Solo Serve Co.

SOLO SERVE CO. 395 Solo Serve Co. and Retail Clerks Union, Local No. 455, Retail Clerks International Association, AFL- CIO. Case 23-CA-5215 July 23, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY, AND MEMBERS FANNING AND PENELLO "(c) Utilizing the services of an agency which ad- ministers lie detector tests to interrogate you con- cerning your union activities, sympathies, member- ship meetings, petitions, or to ask you to give the names of employees who are active on behalf of Re- tail Clerks Union, Local No. 455, Retail Clerks Inter- national Association, AFL-CIO, or any other labor organization." 2. Substitute the attached notice for that of the Administrative Law Judge. On February 13, 1975, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions, a supporting brief, and supplemental excep- tions; and the General Counsel filed limited excep- tions to the Administrative Law Judge's Order and notice and a brief in support of his substantive deci- sion. 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, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Solo Serve Co., San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Add the following as new paragraph 1(c) and reletter the succeeding paragraph accordingly: 1 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 Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In the circumstances of this case, particularly the Respondent's use of a private polygraph agency to interrogate its employees concerning their union activities, we agree with the General Counsel's request that our Order and notice include a specific provision advising employees that it is unlaw- ful for the Respondent to utilize the services of an agency which administers lie detector tests to employees to interrogate them concerning their union activities, or sympathies, or the union activities of other employees. In all other respects, however, we believe that the Admtntstratve Law Judge's recommended Order and notice are adequate and we therefore reject the General Counsel's request for further modifications of the Order and notice APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate in regard to the hire and tenure of employ- ment or any term or condition of employment of our employees because of their membership in, and activities on behalf of, the Union herein or of any other labor organization of their choice. WE WILL NOT interrogate our employees con- cerning their union activities, sympathies, mem- bership meetings, petitions, nor inquire as to the identification of employees signing authoriza- tion cards. WE WILL NOT utilize the services of any agency which administers lie detector tests to interro- gate you concerning your union activities, sym- pathies, membership meetings, petitions, nor to ask you to give the names of employees who are active on behalf of Retail Clerks Union, Local No. 455, Retail Clerks International Associa- tion, AFL-CIO, or any other labor organization. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, including the Union herein, to bargain collectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any such activities. WE WILL offer to Michael Tapia his former job or, if such job no longer exists, an equivalent position, without prejudice to his seniority, if any, or other rights and privileges, and WE WILL pay him for any loss of pay he suffered by rea- son of our discrimination against him together with interest thereon. SOLO SERVE CO. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Law Judge : Based on a charge filed on August 12, 1974, by the Retail Clerks Inter- national Association, AFL-CIO, herein the Union or Charging Party, a complaint against Solo Serve Co., herein the Respondent, was filed on October 7, 1974,' alleging violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended . Respondent filed an answer to the complaint denying it has engaged in the alleged unfair labor practices . A hearing in this proceeding was held be- fore me and both the General Counsel and Respondent filed briefs. Upon the entire record in this case , and from my obser- vation of the witnesses and their demeanor , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent is a Texas corporation having offices and places of business located in San Antonio , Texas, where it is engaged in the business of operating three retail depart- ment stores. During the past calendar year Respondent's gross reve- nue from retail sales exceeded $500,000 from points and places located outside the State of Texas, which were shipped directly to its San Antonio, Texas, locations. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORAGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES It is alleged that on certain dates in March the Respondent's supervisors unlawfully interrogated or ques- tioned employees concerning various aspects of their union activities, and it is also alleged that on March 20 the Re- spondent discriminatorily discharged employee Michael Tapia. The Respondent is a retail department store offering goods to the public ranging from sundry notions to home furnishings. It operates three stores identified as the north side, south side, and the downtown store. It is the down- town store involved in this matter before me. In its organizational structure there is the president, M. C. Brenner, several vice presidents, each in charge of purchasing and merchandising over several departments in each of the three stores , and Vice President Carl Brenner is the overall personnel supervisor . Directly beneath him is a personnel manager, Sally Cordell. In each of the three All dates are 1974 unless stated otherwise. stores there is a store manager and an assistant store man- ager, and the stores are also divided into departments, and in each of the departments there is a department or section head. All personnel employed at the stores wear identification badges of different colors. All rank-and-file employees wear blue badges, all department heads or section heads wear yellow badges, and all executives are distinguished by white badges. All personnel wearing white badges are sala- ried, whereas those wearing yellow and blue badges are paid an hourly rate. The campaign to organize the Respondent started on about March 7, when Union Representative Juan Sierra visited Michael Tapia in his home. On this occasion Tapia signed a union card and was given union booklets to dis- tribute. Threshold questions in this case are whether or not Joe Davila and David Daniels are supervisors . The General Counsel maintains they are nonsupervisory leadmen, but the Respondent contends that both are bona fide supervi- sors and, therefore, the Respondent is not in violation by interrogating them. Joe Davila wears a yellow badge and at times material hereto worked in the home furnishings and fabrics depart- ment. Davila explained that people with yellow badges are individuals who are put, "so to speak," in charge of a de- partment-who have the responsibility of putting up the stock, and making sure that the right merchandise is on the floor. Davila was hired as a yellow badge by Respondent's vice president, Robert Grimm, and testified that when hired Grimm told him he was going to send him to the different stores to learn the business, and if he learned "well enough", Grimm would make him a part of the man- agement team. Davila stated the time never arrived when he was made a part of management . Davila testified that about 50 percent of the time Assistant Buyer George Ho- gue was at the downtown store and in his department, and at the beginning of each week Supervisor Hogue would give him (Davila) certain instructions as to assignments, and would even write out a list of things to do during the week,2 Davila stated that overtime work was very rarely scheduled, but on such occasions Hogue would give him the names of those who were to work overtime , and when employees wanted off early or did not come in, he would contact the personnel office and would also check with Hogue. Davila testified that from 85 to 96 percent of the time he was engaged in actual physical work within the department, and also testified that he made weekly sched- ules for employees in the home furnishings and fabrics de- partment, but they would have to be approved by Hogue and then sent to the personnel office. Davila further stated that many of the employees had been with the store for such a long period they knew their hours or schedules, and generally all had the same hours each week. He testified that each day he would also ascertain if the timecards of the employees in his department reflected the correct hours and also checked the cards to see whether or not the em- 2 In the home furnishing department there are only two full-time employ- ees, but in the fabrics department there are eight or nine full-time employ- ees. Altogether, there are about 10 yellow badge people in the downtown store. SOLO SERVE CO. ployees had exceeded their 10-minute break period.3 David Daniels, in the periods material hereto , worked in the drug department of the Respondent's downtown store. Daniels stated that at the time he was promoted to a yellow badge employee, his hourly rate of pay went from $2 to $2.15 per hour, but he did not have any additional authori- ty and it was only considered a "merit promotion." Daniels stated that Merchandise Buyer and Supervisor Ernest Val- dez "called all the shots" in the drug department, and Val- dez either informed him what to tell other employees-the six blue badge employees-or he left written notes instruct- ing them what to do. Daniels also testified that no execu- tive or white badge supervisor ever told him he had any authority to fire, discharge, or to discipline employees, nor did he have any authority to effectively recommend any of the above. He stated that Valdez had to approve all over- time work and transfers, and if any one wanted time off these matters were handled through the personnel depart- ment. Daniels said that he made out the weekly schedule for the drug department, but it also had to be approved by Valdez .4 There is insufficient evidence in this record to show that either Davila or Daniels possessed sufficient powers to be considered supervisors. Neither one of them had any au- thority to hire, suspend, lay off, recall, promote, discharge, reward, or discipline other employees or to adjust their grievances, or to effectively recommend any such action. There is some testimony that occasionally Davila and/or Daniels transferred employees, checked timecards, and as- signed work to other employees in their respective depart- ments, but it readily appears these duties merely involved routine and standard directions requiring little or no dis- cretion, and all such actions were also subject to immediate review by the supervisors, and thereby could be approved or disapproved as they finally determined. And, of course, it is well established that the Respondent's designation of these employees as department or section heads is not con- trolling in the absence of delegation to them of bona fide managerial powers. As pointed out, where only routine direction is given, requiring little or no discretion, the statutory test is not met. Thus in Cumberland Shoe Corporation, 144 NLRB 1268, enfd. 351 F.2d 917 (C.A. 6, 1965), the Board found employees White and Johnson to be nonsupervisory lead- men rather than supervisors. At 1270 the Board stated: Although several employees testified that either White or Johnson gave them orders, it appears that the or- ders referred to were those described [returning defec- tive work to the employees responsible therefor and pointing out defects, reassigning employees from one 3 George Hogue testified that Davila was in charge of the home furnish- ings and fabrics department, and that he had about 14 employees (blue badges) under him. However, he admitted that all lateness in reporting to the store and overtime work was handled through the personnel office, and that all work schedules are also submitted to the personnel office. ° Valdez admitted that, when he was on the floor of the drug department, he made a list of "things" the yellow badge people should tend to, and also admitted that he had discussions with the yellow badge people as to plans for the coming week, and that he would also give written instructions-such as items that needed to be marked down and items that needed to be filled in or ordered. 397 machine to another in order to balance production] and merely routine directions which didn't require the exercise of discretion or the use of independent judg- ment. Certain of these "orders" were, in fact. commu- nications from the foreman and the plant superinten- dent which here merely relayed through White and Johnson to the employees for whom they were intend- ed. Under these circumstances we find that White and Johnson are not supervisors as defined in the Act and are, therefore, included in the bargaining unit. This record in the instant case further shows that the various departments in the store were actually controlled- particularly as to warnings, attendance, and discipline for violating rules-by the Respondent's personnel manager, and in these respects yellow badge people were merely used for relaying messages and information. Thus, Davila and Daniels had no authority whatsoever regarding the disci- pline of employees. On rare occasions Davila might ask one of the blue badge employees to bring some material or item to the department, but it appears that such directions were strictly routine, sporadic, and also repetitive. The making of the weekly work schedules was obviously rou- tine, and in cases where independent judgment was re- quired Davila had to get the approval of Hogue and Dan- iels had to check with Valdez. I find therefore, based on the foregoing, that Davila and Daniels are not supervisors. On or about March 12, Daniels informed Supervisor Valdez that there was "something" going on in the store that he and the two Brenners should know about, and then told Valdez, "There's little groups getting together, and they are talking about union." Valdez immediately relayed this message to both Milton and Carl Brenner, and during the same afternoon a meeting with Daniels was held in the conference room at the store, and both the Brenners and Valdez were present. At this meeting, Daniels was asked by management who were the employees and department in- volved, and Daniels then mentioned someone from the fabrics and receiving departments and also gave manage- ment the names of Jesse Trejo, Joe Davila, and two truck- drivers-Joe Mata and Sam Dominguez. When asked how he knew these people were involved, Daniels replied, "Well, the same group is always in one corner of the lounge talking about things." 5 Before the meeting terminated, Daniels further informed the owners and supervisors about a petition being circulated and that within a few days an- other meeting was scheduled at "some church on the west side," but was unable to specify any further details. Several days later, on or about March 16, Valdez asked Daniels if Michael Tapia had signed a union card. Tapia himself credibly confirmed that he overheard this conversation or a similar one. Michael Tapia testified that on March 14 he was called into the conference room, and in the presence of Vice Pres- ident Robert Grimm and Carl Brenner was asked general questions about how things were going with him in the store and whether he would run the store differently if he 5 Daniels also told management on this occasion that the reason he was bringing this matter to their attention was because he did not want to get involved, and that he was "afraid" he would get "in trouble" and lose his job. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were part of management. After some additional discus- sions on these matters, Carl Brenner asked Tapia how he felt about the Union, and concluded the conversation by telling Tapia that if he had anything else he wanted to say to come back or call them later. Both Grimm and Brenner denied that the conversation ever occurred. Called as a rebuttal witness, David Garcia, still employed at the store, reported seeing Tapia on the occasion in question proceeding to the conference room in the presence of Grimm and Brenner. However, Brenner again took the stand and asserted that Garcia must have been talking about an occasion when Tapia approached him near the conference room close to Easter time, to dis- cuss a shoplifting incident. Tapia credibly denied any con- versation with Brenner on the subject of shoplifting, and further stated he had never received any reward for report- ing any such activity at any time. On March 15, prior to the morning opening of the stores, Carl Brenner made a speech to the employees at the down- town store advising them of the Respondent's policy re- garding its opposition to unionization. Grimm made the same speech at the southside store while M. C. or Milton Brenner was at the northside store giving the same speech .6 On March 18, Joe Davila was called to a meeting with Carl Brenner and Bob Grimm, and was asked questions concerning his knowledge of union activity in the store, who was involved in such activity, and was also asked whether he had signed a union card. Davila stated that at this meeting he was also given a petition and asked if he had ever seen it before, and in response to a question asked by Brenner, Davila said he was willing to undergo a poly- graph test to substantiate what he had just told them. It is alleged in the complaint that on or about March 20 that Joe Low Polygraph Service, as agent of Respondent, unlawfully interrogated employees concerning their union activities and sympathies. Carl Brenner admitted that on March 20 he sent Joe Davila to the Low Polygraph Service for a polygraph examination. Furthermore, Respondent of- fered in evidence a letter I Brenner caused to be hand de- livered to Joe Low on March 20 containing written ques- tions to be asked Davila. In the ordinary course of business, Low performs some 30 to 40 preemployment po- lygraph examinations of prospective employees each month for Respondent at the rate of $15 per examination, but in these regular preemployment tests there are no questions whatsoever regarding unions or feelings toward unions. There can be no doubt that Low Polygraph Service was a duly constituted agent for the Respondent. There is testi- mony in this record that, when Carl Brenner initially at- tempted to have this test administered, Low objected and considered it unlawful to ask subjects about union activity, but with assurances the matter had been checked out, and on the basis that Davila was a supervisor, and that it would be violative of the law if supervisors did anything to help a labor organization get started,' Low agreed to give the test 6 There is no allegation that any unlawful statement was made in the speeches, but the General Counsel argues that the Respondent's policy, reflected in these speeches and coupled with other endeavors, led to the discovery of Tapia's involvement and to his subsequent discharge 7 Resp. Exh I I if Davila had full knowledge and gave his consent. Further, Low asked Brenner to put the questions in writing, and Brenner complied with this request, as aforestated. Davila testified that he mentioned Tapia's name when a question was asked of him as to who was involved during the general interview with Low prior to being actually sub- mitted or hooked-up to the lie detector machine or instru- ment. Low testified that in the preinterview he obtained from Davila a release and advised him of the questions, and after Davila consented to be confronted with them, he then read them to Davila about his union activities from Respondent's Exhibit 11 and recorded them on his work- sheet. Immediately following this interview with Davila, Low called Carl Brenner and repeated to him the answers to the questions given by Davila. Joe Low testified that at no point during his interview and questioning of Davila was Tapia's name ever mentioned. In relation to this allegation the only defense raised by the Respondent is its right to question Davila because of his supervisory status. However, as detailed earlier, I have found Davila to be lacking in supervisory status, and of course, as an employee, the Respondent's conduct and questioning of Davila about his union activities was clearly violative of the Act .9 It is well established Board and court law that, in de- termining whether an employer's conduct amounts to in- terference, restraint, or coercion within the meaning of Sec- tion 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act and, of course, the fact that employees were neither fearful nor apprehensive of their rights is immateri- al. The foregoing testimony which has been credibly attri- buted to the Respondent includes instances of interroga- tions as to the employees involved in the organizational attempts of the Union, how the names were known, asking who had signed union cards, inquiring how an employee felt about the Union, asking and referring to the circula- tion of a petition, and, in the situation involving Davila and Respondent's agent Low, asking at least eight specific and individual questions pertaining to organizational ef- forts along with the identity of those involved, and all of the above within the initial and most critical period of an organizing campaign. These are types of employer conduct and interrogations which directly concern the union sym- pathies and desires of employees and the sympathies and desires of their fellow employees and are clearly prohibited by Section 8(a)(1) and consistently held violative of the Act. It is also well established by the Board and the courts that the illegality of such inquiries or remarks is not cured by the casual nature of the conversation or the personal relationship of the parties thereto, nor by the employee rejection of such questions or statement. Michael Tapia was hired by the Respondent in July 1973 and, until his discharge, worked mainly in the stockroom s See the introductory paragraph in Resp Exh 11. 9 There is no argument or contention before me that Davila as an employ- ee ever waived his statutory rights under the Act by consenting to be inter- rogated SOLO SERVE CO. 399 of the drug department in the downtown store. On March 7 he signed a union card and subsequently circulated cards and talked with other employees about the Union. Accord- ing to former Personnel Manager Sally Cordell, Tapia was discharged on March 20 because his hair extended to about the midpoint on his shirt collar. For some time the Respondent has had in their dress code a regulation or rule restricting the length of employees' hair and specifying that male employees should not wear their hair below "their shirt collar." Personnel Manager Cordell testified that on March 15 she had given Tapia a verbal warning about his long hair, and at this time told him to get it trimmed, but a few days later noticed that his hair had not been cut. She then con- tacted Carl Brenner and informed him that they "had grounds to fire him." The Respondent also points out that up to September 1973 some 11 charges had been filed against them by the Equal Employment Opportunity Commission (EEOC) and maintains that in the investigations of these charges it be- came clear that the EEOC considered their hair code a violation of the prohibition against sex discrimination. Cordell said that as the personnel manager she was primar- ily involved and was therefore fully aware of the EEOC position on the hair code. Cordell further testified that, while reading an article in U.S. News and World Report, she came across the column entitled "What Businesses Can and Cannot Do," and noticed an item stating that the courts did not support the EEOC in its position pertaining to hair code and had upheld an employers right to enforce their dress code. Cordell stated that on March 20, when she determined to recommend the discharge of Tapia, she was still aware of the sensitivity of the EEOC pertaining to long hair, and thus consulted with Carl Brenner. Upon receiving word, Brenner immediately went to the personnel office with a camera, and upon arrival took pictures of Tapia.10 When Brenner testified before me he was asked why he took a picture of Tapia when he had not done so in other cases, and in reply stated he was thinking about the EEOC and did not want any question as to the length of hair, and to show that the hair length was a violation of the Respondent's dress code." The Respondent further maintains that other employees were also discharged for violation of the dress code, includ- ing Carlos Villoneuva and Ronnie Winfield, and argues that the rule or dress code had been uniformly enforced, and points out that neither the Union nor the General Counsel could come up with the names of any employees who had hair longer or as long as Tapia. The Respondent maintains it had no knowledge of any union activity on the part of Tapia. I reject this argument. On March 14 Carl Brenner directly asked Tapia in the conference room at the store how he felt about the Union, and on March 16 Supervisor Valdez inquired of Daniels if Tapia had signed a union card. Joe Davila also gave credi- ble testimony to the effect that when he took the lie detec- tor test on March 20, and earlier in the day of the dis- charge, Joe Low initially asked him questions in a "dry run" before actually connecting the instrument to him, and it was during this preliminary examination that Low asked questions concerning who was involved in the union activi- ty and whether anyone, specifically including Michael Ta- pia, had approached him about signing a card, and Davila then gave Low an affirmative answer regarding Tapia. By this method the Respondent had direct knowledge that Ta- pia was involved and, upon completion of the polygraph test, Low immediately contacted Carl Brenner by phone to relay the results of his inquiries.12 The Respondent now, of course, attacks the credibility of Davila, yet it is interesting to note, as pointed out, that Joe Low admittedly found Davila to be a truthful witness, and indicated the same when he reported his evaluations to Carl Brenner immedi- ately following his testing.13 There can be no doubt but that Respondent, through its supervisors and agents, engaged in an intensive search to ferret out information regarding the involvement of Tapia in the union campaign. Such activities reveal that it sus- pected Tapia of being involved in the union activity, and this suspicion was then duly verified during the initial ex- amination of Davila by Respondent's outside polygraph agent. Tapia testified that, prior to his actual discharge on March 20, no one in management had ever said anything to him about his hair and stated he had always worn his hair the same length during his entire employment with Respondent. Tapia stated that he had observed several em- ployees with hair length coming down to around the mid- dle of their collars and named David Daniels, Joe Davila, and Robert Mercer. He testified that most of the employ- ees with long hair were stockboys, like himself, who had little or no contact with the public, and further stated that he spent about 75 percent of his time in the stockroom. Tapia maintained that during his employment the Respondent's dress code pertaining to hair length was not enforced. Davila admitted that he and other employees had been warned by Sally Cordell about the length of their hair, but then stated that the majority of the stockboys had long hair since they were not usually viewed by the public, and said that after receiving his warning he had his hair thinned, but the length itself stayed the same-below the top of his col- lar-that he continued working for the Respondent and nothing further was said to him. Stockboy David Garcia testified that, the day before his appearance as a witness in this proceeding, he had been told to get his hair cut, but that prior thereto, his hair was about the same length as Tapia or longer, and nothing had been said to him. I have set forth in some detail the above-credited testi- mony by witnesses for the General Counsel, because after 12 The General Counsel points out that the introduction of the letter from Brenner purportedly containing the questions Low was to have asked Davi- la, as aforestated, was nothing more than an attempt to give the appearance that these were the only questions to be asked. 13 Davila's testimony at the tnal that Low specifically asked him about 10 See Resp. Exhs. 9 and 10. Michael Tapia is also supported by his affidavit Davila is no longer em- it On April 4 Tapia filed a charge with EEOC alleging his discharge on ployed by the Respondent and had no apparent reason or motive to give the basis of color or race . false testimony either in his affidavit or at the trial. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a careful evaluation of these statements and other related aspects of this case, it becomes quite obvious that while supervisors would occasionally give warnings to the stock- boys about the length of their hair-this was the total ex- tent of their participation in the enforcement of the dress code up and until the Union appeared on the scene. Personnel Manager Cordell conceded that Respondent also utilized a formal written warning procedure, using pink slips, on which an employee had to write his signa- ture. Yet, Tapia received no written warning. Even assum- ing that Manager Cordell asked Tapia on March 15 to have his hair cut, as she testified, her suggestion carried with it no warning of discipline , much less discharge, and it is argued by the General Counsel that the reason Cordell did not threaten discipline, again assuming she made such a request on March 15, is that she was aware of the formal warning procedure and knew that such procedures would have to be utilized before discipline could be imposed. As pointed out, only 3 working days following March 15, but without benefit of a written warning, Tapia was neverthe- less discharged. The urgency, of course, was the discovery that Tapia was indeed actively organizing on behalf of the Union. The record shows that employee Ronnie Winfield was discharged on April 9, but had received two written warn- ings concerning his violations of the dress code. 14 However, it is also quite obvious that the actual discharge of Winfield resulted because of serious difficulties and consequences involving another employee, and the dress code violations in themselves did not bring about his termination. There is insufficient evidence in this record to make any sound evaluations as to the discharge of Carlos Villoneuva. Carl Brenner also testified that he did not make pho- tographs of Winfield's hair, as he did of Tapia's to provide a defense against an EEOC investigation, because Winfield is an Anglo, and Anglos receive "short shift" from the Equal Employment Opportunity Commission. However, as pointed out, it is obvious that Respondent was not as much concerned with an EEOC investigation regarding Tapia as it was with an NLRB investigation, and, as further argued by the General Counsel, it is more logical and probable that Brenner made photos of Tapia's hair to provide a de- fense against an unfair labor practice charge, and having no indication that Winfield was involved in an organizing campaign, Respondent saw no need to take a photograph of his hair length. I find that the stated reason for the discharge was pretex- tual and that the Respondent was motivated to discharge Tapia because of their discovery that he was engaged in activity on behalf of the Union. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. A broad cease- and-desist order is warranted in view of Respondent's dis- 14 See G.C. Exhs. 4 and 5. criminatory conduct and other violations. It has been found that Respondent unlawfully terminat- ed Michael Tapia on March 20, 1974. It will therefore be recommended that Respondent offer him immediate and full reinstatement to this former position or, if such posi- tion no longer exists, to a substantially equivalent position, and without prejudice to his rights and privileges, and to make him whole for any loss of earnings he may have suf- fered as a result of the discrimination against him by pay- ment of a sum equal to that which he would normally have earned, absent the discrimination, from the date of the dis- crimination to the date of Respondent's offer of reinstate- ment, with backpay and interest computed in accordance with the Board's established standards.15 It will be further recommended that Respondent preserve and, upon re- quest, make available to the Board all payroll records, so- cial security payment records, timecards, personnel records and reports and all other records necessary and to analyze the amount of backpay under the terms of these recom- mendations. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Michael Tapia on March 20, 1974, thereby discouraging membership in the Union, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, as enumerated herein, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Solo Serve Co., San Antonio, Texas, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization of its employees , by discharging employees or otherwise discriminating against them in re- gard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their union ac- tivities, sympathies, meetings , memberships, petitions, and the identification of employees signing authorization cards. 1s F W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co , 138 NLRB 716 (1962). 16 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 Order recommended 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. SOLO SERVE CO. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including the above-named organization , to bargain collec- tively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Michael Tapia immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position , without prejudice to his seniority, if any, or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Reme- dy. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying all pay- roll records, social security payment records, timecards, 401 personnel records, and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director of Region 23, after being duly signed by Respondent 's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places , including all places, where notice to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order , what steps have been taken to comply herewith. 17 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 "