Delchamps, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delchamps, Inc. and Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A. Case 15-CA- 6189 September 20, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 23, 1977, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent and counsel for the General Counsel filed exceptions and sup- porting briefs, and Respondent filed an opposition to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Delchamps, Inc., Fairhope, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent in its exceptions asserts also that the Administrative Law Judge was biased and prejudiced against it. We have carefully reviewed the record and the Administrative Law Judge's Decision and we find nothing therein which would support such a charge. The General Counsel has excepted to the Administrative Law Judge's failure to make additional findings that Respondent violated Sec. 8(aX1) of the Act by creating the impression of company surveillance over employees' protected activities. We find it unnecessary to pass on these exceptions, since any additional findings would merely be cumulative and, therefore, would not affect our remedy herein. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977, in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 232 NLRB No. 17 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to give evidence it has found that we violated the National Labor Relations Act and we have been ordered to post this notice and to abide by it. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargaining To act together for your common interest or protection To refuse to participate in any or all of these things. WE WILL NOT create the appearance that your union activities are under surveillance. WE WILL NOT threaten you with discharge because you are a member of or support Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A., or any other union. WE WILL NOT discharge you, lay you off, transfer you to other jobs, or otherwise discrimi- nate against you because you are a member of Retail Clerks Union, Local No. 1657, AFL-CIO- CLC, R.C.I.A., or any other union, or because you have supported Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A., or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in exercising the rights guaranteed to you by the National Labor Relations Act. The National Labor Relations Board found that we violated the Act by discharging Susan C. Johnson because she assis- ted Retail Clerks Union, Local No. 1657, AFL- CIO-CLC, R.C.I.A. WE WILL offer to reinstate Susan C. Johnson to her former job without loss of seniority or other rights and WE WILL reimburse her for any loss of earnings she may have suffered as a result of our discrimination against her together with interest. DELCHAMPS, INC. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: This proceeding was heard in Mobile, Alabama, on December 8 and 9, 1976, upon a charge filed on August 20, 1976, and a 168 DELCHAMPS, INC. complaint issued on October 20, 1976, which was amended at the hearing. The amended complaint alleged that the Respondent, Delchamps, Inc., violated Section 8(a)(l) of the National Labor Relations Act, as amended, by creating the impression of surveillance over its employees' union activity and by threatening to discharge employees who supported Retail Clerks Union, Local No. 1657, AFL- CIO-CLC, R.C.I.A. (referred to herein as the Union). The complaint also alleged that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Susan C. Johnson because of her union activity. Respondent answered denying commission of any unfair labor practices. Follow- ing the hearing, the General Counsel and Respondent timely filed briefs. Upon the entire record in this proceeding, including my observation of the witnesses while testifying, and upon consideration of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Respondent, an Alabama corporation, sells groceries, meat, and related food products to the public at a number of retail store locations in the States of Alabama, Mississippi, and Florida. Respondent annually purchases and receives goods and materials valued in excess of $50,000 directly from points located outside the State of Alabama and annually receives gross revenues in excess of $500,000. The complaint alleges, the answer admits, and I find that Respondent is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent denies the complaint's allegation that the Union is a labor organization within the meaning of Section 2(5) of the Act. However, I find from the uncontradicted testimony of the Union's organizing direc- tor, David Johnson, that the Union is an organization in which employees participate and which exists for the purpose of representing such employees in bargaining with employers concerning wages, hours, and working condi- tions. As such, the Union is party to collective-bargaining agreements with employers including Bruno's Food World stores in the State of Alabama. In its capacity as a collective-bargaining representative, the Union handles employee grievances. Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. E. W. Wiggins Airways, Inc., 210 NLRB 996, 997 (1974). ' Under cross-examination, Johnson appeared uncertain as to the content of Hall's warning. However, Hall appeared more at ease while testifying than did Johnson, and satisfied me that he had omitted this III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues This case presents questions as to whether Respondent in attempting to counter union activity among its employees violated Section 8(a)(3) and (1) of the Act by discharging employee Susan C. Johnson because she was a union activist, and Section 8(aX)() of the Act by statements which were likely to give employees the impression that their union activity was under surveillance and by threats of economic reprisal. B. Susan C. Johnson's Discharge Except as noted, the facts are undisputed. The Company first hired Susan C. Johnson as a part-time cashier in 1971 at its Spanish Fort, Alabama, store. Approximately I year after her hire, the Company changed Johnson's status to a full-time cashier. In mid-January 1976, the Company transferred Johnson to its store No. 34 at Fairhope, Alabama, where she was employed as a full-time cashier until her termination on August 16, 1976. On July 3, fellow employee Don Boutwell, who had attended a union meeting where he had obtained authori- zation cards from the Union, successfully solicited John- son's signature on one of the cards. Along with her own card, Johnson received a number of authorization cards from Boutwell which she thereafter distributed to at least six fellow employees. Johnson solicited for the Union during her lunch hour, before and after work, off the Fairhope store's premises, and in its parking lot. In addition to her solicitation activity, Johnson attended union meetings. She first attended a meeting on July 16 at the home of fellow employee Eloise Beaty. One such meeting occurred at her home on July 28, which was attended by approximately 15 of Respondent's employees and 2 union representatives. Thereafter, prior to her termination, Susan Johnson attended two or three addi- tional union meetings. At the July 28 meeting, Susan Johnson joined the union's organizing committee. Thereafter, until her discharge, she in league with other members of the committee sent out letters urging fellow employees to support the Union. At the time Boutwell enlisted Johnson's aid in the union's organizing effort, he instructed her to be secretive and quiet in carrying out her union activities. He also suggested that she not discuss her union activity or attitudes with the Fairhope store's management. On an evening during the first week in July, Susan Johnson asked a Fairhope store assistant manager, Ken- neth W. Hall, an admitted supervisor, what Respondent's reaction would be to her union activity. Hall warned that the-Company would terminate union supporters.' On August 1, at a nearby Fairhope restaurant, Susan Johnson again encountered Assistant Store Manager Hall. Hall told her that the Company was aware of her union activity, that management knew that she'd had a meeting in her home and had sent "a spy" to Johnson's meeting and incident from his pretnal affidavit through inadvertence. I have therefore credited his version of his remarks to Johnson in early July. 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the earlier meeting at employee Eloise Beaty's house. Hall would not disclose the spy's identity. Hall also stated that Eddie H. Holmes, the Fairhope store manager, knew the names of the employees in attendance at the meetings and what had transpired there. Susan Johnson also had discussions regarding the Union with a second Fairhope assistant manager, Leonard Robinson, also admittedly a supervisor. The first encounter occurred around July 21. As Johnson was clocking out, Assistant Manager Robinson leaned over to her and said that Respondent's area supervisor, Hugh Bray, had "received one of the letters that the Union sent out." Johnson asked, "What letters?" Robinson came back with, "You know what letters. The letters that the Union sent out." Johnson responded, "I don't know what you are talking about." At this point employee Myram Ann Beaty joined the discussion and advised Johnson to contact Union Representative David Johnson "and tell him about it." Susan Johnson denied knowing who David Johnson was. At this, the discussion broke off. In early July, Assistant Store Manager Leonard Robinson had told employee Myram Ann Beaty he was aware of Johnson's prounion sentiment. Johnson's second encounter with Assistant Manager Robinson occurred toward the end of July, at the store's break room, during Susan Johnson's lunch hour. Robinson approached her and said, "Well, I finally hear you got James Harbin to sign up." His reference was to an employee at the Respondent's Spanish Fort store. Johnson was reluctant to reply and finally answered, "Well, Mr. Robinson, you are a company employee and I'm just an employee and I'd rather not talk to you about the Union." One week later, in the Fairhope store's break room Johnson again encountered Assistant Manager Robinson. Robinson warned her, "You don't have to say anything to me but I want you to know that you've have got a nigger in the woodpile." Johnson looked at him quizzically. He added: "You know what I mean, don't you?" At this, Johnson said, "Well, not really." Robinson resumed: "You've got somebody who is pretending they're some- body they're not." At this, Johnson asked, "Do you mean a spy?" To which Robinson replied, "Yes." At this point, Johnson said, "Well, I wouldn't be surprised and I think I know who it is." At that, the conversation ended. In late July, Holmes expressed concern to his assistant managers about union activity at Respondent's stores. Holmes remarked that "the union activity was working within the company and the people were going around to the stores trying to solicit employees." Holmes wanted to be informed if there were any cars in the parking lot bearing a Birmingham County tag. He also remarked, "that if anybody was for the Union that the Company would not stand for it." I find from Hall's testimony that, during the first week in August, Holmes told Hall that he knew that union meetings had been held at the homes of Susan Johnson and 2 Holmes denied knowledge of a union meeting at Johnson's home and denied knowing the identity of those attending any union meetings. He also denied telling anyone he had such information. However, Hall impressed me as being more straightforward and detailed in his testimony, much of which went undisputed. I have determined therefore that of the two Hall was the more reliable witness. Accordingly, I have rejected Holmes' denials Eloise Beaty. Holmes also named some of the employees who attended the meetings and expressed the thought that the meetings were "for the Union." 2 Finally, in the early or middle part of August, Area Supervisor Bray asked Assistant Store Manager Hall what he knew about union activity among Respondent's em- ployees. Hall had little to report on and no facts to support the rumors he was repeating. However, when Bray sought identification of Hall's informants the assistant manager declined to provide the requested information. At this Bray admittedly warned him to "screw his head on right. Get his thinking cap on correctly." On August 5, Mrs. Crutherds, a good customer of the Fairhope store, visited that store, purchased close to $100 worth of groceries and went to the checkout counter where Johnson was employed as a cashier. As Johnson checked out Mrs. Crutherds' groceries, bagboy Tommy Leonard began packaging Mrs. Crutherds' order. At this point, Mrs. Crutherds handed Johnson a stack of product discount coupons. Johnson went through the stack of coupons comparing them with Mrs. Crutherds' order. Johnson rejected those coupons which she found for items not carried by Respondent, or which she found unaccompa- nied by the appropriate purchase. In checking Crutherds' purchases, Johnson asked bagboy Leonard if the appropri- ate item was in the packed bags. Johnson gave Crutherds credit for those items which she found covered by discount coupons and returned the bulk of the coupons to the customer. Johnson's refusal to take all of the coupons persisted in the wake of Crutherds' insistence that she had more of the items covered by the coupons then Johnson gave her credit for. While walking to her automobile, accompanied by bagboy Tommy Leonard, Mrs. Crutherds voiced her intention to contact the Respondent to protest Johnson's refusal to credit more of her coupons. At all times material to this case, Respondent's policy limited redemption of discount coupons to products carried in its stores. If an item covered by a discount coupon was purchased from Respondent, Respondent permitted redemption of only one coupon per item purchased. Later, on the morning of August 5, Sherry A. Tuttle, secretary to Respondent's vice president and secretary, Joel Swanson, received an angry and agitated telephone call from Mrs. Crutherds. Crutherds reported that a cashier at the Respondent's Fairhope store had refused to honor discount coupons for items which Crutherds claimed she had purchased. Crutherds complained to Tuttle that the cashier had refused to check her groceries to ascertain whether she was entitled to the redemption of discount coupons. Mrs. Crutherds also charged that the same cashier had been "very rude and ugly to her on previous occasions." Crutherds went on to threaten to take her patronage to one of Respondent's competitors. Mrs. Tuttle took Crutherds' name and telephone number and assured her that a representative of Respondent would contact her. and have credited Hall. In assessing Holmes' testimony, I have also noted that, in July, Assistant Manager Robinson repeatedly indicated that Respondent was aware of Johnson's union activity. For Robinson's assertions provide reasonable ground for inferring that his immediate superior, Holmes, was well informed about Johnson's role in the union's campaign. 170 DELCHAMPS, INC. Mrs. Tuttle immediately sought out Vice President Swanson and related Mrs. Crutherds' complaint to him. Sometime during the first or second week of August, Area Supervisor Hugh Bray received word of Mrs. Crutherds' complaint from his superiors. As Bray heard it, Mrs. Crutherds' complaint was that one of the cashiers at the Fairhope store had refused to cash her coupons and had argued with her. Bray was instructed to investigate the matter. Bray contacted Mrs. Crutherds and asked her to recount the August 5 incident. She told Bray that a cashier at Respondent's Fairhope store had refused to give her credit for coupons covering items she had purchased, that the cashier did not check her groceries and was "ugly and had a very nasty attitude." Mrs. Crutherds could not identify the cashier by name but described her as being heavy set and having long blonde hair. Bray asked Mrs. Crutherds to describe the offending employee to Store Manager Holmes when next she visited the Fairhope store. Store Manager Holmes first became aware of Mrs. Crutherds' complaint on the morning of August 12, when he received a phone call from Area Supervisor Bray. Bray instructed Holmes to identify the offending cashier, suspend her, and hold an investigation. That same morning, Crutherds appeared at Holmes' store, recounted her complaint, and described the employ- ee involved. She described the individual as "the big heavy set blonde." Holmes identified the cashier as Susan C. Johnson. Shortly thereafter, Johnson arrived for work. Holmes came to her and directed her to the store break room. There, in the presence of Assistant Manager Leonard Robinson, Holmes asked Johnson if she remembered an incident which had happened the previous week involving a customer "who came in with a large order and a stack of coupons which you wouldn't take?" Johnson recalled the incident. Holmes sought an explanation of her refusal to accept the coupons. Johnson replied that Mrs. Crutherds had presented coupons for items she had not purchased and for other items which Respondent did not carry. Holmes told Johnson that Crutherds had complained about Johnson's refusal to take coupons and that Johnson "was rude and ugly to her." Johnson denied being rude and ugly and requested an opportunity to talk to Crutherds. Holmes denied her request. He then handed Johnson a prepared warning notice which he asked her to sign. Johnson observed that the notice reported that she had "refused to take coupons from Mrs. Crutherds and that I was rude and ugly to her." Johnson refused to sign the warning notice. Concluding the interview, Holmes told Johnson that he intended to investigate the incident and suspended her until the following Monday, August 16. Johnson suggested that Holmes talk to the bagboy who had witnessed her encounter with Mrs. Crutherds. Holmes said he would do so. On August 12, following Johnson's suspension, Holmes began his investigation. He checked the August 5 work schedule and contacted two employees, Mary Ann Cham- bers, a cashier who had worked at a checkout station next to Johnson's that day and Tommy Leonard, the bagboy at Johnson's checkout counter. Holmes obtained the following statement from cashier Mary Ann Chambers: I was checking at no. 3 register and Suzy Johnson was at no. 4. I heard her customer over there arguing about some coupons. She was pretty upset about it. Suzy told her that she did not have the coupons. The lady said something to her, so then she started checking the groceries on top of the register and I did not see her check the groceries in the bag. Because I had to check my customer out. I don't know what else went on after that. Holmes obtained the following statement from bagboy Tommy Leonard: Suzy checked out customers groceries. Lady presented coupons to Suzy. Customer was told that she didn't have items for coupons. Groceries were bagged up and were not checked back through. To the best of my knowledge coffee was the only thing given credit for. On Monday, August 16, at 9 a.m., Susan Johnson reported to Respondent's Fairhope store. Upon her arrival, Johnson proceeded to the break room where she met Area Supervisor Bray. At Bray's direction, Johnson went to the store timeclock and punched in. She returned to the break room to find Store Manager Holmes with Bray. Bray asked Johnson for an explanation regarding her refusal to take coupons from Mrs. Crutherds. He also questioned Johnson as to why she was "ugly and rude" to Crutherds, and had argued with her without calling an assistant manager or the store manager over to clear up the dispute. Johnson denied that she had been ugly and rude to Crutherds. Johnson also replied that she had not accepted the coupons because Crutherds did not have the purchased items covered by those coupons. As for her failure to call for management assistance, she asserted that there had been no problem requiring such action. Notwithstanding Johnson's protest, Bray repeated the accusations. Johnson responded, "Well, I didn't do it." At this, Bray notified Johnson that she was terminated because of being ugly and rude and refusing to accept Crutherds' coupons. After cleaning out her locker and refusing to sign a blank separation notice, Susan Johnson left the Fairhope store. Prior to her termination on August 16, Johnson had been disciplined only twice by Respondent. The first instance occurred when she was employed at the Respondent's Spanish Fort store. In that incident, Johnson received a written warning after a customer short changed her in the amount of $60. The punishment for that incident was a warning. In another incident, Johnson made a $45 void on her cash register tape while working at the Spanish Fort store. For this infraction, Respondent suspended her for I week. For several reasons I do not credit Manager Holmes' testimony that "several months" prior to the Crutherds incident Assistant Manager Robinson reported "two discrepancies in regard to customer relations" involving Susan C. Johnson. First, Holmes provided no details of these asserted reports. Further, Robinson did not testify. Significantly, Johnson credibly denied that Robinson ever 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned her about either her treatment of customers or her relations with customers. She also denied without contra- diction that Holmes ever mentioned Robinson's com- plaints to her. Finally, Bray's testimony that Holmes mentioned Robinson's report to him after Crutherds had identified Johnson to Holmes and that Holmes also mentioned them to Johnson on August 16, finds no corroboration in Holmes' testimony. In sum, my impressions that Holmes and Bray were more concerned with vindicating Respondent than with providing full and forthright testimony, together with the factors I have listed above, persuaded me to reject Respondent's assertions that Robinson had complained about Johnson's treatment and attitude toward customers. C. Analysis and Conclusions 1. Interference, restraint, and coercion As found above, in late July, Assistant Store Manager Hall told Myram Ann Beaty that Store Manager Holmes had asserted that union meetings had been held at Susan Johnson's home and at the home of Eloise Beaty. Hall also reported that Holmes said he knew which employees had attended those meetings and had recited the names of those employees to Hall. By these assertions, transmitted through Hall, Respondent was likely to create the unmis- takable impression that it was surreptitiously watching the union's meetings. It is also reasonable to infer that Hall's report would seriously impair the employees' freedom to attend union meetings or otherwise engage in union activity. Accordingly, I find Hall's remarks violated Section 8(a)(l) of the Act. Central Power & Light Company, 173 NLRB 287, 293 (1968), enfd. 425 F.2d 1318 (C.A. 5, 1970). I also find that Assistant Manager Hall's remarks to Susan Johnson on August 1 conveyed the impression that Respondent was using espionage to identify Johnson and other employees as union supporters. This impression was likely to arise from Hall's assertions that Respondent knew of Johnson's union activity, that she had had a union meeting at her home, that Respondent employed spies to infiltrate that meeting and another meeting, and finally that Respondent had identified the employees who had attended those meetings. In this incident, as in the incident reported above, I find that Hall's remarks created the impression that the Respondent was maintaining surveil- lance over its employees' union activities and thereby violated Section 8(a)(l) of the Act. Hatteras Yachts, AMF, Incorporated4 207 NLRB 1043, 1047 (1973). In late July 1976, Respondent again violated Section 8(a)(1) of the Act in an incident involving Assistant Manager Hall. According to employee Myram Ann Beaty's credited testimony, Hall told her that Holmes knew of the union's meetings, their locations, and the names of employees attending. When Beaty asked whether Holmes had mentioned her name, Hall responded: "I can tell you there is definitely a pimp in this store." Hall also credibly testified that he also warned: "Well, Ann I think they're going to find out that you're for this thing too, and so you're going to be gone too." Hall's remarks regarding Holmes' knowledge, followed so closely by Hall's unmis- takable warning that there was a spy among the employees were likely to persuade Beaty that Respondent was engaged in surveillance of its employees' union activities. By this intrusion into Beaty's right to engage in union activity Respondent violated Section 8(a)(1) of the Act. Respondent also violated the same section of the Act when Hall threatened Beaty with discharge if Respondent detected her prounion sentiment. In September 1976, Assistant Manager Robinson told Beaty that Holmes had asserted that she had telephoned Respondent's other stores soliciting employee support for the Union. Beaty denied this assertion. The following day Robinson told Beaty that Holmes had asked if Robinson knew "anyone who would stand behind the Company." When Robinson said, no, Holmes replied: "All will have to go then." Taken in context, with his remarks to Beaty on the previous day, Robinson's report of Holmes' warning could reasonably be taken as a threat that Respondent contemplated the discharge of all employees with apparent union sympathy. By this remark, I find Respondent violated Section 8(a)(l) of the Act. I do not agree with General Counsel, however, that Robinson's remark to Beaty in July 1976 to the effect that he was aware of Johnson's prounion sentiment was likely to create the impression of unlawful surveillance. For the record shows that about this same time Susan Johnson was openly assisting the Union's organizing drive during lunchbreaks, before work, and, in the store's parking lot. Thus, Beaty might reasonably have concluded that Robin- son had learned of Johnson's union activity by casual observation rather than surreptitious espionage. I find, therefore, in these circumstances that the evidence does not sustain a finding that this remark by Robinson violated Section 8(a)(l) of the Act. I also find that Respondent did not create the impression of unlawful surveillance when Assistant Manager Robin- son told Suzy Johnson that Area Supervisor Bray had obtained a copy of a union letter. Nor do I find, as urged by the General Counsel, that Assistant Manager Robinson created the impression of unlawful surveillance when he told Johnson, "Well, I finally hear that you got [Spanish Fort store employee] James Harbon to sign up." In neither of these instances did Robinson's remarks provide basis for believing that the information reported was obtained through espionage. I have found above that, in early August, Robinson in essence warned Johnson that an employee posing as a union supporter was in fact a spy. However, Robinson did not tie the so-called spy to Respondent. Nor was there any showing that as of early August the Company's espionage had gone beyond planting spies at two union meetings. In these circumstances, Robinson's warning to Susan Johnson was not likely to give her the impression that Respondent had planted this spy. Accordingly, I find that Robinson's remarks to Johnson in this context did not violate Section 8(a)(1) of the Act. 2. Susan Johnson's discharge The General Counsel argues that the Crutherds incident was merely a pretext, and that the real motive for Johnson's termination was her union activity. Respondent 172 DELCHAMPS, INC. denies that its decision to terminate Johnson was motiva- ted by any reason other than the Crutherds incident. For the reasons given below, I find that Respondent terminated Susan C. Johnson because of her union activity and thereby violated Section 8(aX3) and (1) of the Act. Although Susan C. Johnson is not the leading union supporter at the Fairhope store, she engaged in consider- able union activity. Beginning in early July, Johnson signed a union authorization card and distributed similar cards to at least six of her colleagues. She also attended union meetings and permitted her home to be used for such a meeting on July 28. In recognition of her leading role in the Union's organizing campaign at the Fairhope store, Johnson was selected as a member of the Union's organizing committee. Respondent's assertion that it was unaware of Johnson's union activity is belied by abundant contrary evidence in the record. Around the first of July, Assistant Store Manager Robinson spoke to employee Myram Ann Beaty and revealed that he was aware that Susan Johnson was for the Union. At the end of July, Robinson again revealed that he was aware that Johnson was for the Union and expressed suspicion that she was a union activist when he told her that he knew she had obtained a signed authorization card from employee James Harbon. Finally, in early August, Robinson warned Johnson to the effect that her union activity was under the surveillance of a company spy. Also around the first of August, Assistant Manager Hall informed Johnson that Respondent was aware of her union activities and that she had had a union meeting at her home. In view of the remarks of Assistant Managers Hall and Robinson I find that, by the beginning of August, Respondent at least strongly suspected that Johnson was a leading union activist. Respondent argues that the General Counsel had failed to establish union animus in this case. In an effort to establish that such animus was not present Respondent introduced Vice President Joel Swanson's testimony to the effect that Respondent instructed its supervisors not to engage in antiunion activity including unlawful threats, interrogation, or promises of benefits in an effort not to interfere with the union activity. However, there is no showing that these instructions extended to espionage and surveillance of employees' union activities. Nor is there any showing that Respondent policed or enforced these rules against its supervisors. I also note the absence of evidence that Respondent advised employees of.its stated policy, or told them they were free to engage in union activity as permitted under Section 7 of the Act. Instead, as found above, the record shows violations of Section 8(a)(1) of the Act. Thus, Assistant Supervisor Hall threatened Johnson with discharge if the Company discovered that she was a union supporter. I have also found that Manager Robinson told employee Beaty that his superior, Holmes, stated that union supporters would be terminated. In addition to these strong expressions of union animus, I have found above that Respondent through Assistant Store Managers Hall and Robinson repeatedly warned its employees that it was engaged in surveillance of their union activities including meetings at their own private homes and that there were spies among them who would be quick to advise of the identity of union activists. Thus, despite Vice President Swanson's asser- tions, the record shows that Respondent maintained a hostile attitude towards union activity among its employees and translated that hostility into unfair labor practices. Thus, I find that the record amply supports General Counsel's contention that Respondent manifested union animus prior to Susan C. Johnson's discharge. Further ground for finding that Johnson's union activity and sentiment motivated the Respondent's decision to terminate her was provided by the timing of the discharge about 2 weeks after a flurry of incidents in which Johnson learned from management that Respondent was engaged in espionage regarding her union activity and that Respon- dent had already persuaded itself that she was a union supporter. The final element in General Counsel's case was the showing that Johnson's discharge was an extraordinary event. Respondent Store Manager Holmes testified that Susan Johnson was the first employee he had heard of during his 16 years in Respondent's employ who was terminated because of a customer complaint. Hall, whose employment with Respondent spanned 11 years, did not know of an instance in which the Company terminated an employee because of a customer complaint. He also credibly testified that Respondent suspended two employ- ees, Von Kelly and Darnell, because of customer com- plaints. Finally, Area Supervisor Bray, who has been with Respondent for 27 years, conceded that prior to Johnson's discharge he knew of no other employee whom Respon- dent had terminated as a result of a customer's complaint. In an effort to rebut the General Counsel's evidence of disparate treatment Respondent introduced Vice President Swanson's testimony and a separation notice issued to Assistant Manager Paul D. Gunther, who until March 20, 1976, was stationed at Respondent's store No. 10. The Company terminated Gunther according to the separation notice with the following comment: "Violation of company policy (attitude toward customers unacceptable. Cannot communicate with customers in proper manner to fill his job responsibility.)" At another point on the separation notice the Respondent wrote: "Would not hire for position to deal with the public but could fill a job where there is only production." However, Vice President Swanson conceded that, at the time Gunther was discharged, Respondent had received other complaints regarding his treatment of customers including two which Mr. Swanson received himself. According to Swanson his investigation of the Gunther situation revealed that after previous complaints Respondent had attempted to correct Gun- ther's conduct repeatedly. When this final incident arose Gunther's superiors decided, "That they had tried enough to help Mr. Gunther to see his problems and that it was not working and for the good of the Company Mr. Gunther would have to be terminated." In contrast to the Gunther situation, Respondent found the single complaint of customer Crutherds sufficient basis for terminating John- son. In sum, General Counsel has provided ample evidence to support his contention that the Company seized upon the Crutherds incident as an excuse for ridding itself of a 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leading union activist. That the Respondent chose to permit other union activists to remain employed at its Fairhope store does not detract from the strength of the General Counsel's case. For an employer intent upon destroying support for a union among its employees may achieve its purpose by selecting one or two well-known union activists for discriminatory treatment. For by dealing harshly with one such union adherent, an employer may persuade other employees to abandon their union activities rather than face a similar fate. Respondent argues that Mrs. Crutherds' complaint was the sole cause of Johnson's discharge. However, the Respondent's treatment of Mrs. Crutherds' complaint suggests an attempt to use it to conceal its true motive. A circumstance which casts suspicion on Respondent's defense is its shifting and inconsistent nature. On August 16, at the time he discharged Susan Johnson, Area Supervisor Bray gave as reasons for Johnson's termination that she was "ugly" and rude" to Mrs. Crutherds and had refused to take the discount coupons which Mrs. Crutherds had offered. In a document entitled "Report of Confer- ence" signed by Store Manager Holmes following her discharge, the reasons given for her termination were: "Number 1, indifferent, impersonal handling of a custom- er" and "Number 2, violation of procedures .... Employ- ee refused to cash in valid coupons for customer upon request with the purchase of items." At a later point, under cross-examination, Holmes conceded that "ugly" is the equivalent of rude. When asked to explain what the words "indifferent and impersonal" meant as stated in the conference report, Holmes declared that the words "indif- ferent and impersonal" were the equivalent of rude and ugly and then he added that they also meant "that the management wasn't called, which is what the dismissal is about, anyway." On cross-examination, Area Supervisor Bray gave as the reason for Johnson's termination, "That she argued with a customer and she did not call the manager up front and she tried to handle the complaint herself." In describing the reasons for Johnson's termina- tion in a state government form designated "Request for Separation Information," Respondent declared: "Fired for serious procedural violation. Refusal to take customers coupons with purchase. Arguing in check out with customer." In sum it appears that Respondent is uncertain as to its reasons for terminating Johnson. Respondent's superficial investigation of the Crutherds incident also casts doubts upon its defense. Thus, the record shows that Store Manager Holmes obtained one short statement from the bagboy, Tommy Leonard, and a second short statement from cashier Marion Chambers. Although Respondent claims that Johnson was "rude and ugly" in her confrontation with Mrs. Crutherds on August 5 neither Chambers' nor Leonard's statement provides support for that allegation. The most the two statements show is that there was an argument between Crutherds and Johnson. I also note that, while one of the reasons offered by Respondent for Johnson's termination is her failure to accept valid coupons from Mrs. Crutherds, Store Manager 3 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. Holmes conceded in his testimony that his investigation did not include consideration of that aspect of the confrontation. Thus, he admitted that he never investigated the question of whether Susan Johnson properly refused to honor Mrs. Crutherds' coupons. In sum, I have concluded that the Crutherds incident furnished Respondent with a pretext for terminating a leading union activist among its Fairhope store employees. For I am persuaded by the record as a whole, including the General Counsel's evidence and the infirmities in Respon- dent's defense, that the real reason for Susan Johnson's termination was her union activity. Accordingly, I find that her discharge on August 16 was violative of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By unlawfully interfering with, restraining, and coercing the employees as found herein, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discriminating against Susan C. Johnson because of her activity in support of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action necessary to remedy the unfair labor practices and to effectuate the policies of the Act. Included in this affirmative action will be a recommendation that Respondent offer reinstatement with backpay to Susan C. Johnson and post a notice to that effect. In accordance with the usual requirements, reinstatement will be to Johnson's former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. Johnson will be made whole for any loss of earnings she may have suffered by reason of the discrimi- nation against her by payment to her of a sum of money equal to that which she normally would have earned from the date of the initial discrimination against her (August 16, 1976) to the date of the offer of reinstatement, less net earnings, if any during such period, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 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: ORDER3 The Respondent, Delchamps, Inc., Fairhope, Alabama, its officers, agents, successors, and assigns, shall: 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. 174 DELCHAMPS, INC. I. Cease and desist from: (a) Creating the impression that the union activities of its employees are under surveillance. (b) Threatening discharge or other reprisals because its employees engage in union activities or express prounion sentiment. (c) Discouraging union membership or activities in Retail Clerks Union, Local No. 1657, AFL-CIO-CLC, R.C.I.A., or in any other labor organization by discriminat- ing in any manner against any of its employees in regard to their hire and tenure of employment, or any term and condition of employment, because of their union member- ship, sympathies, or activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Susan C. Johnson immediate and full reinstate- ment to her former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for such loss of pay as she may have suffered as a result of 4 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a the Respondent's discrimination against her, in the manner set forth in the section entitled "The Remedy." (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, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its store at Fairhope, Alabama, copies of the attached notice marked "Appendix." 4 Copies of said notice on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed in all other respects. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 175