided for her answer, Royal wrote, "The lady called me stupid and I had the right to defend myself, but I didn't start to argue with her." In its published Store Rules, Respondent has a Store Rule against "insulting or argumentative treatment of a customer resulting in a complaint." I find that while there was some natural tension between Royal and Mrs. Boyd over the misplaced sales ticket, Royal was not discourteous to Mrs. Burgess over the matter and with due allowance for the tension over the seemingly lost sales ticket, Royal did not argue with Burgess over the matter in the sense of making or insinuating any accusations to Mrs. Boyd about being stupid. On May 27, 7 days after Royal's alleged discourtesy to Mrs. Boyd over the misplaced sales slip incident, Store Manager Poteet called Royal to his office and fired her for "Causing trouble Sunday with Sunday Person in Charge." As developed at the hearing, the "Causing trouble Sunday" is Respondent's claim that Royal took an alleged rest break from her check stand without authorization from the store manager, Brooks, on Sunday, May 26, contrary to Respon- dent's "Shop Rules" which provide that "leaving work shift without permission" shall be a cause for suspension or dis- charge. On the Sunday in question, May 26, Brooks, the aforemen- tioned young man of 19, was in charge of Store No. 54 and thus the store's acting manager that day. It is undisputed that on that day about noontime Royal, who had reported to work at 10 a.m., asked Brooks for a 15-minute "rest period" or break6 from her check stand to which she was entitled un- der the Company's Shop Rules subject only to a clearance by the store manager who bases his decision on how busy the store is with customers at the time of the request for a break. The record is clear that when Royal asked permission for a rest break, Brooks asked her to wait because he was one checker short that day and had to do some telephoning in his office about getting a replacement-for-the absent checker. But from that point on there is a direct conflict of testimony as to whether Royal within minutes thereafter took off anyway for a rest break without Brooks' permission and against his instruction that she wait until he found it expedient to let her go on a break. At the time of Royal's request for a break there were only three other checkers on duty besides Royal and each had customers in their lures. Royal testified that she strictly abided by Brooks' instruc- tion to wait for her rest break and that she did not leave for a rest break until 2 hours later at around 2 o'clock when Brooks approved her subsequent second request for a break. She denied positively under direct and cross-examination and under rebuttal that she took a rest break that noon contrary to Brooks' order that she wait. She testified, however, that shortly after Brooks denied her noon request for a rest period break she may have left her check stand momentarily for a toilet=break but with the candor I found characteristic of all of her testimony she testified that she had no present recollec- tion of whether or not she took such a lavatory break. The record shows through the credited and undenied testimony of another checker, Velma Roe, that toilet breaks may be taken by checkers when they are not busy without the express permission of the manager. As against Royal's flat denial that she took a rest break that Sunday noon contrary to orders, Brooks, who has left the employment of Respondent, testified that some 10 or 15 min- utes later when he had returned from telephoning for a substitute for the checker who had not showed up for work that day, he returned to the area of Royal's check stand and found that she had closed her register and was walking down the front aisle of the store. Brooks admits that he did not speak to or reprimand her at any time that Sunday for her seeming infraction of his order to stay at her check stand. However, he told Store Manager Poteet the next day about -seeing Royal leave her work station on the previous day without clearance from him. Two other witnesses testified in behalf of Respondent as to what they believed to be Royal's taking of an unauthorized rest break at the Sunday noon hour here in question. The first of these witnesses is the aforementioned 20-year- old Rusty Carlton who at the time here involved worked as a stocker-checker at Store No. 54 under Store Manager Po- teet but at the time of the hearing had a part-time job with another Furr's store in Lubbock which Poteet helped him get as a financial aid while he attends Texas Tech in Lubbock. Carlton was off duty at Store No. 54 on the Sunday here 6 Not for use of toilet facilities. FURR'S, INC. under discussion, but testified that around noontime that day he was in the store buying a few groceries when he overheard Royal asking Brooks for a rest break and heard Brooks tell her to wait a while -as he had to attend to some business in the office first. Carlton testified that he overheard this con- versation while he was having his groceries checked at a check stand adjacent to Royal's. He further testified that he was still present at the check stand where he was having his groceries checked some 5 to 10 minutes later when he saw Royal lock her check stand and leave even though Brooks had not returned to relieve her. I discredit Carlton's testimony as outlined above for two reasons. One is that Carlton has shown himself as heretofore noted to be a wholly unreliable witness in another connection. In his testimony relative to Royal's pink warning slip for discourtesy to a customer, Carlton testified that Mrs. Bur- gess, a customer, in his presence complained to Assistant Manager Cates about a discourtesy she herself experienced at the hands of Royal. This was obviously not true because Mrs. Burgess, who is the best authority on what she told Cates, testified that she complained to Cates, not about personal discourtesy by Royal to herself, but what she believed to be discourtesy by Royal to another customer, Mrs. Boyd. I infer from this disparity that Carlton was not even present when Burgess made her complaint to Cates or if he was present, that he is a totally unreliable witness for all purposes on vital issues in this proceeding. My second reason for discrediting Carlton's testimony about Royal leaving her check stand on the Sunday noon here under discussion is that he stated that he was still waiting to be checked out some 5 or 10 minutes after Brooks had asked Royal to wait for her break when he saw her lock her register and walk off. Common experience shows that normally cus- tomers do not have to wait in line 5 to 10 minutes to get their groceries checked out. Thus Carlton's testimony as a whole raises, serious doubts that he was even in the store on the Sunday noon here under discussion. Royal testified that she had no recollection of seeing Carlton that Sunday noon. In summary I do not credit Carlton's testimony of the events that Sunday noon as they relate to Royal. The last witness to testify as to the events of that Sunday noon as they relate to Royal was Jerry Graves, a 17-year-old high school boy who is employed as a part-time sacker at Store No. 54. Royal likewise had no recollection of seeing Graves at the time here under discussion. In his direct tes- timony, Graves testified that on that Sunday noon he was at Check Stand No. 4, then unattended and nonactive, for about 8 minutes putting in a supply of sacks in its sack bin. He testified that while he was placing sacks in the sack bin, he overheard Royal at adjacent Check Stand No. 3 asking Manager Brooks for a rest break and heard Brooks tell her that she could not have one right then "because we were busy and that he would let her take one later." He further testified that in a little while he saw Royal close her stand and walk off, although she had about four customers waiting in her line to be checked out and that he did not see her come back. Under cross-examination, Graves testified, contrary to his testimony on direct examination, that at the time he saw Royal lock up and leave her check stand he did not know whether she had requested permission for a break before that time.' 979 I do not credit Graves' testimony that Royal took off on a rest break without permission on the Sunday noon here under discussion for a number of reasons. One is the pervad- ing impression by his demeanor throughout his testimony that he was not being truthful and that he was inventing the story about his being even present when Royal asked Brooks permission for a rest break, in order to stay in the good graces of Store Manager Poteet. Another reason is the above-noted conflict between Graves' testimony under direct and cross- examination. A third reason is that it is difficult to believe that he was present at Check Stand No. 4 for a period of 8 minutes, as he testified, just for the purpose of filling its sack bin with paper sacks" as that appears to be a task that could be accomplished in a fraction of that time. It was during that 8 minutes that Graves claims he heard Royal ask Brooks for a rest break, heard Brooks ask her to wait a bit, and within minutes thereafter saw Royal go off on an unauthorized rest break. My final reason for questioning Graves',testimony that he was present when Royal asked Brooks for a rest break is that he testified that Royal had four customers waiting in line at her check stand when she closed her cash register and took off for her rest break. I do not credit that testimony. From my observation of Royal throughout her long testimony, I was impressed by her sense of conscientiousness and credit her testimony that she would not leave her check stand if customers were waiting in line before her to be serviced. Common experience shows that when a checker prepares to take a break she will signal that fact for some minutes in advance by placing a chain across her service line as a signal that she is about to go off duty. With the discrediting of the testimony of Carlton and Graves as to the events of Sunday noon on May 26, 1974, having to do with the question of whether Royal took an unauthorized rest break at that time there remains only the seemingly conflicting testimony of Royal and Brooks, the then acting manager, as to whether Royal took a rest break without Brooks' permission contrary to Respondent's pub- lished "Shop Rules." Of the two, I credit Royal's firm, unqualified, unwavering, and positive testimony that on the Sunday noon here involved she did not take a rest break because when she had asked for a break Brooks had asked her to wait although she was then 7 The above finding is based on Graves' testimony under cross-examina- tion as follows: Q. (By counsel for General Counsel) How many customers did you say were at Mrs Royal's checkstand when she left? A. (By Graves) About four Q About four customers? A Yes Q Did you know she had requested permission for a break before that time, or did you know anything about that? A. No (Emphasis supplied) I interpret this testimony by Graves under cross-examination to be in direct conflict with his prior testimony under direct examination that he had heard Royal ask Acting Manager Brooks for a break and that Brooks had asked her to wait a while., An alternate interpretation of Graves' above-quoted testimony under cross-examination is that he did not know whether Royal asked permission a second time before she left her check stand If this is the interpretation to be placed on Graves' testimony under cross-examination, it likewise raises a serious question as to Graves' credibility because if he really was at the No 4 check stand when Royal asked Brooks' permission for a rest break and was there when Royal left her check stand, he was obviously in a position to know whether Royal made a second request for a rest break before she left her stand. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled to a 15-minute rest break under the Company's shop rules subject only to a clearance from Brooks . Her testimony shows that her first authorized rest break came at 2 o'clock that afternoon and that it was the first break she had had since starting work that morning at 10 o'clock. Any reading of Royal's testimony, whether under direct or cross-examina- tion, reveals a witness whose testimony is entitled to the highest probity by virtue of her obvious and consistent honesty and integrity. This is perhaps best illustrated by the following question and her answer thereto: JUDGE BUSH Did you take time off, even briefly to go to the rest room, between 11:00 and 12:00? THE WITNESS, Not that I remember; could have, but in a situation like that you're only just gone a couple of minutes and the company does excuse that, but you do have to have permission, but I don't recall leaving at all until I left for my break [i.e., at 2:00 p.m.]. Although I was also impressed by the general honesty of Brooks, both as I listened to him and as his testimony appears in the transcript, I find that his testimony does not have the same ring of certainty as Royal's. Under cross-examination, Brooks, for example, in response to some questions gave an- swers which contradicted or qualified his direct testimony or reflected uncertainty as to such matters of importance as whether at the time Royal asked permission for a rest break there were two or three other checker-cashiers on duty and available to look, after customers. Another factor which causes me to discredit Brooks' testimony is that, although he claims to have seen Royal walk away from her check stand some 10 to 15 minutes after he had denied her a rest break, he did not even speak to her about it, let alone reprimand her, according to his own admission. Normally a manager, who sees an employee engage in a prohibited act, would on the spot call it to the employee 's attention. For these reasons I do not credit Brooks' testimony that Royal took a rest break on the Sunday noon here involved without his permission con- trary to Respondent's shop rules. However, it is noted that even if the evidence justified a finding that Royal took an unauthorized rest break on the Sunday noon here involved which could subject her to dis- charge under the Company's shop rules, such a finding would still leave open the question of whether Respondent seized upon that infraction of its rules as a pretext for the dis- criminatory firing of Royal because of her union activities. Notwithstanding Royal's testimony that she does not recall taking a toilet break on the Sunday noon here involved, she left open the possibility that she "could have." While a toilet break technically also requires the permission of the store manager, Royal's testimony under questioning by the ad- ministrative law judge shows that such a break may be taken "if we're not busy, as long as we let one of the other checkers or manager know where we are going we just lock our regis- ter, put a chain up and go and report right back." If credence is given to Brooks' testimony that some 10 or 15 minutes after he denied Royal a rest break, he saw her, as he was coming from his office, leave her check stand, the record suggests and I find that at that time Royal was taking an imperative toilet break and not the rest period break that she had asked for and been denied. The next morning, May 27, Brooks informed Store Manager Poteet that he had seen Royal leave her work stand without permission some 10 or 15 minutes after he had asked her to wait for her requested rest break. His testimony shows that he did not suggest, let alone recommend , to Poteet that Royal should be disciplined for leaving her stand without his permission. Brooks also told Poteet that Royal was some 8 or 10 minutes late getting back from her subsequent regular 1-hour lunch break that Sunday afternoon and that one of the checkers, James Dunn, had told him that Royal had said that he, Brooks, should keep a sacker up front at all times to help the checkers. Royal's lunch break hour that Sunday was from 3 to 4 p.m. According to Brooks, Royal did not report back to work until about 4 :08 p.m. I credit Royal's explanation that she took only 1 hour for lunch that day and that if she did not report back to work until about 4:08 p.m., it was because she did not leave her work stand until about 3:08 p.m., because of the necessity of clearing customers through her check stand before she closed up. Thus, while I credit Brooks' testimony that Royal reported back to work at 4:08 p.m., that Sunday, I discredit his testimony that Royal was late in reporting back to work as I credit her testimony that she took only the allowable hour for her lunch break after its actual commencement. On the basis of Brooks' report to him as set forth above, Poteet, age 24, without asking Brooks' advice, wrote out a "DISCIPLINARY TERMINATION REPORT" form call- ing for Royal's discharge . Under the printed heading in the form, "Reason For Termination," Poteet wrote, "Causing Trouble on Sunday with Sunday Person in Charge," the per- son in charge having been 19-year-old Brooks. Upon Poteet's request, Brooks placed his signature under the printed head- ing, "PLEASE NAME WITNESSES, IF ANY, TO AC- TION WHICH BROUGHT ABOUT DISCHARGE." With the discharge paper ready, Poteet called Royal into his office when she reported to work the next morning (May 27) and terminated her. Brooks , who had reported Royal's alleged unauthorized rest break of the day before (Sunday) and who had placed his signature on the termination notice, was not present at Royal's termination. The only other per- son present at the time of Royal's discharge was Lydia Smith, 56, who placed her signature on the termination notice as a witness to the discharge. Smith has been employed as a checker with Respondent for 20 years and as a Fun 's roving checker-trainer at the 13 Furr's stores in the Amarillo district for the past year and a half. There is a conflict of testimony between Poteet and Royal over the reasons he gave her for her termination. Mrs. Smith as the only outsider to witness the discharge also had a differ- ent version of what took place. In her initial testimony she testified that from her discussion with Poteet, "The main thing" or reason why Royal was terminated "was her coming in tardy." This was not the reason Poteet gave in his tes- timony for firing Royal. Poteet testified that he told Royal that he "could not toler- ate insubordination from the man in charge on Sunday. [This was a reference to Brooks who was not present at Royal's termination.] She was not showing respect. She was not doing the job, showing respect for him by locking up her check stand and leaving. If the man told her to do something FURR'S, INC. she was to do it if he was in charge. I could no longer tolerate her attitude, that at that time I would have to terminate her." Royal testified that at her discharge "the only thing" Po- teet said to her was, "Charlotte, we don't have any trouble in our store on Sundays, regardless of who is in charge." (Emphasis supplied.) She further testified that Poteet handed her the preprepared blue termination slip and told her to "Sign here." As directed she signed the blue slip and as she recalled it, made a statement on the slip that she "didn't know I was causing trouble, that I was tired and need a break." The blue slip (G.C. Exh. 4), shows that the precise words she used on the slip are, "I needed a break ; couldn't get one because someone got one in line before me." In her rebuttal testimony, Royal was again asked if Poteet did "in any way discuss with you the reason for your termination.... " To this she re- plied, "No, he did not say anything except, "We do not have trouble on Sundays in our store, regardless of who is in charge." As heretofore indicated, Mrs. Smith under cross-examina- tion, initially testified that from discussion with Poteet over the reasons he had for Royal's termination, she learned that, "The main thing was her coming in tardy." Asked if there was "any other thing, other than her tardiness , that he [Poteet] relied on particularly" for Royal's discharge, Smith replied, "Not to me." But a moment later contrary to her initial testimony she testified that the reason Poteet gave Royal for her discharge was "the incidents that happened on the Sunday before." For reasons that are apparent from Mrs. Smith 's inconsist- ent and largely hearsay testimony, I find her testimony un- reliable and not creditable as to what Poteet said to Royal at her termination . With the elimination of Smith's testimony on that question, there remains only the conflicting testimony of Poteet and Royal as to what Poteet told Royal at the time he fired her. I ci edit Royal's testimony that the "only thing" Poteet told her at the time of her discharge was, "Charlotte, we don't have trouble in our store on Sundays , regardless of who is in charge." I find from this that Poteet did not identify in any way to Royal the specific conduct on her part that had caused trouble in the store the previous day when Brooks was in charge of the store. I specifically infer and find from Royal's testimony that Poteet did not tell Royal that she took an unauthorized rest period on the Sunday noon here involved and that she was being terminated for that reason. I infer and find from Royal's testimony and from the record as a whole that Poteet was intentionally nonspecific to Royal about the precise misconduct for which he was discharging her because he knew that if he accused her about taking an unauthorized rest break, she would have denied it and sought to prove through Brooks that Poteet was wrong in his accusation as her credited testimony in this proceeding shows. It is signifi- cant that Poteet did not have Brooks present when he fired Royal although Brooks' signature was on Royal's discharge notice as her accuser of improper conduct. Turning now to Poteet's testimony , I discredit anything in his testimony which directly or indirectly indicates that he informed Royal that he was discharging her for taking an unauthorized rest period break.' I find that the only thing 981 Poteet told Royal at her termination conference was that he -was discharging her solely because she had caused trouble to Acting Store Manager Brooks on the Sunday preceding the Monday ofher discharge as stated in her discharge notice and that he did not specifically describe or identify the kind of trouble she had caused Brooks. Royal's credited testimony shows that she took Poteet's statement to mean that she was being discharged merely because she had asked Brooks for a rest break which he had not seen fit to grant her. I specifically find that Poteet did not inform Royal that she was being discharged for taking a rest break without permission. In summary I find and conclude, based upon the contents of Royal's termination notice (G.C. Exh. 4) and Royal's cred- ited testimony, that the only explanation Poteet gave Royal for her discharge was that she had caused trouble on the Sunday in question-to Brooks as acting manager of Store No. 54 that day but without identifying the trouble she had caused. But whether the reason for Royal's discharge was her caus- ing trouble to Acting Store Manager Brooks on the Sunday here involved or for taking a rest period break without per- mission from the acting manager in violation of Respondent's shop rules, as contended by Respondent, the basic issue re- mains of whether Respondent seized upon one or "the other, of these reasons or both as pretexts for the discriminatory discharge of Royal because of her union activities in violation of Section 8(a)(3) of the Act. Although Royal's formal written termination notice shows only a single cause for her discharge, namely, the unspecified trouble she caused "on Sunday with Sunday Person in Charge," Respondent at the hearing sought to show that there were also a host of other reasons that caused Poteet to terminate Royal. One of these "other" asserted reasons was her alleged tend- ency to be tardy in reporting to work. She received only one pink warning slip for tardiness as of May 18, 1974, and no oral warnings for being tardy at any time prior to May 18. It was found above that the pink warning notice for being tardy on May 18, 1974, was not justified under the credited testimony herein. I further find that there is no creditable evidence that Royal has been repeatedly or consistently tardy in reporting to work. I further find that insofar as Royal's alleged tardiness is used as a reason for her discharge, it is a pretextual reason for her termination. Another reason given for Royal's discharge was that her voice was unpleasantly loud over the store's loudspeaker sys- tem when she called for a sacker to help her sack customer groceries when she was busy. As the administrative law judge in the case, I was asked to take "judicial notice" by counsel for Respondent "as to whether or not Mrs. Royal has what would be called a loud voice" from "the tone in which she has been talking during her testimony." I replied and here find that Royal "speaks in a normal voice" and that "She speaks clearly, distinctly, in a normal voice." By her own admission, Royal's voice carries when she gets excited as she might very well be to the Company's advantage if she gets no response the first time or two she calls for a sacker when in need of 8 The only testimony Poteet made in this connection is in itself indirect, equivocal, and unconvincing, to wit, that he informed her that , "She was not showing respect . She was not doing the job, showing respect for him [Brooks] by locking up her check stand and leaving-" 982 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistance. I find this carrying quality about her voice is a trivial and pretextual reason for her discharge. Another reason given for Royal's discharge is that she has been discourteous to and argumentative with customers. The only asserted specific alleged incidence of this was treated above and found to be lacking in proof. I do not credit any general statements from witnesses that she was discourteous to customers. I find that Respondent's excuse that Royal was discharged in part because of her discourtesy to customers is also pretextual. Another reason given by Respondent in justification in part for Royal's discharge was that on occasion she would ask adjacent checkers the price of unmarked grocery items con- trary to company rules. However, the record shows that this is common practice among all or most of Respondent's checkers. I find that this reason for Royal's discharge is also pretextual. Still another reason advanced for Royal's discharge relates to a requirement under one of Respondent's shop rules which requires all employees not only "to complete his own time- card each day in ink" but also requires that employees "must total and sign their timecards at the end of the workweek." Royal's testimony shows that in the several months she was employed at Store No. 54 she never totaled up the hours she worked each week with the possible exception of a time or two, but that she was never called on this until the Friday prior to her discharge when her check was for the first time held up because she did not total up her hours for that week. There is credited testimony that other employees likewise failed to total up-their hours of work per week without ever being called on for this by management. I fmd that Royal's failure to add up her hours of work per week is another pretextual reason for her discharge. Royal's credited and undisputed testimony shows that prior to the union meeting at the home of her mother, Mrs. Lois Green, who was employed in Respondent's Store No. 64, she invited fellow employees at Store No. 54 to attend the May 14, 1974, union meeting at her mother's home. I find and infer that it was from some of these fellow employees that Store Manager Poteet gained the knowledge that Royal had been in attendance at the union meeting and that this led to his questioning her about the meeting as set out in detail in the above findings. Royal's testimony shows that some 10 days or so prior to her discharge while she was on duty at her check stand she passed out a union authorization card to a boy named Kenneth Howard, a sacker, at Kenneth's request. The cred- ited circumstances of this incident are best told in Royal's words. "At this time that Kenneth Howard had heard about these cards he came to me in my check stand and asked if he could have a card and if I would tell him about the union. I said, `Yes, I will tell you when I'm off.' I said, `If you want a card I have one in my pocket.' He took one but I did not solicit him. He came to me about the situation and I did let him take a card " The above incident was observed by Larry Jenkins, 25, who was then an assistant manager of Store No. 54, but is now an assistant manager of Store No. 60. He gave testimony in behalf of Respondent. Jenkins' testimony shows that upon seeing Royal passing out the card to Howard, one of the store's sackers, he immediately told Store Manager Poteet about it. Poteet in his testimony fixed the date of that report to him as being May 15, 1974, the date on which as shown above he summoned Royal to his office and talked to her about the subject of having a union at the store. During the course of that meeting, according to the combined testimony of Poteet and Royal, Poteet did not actually accuse Royal of passing out union cards to other employees but warned her that she was not to pass out union cards on company time as that was contrary to the Company's "no-solicitation rule" as set forth in Respondent's shop rules. The shop rules provide for a written warning for "making unauthorized solicita- tions" on company time. No such warning was given Royal. I find that, under the circumstances shown above, Royal's passing out a card to Howard at his request was not a solicita- tion. In any event I find that the incident of Royal's passing out a union card to Howard insofar as Respondent uses it as one of its justifications for her discharge is pretextual. In summary I find that Poteet had knowledge of Royal's union activities for some 10 days prior to her discharge through reports from other employees whom she had invited to attend the union meeting held at her mother's home on May 14, 1974, through his questioning of Royal about her union sympathies and interests the day after, and through a report he had from an assistant store manager that he had seen Royal passing out a union card to one of the store's sackers. Royal's credited and undenied testimony shows that dur- ing the period of her employment with Respondent at Store No. 54 she was never accused by management of not being efficient or productive in her work at the store. Discussion and Conclusions On the basis of the above findings of fact, the questions for determination here are whether Charlotte Royal was dis- criminatorily discharged on May 27, 1974, in violation of Section 8(a)(3) of the Act and whether for a period of about 10 days prior to her discharge she had been made the subject of a number of 8(a)(1) violations of the Act. As heretofore noted, some 585 pages of the 662-page transcript of testimony in the case relate to events in Store No. 54 where Charlotte Royal was employed as a cashier-checker. There are briefly reviewed here the acts and conduct of managerial personnel at two of Respondent's other stores, Nos. 60 and 64, found above to be in violation of Section 8(a)(1) of the Act because they are very similar to the acts and conduct of Store Manager Poteet at Store No. 54 as found above. With respect to Store No. 60, it was found in an earlier section of this Decision on the basis of undisputed and cred- ited testimony that its store manager, Jackson, coercively interrogated employee Randy Lermon on whether he had signed a union authorization card and that Jackson had also threatened to fire any employee in his store who signed a union card, in violation of Section 8(a)(1) of the Act. With reference to Store No. 64, it was similarly found above on the basis of undenied and credited testimony that its store manager, Houchins, had coercively interrogated employee Imelda Scott on whether she had signed a union card, and in addition had threatened the loss of existing employee benefits if the Union came to represent the employees in his store, and kept under surveillance a meeting place of the Union and FURR'S, INC. other concerted activities of its employees in violation of Section 8(a)(1) of the Act. It was also found above with reference to Store No. -64 on the basis of undenied and cred- ited testimony that Respondent's meat department supervi- sor, Don Shirley, who has supervision over all 13 Fun's stores in the Amarillo district, on a visit to Store No. 64 engaged in the coercive interrogation of a meat wrapper, Lois Green, in violation of Section 8(a)(1) of the Act. The findings with reference to Store No. 54 show that Store Manager Poteet engaged in similar acts and conduct at Store No. 54 with respect to employee Charlotte Royal, commenc- ing on May 15, 1974, the day after Royal had attended the union meeting at the home of the aforementioned Lois Green, her mother. On that date, May 15, as shown by the above findings, Poteet asked her if she had attended the union meet- ing the night before at her mother's home and engaged her in extensive conversation about the Union. In the course of the conversation, Poteet asked Royal her opinion about the Union and why she wanted to join the Union. When she replied that she was interested in the Union because she believed it would obtain better wages, insurance benefits, and job security, Poteet asked her to compare the Company's preexisting employee benefits with what the Union was proposing to get for the employees and let him know her thoughts on the matter. He similarly asked Royal to recon- sider her support of the Union and to let him know what decision she had arrived at. He also told her that if the Union got ia, the Company would have to let some of its employees go because it would not be able to afford to keep all the employees it now does. From the findings as briefly summarized above and more fully set forth in the prior section of this Decision, I find and conclude that Poteet as a statutory supervisor and agent of Respondent engaged employee Royal in a conversation on May 15, 1974, during the course of which he coercively inter- rogated her about her union sympathies and activities and both warned and threatened discharge or other reprisals to employees in Store No. 54 if they engaged in union activities as alleged in the complaint in violation of Section 8(a)(1) of the Act. Again referring to the prior section of this Decision, it was found therein that Poteet on May 18, 1974, gave Royal a written reprimand for her first alleged offense of being 10 minutes tardy in reporting to work that day. I further found that such a written reprimand or warning was contrary to the Company's own shop or employee rules which classifies "tar- diness" as a violation "of a relatively minor nature" and provides for a prior oral warning for such an offense and states that a written warning shall be given only for "continu- ous repetition of conduct." It was found above under Royal's credited testimony that she was not tardy in reporting to work on the date of the reprimand and that therefore the written reprimand was not justified. But whether justified or not, I find from the record as a whole that the reprimand was given Royal for the purpose of interfering with and coercing her because of her union activities in violation of Section 8(a)(1') of the Act as alleged in the complaint. The complaint alleges two additional acts by Poteet in violation of Section 8(a)(1) of the Act, both of which are set forth in paragraph 7(e) of amended complaint. These read as follows: [1] "Respondent, by its supervisor and agent Michael 983 Poteet, on or about May 15, 1974, interrogated and required employees to report to him union activity then in progress; `and . . .' [2] by its supervisor and agent Michael Poteet, on or about May 20, 1974, reduced hours of work; . . . for the purpose of interfering with and coercing its employees be- cause they became or remained members of the Union or gave any assistance or support to it." Both allegations relate under the evidence herein exclusively to statements or actions by Poteet to, or with respect to, Royal. I find a failure of proof in support of the allegation that Poteet "required" Royal "to report to him union activity then in progress," as I have been unable to find 'any evidence in support of that allegation. I accordingly will recommend that that allegation be dismissed for failure of proof. With respect to the allegation that Poteet reduced Royal's hours of work per week because of her activities in violation of Section 8(a)(1) of the Act, I find that while it is undisputed that Poteet did reduce Royal's hours of work against her wishes shortly before he discharged her, I find that this was not a violation of the Act because there is unrefuted evidence that Poteet simultaneously also reduced the working hours per week of a number of employees with the least amount of seniority, which includes Royal, for the bona fide business or economic reason of meeting a company requirement that each of its 13 stores in the Amarillo district produce $45 in sales per man hour which Poteet's store had not been meet- ing. I note that General Counsel's brief does not appear to address itself to that issue. For the reasons stated above, I find and conclude that there has been a failure of proof that Re- spondent reduced Royal's hours of work per week because of her union activities and accordingly will recommend that the allegation of the complaint here under consideration be dis- missed for failure of proof. With respect to Royal's discharge of May 27, 1974, Re- spondent denies that she was discharged because of her union activities as alleged in the complaint in violation of Section 8(a)(3) of the Act. While the record is clear and not disputed that Respondent through Poteet had knowledge of Royal's efforts to organize Store No. 54 for about 12 days prior to her discharge, the Company's defense is that it discharged Royal solely because she was an unsatisfactory employee for a num- ber of reasons, such as her alleged tardiness in reporting to work or after a lunch break, her admitted failure to total up her work hours for each workweek on her timecards contrary to company rules, her alleged discourtesy to customers and to other employees, her alleged loudness in calling for sacker- helpers over the store's loudspeaker, and as a culminating reason her alleged taking of an unauthorized rest break on the day before her discharge. Of these reasons, Respondent places major reliance on Royal's alleged record of repeated tardiness in reporting to work, her alleged discourtesy to a customer, and alleged taking of an unauthorized rest break on the day before her discharge. Contrary to these conten- tions, the findings above show that Royal was not repeatedly or habitually tardy in reporting to work, that she was not discourteous to the customer she was accused of being dis- courteous to, and that she did not take an unauthorized rest break on the day preceding her discharge as accused. On the basis of the entire record, I find and conclude that all of the reasons given by Respondent for Royal's termina- tion are pretextual and that the real reason for her discharge 984 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD was her union sympathies and activities in organizing Re- spondent's Store No. 54. Furthermore, even if Respondent had reason to be dissatis- fied with Royal's services for all or most of the reasons ad- vanced for her discharge, I find and conclude from the record as a whole that the primary reason for her discharge was her union activities at Respondent's Store No. 54. I accordingly find that Royal's discharge is in violation of Section 8(a)(3) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the_ Act. 2. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discharging Charlotte Royal because of her union activities, Respondent engaged in discrimination to discour- age membership in the Union, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent through its supervisor and agent, Michael Poteet, has not, as alleged in the amended complaint, re- quired employees to report to him union activity then in progress and has not by its said supervisor and agent reduced the hours of work for the purposes of interfering with and coercing its employees because they became or remained members of the Union or gave any assistance or support to it, within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as pro- vided in the recommended Order below, which I find neces- sary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease-and-desist order.9 9 NLR.B. v. Express Publishing Company, 312 U S. 426 (1941), N.L.R.B. v Entwistle Mfg. Co., 120 F.2d 532 (C.A 4, 1941); Consolidated Industries, Inc., 108 NLRB 60 (1954), and cases cited therein. Upon the foregoing findings-of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I_ hereby issue the following recommended: ORDER10 Furr's, Inc., Amarillo, Texas, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Retail Clerks Union, Lo- cal 368, AFL-CIO, or any other labor organization of its employees, by discharging or in any other manner dis- criminating against employees in regard to hire or tenure of employment or condition of employment. (b) Coercively interrogating any employee about union support or union activities. (c) Warning employees that they would be discharged or otherwise disciplined if they did not refrain from union activi- ties. (d) Threatening employees with discharge or other disci- pline because of their union activities or support. (e) Keeping union activities of its employees under surveil- lance. (f) Giving written reprimands to employees who under company rules are entitled to a first oral warning prior to the issuance of a written reprimand. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to. them by Section 7 of the Act. 2. Take the following affirmative action which will effectu- ate the policies of the Act: (a) Offer Charlotte Royal immediate and full reinstatement to her former job, or if her job no longer exists, to a substan- tially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for any loss of pay she may have suffered by payment to her of a sum of money equal to that which she would normally have earned from the date of her discharge to the date of such offer of reinstatement, less her net earnings during said period (Cross- ett Lumber Co., 8 NLRB 440 (1938)), said backpay to be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon at the rate of 6 percent per annum (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, timecards, person- nel records and reports, and all other records necessary, to determine the amount of backpay due under this Order. 10 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes FURR'S, INC. - Y 985 (c) Post at its Amarillo, Texas, Stores Nos. 54, 60 and 64 copies of the attached notice marked "Appendix B."" Co- pies of said notice on forms provided by the Regional Direc- tor for Region 16, after being duly signed by Respondent's representative, shall be posted by the Respondent immedi- 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ately 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 the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not herein found. i