Hit 'N Run Food Stores

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Razco, Inc., d/b/a Hit 'N Run Food Stores and Retail Clerks Local Union No. 35, chartered by Retail Clerks International Association, AFL-CIO and Retail Clerks Local Union No. 435, chartered by Retail Clerks International Association, AFL- CIO. Cases 14-CA-9417 and 14-CA-9494 August 26, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 30, 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings,' findings,2 and conclusions of the Administrative Law Judge, to modify his remedy,3 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, Razco, Inc., d/b/a Hit 'N Run Food Stores, Alton and Wood River, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. As regards the constructive discharge of employee Grimes, Respondent excepts to the reliance of her testimony with respect to a comment allegedly made by an employee of the state unemployment office. We agree that the testimony was hearsay and that the case cited by the Administrative Law Judge to support his admission of that testimony, Duquesne Electric and Mfg. Co., 212 NLRB 142, fn. 1 (1974), is inapposite. Duquesne speaks to judicial notice of an issued decision of a state bureau. However, we find no prejudice since the Administrative Law Judge clearly did not rely on it in his conclusions. 2 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's exception to the finding that the discharge of employee Varady for theft was a pretext is based in part on an incident, not considered by the Administrat.: e Law Judge, wherein Varady was accused of having a pastry and magazine without a sales slip, contrary to Respondent's established rule. We note that theft is not established by these facts, and that another employee testified that Varady paid for the items in question, but failed to retain the sales receipt. 231 NLRB No. 82 In support of its overall contention that Bramhall was not constructively discharged and is not, in any event, entitled to reinstatement and backpay, Respondent in its brief argues that she admitted keeping overages, if any existed, following the balancing of cash register funds at the end of a day. Bramhall credibly testified that she thought she was permitted to keep the overages-but never kept over 80 cents-since she was personally docked whenever her register was short, and she ceased this practice as soon as she was informed it was against company policy. However, Respondent did not discipline Bramhall for the incident at the time and therefore may not now rely on it as grounds for denying reinstatement. 3 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pror to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: These conso- lidated cases were heard at St. Louis, Missouri, on October 12 - 15 and October 27 and 28, 1976. The charge in Case 14-CA-9417 was filed by Retail Clerks Local Union No. 35 on June 14, 1976,1 and amended on June 15 and 16. The charge in Case 14-CA-9494 was filed by Retail Clerks Local Union No. 435 on July 20. (The Charging Parties are herein referred to respectively as Local 35 and Local 435, and collectively as the Union). The consolidated com- plaint, which issued on September 8 and was amended on September 17 and October 5, alleges that Razco, Inc., d/b/a Hit 'N Run Food Stores (herein the Company or Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The gravamen of the complaint is that during a union organizational campaign, the Company violated Section 8(a)(1) by interrogation, creating the impression of surveillance, solicitation of employees to report on the union activities and sympathies of other employees and to oppose the Union, threats and warnings of discharge, closure or other reprisal, statements that reprisals had been or were being taken against employees, offers of benefits and coercive solicitation and assistance of employees to demand return of their signed authorization cards, and violated Section 8(a)(l) and (3) by reducing the scheduled working hours of employees Donna Lankford, Debra Toner, and Debra Grimes, by discharging employees Janet Bramhall, Janice Miller, Jo Ann Paulda, James Steward, Douglas Canhan, William DeVous, and Deborah Varady, and by construc- tively discharging Lankford, Grimes, and employees Sherry Moore, and Loretta (Zippy) Strohkritch. The Company's answer denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs. Upon the entire record in this case2 and from my observation of the demeanor of the witnesses, and having considered helpful briefs submitted by the parties, I make the following: All dates herein are 1976 unless otherwise indicated. 2 Certain errors in the transcript have been noted and are hereby corrected. 660 HIT 'N RUN FOOD STORES FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, a Missouri corporation, operates five retail stores all located in Illinois, where it is engaged in the retail sale and distribution of liquor, groceries, and nonprescription drug items, and at some stores in the operation of self-service laundries. Two stores are located in Alton, and are known respectively as the Washington Avenue and State Street stores, and the remaining three are located in Wood River, East Alton, and Granite City, and are known respectively by those names. The Washington Avenue and Wood River stores are immediately involved in the present case. The Company maintains an adminis- trative office in Alton. In the operation of its business, the Company annually purchases and receives at its Illinois locations, goods and materials valued in excess of $50,000 which are shipped directly from points located outside of Illinois. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 35 and Local 435 are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background: The Nature of the Company's Operations, and Events Prior to the Union's Organizational Campaign in June 1976 David Roth is the president and co-owner (with his wife) of Coin-O-Matic of Alton, Inc., which operates car washes and which owns the premises on which the Company's stores are located. Roth originally operated the Hit 'N Run Food Stores, but sold the business. When the new operator defaulted on his loan, Roth resumed control of the business, but thereafter resold the business to the corpora- tion known as Razco, Inc. (acronym for Roth and Angelo Zavaglia), which is owned by Robert Roth (David's brother), and Robert's wife. Since October 28, 1975, Zavaglia has been the Company's general manager and in that capacity has been in charge of the Company's operations. David Roth, through Coin-O-Matic, Inc., is the Company's landlord. However, Roth, and of course, his family, have a vital interest in assuring the success of the business. Roth actively participates in the management of the business, and the Company admits that at all times material Roth was and is an agent of the Company. The employees recognize the authority of and take instructions from both David Roth and Zavaglia. In substance, albeit not in form, Roth and Zavaglia function somewhat like partners in a business, cooperating closely, with Zavaglia running the day-to-day operations, and Roth acting as an all around advisor, expeditor, and troubleshooter. The stores sell their merchandise either over-the-counter or at a drive up entrance, where customers may make purchases without leaving their vehicles. There is a self- service laundry adjacent to the Washington Avenue and Wood River stores. At the Wood River store there is also, adjacent to the store premises, a restaurant known as the Pancake Ranch, which is also operated by the Company. The Pancake Ranch employees are represented by the Hotel and Restaurant Employees and Bartenders' Union. The Company's store employees are engaged in a business which involves direct contact with and service to retail customers. They are relatively low paid workers. Characteristically, for the most part, they tend to be young, extroverted individuals, with strong preferences and dis- likes concerning the hours and nature of their work, who move with relative ease from one job to another, who are not shy about expressing their opinions, which are often accompanied by bursts of profanity, and who are not inclined to suffer in silence for the cause of unionism. All of the identified store clerks, laundry attendants, and store managers (the latter having been promoted to their supervisory positions from the ranks of the clerks) are female. The identified male employees are either engaged in maintenance or delivery work and report to the Company's office, or are stockboys assigned to a particular store. Typically, the younger female employees prefer to work as clerks, whereas middle-aged women or those who might be described as matronly (such as Jo Ann Paulda and Pearl Smiley) tend to prefer working as laundry attendants. Many if not most of the store clerks have decided preferences as to their days and hours of work. The stores are usually open from 6 a.m. to midnight on Sundays through Thursdays, and 6 a.m. to I a.m. on Fridays and Saturdays. As the employees normally work 40 hours a week or less, the Company has considerable leeway in assigning their days and hours of work. The work schedules are normally prepared by the store manager and posted on the bulletin board each Sunday, for the week beginning the next day. Prior to the Union's organizational campaign, the Company usually demonstrated an ability and willingness to accommodate assignments to the employees' desires, with more senior employees being given the preferred assignments. When an employee was given an undesirable assignment (e.g., working straight nights or working regularly in the laundry) the Company usually did so as punishment for some dereliction of duty (e.g., failing to open the store on time). As will be discussed herein, I have found that during the late spring and summer of 1976, the Company took numerous adverse actions against its employees (not all, but most of those alleged by General Counsel) in reprisal for their adherence to the Union. It is within the context described above that the allegations of constructive discharge and the numerous remedial ques- tions posed in this case must be decided. In September 1975, when David Roth was operating the stores, Local 35 President Charles Cross and Local 435 President Charles Tosh sought to get Roth to sign a collective-bargaining contract covering his stores. Alton is within Local 35's territorial jurisdiction, and Wood River is within that of Local 435. Roth refused, whereupon Local 35 picketed the Washington Avenue store for just over 30 days. During the picketing, Roth told employee Jerry Throne (of whom more later) that "before I would sell these girls down to the Union, I would shut the damn doors." In his testimony, Roth explained that he had gotten adverse reactions from the Pancake Ranch employees 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he had recognized their Union without an election, and that he would not again force his employees into a union without their agreement. Standing alone, Roth's statement to Throne might have been susceptible of this interpretation. However, in light of subsequent develop- ments, including uncontradicted testimony concerning the statements and actions of Roth and Zavaglia, it becomes apparent that Roth's statement reflected a broader opposi- tion to unionization, which extended to the commission of unfair labor practices. B. Local 35's Organizational Campaign at the Washington Avenue Store, and the Company's Response In early June 1976, employee Janet Bramhall contacted Local 35 President Cross and obtained his assistance in attempting to organize the Washington Avenue employees. Bramhall signed a union authorization card on June 5. Within the following week six other Washington Avenue employees signed union cards: Jo Ann Paulda, Janice Miller, Loretta (Zippy) Strohkritch, Sherry Moore, Kathy Davis, and Jackie Green. Bramhall was discharged (or as alleged by the Company, ceased going to work) on June 12. Miller was discharged on June 12, and Paulda on June 14. Another employee, James Steward (of whom more later), was also discharged on June 14; Strohkritch (whom for ease in reference I shall hereafter sometimes refer to as Zippy) and Moore were transferred to the State Street store. Moore quit rather than report to State Street, and Zippy quit after working for one day at State Street. General Counsel contends that the Company constructive- ly discharged Zippy and Moore by transferring them to State Street. As for Davis and Green, Store Manager Maria Pace asked Davis whether she had gone downtown with other girls (i.e., to the union hall with Zippy and Moore on June I1, when they signed their cards), and Davis answered that she had. Pace replied that she was sorry.3 Thereafter, Davis and Green obtained their signed cards from the Union. Davis testified that she gave her card to David Roth in order to let him know that she was not interested in the union activity and that Roth accepted the card without comment. Roth did not controvert this testimony. Pace, in her testimony, admitted that she knew that Green had signed a card and had gotten it back. The inference is warranted that Green, like Davis, returned her card to the Company in order to avoid reprisal. Both Davis and Green retained their jobs and were still employed by the Company at the time of this hearing. Former employee Beverly Youngberg (she quit on August 21) testified as a reluctant witness for General Counsel. Youngberg was opposed to the Union and was bitterly antagonistic to Bramhall. It was necessary for General Counsel to obtain judicial enforcement of her subpena in order to secure her presence at the hearing. I find it unlikely that she would knowingly testify falsely against the Company's interests. Moreover, although General Manager Zavaglia, in his testimony, gave his version of various conversations which were of minor or :' I credit Davis' uncontradicted testimony in this regard and find that Pace unlawfully interrogated Davis about her union activity. peripheral significance to this case, he did not contradict her significant testimony concerning her dealings with him. In June, Youngberg, who had formerly worked at the Washington Avenue store, was a clerk at the Granite City store. Zavaglia asked her to return to work at Washington Avenue because they were having union trouble and he wanted her to find out what was going on. Youngberg agreed, and thereafter reported to Zavaglia on several occasions. Youngberg told him that Zippy, Moore, Paulda, and Miller had signed union cards. Zavaglia told her that Bramhall was fired for opening the store late, but that the real reason was that she was the "instigator" who caused the union activity. A few days after the discharges and transfers of the union adherents, Zavaglia told Youngberg that he had taken care of everything, and that they should not have any more trouble. In another conversation, David Roth told Youngberg that if the girls kept up this "trouble," he would end up closing down, because he could not afford to go union. Roth, in his testimony, lamely suggested that "trouble" meant morale "more than the Union," and that he asked her to put some spirit into the store, because she was a good morale builder. Roth testified that by September morale had improved, although Youngberg herself had quit! The inescapable conclusion is, as Roth himself indicated to Youngberg, that "trouble" meant union activity. I find that the Company, by Zavaglia, violated Section 8(a)(l) of the Act by soliciting Youngberg to report on the union activities of other employees, interrogating her about the identity of union adherents, creating the impression of surveillance by naming Bramhall as the instigator of the union activity, telling Youngberg that Bramhall had been discharged for her union activities, and indicating that other employees had been discharged or transferred for signing union cards, thereby inferring that anyone else who signed would meet the same fate. See Kranco, Inc., 228 NLRB 319 (1977). Additionally, the Company, by Roth, violated Section 8(a)(1) by threatening to close down because of the employees' union activity. I further find, in light of Youngberg's testimony and additional evidence which will be discussed at various points in this decision, that the Company violated Section 8(a)(1) by, soliciting employees, e.g. Youngberg, Green, and Mark Barley (the latter probably through employee Jerry Throne), to report on real or alleged defects in the work of the union adherents in order to obtain pretextual grounds for their discharge, transfer, or other discriminatory treatment and in the bargain to sow discord between the union adherents and their fellow employees. I further find, as will be discussed, infra, that the Company similarly solicited Youngberg's sister, Barbara Youngberg, to inform on the scheduling preferences of union adherents at the Wood River store in order to discriminate against them. And I further find, in part on the basis of Beverly Youngberg's testimony, that the Company violated Section 8(a)(1) and (3) of the Act by discharging Bramhall, Miller, and Paulda and transferring Zippy and Moore because of their union adherence. However, as the Washington Avenue store aspect of this case presents questions of constructive discharge, entitle- 662 HIT 'N RUN FOOD STORES ment to reinstatement, and/or backpay, and the special case of James Steward, I shall proceed to deal individually with the alleged discriminatees. I. Janet Bramhall a. Events preceding her return to work on July 27 Bramhall was scheduled to open the Washington Avenue store at 7 a.m. on Friday, June 4. She was 8 minutes late, and found that Dave Roth's father had already opened the store. According to Dave Roth, his father is semiretired and does maintenance work for him. Bramhall told the elder Roth that she was afraid that she might be discharged. Bramhall understood that company policy for opening a store late was, for a first offense, to put the employee on straight nights, or working many nights, and for a second offense, discharge. Bramhall testified that Mr. Roth told her not to worry about it. Eight days later, on June 12 (the same day Janice Miller was discharged), Bramhall telephoned the store to find out the name of the insurer of the Company's hospitalization plan, since Bramhall's doctor had told her to go into the hospital for treatment of a kidney and bladder infection. (She was hospitalized from June 14 to 21). Roth gave her the name, whereupon, according to Bramhall, he became strangely silent. Bramhall testified that she asked what was the matter. Roth told her that she might as well go ahead and look for another job for having overslept on June 4, that she was undependable, but that he would have to talk to Zavaglia about it. Bramhall testified that she telephoned Roth the next day, whereupon he told her she was definitely fired. Roth testified that he first learned about the late opening from his father on June II; that he discussed the matter with Bramhall in their June 12 telephone conversation; that he said if it was up to him he would terminate her, but that the decision was Zavaglia's and he would tell him on Monday (June 14), and that in fact he told Zavaglia about the matter on Monday. On June 15 the Company received the Union's original charge, alleging that Bramhall was discriminatorily discharged. The next contact between Bramhall and the Company took place on June 24, when she encountered Zavaglia near a supermarket. Zavaglia told her that she could return to work as soon as she got a release from her doctor. Bramhall testified that she obtained a written release on June 28 and showed it to Manager Pace, but that Pace told her that she knew nothing about her returning to work; that she unsuccessfully sought to contact Zavaglia; and that on July 7 Pace told her that she was definitely fired, adding that she (Pace) did not have to tell her this. Pace in her testimony denied having been shown the release, but did not deny Bramhall's testimony concerning their conversations. Bramhall did not hear from the Company until July 26 when the Company, acting upon the advice of its attorney, offered reinstatement to all of the alleged Washington Avenue discriminatees except Steward. Bramhall promptly accepted reinstatement. I credit the testimony of Bramhall. I find that she was discharged on June 12 because of her union activity; that the matter of opening late and the matter of the medical release were simply pretexts; and that the latter was simply a stalling device to delay her eventual return to work, hopefully to mitigate backpay and to provide support for the Company's anticipated defense that she was not discharged. Several factors lead to this result. First and foremost, as indicated, is the testimony of Beverly Youngberg. Second, is the uncontroverted testimony of Bramhall that Pace told her that she had been fired and refused to put her on the schedule. Moreover, if the matter of opening the store late were as serious as the Company makes it out to be, then it is unlikely that the elder Roth would have waited a week to tell his son about it, and even more unlikely that Manager Pace would have overlooked the fact that Bramhall had clocked in late. Normally, an employee who is scheduled to open the store will clock in early, sometimes as much as a half hour before the scheduled opening time. Roth's testimony that he learned of the matter on June II becomes all the more suspicious when it is recognized (as becomes apparent when consider- ing all of the evidence in this case) that at that time the Company was looking for pretexts to get rid of all union adherents. As for the assertion that Bramhall was not discharged, it is difficult to see why Roth would have raised the matter of the late opening directly with Bramhall, rather than handle it through Zavaglia or Pace, unless he did so in order to tell her that she was being terminated. Moreover, if Bramhall had not been discharged, it seems likely that the Company would have communicated that information to Bramhall, either directly or indirectly, upon receiving the charge. In light of the foregoing evidence, I am not persuaded that the fact that Bramhall's hospital bill was paid under the Company's insurance plan demon- strates that Bramhall was not discharged. The Company's assertion that the insurance terminates for an employee on the day that he or she is terminated rests solely on the uncorroborated testimony of Roth. The Company did not produce either the policy or the testimony of its secretary who processes claims and requests for refunds under the policy, and Roth indicated only a vague knowledge of her records. In these circumstances, and considering the fact that the Company was taking a shifting and evasive posture toward Bramhall when she was seeking to return to work, I find that Roth's testimony is insufficient to outweigh the strong evidence that Bramhall was in fact terminated because of her union activity. b. Events following Brainhall's return to work Bramhall returned to work at the Washington Avenue store on Tuesday, July 27. She testified that 2 days later, Zavaglia told her that if the Union got in they would have to lock the doors. Zavaglia in his testimony did not deny the alleged conversation. I credit Bramhall and find that the Company thereby violated Section 8(aX1) of the Act. Bramhall's name had been placed on the schedule for the week of July 26. She was assigned to various tasks around the store and worked 35 hours during that week. However, Bramhall testified that beginning August 2 she was assigned almost exclusively to the laundry, working 36 hours a week, and was assigned more often to night shifts than she had been before her discharge. Prior to her discharge, Bramhall averaged 40 hours per week and usually worked 3 days as a clerk and 2 in the laundry. 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bramhall testified that she enjoyed working in both positions but did like to work only in the laundry. Laundry working shifts are different from and (at least in weekly total) shorter than clerk shifts. The hourly pay is the same, whether the employee is working as a clerk or in the laundry. As indicated, younger employees like Bramhall tend to find laundry work boring. Store Manager Pace testified that she assigned Bramhall to the laundry for 3 or 4 days per week because Bramhall requested to be put there, giving as a reason that "with all of the money coming up missing in the store," she would rather "stay away from the register altogether." Bramhall denied this testimony. According to Bramhall, she asserted to Pace that Angelo and Dave had put her in the laundry because nobody liked it, but that it did not matter. I credit Bramhall's testimony concerning this conversation and the changes in her work schedules and assignments, and further find that the changes were made in reprisal for her union activities. The matter of alleged missing money was not discussed until late Monday, August 9, more than a week after Bramhall had been assigned to the laundry. Additionally, as will be discussed, infra, Zavaglia at about the same time (August I) was making changes in the schedules of known union adherents at the Wood River store in reprisal for their union activities. The inference is warranted that the Company subjected Bramhall, the principal union adher- ent at Washington Avenue, to the same treatment, thereby hoping to cause her to quit and avoid any obligation of backpay or reinstatement on the part of the Company. If Bramhall had testified falsely concerning her scheduling, the Company could have, as it did for the Wood River store, produced the weekly schedules for Washington Avenue. The Company did not, and the inference is warranted that the schedules would have corroborated her testimony. On August 9, Zavaglia told Bramhall that her deposit money amounting to some $400, was missing from the store safe. They agreed that she would take a polygraph test. On August 13, Zavaglia took Bramhall to St. Louis where the test was administered. Bramhall passed, the polygraphist concluding that she had no knowledge of missing money. Bramhall took the test on her own time for which she was not paid. Bramhall testified that on the way back Zavaglia told her that the unfair labor practice charges had cost him a bunch and that someone was going to have to pay for it. Zavaglia denied this testimony. Zavaglia asked whether there was anything he could do for her. Bramhall answered, "get Dave off my ass." Zavaglia replied that he did not think Roth was bothering her. Bramhall said that Roth might have taken the money in order to provoke her into refusing to take a polygraph test. Zavaglia expressed disbelief. 4 Zavaglia testified that Bram- hall repeated the assertion about Roth in a subsequent conversation on August 26. Store Manager Pace, although present at this conversation, did not corroborate this testimony. Beverly Youngberg testified that Bramhall told employees that Roth had taken the money. On August 26, 4 I credit Bramhall's testimony concerning this conversation, part of which is uncontroverted. Zavaglia's statement that someone would have to pay is wholly in character with the repeated threats of reprisal made by the Company on other occasions. I find that Zavaglia's statement constituted yet another threat of reprisal for union activity. However, I find that Zavaglia went after Bramhall again. Youngberg had quit, and Zavaglia demanded to know why Bramhall had told her to quit. Zavaglia persisted in questioning Bramhall, whereupon Bramhall became angry, said that she did not have to put up with "this crap," and left the store. On August 28, Bramhall telephoned Zavaglia at his home and asked why he had talked about her at a meeting of employees. Zavaglia refused to discuss the matter, where- upon Bramhall cursed at him and hung up. She did not thereafter return to work. General Counsel contends that Bramhall was never properly reinstated, and that, therefore, she is entitled to the conventional remedy of reinstatement with backpay. I agree. Reinstatement of an unlawfully terminated employ- ee contemplates that the employee will be restored to his or her position prior to the unlawful conduct, if possible, and will not be subjected to further discriminatory treatment. The Company did not fulfill either obligation. Bramhall, for discriminatory reasons, was assigned almost exclusively to laundry work, her hours of work were reduced, and she was assigned to work more night shifts than she had before her discharge. She was subjected to needless harassment and humiliation until she quit in disgust. In these circumstances, reinstatement with backpay is an appropri- ate remedy, for Bramhall was not obligated to remain at work under these conditions. Chase National Bank, 65 NLRB 827, 829 (1946); Oneita Knitting Mills, Inc. v. N.L.R.B., 375 F.2d 385, 388 (C.A. 4, 1967). The Company contends that, in any event, Bramhall is not entitled to any remedy because (1) she accused Roth of stealing, (2) she encouraged Youngberg to quit, and (3) she used an obscene and rather commonplace epithet in ending her conversation with Zavaglia on August 29. These conten- tions are without merit. As to the first, Bramhall's asserted opinion that Roth might have taken the money was, if not justifiable, at least understandable. Considering that Bramhall and other union adherents had been terminated for pretextual reasons, that she was being subjected to harassment and discriminatory treatment, that she and other employees (including Youngberg) discovered on August 8 that a missing store key had been placed in her coat pocket, and that she demonstrated to the Company's satisfaction that she had not taken the money, her suggestion could hardly be characterized as reckless or malicious. Interestingly enough, Roth in his testimony did not deny misplacing the money. As to the second contention, Bramhall was entitled to express her opinions to Youngberg, and Youngberg was capable of making up her own mind. As to the third contention, the use of profanity was rather commonplace among both employees and management. (See, for example, the language which Zavaglia assertedly used in telling Janice Miller to improve her work). Considering that Bramhall had been subjected to prolonged discriminatory treatment and harassment, her final outburst does not warrant denial of a remedy. N.L.R.B. v. Morrison Cafeteria Company of Little Rock, Inc., 311 F.2d 534, 538 (C.A. 8, 1963). Finally, all of these Zavaglia's inquiry as to whether he could do anything for Bramhall, even when viewed in context, is too vague and generalized upon which to base a finding, as alleged by General Counsel, of a promise of benefits in order to discourage union activity. 664 HIT 'N RUN FOOD STORES contentions are cast into doubt by the Company's demonstrated proclivity to seek and rely upon pretextual grounds for ridding itself of union adherents. Even proven theft has been held not to bar reinstatement, where the asserted ground for discharge has been found to be pretextual. Shell Oil Company v. N.LR.B., 196 F.2d 637 (C.A. 5, 1952). 5 2. Janice Miller and Jo Ann Paulda Janice Miller was discharged on June 12 by Store Manager Pace, acting on instructions from Roth and Zavaglia, ostensibly because she was a slow worker. Jo Ann Paulda was discharged personally by Roth and Zavaglia on June 14, ostensibly because her work was not up to the Company's standards (specifically that she spent time in the laundry talking to customers), and that she was receiving telephone calls at the store from her children. In fact, Miller, who began working for the Company on April 28, was a slow worker, and Paulda, who had been working at Washington Avenue since November or December 1975, had always talked a lot to customers and received telephone calls from her children. The Company generally did not attract a high calibre of employee. However, the Company did not deem these deficiencies to be grounds for termination until Miller and Paulda signed union cards, whereupon the Company swiftly and summarily dis- charged both employees (among others transferred or discharged), leaving Store Manager Pace shorthanded.6 The timing of the discharges, their coincident identity with union adherents, and the testimony of Youngberg makes clear that both Miller and Paulda were discharged because of their adherence to the Union. I also find significant the testimony of company witnesses concerning how the deficiencies of Miller and Paulda ostensibly led to their discharge. Pace, in terminating Miller, placed the responsi- bility squarely on Roth and Zavaglia. Pace testified that employee Jackie Green told her that she would quit if she had to work with Miller. However, Zavaglia placed the responsibility on Pace, testifying that Pace told him that "either she goes or I go." Zavaglia also testified that he had continuously received complaints from Youngberg and Green about Miller throughout her employment. However, Green admitted that she had worked only I day with Miller. Green also testified in detail about Paulda's bad habits, including the telephone calls from her children, although Paulda had worked in the laundry and Green worked as a clerk in the store. These inconsistencies, together with other evidence of a pattern of conduct directed at union adherents, tend to indicate that the complaints about Miller and Paulda, if in fact they were made, were at least in part solicited by management. I The cases relied upon by the Company are not on point. In New Fairviei Hall Convalescent Home, 206 NLRB 688, 750 (1973), the Administrative Law Judge found that the employees in question had engaged in picket line misconduct which rendered them unfit for further employment, and therefore. that it was not necessary to determine whether they should be denied reinstatement on the ground that they had defamed the employer. In Western Sample Book and Prining Co., Inc., 209 NLRB 384. 390-391 (1974), the Administrative Law Judge found that the employee in question had been discharged because he lied to the employer. Similarly, in the remaining cases cited by the Company. relief was denied because the On or about July 26 the Company sent a letter to Paulda offering her reinstatement to her job. Paulda declined, saying that she had another job. Prior to her discharge Paulda was working an average of 32 hours per week. On or about June 1, Paulda had asked Roth to reduce the number of her working days, but Roth did not act upon her request. I cannot assume that absent her unlawful dis- charge, that her hours would have been reduced or that she would have quit her job. She is entitled to backpay to the time that she received the Company's offer of reinstate- ment. The Company sent Miller a certified letter, dated July 23, offering her reinstatement to her job. Miller signed the receipt for the letter on August 2. Miller initially testified that she had received the letter on July 2, after returning (on July 1) from a trip of about 2 weeks to Texas to seek work. After leaving the witness stand, Miller sought to change her testimony to admit that, in fact, she had received the letter on August 2. Thus, Miller apparently was in the Alton area and available for work in late July. She testified that she sent a letter to the Company's office, offering to return to work, but received no reply. Zavaglia testified that the Company never received such a letter or heard from her in any other manner. Miller testified that she was unable to locate the telephone number of the Company's office, and asked Store Manager Pace for Zavaglia's number. However, she neither told Pace of the reason, nor did she thereafter call Zavaglia. In contrast, Janet Bramhall had no difficulty either in returning to work or in later calling Zavaglia at home. Miller also testified that she made a "rough copy" of her letter, was unable to locate it or even remember the approxir date it was sent. In order to credit her testimony, I have to assume that, notwithstanding her asserted d return to work, she did not communicate with the ' the Board's Regional Office upon receiving tl4dt reinstatement, did not return to the store or tf? . . she wanted to return to work, or even telepho % o9\ and did not bother to keep a copy of her alleM~ : letter. I am not inclined to make such an ass ' that Miller, by failing to reply to the Cd" declined reinstatement, and that she is e backpay to August 2. 3. Loretta (Zippy) Strohkritch and , Moore Shortly after midnight of June 14, afteaulda had been discharged and Zippy and Moore had completed their shift, Roth told Zippy and Moore that they were being transferred to the State Street store. According to the employees, Roth and Zavaglia told them that they were being transferred because of their attitude towards black customers, that the Company had received complaints alleged pretext was found to be the true reason for the discharge. Such is not the case here. 6 The Union received Miller's card on June 16. However, Miller signed her card in the store on June 11, in the presence of Zippy Strohkritch. In view of Beverly Youngberg's testimony that she informed Zavaglia. prior to Miller's termination, that Miller had signed a union card; and in view of the testimony of Jerry Throne, who had frequent contact with all of the stores, that the identity of card signers was a matter of common knowledge and discussion among store personnel, I find that the Company knew, prior to her discharge. that Miller had signed a union card. 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from black customers that they were rude to them, and that Zippy was a bad influence on Moore and her attitude toward blacks was rubbing off on Moore. Zavaglia's version of the transfer differed in that, according to Zavaglia, he told Moore that since Maria Pace was a new manager, Jane Meeks, who was then manager at State Street, was better qualified to train Moore. (Moore began working for the Company on May 19, and Pace was promoted to store manager on June 6 or 7). Zippy protested that she was not rude to blacks, and Moore said nothing. However, Moore left the store, and shortly returned with her husband, who informed Roth and Zavaglia in no uncertain terms, accompanied by a burst of profanity, that his wife was not going to work at State Street. Zippy eventually reported to State Street on June 20, worked I day, and quit. On advice of counsel, the Company sent letters to Zippy and Moore offering them reinstatement, which letters were received by them on July 26. They did not respond to the offers; hence, assuming as contended by General Counsel that the employees were constructively discharged, they would only be entitled to backpay to July 26. As indicated, I have found that the Company transferred Zippy and Moore because they were union adherents, and thereby violated Section 8(aX)(I) and (3) of the Act. In part, this determination is based on the testimony of Beverly Youngberg and the timing of the transfers. Moreover, the Company's asserted reasons for the transfer are patent fabrications. Zippy did in fact display hostility toward at m'ast some black customers. In these circumstances, her nsfer to a store which had a larger proportion of black tomers than Washington Avenue could fairly be ireted by Zippy as a punishment and a provocation. in her brief job tenure, demonstrated herself to be a Id a hard worker, and never displayed any hostility ard or inability to get along with black customers. In contrast to other employees, Moore was a quiet person who would not likely have given vent to her feelings around the store. If Zippy were a bad influence on Moore, then plainly it would be the height of folly to transfer them together to another store. In fact, if Zippy had exerted any influence on Moore, it was with respect to their union adherence. Moreover, as of June 14, the Washington Avenue store was short-handed, at least in part because of the Company's discriminatory discharge of Bramhall, Miller, and Paulda. Thereafter, new employees were hired who somehow managed to learn their jobs under the tutelage of Maria Pace. However, as General Counsel contends that the Company constructively discharged Zippy and Moore by transferring them to State Street, it becomes necessary to examine further the circumstances under which they terminated their employment. In this regard, General Counsel has taken divergent positions. With respect to Zippy, General Counsel contends that she was forced to quit because Jane Meeks was an ogre who made life miserable for Zippy. With respect to Moore, General Counsel contends that the State Street store was located in "a high-crime area." No evidence was adduced in support of this contention beyond Moore's testimony concerning what she had heard about the store itself. Zippy failed to explain just why she quit. Moore testified that she would not work at State Street because it had too many robberies and holdups, "almost every weekend." Her assertion was unsupported by probative evidence, and her testimony, when she was pressed for details, was evasive. Zavaglia testified that in December 1975 there were two armed robberies at the store by the same individual, who was subsequently apprehended and convicted, and that thereaf- ter there were no robberies at the store. Viewed from an objective standpoint, there was little to distinguish State Street from Washington Avenue as a place to work. In some respects State Street was more desirable-it was a newer store and did not have a laundry. Both stores were located 3 to 4 miles from Zippy's home. Moore's home was a few blocks from Washington Avenue and about 2 miles from State Street; however, there is no evidence that this created any problem for her. General Counsel's assertions that Zippy was subjected to unbearable harassment tend to fade away in light of Zippy's admissions in her testimony. General Counsel contends that she was denied permission to be excused from work because of her father-in-law's illness. In fact, Meeks permitted Zippy to delay reporting to the store until June 20, and Zippy was not penalized for doing so. Zippy testified that Meeks did not explain anything to her, but Zippy admitted that all of the stores are laid out in about the same way. She also testified that Meeks made petty criticisms about her work and appear- ance, but that before the day was over they were getting along with each other. Zippy testified that she was scheduled to work only 20 hours during the week beginning June 21, although she had regularly been working 40 hours per week at Washington Avenue. However, her daily breakdown of the schedule indicates that she was actually scheduled to work at least 30 hours. Zippy also admitted that normally a new employee at a store is gradually worked into a 40-hour schedule. In view of the fact that she quit after working only I day at State Street, it cannot be assumed that Zippy's working hours would not have been increased to a level of 40 hours per week. I am not persuaded that the circumstances of the transfer of Zippy and Moore meet the Board's standards for constructive discharge. In Crystal Princeton Refining Company, 222 NLRB 1068 (1967), the Board recently held: "There are two elements which must be proven to establish a constructive discharge." First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employees' union activities. Earlier, the Board indicated that what constitutes "difficult or unpleasant" conditions must be determined in accordance with the time-honored legal standard of the "reasonable person," and not merely on the basis of the discriminatee's own standards and preferences. "This Board has found that an employer may make conditions for an employee so intolerable that no reason- able person could be expected to remain in employment, and under those circumstances we have been willing to find that the employee was constructively discharged and that he is therefore entitled to full and backpay reinstatement." (Emphasis supplied.) Bechtel Corporation, 200 NLRB 975, fn. 2 (1972). Therefore, the Board has held that a 666 HIT 'N RUN FOOD STORES discriminatory transfer of an employee followed by his quitting or abandonment of employment, even when accompanied by a wage cut, interrogation, or harassment, does not constitute a constructive discharge unless all of the conditions specified in Crystal Princeton Refining Company are met. Bechtel Corp., supra' J. W Mays, Inc., 147 NLRB 942, 943 (1964), enfd., as modified 356 F.2d 693, 697-698 (C.A. 2, 1966); Walker Electric Company, 142 NLRB 1214, 1215 (1963). See also Central Credit Collection Control Corp. d/b/a Federal Collectors, 201 NLRB 944, 949 (1973); and Big G Supermarket, Inc., d/b/a Town and Country Family Center, 219 NLRB 1098, 1106 (1975), relied upon by General Counsel. Thus, in Walker Electric Company, supra, the Board held that "the illegal conditions of employment to which [the alleged dischargees] were subjected, were no different from those in many cases in which employers have engaged in unfair labor practices to thwart their employees' representation desires. Yet, until this time it has not been suggested that the Board should find the mere existence of unlawful conditions, which do not require employees to take affirmative action in derogation of their rights, to be sufficient justification for considering abandonment of employment as a constructive discharge." In the present case, Zippy and Moore were transferred because of their union activities; hence, the second test enunciated in Crystal Princeton has been met. It is also possible that the Company intended that the move would result in the employees quitting their jobs. It is probable that Roth and Zavaglia hoped for this result, and were not displeased when it came about. However, it is also possible that they were concerned with breaking up the core of union support at Washington Avenue, and that, having achieved that result and isolated Zippy and Moore, they would not have harassed them until they quit their jobs. It does not automatically follow that a discriminatory transfer constitutes a constructive discharge, even when the employer discriminatorily discharges another employee on the pretextual ground of a refusal to accept a similar transfer. J. W. Mays, supra. In the present case, it cannot be said, on the basis of Zippy's I day of work at State Street, that the Company intended to create working conditions so difficult or unpleasant as to force Zippy and Moore to resign. Additionally, as indicated, the conditions at State Street, measured by the standards of a reasonable person, did not rise to this level of severity. Therefore, the Company did not constructively discharge Zippy and Moore. 4. James Steward James Steward, age 19, worked as a stockboy at Washington Avenue. He did not sign a union card or manifest support for the Union in any other manner prior to his discharge on June 14. On the evening of June 14, Steward was scheduled to work from 6 p.m. to midnight. About 11 p.m. Paulda was discharged, but chose to remain in order to finish up her work, which she did by about 11:30. Paulda went over to Steward and they laughed about her discharge. Zavaglia and Roth admittedly overheard Steward tell Paulda that "you might as well stick around because I will probably be next tonight." Zavaglia and Roth testified that they were at the store on the evening of June 14 in order to consider plans for remodeling the store, and remained in order to straighten up and restack bottles. In fact, the principal, if not the only, reason for their presence was to complete the process of removing all union adherents from the store. Upon overhearing Steward's statement, they may well have assumed that they had overlooked one union adherent. About 12:15 a.m., either after or shortly before Steward clocked out, depending on whose version is credited, Steward got into an argument with Roth and Zavaglia. Steward gave one version of the events, and Zavaglia another, the latter being corroborated by Roth. Other personnel present at the store that evening were Acting Manager Michelle (Micky) Tidwell, Paulda, Strohkritch, and Moore. Paulda had left and Moore was apparently outside with her husband. Tidwell did not testify about the matter and Zippy simply testified that she heard arguing and that Roth and Zavaglia seemed to be doing Steward's work. In fact, they were doing some of his work. However, as they had no reason to believe that he was a union adherent until his conversation with Paulda about 11:30, it is unlikely that they did so in order to provoke him into losing his temper. If Steward's version of the events were credited, it could fairly be inferred that Roth and Zavaglia provoked Steward into an act of insubordination in order to furnish a pretext for his discharge. If Roth and Zavaglia were credited, the inference would be warranted that Steward did most of the provoking. Roth and Zavaglia demonstrated their lack of credibility with respect to other matters, in particular, their asserted reasons for discharging or transferring the other union adherents. However, Steward demonstrated that he was a less than reliable witness by his sometimes evasive and contradictory testimony about the events. In some cases, the credibility of an alleged discriminatee may not be decisive; however, in the case of Steward, the merits of General Counsel's position rest almost entirely upon his uncorroborated testimony. Steward testified that, as he was about to clock out, Roth told him to haul in some bottles which were stacked outside the door. Steward said that he could not because the nearest door was blocked. (In fact, it was blocked. Zavaglia testified that he had placed some soda on the tile floor near the door because Jerry Throne was scheduled to clean the carpets). Roth told Steward to haul the bottles around through the side door. Steward asked why not leave the bottles in front, saying that it made sense to do it that way. Roth repeated his instruction, whereupon Steward said that "that is the stupidest thing I ever heard of putting them there." Steward also told Roth that Roth had been in his way all night long. Roth said that he would move the bottles whereupon Steward clocked out. Steward testified that Zavaglia then said: "We don't need hotheads like you around here. Get out. You are fired." At this point, according to Steward, he lost his temper and began yelling at Zavaglia, demanding to know why he was fired, and refusing to accept the answer of "insubordination." Steward told Zavaglia to back off, threatened to punch Zavaglia and in fact started to swing at him, whereupon Zavaglia told Steward to leave the store or he would call 667 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the police. Steward left and never returned, and he was never offered reinstatement. Zavaglia's version of the events differs in various minor respects from that of Steward. However, the principal difference is that Zavaglia denied that Steward was told that he was discharged. Rather, according to Zavaglia, Steward repeatedly demanded to be discharged, and Zavaglia urged Steward, in essence, to calm down and go home, until Steward threatened him with violence. I am not persuaded that General Counsel has shown by a prepon- derance of the evidence that Steward's version rather than that of Zavaglia should be credited. Steward was looking for a better job; he admittedly told Store Manager Pace that he did not care if he were fired; and, in fact, Steward was at work with another employer by the following Monday. Steward also testified that "I want to get something on him [Zavaglial for firing me." Steward was plainly angry at the treatment accorded to the union adherents; he could not care less whether he was dis- charged; and he may well have decided to leave in a burst of glory and defiance. I find that Steward provoked Zavaglia to a point where Zavaglia was forced to order him to leave the premises, that General Counsel has not proven that Steward was discharged because of any actual or apparent union adherence, and that therefore his termina- tion was not violative of the Act. C. Local 435's Organizational Campaign at the Wood River Store, the Company's Response, and the Activities of Jerry Throne Two days after the Company completed the process of eliminating union adherents from Washington Avenue, Local 435 began its organizational campaign among the Wood River employees. Union representatives contacted employee Debbie Toner, who signed a union authorization card on June 16 and solicited other employees to sign cards. Other employees signed cards which were turned over to the Union: Debbie Grimes, Donna Lankford, and Debbie Varady on June 16; stockboys Douglas Canhan and William DeVous on June 19 and 20, respectively; Pearl Smiley and her daughter, Sheila Herrin, on June 22; Pat Liss on June 22; and Charlotte Rohoer on June 23. The Union petitioned for a Board election, and a hearing was conducted on July 9, the principal issue being whether the single-store unit requested by the Union was appropriate.d On June 16, Dave Roth approached Grimes, Lankford, and Toner and told them that the Union was back, trying to get the girls to sign cards. He asserted that the Union would be costly both to the Company and to the employees. Earlier, about the time of the union activity at Washington Avenue, employee Jerry Throne asked Pearl Smiley if she had signed a union card. Smiley answered that she did not know anything about it, whereupon Throne replied that Dave and Angelo had ways of finding out and did not intend having a union in there. General Counsel contends that the Company clothed Throne with actual or apparent authority to make the statements and engage in the actions taken by him during the Union's I Subsequently, the Regional Director dismissed the petition, finding that a multistore unit was appropriate, but was reversed by the Board on Local organizational campaign. Throne did not deny the state- ments attributed to him by Smiley and other employees. Smiley impressed me as a candid person. I credit her testimony, including statements attributed to Throne and Store Manager Del Breem. Smiley asked Breem whether she did right by signing a union card. Breem answered that Dave and Angelo were dead set against the Union and that Dave would close the stores before he had a union in there. The theme was one which was repeatedly emphasized by the Company. I find that the Company thereby violated Section 8(a)(1) of the Act. Former employee Barbara Youngberg, like her sister Beverly, was a reluctant witness for General Counsel. She was crying as she began her testimony. I find it unlikely that she would testify falsely concerning her conversations and the statements and actions of management. As with her sister, Zavaglia took Youngberg into his confidence. On or about June 20, Roth and Zavaglia told her that they were having trouble, that Toner was in charge of the Union and was out to get most of the employees to sign, and that he would probably talk to Youngberg. Early in July, Zavaglia told Youngberg that he knew that Grimes, Lankford, and Varady had also signed union cards. On the afternoon of July 7, 2 days before the representation hearing, Jerry Throne also told Youngberg that the same girls had signed union cards. Throne asked Youngberg to tell Debby Varady that Dave and Angelo were giving the girls a chance to get their cards back, and that he (Throne) would pick her up and take her to the union hall. Youngberg agreed, and telephoned Varady at home. Varady agreed to go with Throne. In the meantime, Throne had been organizing a group of card signers to go down to the union hall and demand their cards back. Throne was employed by the Company as a general maintenance man and delivery man, servicing the laundries and delivering groceries to all five stores. He was paid considerably more than the store clerks, reported directly to Roth, did not work regular hours, was assigned stockboys including Mark Barley to assist him, and his wife was a secretary in the company office. As indicated, Throne frequently conveyed to the employees what he purported to be management's instructions and views concerning unionization. About 2 p.m., Throne left the Wood River store with Debbie Grimes and Pearl Smiley. They went in Del Breem's car, Throne having been given the keys by Breem. Throne told the employees not to clock out from work, and they did not. On the way to the Local 435 hall they picked up Sheila Herrin at her home. Herrin was scheduled to begin work later in the day. Throne told Grimes that the girls at Washington Avenue, i.e., Davis and Green, picked up their cards, and that this would be their last chance before the hearing on July 9. Throne added that he had heard Roth tell his father that the store would cease to exist if the Union came in. Upon arriving at the union hall, the three women went in and asked the Union's receptionist if they could pick up their cards. The receptionist told them that they could either wait or return the next day. They left, dropped off Herrin, and Smiley and Grimes returned to work. In the meantime, only Manager 435's appeal. Razco, Inc., d/b/a Hit 'n Run Food Stores, 227 NLRB 1186 (1977). 668 HIT 'N RUN FOOD STORES Breem and clerk Kathy Grizzle were left to mind the store; and the laundry, in the absence of Smiley, was left unattended. Smiley testified that Breem saw her leave on the second trip shortly thereafter, but said nothing. About 4 p.m., the original group, joined by Debbie Varady and Donna Lankford, went again to the union hall. Throne had urged Lankford, who was off work that day, to come along, emphasizing the theme that the store would be closed if the Union got in, and that if the employees retrieved their cards they would save Roth from a hearing on July 9. Debbie Toner, through Lankford, declined Throne's invitation to reclaim her card. This time all six employees went into the union hall. Throne, purporting to speak for the other employees, demanded the return of their cards, and insisted that they would wait. Union President Tosh met with them and, after checking with Business Agent Lightner, informed them that the cards were in St. Louis. However, Lightner arranged a meeting for the employees at 10 o'clock that evening at a restaurant known as the Pizza Hut. The employees left and returned to the store or to their homes, having been gone nearly an hour. Smiley's shift had ended and Varady and Herrin were now on their worktime. None of the employees were docked any pay. Throne persisted. During the early evening he presented Grimes with a petition, to be submitted to the Labor Board, stating that the employees had gone to the union office to demand their cards back, but were refused. Throne told Grimes to redraft the petition, which she did, and he solicited the employees to sign the petition. Herrin, Grimes, Lankford, and Varady signed the petition. There- after, they went to the Pizza Hut meeting. Varady and Herrin left work to go to the meeting, were gone over 1-1/2 hours, but did not clock out and were paid for that time. Again, Breem said nothing. At the meeting, Lightner convinced the employees to maintain their adherence to the Union. Upon their return, Varady and Herrin scratched their names off the petition. Throne, in the presence of Manager Breem, discarded the petition, telling the employees "you know what that means." I credit the testimony of Throne that he did not tell Breem where he was going on July 7. Throne did not have to tell Breem because she already knew what Throne was doing. The evidence described above, and the context in which the events of July 7 took place, including the Company's actions at Washington River and subsequent actions at Wood River, lead to the inescapable conclusion that Throne was speaking and acting on instructions from Roth and Zavaglia. To find such agency, it is not necessary to find direct evidence that Throne's activities were actually authorized or subsequently ratified; rather, agency may be inferred from the circumstances. See Section 2(13) of the Act; Milgo Industrial, Inc., 203 NLRB 1196, 1197- 99, 1205-07 (1973); Thunderbird Motel, Inc., 180 NLRB 656, 660, 661 (1970). Here, the circumstances are compel- ling. Consequently, I do not credit the testimony of Zavaglia and Throne that management did not know what was going on. Breem would have to be devoid of her senses in order not to know what was happening, and it is inconceivable that as a mere store manager, let alone a new one at Wood River, she would have taken it upon herself to permit the employees to come and go from the store at will in order to engage in their own venture. Indeed, Barbara Youngberg testified that Roth and Zavaglia were in the store at the time of the Pizza Hut meeting, and indicated that they knew where the employees had gone. The circumstances indicate that Roth and Zavaglia hoped to upstage the Union at the pending representation hearing by showing the Board that the employees who had demonstrated a show of interest in the Union no longer wished the Union to represent them. Therefore, they instructed Throne to get the employees to demand the return of their cards by making clear to them that failure to do so meant the loss of their jobs. The employees recognized that he was speaking for management, and were aware of the discharges and transfers at Washington Avenue. When Throne's efforts failed the first time, he tried a second, and again a third time with the petition. It is highly unlikely that an employee such as Throne would have engaged in such persistent and knowledgeable ventures without the direction, assistance, and encourage- ment of management. I find that the Company, through Throne, violated Section 8(a)(1) of the Act by threatening employees with store closure and loss of their jobs unless they demanded the return of their signed union cards; soliciting and assisting employees to demand the return of their cards, and to encourage other employees to do the same; soliciting them to sign a petition demanding the return of their cards; and interrogating them about their union activities in that the employees were being asked to disclose their attitudes toward the Union. It is settled that such conduct is violative of the Act. N.LRB. v. American Manufacturing Conmpany of Texas, 351 F.2d 74, 78 (C.A. 5, 1965). I further find that Roth and Zavaglia created the impression of surveillance by naming Toner as the leader of the union activity, and Zavaglia and Throne by naming the card signers, and thereby further violated Section 8(a)(1). Sheila Herrin quit her job on July 8, and Pearl Smiley left the Company about a week later. Smiley testified that on July 8 or 9 she overheard Del Breem tell an employee that the schedules were going to be changed and that the girls were going to be put on nights because of the activities going on in the store. Smiley further testified that on July 8 she talked to Zavaglia about her daughter's resignation. Smiley asserted that Herrin had been harassed. According to Smiley, Zavaglia said that if the Union got in they would do away with the laundry and the drive-up service, leaving only a walk-in store. Zavaglia said that the girls who signed cards would not be there long. When Smiley said that the cards were confidential, Zavaglia replied that he had ways of getting the cards and knowing who signed them. In fact, Zavaglia had already amply demonstrated the truth of this statement. Barbara Youngberg testified that sometime after July 7 Breem told her that Angelo wanted to know what night the girls went out, so that they could be scheduled to work on those nights. Breem added that none of this harassment would have started if the girls had gotten their cards back. Youngberg testified that sometime thereafter she saw Zavaglia with Breem when Breem was preparing the weekly schedule. According to Youngberg, Breem showed the schedule to Zavaglia, who said "that ought to do it" or "that ought to fix them." Zavaglia and Breem 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied the statements and actions attributed to them by Smiley and Youngberg. I have previously indicated my basis for crediting the testimony of Smiley and Youngberg. I find that the Company, by Breem, violated Section 8(a)(1) by telling employees that the work schedules of union adherents would be changed in order to punish them for their union activity, and that Zavaglia once again violated the Act by threatening store closure and loss of jobs.s General Counsel contends that during the period from July 12 to September 9, the Company discriminatorily reduced the working hours of Debbie Toner, Debbie Grimes, and Donna Lankford, constructively discharged Grimes and Lankford, and discriminatorily discharged Debbie Varady, Douglas Canhan, and Bill DeVous. As at Washington Avenue, issues of constructive discharge and remedy are presented. I shall proceed to take up the cases individually. I. Debbie Toner Debbie Toner continued to work at Wood River until she quit on or about September 8. Shortly thereafter she began working for another employer. She is not alleged as a constructive dischargee. However, General Counsel contends that the Company discriminatorily reduced her working hours and made other adverse changes in her working schedule and assignments in order to punish her for her adherence to the Union. I agree. During the 2- month period immediately preceding July 12, she normally worked from 30 to 35 hours per week. For the next 2 weeks she was assigned to work 26 hours each week, without explanation. In the meantime Cindy Lupchko, a new hire, was assigned 36 or more hours per week. Thereafter, Toner's working hours returned to their normal level, but she was subjected to other changes in her assignments. During the 2 weeks beginning July 12 she was assigned to work straight nights on weekends. Beginning in August she was assigned to work I day a week in the laundry. Previously, Toner had worked exclusively as a store clerk, and, like other young women, she did not care for laundry work. Toner testified that when she complained to Breem, Breem told her "you know why you're in there." More serious, however, was the fact that the daytime laundry assignment played havoc with Toner's second job. Toner babysat 4 days during the week, and prior to August I, her schedule at Wood River had been such as to complement her second job. Toner either worked nights or was off on Mondays through Thursdays. Barbara Youngberg was aware of Toner's need in this regard, and it may fairly be inferred that she informed management, if they did not know already. When Toner complained to Zavaglia, he refused to change her schedule. In light of the Company's 4 The Company continued to use Youngberg as an informer. Youngberg testified that in mid-August Breem told her that Dave wanted her to speak to Mary Barigan, a new employee, and find out how she felt about the Union. Barigan told Youngberg that she did not want the Union explained to her. Youngberg reported this conversation to Roth and Zavaglia after Roth asked if she had spoken to Barigan. Youngberg's testimony as to this matter was uncontroverted. I find that the Company violated Sec. 8(aX1) by soliciting Youngberg to report on the union sentiments of another employee and by interrogating her about the sentiments of that employee. 9 Grimes testified that a few days after she signed a union card, Store discriminatory actions against union adherents at Wash- ington Avenue, the actions and statements of Jerry Throne, the testimony of Barbara Youngberg and Pearl Smiley, and the Company's past practice of accommodating the preferences of its employees except for punishment purposes, I find that the Company made the foregoing changes in reprisal for her union activity, and I do not credit the Company's excuses for those changes. I find that the Company thereby Violated Section 8(a I) and (3) of the Act and that Toner should be reimbursed for her loss of income caused by the discriminatory cutback in her working hours. 2. Debbie Grimes Debbie Grimes began working for the Company in March 1974, and continued until she quit her job on August 19. General Counsel contends that the Company discriminatorily reduced her working hours, and eventually forced her to quit, and that Grimes should be viewed as having been constructively discharged.9 Until sometime in June, the Company regarded employ- ees who worked less than 33 hours a week as part-time employees. Thereafter, the cutoff point was increased to 34 hours. The distinction was that part-time employees did not receive holiday pay, and received less vacation pay than their full-time counterparts. Prior to August, Grimes enjoyed the benefits of a full-time employee. In the 4 weeks following her return from work after hospitalization and recuperation (June 28 thru July 25), she usually worked 36 or 37 hours per week (in I week she worked 33 hours). Beginning with the week of July 26 she was assigned to work only 30 to 33 hours per week. This continued for 3 weeks. Grimes testified that in her last week she was scheduled to work 33 hours, although the Company's schedule for that week indicates that she was scheduled to work 36-1/2 hours. In the meantime, while Grimes and Toner were working fewer hours, Cindy Lupchko (as indicated), a new hire, was regularly working at least 36 hours per week, notwithstanding the Company's usual policy of gradually slotting new store employees into a full- time schedule, and Kathy Grizzle, who did not sign a union card, was also regularly working at least 36 hours per week.' 0 When Grimes began working for the Company she worked at the laundry in the Washington Avenue Store for about 2 months. Thereafter, she transferred to Wood River, worked both in the laundry and as a store clerk for about another 2 months and then worked exclusively in the store. Early in 1975, Roth put her back in the laundry after he had seen her violating a company rule by smoking in the store. Grimes worked in the laundry for about 6 months, then in both the laundry and store, and by the beginning of 1976 she was back working exclusively in the store. Manager Breem questioned her as to why she did so. Breem gave a different version of their conversation. I have problems with the credibility of both witnesses. I find it unnecessary to resolve this allegation of interrogation, as a finding in this regard would be cumulative and in any event would not affect my disposition of the merits of Grimes' case. 'o The work schedules of Charlotte Rohoer and Pat Liss, card signers who are not alleged as discriminatees in this case and who apparently remained in the Company's employ, indicate that they were part-time employees who usually worked about 25 hours per week. 670 HIT 'N RUN FOOD STORES However, beginning in the first week of August, Grimes was assigned to work 2 nights a week in the laundry. Del Breem testified that at this time she was rotating employees to work in the laundry. However, some employees, both new and old, e.g., Lupchko and Ruth Goodnight, were excluded from this alleged rotation, and Grimes was the only clerk who was assigned to work in the laundry more than once a week. Prior to July 12, Grimes usually had Wednesday nights off and she usually worked in the store on Thursdays. This schedule was in accord with Grimes' preferences. Grimes usually went out with Debbie Varady and Donna Lankford on Wednesday, which was their night off. Grimes also enjoyed the work which had to be done on Thursdays, which was grocery-order day, when incoming items were priced and shelved. Beginning the week of July 12, Grimes was assigned to work on Wednesday nights, and beginning the week of August 9 she was given Thursdays off. Previously. Grimes and Donna Lankford had handled the grocery order. Del Breem testified that she took Grimes off Thursday work because new clerks had to learn the prices and location of the stock, and Lankford was more experienced than Grimes and could show them. However, Grimes had almost as much experience as Lankford and Lankford, unlike Grimes, had no special preference for grocery-order work. When Grimes asked Dave Roth why she had been taken off Thursday work, Roth equivocated by saying that he would talk to Angelo, but added that he felt sorry for Grimes because she was "easily misguided." On August 18, Kathy Grizzle, who was assigned to work the next day, a Thursday, asked to take off that day. Grimes, who was at home, telephoned Breem and offered to substitute for Grizzle. Breem said that she would have to check with Angelo. In the past, such clearance would not have been necessary." Having received no reply, Grimes called again the next morning, and was told by Breem that she could not substitute for Grizzle because Angelo himself was coming in to straighten the shelves. Later that day Grimes quit, telling Breem that she was "tired of that shit." 12 According to Grimes, Del Breem told her that Zavaglia had given instructions that Grimes' schedule was to stay the same for a while and that she was not to get more than 33 hours per week under any circumstances. Breem denied the alleged conversation or that she had received any such instructions from Zavaglia. I credit Grimes, because the evidence indicates that what Breem said was in fact happening. I have reservations concerning the reliability of some of Grimes' testimony; specifically, with her inconsis- " The testimony of Zavaglia and Washington Avenue Manager Maria Pace concerning company policy in this regard was contradictory. Zavaglia testified that in June he instituted a policy whereby schedule changes between employees were not permitted unless previously approved by Zavaglia. However. Pace testified that she did not have to check with Zavaglia when two girls wanted to switch shifts. it is evident that if such a policy existed as asserted by Zavaglia, it was applied in a discriminatory manner. ~2 The Company contends that Grimes previously manifested an intention to quit by filing a claim for unemployment compensation. In support of this contention the Company introduced into evidence a copy of the claim form, which contained three dates. However, the first, marked "Last Day Worked." was illegible, and it could not be determined whether it indicated August 11. 17, or 19. The second, marked "Date of Claim," indicated August 15. a Sunday, and therefore obviously was not the day on which the claim was filed. The third, marked "Date of This Notice," tent testimony concerning the number of nights which she worked and whether she was called and asked to substitute for another employee.' 3 However, much of her testimony is corroborated by the Company's weekly schedules, and the discriminatory motive for the Company's actions is evidenced by the same factors referred to in connection with Debbie Toner. I further find that the circumstances under which Grimes terminated her employment meet the Board's standards for a constructive discharge. The Company subjected Grimes to harassment and discrimina- tory treatment during the period from July 7, when she and other employees, under threat of loss of their jobs, were invited to demand the return of their union cards, and when Throne told her to redraft his petition, until August 19, when Zavaglia insisted on doing the work himself rather than allow Grimes to do work which she enjoyed. Grimes, unlike Zippy and Moore, attempted to stick it out. However, Roth and Zavaglia persisted, and Zavaglia's adamant refusal to permit Grimes to work on August 19 made clear to Grimes that they intended to continue to subject her to discriminatory treatment. Grimes' resigna- tion must be viewed in light of the circumstances of her job. The store employees received relatively low wages and worked irregular hours, including nights and weekends. Therefore, accommodations to their preferences as to hours and days worked and job assignments were of considerably more significance than they would be in the case of higher paid workers, or those working conventional office or factory hours. Here, the Company reduced Grimes to the status of a part-time employee, took her off work which she particularly enjoyed, and assigned her to work which, in the past, had been assigned as punishment for violation of company rules. Zavaglia's persistence, as evidenced by his action on August 19, indicated that the Company intended to continue in this course of action until Grimes was forced to quit. Viewed in the context of Grimes' job, a reasonable person could not be expected to continue working under the discriminatory terms and conditions imposed by management. I find that the Company intentionally imposed working conditions so unpleasant as to force Grimes to resign and, therefore, that she was constructively discharged in reprisal for her adherence to the Union. 3. Debbie Varady Debbie Varady worked at the Pancake Ranch (adjacent to Wood River) as a busgirl in May 1975. On June 9, 1976, indicated August 20. 1 find that the third date indicates the date on which notice was sent to the Company, and I credit Grimes' testimony that she filled out the claim on August 19, after leaving the store. Interestingly. upon presenting her claim to the Illinois Bureau of Employment Security. Grimes showed a copy of her investigatory affidavit dated August 4, which documented only a portion of General Counsel's case on her behalf. and was informed that she had good reason for quitting. That determination may be considered as evidence in the present case. Duquesne Electric and Manufacturing Compan-y, 212 NLRB 142, fn. I (1974). '3 Grimes may have been called to substitute for other employees. However, such substitutions were subjected to the arbitrary whim of Zavaglia, and employees requested to substitute for another employee were normally given 5 hours' advance notice or less. In these circumstances. such calls could not be deemed as an adequate substitute for the 36 or 37 hours per week which Grimes was normally assigned prior to July 25. 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Varady commenced working as a clerk in the Wood River store. Varady did not put down on her job application that she had previously worked for the Company near the Pancake Ranch. Evelyn Sansone, who was manager of the Pancake Ranch when Varady worked there, was still manager in June 1976. Store employees frequently went into the Pancake Ranch. Anthony Zavaglia testified that about a week after Varady was hired (i.e., on or about June 16) Roth told him that Sansone had discharged Varady the year before because Sansone had seen her stealing waitresses' tips off the tables. However, nothing was said to Varady and no action was taken against her until July 18, when she, along with Douglas Canhan and Bill DeVous, was discharged. Varady testified that on July 18 Del Breem told her that she was being let go because of complaints that she had been stealing sodas and potato chips from the Pancake Ranch. Varady denied the accusation, and Breem refused to identify the accusers. According to Varady, Breem added that Varady had a bad attitude toward her job, and when asked by Varady whether she was causing others to have a bad attitude Breem answered that Varady "was at the top of the list." Varady, it may be recalled, was the employee who, in the presence of Breem, struck her name off Jerry Throne's petition. Breem, in her testimony, admitted telling Varady that she was being terminated because of accusations of theft. However, she made no reference to Varady's testimony about her attitude, and denied telling Varady that she was at the "top of the list," or otherwise causing employees to have a bad attitude. Zavaglia testified that he got reports from employees Barbara Youngberg and Kathy Grizzle that Varady was taking sodas and other items from the Pancake Ranch, that on the advice of his attorney he discharged Varady and thereafter obtained written statements from Youngberg and Grizzle. Store employees have access to the Pancake Ranch during and after restaurant hours. (The store has a key, and they are permitted to get water and ice, and to use the bathroom.) However, the Pancake Ranch does not carry canned sodas. Grizzle and Sansone were not presented as witnesses. A statement written by Barbara Youngberg, dated July 8, was marked but not offered into evidence. According to Youngberg, Roth or Zavaglia wrote out a statement and then told her to rewrite it in her own handwriting. Youngberg testified that she had seen Varady take a bag of Fritos without paying for it, and that about 10 days later she reported the incident to Roth. However, Youngberg made clear that she did not volunteer the information; rather, Roth solicited such information from her. Youngberg testified that she also saw Varady take a pack of cigarettes from another employee. However, Youngberg admitted that she told no one about this alleged incident until long after Varady was discharged. Two days before her discharge, Roth kept Varady under surveillance in the store in an attempt to catch her stealing something but was admittedly unsuccessful.l 4 Varady's discharge fits into a pattern which prevailed throughout the Company's response to the employees' " On rebuttal. General Counsel proffered that if permitted to testify Varady would deny stealing anything from the Pancake Ranch or the store. The proffer was made and rejected because Varady, without satisfactory organizational campaign. When a pretext could be found, union adherents were discharged; otherwise, the Company transferred them, reduced their working hours, or discrimi- natorily altered their working schedules and assignments. To this end, as indicated, the Company utilized informers to furnish grounds for such actions and, in the process, to sow discord between the union adherents and their fellow employees. Zavaglia's testimony concerning Varady's alleged history of employment at the Pancake Ranch leads to one of two conclusions. Either Zavaglia testified falsely, or else the Company was indifferent to the presence of an employee who had falsified her job application and had engaged in serious theft. If the latter were true, then it is highly unlikely that the Company would have summarily discharged an employee for having taken a bag of chips for consumption without paying for it. No action was taken against Varady until after she had demonstrated her adherence to the Union, and then she was summarily discharged on the basis of a solicited unproven report from an employee who was in effect a hired informer. Unlike Janet Bramhall, Varady was not given the option of taking a polygraph test. Indeed, the Company never confronted her with the accusation. In fact, the Company was indifferent as to whether or not the accusation was true. I find that the Company discharged Varady because of her adherence to the Union, thereby violating Section 8(a)(1) and (3) of the Act, and that she is entitled to reinstatement and backpay regardless of whether she took anything from the store or the Pancake Ranch without paying for it. Shell Oil Company v. N.L.R.B., 196 F.2d 637 (C.A. 5, 1952). 1 further find that the Company violated Section 8(aX)() by soliciting information from Youngberg in order to furnish a pretext for discharging Varady. Brown & Root-Northrop, 174 NLRB 1048, 1058 (1969). 4. Donna Lankford Donna Lankford began working at Wood River in January 1974, and continued until she quit her job on September 9, 1976. General Counsel contends that begin- ning on or about July 12 the Company discriminatorily reduced her working hours, and that the circumstances of her departure constituted a constructive discharge. The evidence is insufficient to support either contention. Prior to July 12, Lankford normally worked a 40-hour week. For 3 of the next 4 weeks (she was on vacation I week) Lankford was scheduled to work 38 hours. During the week of August 23 she was scheduled to work 39 hours, and by the week of August 30, her last full week of employment, she was back to 40 hours. Lankford was the only employee who regularly worked 40 hours per week. During the summer of 1976, Ruth Goodnight, who had more seniority than Lankford, was the only employee who was scheduled to work more hours than Lankford. Specifically, Goodnight worked 39 hours in the weeks of July 19 and July 25, while Lankford was working 38. Even when viewed in light of the evidence that the Company was discriminatorily changing the work schedules of union adherents, the temporary reduction of Lankford's working reason, was not present at the hearing. Varady arrived after the hearing was closed. 672 HIT 'N RUN FOOD STORES hours was too minor to support an inference of discrimina- tory conduct. Indeed, Lankford herself was under the impression that no employee was working more hours than she. The restoration of her 40-hour week also tends to discount her working hours as a factor leading to her resignation. General Counsel's contention, in Lankford's case, of discriminatory scheduling, substantially rests on two asserted factors. The first, as indicated, was the reduction in hours. The second is a somewhat subtle (and difficult to follow) argument that the Company juggled her schedule so as to deprive her of either a Friday or Saturday night on the town. The argument is not helped by the fact that Lankford's testimony concerning her schedules tended to be confused and rambling. The Company's schedules did indicate that during the weeks of August 10 and 17 Lankford was assigned to work late on Friday night and to open the store early on Sunday morning. On August 25, Lankford complained to Zavaglia about her weekend schedule. Thereafter, in the same week that she was restored to a 40-hour week, her schedule was such as to enable her to go out on Friday night. She was also free to go out on Friday, August 27. Lankford described her schedule for the week of August 30 in these words: "I was glad," "it was nice of them," a "good schedule." These are not the words of an employee who is in the process of being constructively discharged. More significant, however, is the fact that during the last days of her employment Lankford was behaving in a manner which indicated that she was attempting to provoke her discharge, rather than indicating that the Company was actively seeking to provoke her resignation. The Company had succeeded in eliminating the core of known union support at Wood River. Lankford did not play an active role in the organizational campaign, beyond signing a union card, and Dave Roth, who was a cosigner on a note for her trailer, had some stake in her financial solvency. Lankford's friends, Debbie Grimes and Debbie Varady, were gone, and Lankford had little interest in remaining at Wood River. On Sunday, August 29, she was late in opening the store. As punishment, Jane Meeks, who became manager at Wood River on August 30, told her not to come to work that day. In comparison to prior punishments imposed by the Company, e.g., working straight nights or consignment to the laundry, this one was relatively mild. Thereafter, Lankford repeatedly called off work, calling in sick when she was not. She came into the store on September 6 (Labor Day) to pick up her paycheck and on September 9 to inform Meeks that she had quit. Her behavior on both occasions was somewhat reminiscent of that of James Steward, except that Lankford's pattern of behavior during the last weeks of her employment suggests deliberation rather than spontaneity. On September 6 she behaved in a seemingly irrational manner, and demanded to know if she were being fired, and on both occasions she was abusive toward Meeks.' 5 In these circumstances, I am not persuaded that Lankford was constructively dis- charged. 5 Lankford's version of the events of September 6 did not substantially differ from that of Meeks. Insofar as they differ, I credit Meeks. I have no basis for questioning Meeks' credibility; however. Lankford's testimony 5. William DeVous and Douglas Canhan William DeVous began working for the Company as a window washer on December 15, 1975, 3 days before his 16th birthday. He washed windows at Wood River, East Alton, Washington Avenue, and State Street. Thereafter, he became a stockboy at Wood River, but continued to wash windows at the various stores. Douglas Canhan, then age 16, began working at Wood River as a stockboy in late May 1976. As indicated, they signed union cards on June 20 and 19, respectively. DeVous solicited other employees to join the Union. In late June, Dave Roth told DeVous that the girls had been approached about signing union cards, and asked if he had been approached. DeVous falsely answered that he had not, because he was afraid to tell Roth the truth. However, DeVous did not suspect Jerry Throne, and when Throne asked him if he had signed a card DeVous admitted that he had. Throne told DeVous that the Company could not afford to pay union rates, and that if the Union came in the Company would either lock the doors or take out the drive-up service, leaving one girl and one stockboy. At the time Wood River had three stockboys. Throne added that the Company had learned the identity of the card signers from a delivery man. As indicated, I have found that at all times material, Throne was acting as t!ie Company's agent. I find that the Company, through Roth and Throne, once again violated Section 8(a)(1) of the Act by creating the impression of surveillance of union activity, interrogating DeVous about his union activities, and threatening DeVous with store closure or loss of jobs. I further find that the Company, through Throne, learned or confirmed its knowledge that DeVous had signed a union card. In view of Throne's testimony that the identity of card signers was common knowledge, the fact that the DeVous and Canhan families were related, and the Company's extensive espionage system, the inference is also warranted that the Company knew or suspected that Canhan had also signed a card. DeVous returned to work from his vacation on July 18 (the day Varady was fired) and found that his name was not on the schedule. Dave Roth told him that Zavaglia's attorney had checked with the Illinois State Liquor Commission and found that DeVous was not of age to handle liquor. Roth was unable to explain why it took so long to find this out. The next day Acting Store Manager Kathy Grizzle confirmed that Canhan had also been discharged, ostensi- bly for the same reason. Neither was offered a transfer or another job. Zavaglia testified that he decided to terminate DeVous, Canhan, and a third stockboy, Rusty Briggman, who worked at East Alton, because he had received a letter from Thomas Murphy, executive director of the Illinois State Liquor Commission, enclosing a 1973 written opinion of the Illinois attorney general, which together, according to Zavaglia, indicated that the Company could not employ persons under the age of 18. Zavaglia further testified that as he was away on a Florida vacation, having left on July 11, he telephoned Roth on July 12 and left instructions that concerning her work schedules demonstrated her to be a less than wholly reliable witness. 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Store Manager Breem should terminate DeVous and Canhan. Zavaglia's explanation for their terminations was a patent fabrication. Zavaglia made no effort to ascertain the state of the law until after he had terminated the stockboys, when, apparently acting on the advice of his attorney, he attempted to shore up his excuse for discharg- ing them. Executive Director Murphy's letter, dated August 10, together with the opinion of the attorney general, indicated only that the question of whether persons under the age of 18 could be employed in stores engaged in retail sale of alcoholic beverages was one which was subject to local ordinance. Thereafter, Zavaglia contacted Arthur Greenwood, the prosecuting attorney for Wood River. Greenwood's area of authority was in prosecuting cases, not in furnishing interpretations of local ordinances, the latter function being the responsibility of Corporation Counsel Pat Quinn. However, Greenwood had performed legal services for the Company and obtained legal work through Roth, and that was good enough for Zavaglia. In response to Zavaglia's request, made in late August, Greenwood obliged Zavaglia by sending him a letter indicating Greenwood's asserted opinion that Wood River prohibits the employment of minors in a store engaged in the retail sale of liquor. In view of the Company's demonstrated proclivity to dis- charge or transfer union adherents when a suitable pretext could be found, I find that the Company terminated DeVous and Canhan because of their adherence to the Union, and thereby violated Section 8(aXI) and (3) of the Act. There remains, however, the question of an appropriate remedy. Article XXV, section 15, of the Wood River Code provides that it shall be unlawful to employ a minor (under state law, a person under the age of 18) in any premises used for the retail sale of alcoholic liquor. On its face the ordinance would seem to preclude stores such as Wood River from employing minors even as stockboys, delivery helpers, or window washers. In fact, the ordinance, which was enacted in 1969, has never been enforced in this manner. Minors have worked and continue to work as stockboys or at other jobs involving the handling of beer, wine, and liquor at retail stores in Wood River and East Alton, Illinois.16 It is the opinion of Corporation Counsel Quinn that the ordinance does not prohibit such employ- ment. Prosecutor Greenwood and Wood River Police Chief Ralph Skinner testified, in sum, that there have been no prosecutions or even complaints arising from such employment. Indeed, it was Zavaglia alone who raised a question in this regard.17 It is highly unlikely that the Company would ever be prosecuted for employing a minor on its premises. However, in view of the literal wording of the Wood River ordinance, there remains the possibility, however remote, that a complaint might be lodged with the municipal authorities. In these circumstances, guidance may be found in the Board's recent decision in Amay's Bakery & Noodle Co., Inc., 227 NLRB 214 (1976). In that case, the Board was presented with the question of whether Js The record does not indicate whether East Alton is a part of Wood River, or subject to the same or a similar ordinance. There is no evidence that either Alton or Granite City, Illinois, has an ordinance similar to that of Wood River. 17 I do not credit the uncorroborated testimony of Zavaglia that he was illegal aliens who had been discharged because of their union activity were entitled to reinstatement, notwithstand- ing a California law which prohibited the employment of such aliens. As the California law had been judicially declared unconstitutional, although litigation was still pending, the Board found it unnecessary to resolve the question which would be inherent in a clear conflict between a Federal remedy and a state law. Nevertheless, the Board held: A conventional reinstatement order thus would not place the Respondent in clear violation of a valid state statute. Rather, it would return Respondent to a position in which it had placed itself earlier, and, but for the illegal discharges, in which it would still be. If there is any risk in that position, it is a risk that the Respondent by its earlier wrongdoing voluntarily assumed Moreover, in the event that the California Supreme Court finally determines that section 2805 can be enforced, the Respondent may petition for modifica- tion of the Order at the compliance stage. Based on the foregoing, we find that the Administra- tive Law Judge erred in failing to grant the convention- al remedy of reinstatement to the discriminatees. [Emphasis supplied.] The same or similar considerations noted above are present in the instant case. If the Company finds itself in a predicament, it is one which was brought about by the Company's own wrongdoing. The possibility of a conflict between Federal remedy and local ordinance is remote and, had the Company been guided by nondiscriminatory motives, it could have avoided such conflict by transferring DeVous and Canhan to an equivalent job or location. In these circumstances, DeVous and Canhan are entitled to the conventional remedies of backpay and reinstatement. The Company further contends that Canhan is not entitled to a remedial order because he allegedly told employee Mark Barley that he had stolen beer from the store and would steal again. In support of this contention the Company presented the testimony of Barley and a letter assertedly written by Barley to Zavaglia. Barley then worked, and presently works for the Company, cleaning carpets, making deliveries, and helping Jerry Throne make deliveries. He testified that he placed the letter on Zavaglia's desk on July 13. If true, the letter obviously did not precipitate Canhan's discharge, since Zavaglia was away in Florida and, by his own admission, had already decided to terminate DeVous and Canhan. Canhan, in his testimony, denied stealing anything or telling Barley that he stole anything. As in the case of Debbie Varady, Zavaglia was indifferent as to which employee was telling the truth. It is quite possible, as union counsel suggests, that even if Canhan made the statement attributed to him by Barley, he was simply engaging in juvenile macho talk. It is evident that the Company was engaging in its usual hunting and fishing expedition to find pretexts for concerned that an allegedly disgruntled former store manager might seek to have his license revoked. As indicated, Zavaglia manifested no interest in the state of the law until after he terminated DeVous and Canhan, and he admitted that he never considered transferring them to another job or to another store. 674 HIT 'N RUN FOOD STORES discharging, or in this case, to bolster the discharge, of union adherents and, to this end, solicited possible incriminating complaints from Throne or Barley. In these circumstances, backpay and reinstatement are warranted. 6. The alleged threat of lawsuits On August 25, Anthony Zavaglia conducted meetings for the employees from the various stores, at least two of which took place at a bank in Alton. Debbie Toner and Donna Lankford, who were then still working for the Company, attended one of the meetings. Zavaglia introduced Jane Meeks as the new manager at Wood River. Toner and Lankford testified, in sum, that Zavaglia told the employ- ees that some of the charges against the Company (which he described) were not true, and that after it was all over there would be some lawsuits for slander against people who filed charges. Zavaglia specifically referred to Pearl Smiley, Sheila Herrin, and a third employee not involved in the present case, i.e., charges on which the General Counsel did not proceed. However, testimony by Barbara Young- berg indicates that he also referred to the charge that the Company had asked the girls to get their union cards back. Toner and Zavaglia himself testified that Zavaglia referred to the admonition on charge forms that "willfully false statements on this charge can be punished by fine or imprisonment." Zavaglia's version of the meeting was that, at this point, an employee asked if this could happen, whereupon Zavaglia replied that he did not know about the Board, but that people were making accusations about him and Roth taking money and that if Roth decided to take legal action for slander it would be his option, and "not mine." I have reservations about some of the testimony of Toner and Lankford concerning their work schedules. In contrast, I have serious reservations about Zavaglia's overall credibility. Zavaglia's testimony about the August 25 meetings was uncorroborated by any other witness, although company witnesses Del Breem and Jane Meeks were both present at the same meeting as Toner and Lankford. I credit the testimony of Toner and Lankford. In the context of the Company's extensive unfair labor practices, I find that Zavaglia's statement constituted a threat that lawsuits would be filed against employees who filed unfair labor practice charges, that the threat was intended to intimidate employees in the exercise of their right to file charges under the Act, and that it was therefore violative of Section 8(a)(1) of the Act. Clyde Taylor Company, 127 NLRB 103, 108 (1960). IV. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company discriminatorily termi- nated Janet Bramhall, Debra Grimes, Deborah Varady, Douglas Canhan, and William DeVous, and that the Company has failed and refused to reinstate them, it will be recommended that the Company be ordered to offer each of them immediate and full reinstatement to his or her former job or, if it no longer exists, to a substantially equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suffered from the time of their termination to the date of the Company's offer of reinstatement. Having further found that the Company discriminatorily terminated Janice Miller and Jo Ann Paulda, but offered them reinstatement which they de- clined, it will be recommended that the Company be ordered to make them whole for any loss of earnings that they may have suffered from the time of their termination to the date each received the Company's offer of reinstate- ment. Having also found that the Company discriminatori- ly reduced the scheduled working hours of Janet Bramhall, Debra Toner, and Debra Grimes, it will be recommended that the Company make them whole for any loss of earnings as a result of the discrimination against them. The backpay for the aforesaid employees shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended that the Company be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Company are of a character striking at the root of employees' rights safeguarded by the Act, the inference is warranted that the Company maintains an attitude of opposition to the purposes of the Act with respect to the protection of employee rights in general. Accordingly, I shall recom- mend that the Company be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). CONCLUSIONS OF LAW I. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Janet Bramhall, Janice Miller, Jo Ann Paulda, Deborah Varady, Douglas Canhan, and William DeVous; by constructively discharging Debra Grimes; by failing and refusing to reinstate Bramhall, Varady, Canhan, and DeVous; by transferring Sherry Moore and Loretta (Zippy) Strohkritch; and by reducing the working hours and changing the job assignments and scheduled working hours of Bramhall, Grimes, and Debra Toner, thereby discouraging membership in the Union, the Company has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. General Counsel has not proven by a preponderance of the evidence that the Company discriminatorily termi- 675 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nated the employment of James Steward, Sherry Moore, Loretta (Zippy) Strohkritch, or Donna Lankford, discrimi- natorily reduced the scheduled working hours of Lankford, or promised benefits to an employee in order to discourage her from engaging in union activities. All other substantive allegations of the complaint, as set forth in the findings of fact herein, have been sustained by the evidence. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 17 The Respondent, Razco, Inc., d/b/a Hit 'N Run Food Stores, Alton and Wood River, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in Retail Clerks Interna- tional Association, AFL-CIO, its affiliated Locals 35 and 435, or any other labor organization by terminating or transferring employees, by reducing their scheduled work- ing hours or changing their job assignments or scheduled working days or hours, by making changes in their working conditions so difficult or unpleasant as to force them to resign, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their own or other employees' membership in, activities on behalf of, or attitude toward said Retail Clerks Union, or any other labor organization. (c) Soliciting employees to report on the union member- ship, activities, or sympathies of other employees. (d) Soliciting employees to report on the faults or preferences of employee union adherents in order to obtain a pretext or basis for their discharge, transfer, or other discriminatory treatment. (e) Creating the impression of surveillance of union activity by naming union adherents, telling employees that it knows the identity of union adherents, or telling employees that it has ways of learning the identity of union adherents. (0 Threatening employees with store closure or loss of jobs if they designate, select, or adhere to said Retail Clerks Union, or any other labor organization, as their collective- bargaining representative. (g) Threatening employees by indicating that employees have been terminated, transferred, or otherwise discrimi- nated against because of their support for said Retail Clerks Union, or any other labor organization. (h) Threatening employees with lawsuits because they file unfair labor practice charges, or because they are involved in such charges. (i) Soliciting or assisting employees to demand the return of their union authorization cards, or soliciting employees to engage in such conduct. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to organize, to form, join, or assist labor organizations, including said Retail Clerks Union, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective-bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Offer Janet Bramhall, Debra Grimes, Deborah Varady, Douglas Canhan, and William DeVous immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, and make them whole for losses they suffered by reason of the discrimination against them as set forth in the section of this Decision entitled "The Remedy." (b) Make whole Janice Miller, Jo Ann Paulda, and Debra Toner for losses they suffered by reason of the discrimination against them as set forth in the section of this Decision entitled "The Remedy." (c) 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. (d) Post at its offices and at each of its stores, copies of the attached notice marked "Appendix." 18 Copies of said notice on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. i? 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. 1s 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. 676 HIT 'N RUN FOOD STORES WE WILL NOT discourage membership in Retail Clerks International Association, AFL-CIO, its affili- ated Locals 35 and 435, or any other labor organiza- tion, by terminating or transferring employees, by reducing their scheduled working hours or changing their job assignments or scheduled working days or hours, by making changes in their working conditions so difficult or unpleasant as to force them to resign, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees concerning their own or other employees' membership in, activities on behalf of, or attitude toward said Retail Clerks Union, or any other labor organization. WE WILL NOT solicit employees to report on the union membership, activities, or sympathies of other employees. WE WILL NOT solicit employees to report on the faults or preferences of employee union adherents in order to obtain a pretext or basis for their discharge, transfer, or other discriminatory treatment. WE WILL NOT create the impression of surveillance of union activity by naming union adherents, telling employees that we know the identity of union adher- ents, or telling employees that we have ways of learning the identity of union adherents. WE WILL NOT threaten employees with store closure or loss of jobs if they designate, select, or adhere to said Retail Clerks Union, or any other labor organization, as their collective-bargaining representative. WE WILL NOT threaten employees by indicating that employees have been terminated, transferred, or other- wise discriminated against because of their support for said Retail Clerks Union, or any other labor organiza- tion. WE WILL NOT threaten employees with lawsuits because they file unfair labor practice charges, or because they are involved in such charges. WE WILL NOT solicit or assist employees to demand the return of their union authorization cards, or solicit employees to engage in such conduct. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to organize, to form, join, or assist labor organizations, including said Retail Clerks Union, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Janet Bramhall, Debra Grimes, Deborah Varady, Douglas Canhan, and William DeVous immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, and WE WILL make them whole for losses they suffered by reason of the discrimination against them. We offered reinstatement to Janice Miller and Jo Ann Paulda, which they declined, and Debra Toner voluntarily quit her job. However, WE WILL make whole each of them for losses they suffered by reason of the discrimination against them. All our employees are free to become, remain, or refuse to become or remain, members of said Retail Clerks Union, or any other labor organization. RAzco, INC., D/B/A HIT 'N RUN FOOD STORES 67!