Western Drug

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Drug and Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Association, AFL-CIO. Case 19-CA-8269 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On July 7, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed exceptions, a supporting brief, and a motion to reform order or motion for rehearing and reconsideration. 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 Decisidn in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ' The General Counsel's exceptions contend that the Administrative Law Judge erred in failing to find that the Union represented a majority of employees in the bargaining unit on December 10, 1975,2 the day it demanded recognition from Respondent. More specifically, the General Counsel asserts that: (1) the Administrative Law Judge should have excluded from the bargaining unit employees Bonnie Wallila and Irene Rice-in which case the Union would have represented an employee majority on the crucial date; (2) Respondent, as found by the Administrative Law Judge, commenced on Decem- ber 10 to engage in numerous and serious violations of Section 8(a)(1) and (3) of the Act; (3) those unfair labor practices had a tendency to undermine the Union's majority and to preclude the holding of a fair election; and (4) consequently, Respondent's refusal to grant the Union recognition was violative of Section 8(a)(5) and (1) and a bargaining order remedy is warranted. We agree. The parties stipulated that the appropriate unit includes all employees at the Employer's Laurel, i Respondent has filed exceptions to the Administrative Law Judge's proposed Order, and has filed a motion to reform it, upon the ground that it unreasonably and arbitrarily deprives Respondent of its right to schedule and regulate working hours, and control tardiness and overtime pay. However. Respondent misunderstands the scope of the Administrative Law Judge's proposed Order. The Order places no limitations on Respondent's authority to manage its business and regulate working conditions, except 231 NLRB No. 86 Montana, drug store, excluding pharmacists, janitors, guards, and supervisors as defined in the Act. According to credited testimony, Respondent's first knowledge of any union activity at the store in question was on December 10, when Respondent received a letter from the Union demanding recogni- tion as the representative of the store's employees. In early December Respondent had three employ- ees: full-time clerks Karen Shaffer, Connie Smith, and Candy Cummings. Cummings quit on December 4. Newly hired employee Jackie Kindsfather began work December 9 as a full-time clerk. Shaffer and Smith signed cards designating the Union as their authorized bargaining agent on December 8, but Kindsfather never signed such an authorization. We find, in agreement with the Administrative Law Judge, that these three employees were bargaining unit members as of the December 10 recognition- demand date. However, we disagree with the Administrative Law Judge's further conclusion that the bargaining unit also encompassed two of the three part-time employees who were newly hired during December-all of whom were relations of either Respondent's store manager or its assistant store manager. Jean Keck, wife of Store Manager Darrel Keck, started part-time clerical work on December 7, and continued until January when she quit for the birth of her child. She returned to work at an unspecified time thereafter and continued until May 29, 1976, when she quit again. The Administrative Law Judge found that she was initially hired by her husband as the result of a Christmas season business urgency and only worked beyond the Christmas season on an irregular basis. From this, he concluded that Keck was a transient or sporadic employee who would not be eligible to vote in a union election. Accordingly, he excluded her from the bargaining unit. We agree with this determination and note that no exceptions were filed with respect thereto. Bonnie Wallila, wife of Assistant Store Manager Karl Wallila, also started part-time work at the Laurel store on December 7, after being asked to "fill in over the Christmas season." Although she contin- ued to work on a part-time basis after the Christmas season ended and through the date of the hearing, it is clear that she was initially hired for a temporary holiday season job. Therefore, as evidence fails to disclose that an understanding existed between Wallila and Respondent-as of December 10-that where the authority is exercised for the purpose of interfering with, restraining, or coercing employees in the exercise of nghts guaranteed in Sec. 7 of the Act or in order to discriminate against employees in violation of Sec. 8(aX 3). Accordingly, Respondent's motion to reform and the accompanying motion for rehearing and reconsideration are hereby denied. 2 Unless otherwise specified, all dates herein are 1975. 890 WESTERN DRUG her employment would extend beyond the holidays on a regular part-time basis, and as the Union demanded recognition only 3 days after her hire on a temporary basis, we conclude that on December 10 she was a temporary employee who did not have a community of interest with other employees suffi- cient to justify her inclusion in the bargaining unit on that date. Accordingly, she shall be excluded therefrom. Georgia-Pacific Corporation, 201 NLRB 831 (1973). Irene Rice, Store Manager Keck's sister-in-law, interviewed for a job on December 6 and was hired as a regular part-time clerk, but did not begin work until December 29, as she had to move from her hometown to the area in which Respondent's store was located. Thus, although her employment had been agreed upon before December 10, she clearly was not a member of the bargaining unit on the relevant date. For, it would obviously be unreason- able to make the Union's status on the demand date turn on authorization by Rice, who was not even residing in the area at the time and who, so far as the record discloses, was totally unknown to the unit employees. WCAR, Inc., 203 NLRB 1235, 1243 (1973). Therefore, for purposes of determining the Union's majority status, we shall exclude Rice from the unit. Accordingly, we find that on December 10, the date the Union demanded recognition from Respon- dent, there were three employees in the appropriate unit: Kindsfather, Shaffer, and Smith. Two of these, Shaffer and Smith, had previously signed authoriza- tion cards for the Union. Accordingly, we further find that the Union represented an employee majority on the date of recognition demand. It is undisputed that on December 10, 1975, Respondent received a letter from the Union demanding recognition for purposes of collective bargaining and, without granting recognition, imme- diately embarked on a course of illegal conduct involving numerous and serious violations of Section 8(a)(1) and (3) of the Act. This course of conduct clearly justifies a Gissel bargaining order,3 as of December 10, the date on which the demand was made and the Union represented a majority of the members of the unit. Trading Port, Inc., 219 NLRB 298 (1975). Accordingly, we find that Respondent's refusal to bargain while commencing extensive and serious unfair labor practices constitutes a violation of Section 8(a)(5) of the Act and warrants the issuance of a bargaining 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 as modified below and hereby orders that the Respon- dent, Western Drug, Laurel, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(c) and reletter the subsequent paragraph accordingly: "(c) Refusing to recognize and bargain collectively with respect to rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: "All employees employed by Western Drug at its 15 Colorado Avenue, Laurel, Montana operation, excluding pharmacists, janitors, guards, and supervisors as defined in the Act." 2. Substitute the following for paragraph 2(a): "(a) Make whole employees Shaffer and Smith, whose work Respondent discriminatorily reduced, and Smith, whose wages were discriminatorily docked and who was required to take compensatory time off, for any loss of earnings they may have sustained as a result of the discrimination Respon- dent practiced against them. Backpay is to be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977)." 4 3. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly. "(b) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement." 4. Substitute the attached notice for that of the Administrative Law Judge. a N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 4 In accordance with our decision in Florida Steel Corporation. 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 891 DECISIONS OF 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 a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through represen- tatives of their choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of the Act, by interrogating employees about their union activities and sympathies; becoming more strict in working conditions; soliciting grievances of employees; promising a wage raise; promising to begin payment for overtime and promising to remedy grievances; threatening loss of benefits; threatening not to tolerate unionization; threatening to fire employ- ees and close the store rather than accept unionization; threatening to dock wages of employees for being late, in change of existing practice; docking an employee's wages for being late, in change of existing practice; reducing employees' hours of work; and requiring that employees take compensatory time off. WE WILL NOT discriminate against our employ- ees in violation of Section 8(a)(3) of the Act by reducing employees' hours of work, by requiring that employees take compensatory time off and by docking wages of employees for being late, in change of existing practice. WE WILL NOT refuse to recognize or bargain collectively with Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive represen- tative of our employees in the appropriate bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole employees Shaffer and Smith, whose work we discriminatorily reduced, and Smith, whose wages we discriminatorily docked and who discriminatorily was required to take compensatory time off, for any loss of earnings, including interest, they may have sustained as a result of the discrimination against them. WE WILL, upon request, recognize and bargain with Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Associa- tion, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All employees employed by Western Drug at its 15 Colorado Avenue, Laurel, Montana, operation excluding pharmacists, janitors, guards and supervisors as defined in the Act. WESTERN DRUG DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Billings, Montana, on May 5 and 6, 1976.1 The complaint, issued February 20, 1976, is based on an original charge filed January 12, 1976, and an amended charge filed February 18, 1976, by Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Association, AFL-CIO, hereinafter referred to as the Union. The complaint alleges that Western Drug, hereinafter referred to as Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: I All dates hereinafter are within 1975 unless stated to be otherwise. 892 WESTERN DRUG FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Montana corporation engaged in the operation of retail drug stores within the State of Montana. During the past 12 months, which period is representative of all times material herein, Respondent sold from its Laurel, Montana, store products valued in excess of $500,000. During said period Respondent, in the course and conduct of its business operations, purchased and caused to be transferred to its Laurel, Montana, store goods and materials valued in excess of $50,000, which goods and material were transported to said store directly from States other than the State of Montana. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Association, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent consists of seven stores in separate locations in Montana. Each store has a separate manager with complete managerial authority in his store, and each store sells prescription drugs and general merchandise. The corporate president, general operations manager, and principal stockholder is Donald Vaupel. Vaupel's office and the corporation's offices are located at Havre, Montana. Profit and loss statements, policy statements, and general instructions are prepared by and distributed from corporate offices in Havre. Timecards covering employees in all stores are forwarded each pay period to the corporate offices, where checks are prepared and then distributed to store managers for delivery to employees. Store managers have autonomous authority within their own stores. They have control of inventory and display, and do their own hiring and firing. 2 They are responsible directly to Vaupel, with no intervening supervisors. Respondent's Laurel, Montana, store principally is involved herein. The Laurel store, a relatively new one, is managed by Darrell Keck, who arrived in Laurel as manager on June 1, 1974, upon transfer from his previous job as assistant manager of Respondent's Great Falls, Montana,3 store. Shannon Ness became assistant manager of the Laurel store upon transfer from another store on August 1, 1974, and he was succeeded by Karl Wallila as assistant manager on September 1, 1975.4 Karen Shaffer 2 Pharmacists are scarce in the labor market and Vaupel. who is a pharmacist. sometimes assists store managers in finding pharmacists for stores when one must be hired. :' The Great Falls store then had a contract with the Union's Local No. 57. Counsel stipulated, and it is found, that Vaupel, Keck, and Wallila are supervisors within the meaning of the Act and that Wallila also is pharmacist of the Laurel store. was hired by Keck as a clerk the third week of June 1974; Connie Smith was hired by Keck as a clerk on August 1, 1974; Sherry Moran was hired by Keck as a clerk on August 12, 1974. The Laurel store opened for business on August 14, 1974, and prior to that time Keck, Ness, Shaffer, Smith, and Moran, together with some part-time assistants loaned to the Laurel store by the Billings store, stocked shelves, cleaned, and prepared the store for opening. Personnel changes after August 14, 1974, are involved in this controversy and are discussed below. Smith became dissatisfied with Respondent and in November 1975 talked with a friend who put her in touch with Deborah Brantley, an organizer for the Union. As a result of Brantley's telephone call to Smith, Brantley went to the Laurel store on November 25 accompanied by Bill Haynes, president of the Union's Local 1573, and talked for about 10 minutes with Shaffer and Smith. The purpose of the meeting was for Brantley to introduce herself to the two employees and to agree on a date to meet outside the store. Haynes strayed from the group and was not present with Brantley and the employees throughout their 10- minute meeting. Brantley met with Shaffer and Smith at the latter's home on December 8, at which time the two employees gave their signed union authorization cards to Brantley. 6 On December 9, Brantley sent Keck a letter demanding recognition for purposes of collective bargain- ing. Keck received the letter December 10. By letter dated December 16, Keck declined to recognize the Union and stated that, if the Union wanted to represent the employ- ees, it must file a petition for election; that, otherwise, the Laurel store would file such a petition. On December 15, Brantley filed, for the Union, a petition for election. Unfair labor practice charges were filed by the Union in January and February 1976, alleging that Respondent violated the Act in a number of instances, as discussed below. A. Alleged Inflation of Bargaining Unit Paragraph 9 of the complaint alleges that since Decem- ber 9 Respondent has inflated the bargaining unit with relatives of Respondent's supervisors for the purposes of defeating the Union's majority. Counsel stipulated, and it is found, that the appropriate bargaining unit involved herein is: All employees employed by the Employer at its 15 Colorado Avenue, Laurel, Montana operations, exclud- ing pharmacists, janitors, guards and supervisors as defined in the Act. The relatives here involved are Jean Keck (Keck's wife), Bonnie Wallila (Wallila's wife), Jackie Kindsfather (Walli- la's wife's sister-in-law), and Irene Rice (Keck's sister-in- law). ' Smith first was interviewed by Walter Fellows. manager and pharma- cist of the Billings store and Respondent's vice president, prior to the arrival of Keck in Laurel. Fellows tentatively hired Smith for the Laurel store in June. subject to Keck's later approval. It was stipulated. and it is found. that Fellows is a supervisor within the meaning of the Act. 6 Respondent questioned the cards. but it is clear. and found. that the cards freely and properly were signed by Shaffer and Smith and that the cards are free of objections. 893 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first opportunity for Respondent to know of union activity in the Laurel store was the visit of Brantley and Haynes to the store on November 25. At the time of the visit, which lasted about 10 minutes, only Wallila, Shaffer, and Smith were working in the store. Brantley testified that she and Haynes talked with Shaffer and Smith in the cards and stationery section next to the checkstand, about holding a meeting in an employee's home in order for Brantley to discuss the Union with the employees. Haynes testified that, during some of Brantley's conversation with Shaffer and Smith, he was "walking around the store" and he saw Wallila. Haynes said Wallila was in the pharmacy part at the time and on three occasions "was probably within 15 feet of the conversation near the check stands" for about 30 seconds. Haynes stated that when he was about 30 feet from Brantley's conversation: A. I heard some phrases, and the main thing that sticks out in my mind is Debbie said to Karen and Connie, "That's Bill Haynes. He's president of the local Union." Q. Did she make any gesture when she said that? A. Yes, she pointed me out. Q. Did you observe where Karl Wallila was standing when you heard Debbie make that statement and point you out? A. Yes, approximately halfway between me and the conversation that was taking place. Haynes said Wallila was busy working in the store when he was not in the pharmacy and that the pharmacy was out of earshot of the Brantley conversation. Shaffer and Smith generally cooroborated the testimony of Brantley and Haynes on this subject. Wallila testified that he did not know of any union activity in the store as late as December 7 and that, so far as he knew, neither did Keck. I. Finding concerning date of Respondent's knowledge of union activity General Counsel argues that Wallila, hence Respondent, knew of union activity at the store on November 25 because Wallila saw and heard Brantley and Haynes talking with Shaffer and Smith on that date. However, that conclusion is based solely on speculation and has no evidentiary support in the record. Brantley said she talked with Shaffer and Smith at the store "maybe ten minutes," and Haynes testified that Wallila was in the pharmacy, or otherwise out of earshot, during all of the Brantley conversation, except for about 30 seconds thereof. During that 30 seconds, according to Haynes, Wallila was 15 feet away and busy at work. Haynes said he was 30 feet away at the same time and overheard Brantley say to Shaffer and Smith as she pointed in Haynes' direction "That's Bill Haynes. He's president of the local union." That testimony is not consistent with the testimony of those involved in the conversation, which indicates that Brantley and Haynes went to the store together. There is no apparent reason for Brantley's having to introduce Haynes to the employees by words and gesture from a distance of 30 feet. If that were 7 G.C. Exh. 2. Resp Exh. 2 shows receipt by Wallila of Brantley's letter, addressed to Keck, on December 10. true, it would indicate that Brantley and Haynes went to the store separately, or kept apart while in the store. In either case Wallila would not have reason to consider Brantley and Haynes as anything other than customers or browsers. Shaffer's testimony on this subject is pertinent and conclusive, and Shaffer is credited. She stated that she talked with Keck on December 10 for 30 or 40 minutes, at Keck's request. She said Keck opened the conversation by shaking the Union's letter of demand for recognition (written by Brantley on December 9)7 and stating "all I want to know is why?" Keck then told Shaffer that after he received Brantley's letter he called Vaupel and talked with him about it. Shaffer then recited the details of Keck's conversation with her, which included repeated statements about his and Vaupel's surprise and concern about the letter of demand and their determination to resist unioniza- tion of the Laurel store. Particularly revealing is Shaffer's statement "He wanted to know how the Union contacted us, and I didn't know the details." It is quite clear from this testimony by Shaffer that Keck was ignorant of any union activity at the Laurel store prior to his receipt of Brantley's letter on December 10. Shaffer further testified that she talked with Wallila later in the afternoon of December 10, the same day she talked with Keck. She said the conversation lasted about 10 minutes and that Wallila opened the conversation by stating, "Hey, I hear you're going Union." Wallila continued the conversation by making disparaging remarks about the Union. There is nothing in Shaffer's testimony that indicates any knowledge by Wallila prior to December 10 about union activity at the Laurel store. Finally, Shaffer and Smith both testified at length concerning Keck's suddenly becoming unfriendly after December 8 and about the increased attention given to their work by Keck and Wallila after December 8. Nothing in their lengthy and detailed testimony shows any knowl- edge by Keck and Wallila of union activity at the store prior to December 10. It is noted that the unfair labor charges alleged herein are said to have occurred after December 8. In view of the foregoing, it is quite clear, and it is found, that Respondent's first knowledge of any union activity at the Laurel store was acquired December 10 upon the receipt by Keck of Brantley's letter of demand for recognition, dated December 9. Respondent's duty to bargain therefore could not be imposed prior to the date Respondent received the Union's letter on December 10.8 2. Jean Keck's employment Keck testified, as did Bonnie Wallila, that Candy Cummings, a regular full-time clerk, quit her job December 4. Keck testified that, in order to have a pool of employees to use as needed, especially in view of the approaching Christmas season, and to cover his existing shortage of personnel, he asked his wife sometime during the first week of December if she would be interested in working at the store on a part-time basis. Jean Keck, who was pregnant at 8 In the maier of Nash San Diego, Inc., 90 NRLB 86, 87 (1950); Allegheny Pepsi-Cola Bottling Company v. N. L R. B., 312 F.2d 529 (C.A. 3, 1962). 894 WESTERN DRUG the time, started working part time as a clerk on December 7.9 She worked through December and into January, when she quit for the birth of her child. She returned to work thereafter10 and continued working until March 29, 1976, at which time she was required to stop working because of personal problems. 3. Bonnie Wallila's employment Keck testified: Q. When was the first time you ever talked with Bonnie Wallila or anybody else, to your knowledge, concerning coming to work? A. The first week, I talked to Carl about it when they first moved down in August, if she would be interested in fill-in on a part-time basis, on the basis of Mr. Wallila took quite a substantial wage cut when he moved from his position in Kalispell to here and I told him, if it would help him out for awhile, if we could use her, I would try to work her in. I think in this aspect it's solid business to build a crew to draw from in cases of emergency. And I then talked to Carl in the first week in December and asked him to ask his wife if she would help us out. We were in a bind, if she would come to work. Bonnie Wallila testified that her husband talked with her about working at the Laurel store, about December I or 3, "or something like that." Karl Wallila testified that, when Candy Cummings quit," Keck asked him if his wife "would like to fill in over the Christmas season" and Wallila said he would ask her. Bonnie started working part time as a clerk on December 7.12 She presently is employed at the Laurel store. 4. Jackie Kindsfather's employment Keck testified that he hired Kindsfather December 9 as a regular full-time clerk. He said Kindsfather's last day of work was January 8, 1976, but that she was not terminated until January 17. Wallila testified that Kindsfather was hired "to replace a girl that left." Kindsfather testified that she applied on December 8 for a job at the Laurel store because "Well, my mother-in-law told me that they needed help, that's how I found they were short-handed." She said her mother-in-law suggested on December 7 that she apply for ajob. 5. Irene Rice's employment Keck testified that Rice came to Billings to apply for college acceptance, and that he interviewed her on December 6 for work as a regular part-time clerk. Keck said he told Rice on December 6 that she had a job, and she first reported for work on December 29. Her hours were scheduled around her schoolwork, and she was assigned principally to the late shift, ending at 9 p.m. She "' Resp. Exhs. I and 6. "' On a date not established at the heanng. " Cummings quit December 4. 12 Resp. Exh. I is Bonnie Wallila's timecard. 1:3 Rice was scheduled to quit and to return to her home within the near future still was working at the Laurel store as of the date of hearing.'3 Discussion The record contains no real evidence to support this allegation. General Counsel relies for support upon an inference, arguing that, since the four persons here involved are related to Keck and Wallila, and since the four were hired about the time of union activity at the Laurel store, it must be inferred that the four were hired in order to frustrate the Union's organizational efforts. The facts elicited at hearing prevent making the inference that is sought. (a) As discussed above, it is clear that neither Keck nor Wallila knew anything about union activity at the Laurel store prior to December 10. Shaffer, an interested person called by the General Counsel, was an impressive witness. Her credited testimony makes it clear beyond doubt that Keck was surprised and angry upon receiving Brantley's letter on December 10. It is illogical to conclude that the same knowledge giving rise to Keck's immediate and strong reaction on December 10 would have resulted in total silence on November 25. Keck's reaction triggered a substantial number of unfair labor practices alleged and found to have occurred on and after December 10. General Counsel advanced no reason, and none suggests itself, why Keck would have acted as though nothing had happened if he had known that two union organizers were in the store on November 25, talking with employees. It is no answer to contend that Wallila possibly knew about union activity on November 25 but did not tell Keck. Wallila was assistant store manager and an acknowledged supervisor; he knew Keck very well and worked closely with him each day; he did not like the Union any more than Keck, as discussed below.t 4 Under such circumstances Wallila's first action, had he known or suspected Brantley and Haynes were soliciting the store's employees on November 25. would have been to advise Keck of that fact. And, based upon his reaction of December 10, Keck's first action would have been to talk with Shaffer, whom he considered a friend and neighbor, as well as an employee. All four persons challenged by General Counsel were hired prior to December 10. (Rice did not report for work until December 29.) (b) The hiring of three part-time clerks and one full-time clerk in December was consistent with business require- ments. Shaffer and Smith testified, and General Counsel argues, that the four hires were not necessary; that the existing staff was adequate; and that business was little, if any, better in December 1975 than it was a year earlier, when the store staff consisted of Keck, Wallila, and three full-time clerks. However, their testimony and argument are not factual or realistic. In the first place, the store had been opened only about 3-1/2 months by December 1974 and not enough business had been generated to warrant more than two managers and three full-time clerks. In 14 Based on findings discussed throughout this Decision. it is found that Keck, Wallila, and Respondent harbored union animus at all times relevant herein. 895 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 1975 the store was a year older, with substantial- ly greater business and experience. By December 10, the staff consisted of two managers, three full-time clerks (Shaffer, Smith, and Kindsfather), and two part-time clerks (Keck and Wallila). Rice came to work in late December. Second, the facts elicited by Respondent show that Shaffer's and Smith's estimates of business volume were far from accurate. December 1974 and January 1975 sales totaled approximately $38,000 and $18,000, respectively. December 1975 and January 1976 sales totaled approxi- mately $51,000 and $26,300, respectively. Third, Shaffer's and Smith's views of floor coverage requirements were erroneous. Store staff wages were 9.1 percent of sales in December 1974, and 8 percent of sales in December 1975.15 Further, the sudden departure of Cummings, a full- time clerk, at the outset of the Christmas season inevitably would create an additional burden on the remaining store staff, even though new employees were hired. Some training and experience would be necessary for new clerks. (c) Aside from the conclusive nature of the evidence relative to dates of demand for recognition and dates of hire, there is no indication of improper motive in the hiring of the four employees involved herein. Probably the clearest situation is that of Kindsfather. She applied for a job at the suggestion of her mother-in-law; she did not have a pleasant relationship with management; she quit her job within approximately a month after hire; and clearly she was not hired as payroll padding. Kindsfather was the only one of the four who was hired as a full-time clerk. That Smith and Shaffer considered her an ordinary employee, rather than as one who was hired as padding, is shown by the fact that she was invited to attend a union meeting about a week after she was hired. Further, the record includes nothing from which an inference can be drawn, or even a suspicion created, that Keck or Wallila initiated a request that Kindsfather seek work at the Laurel store. Even more remote is an inference or suspicion that such a request was initiated with the hope or expectation that Kindsfather could be manipulated in a fight with the Union. Almost equally clear is the situation with Bonnie Wallila, who was a frank and convincing witness. Keck originally suggested to her in August 1974 that she consider working part time, but she declined. Again she was approached in December 1975, when Cummings unexpectedly quit and help was needed at once, for the Christmas season. There is no indication of improper motive in her hire. Bonnie Wallila has worked as a hostess and a waitress, and she is a licensed beautician. She was a logical choice for employ- ment by Keck. The fact that she still is employed by Respondent is not consistent with the contention that she was hired merely to pad the payroll. So far as Jean Keck and Rice are concerned, it is clear that additional part-time employees were required.' 6 General Counsel argues that Jean Keck's pregnancy when she was hired is evidence that her employment was a subterfuge, but that inference is not warranted. 1, Corporate policy is directed by Vaupel, who maintains close supervision of the corporate books. Excessive hiring of personnel immedi- ately) is reflected in wage percentages and would occasion a response by Vaupel. No such response was indicated or shown herein. So far as Rice is concerned, the manner in which Keck stated she was hired is logical, and he is credited. Rice's relationship with Keck is remote (sister-in-law), she was a college student at the time, she still was employed by Respondent as of the date of the hearing, and the record contains no testimony or evidence to support an inference that she was hired merely to defeat the Union. General Counsel expands this argument by contending that, regardless of the nature of the original hiring, the employees involved herein worked in such manner that they were not eligible to vote in any union election, and that they were retained on the payroll in order to dilute the Union's strength. However, the record does not support that contention. This case does not involve a statutory exclusion of employees under Section 2(3) of the Act, since none of the four questioned individuals are children or spouses of owners or substantial shareholders of Respondent. Eligibil- ity therefore involves a determination of community of interest under Section 9(b) of the Act. The question thus is whether the four enjoy a special status by reason of their relationship with Keck and Wallila. a. The situation as of December 10 Smith and Shaffer, both of whom had signed union cards, were employed full time. Kindsfather, who was recognized by Shaffer and Smith as a fellow employee and who later was invited to attend a union meeting, was employed full time. Bonnie Wallila and Jean Keck were working as regular part-time employees. There is nothing in the record to show that, as of December 10, these two employees did not share a community of interest with other employees, nor does the record show that, as of said date, either employee occupied a special or privileged status. b. The situation after December 10 Kindsfather quit work January 17, 1976. Smith gave Keck her quit notice in early March and last worked March 19, 1976. Shaffer gave Keck her quit notice April 1 and last worked April 9 or 10, 1976. Cindy Bloom (Bloom) was hired March 20, 1976, as a regular part-time clerk. She was to replace Smith after school was out. Marilyn Corey was hired March 27, 1976, as a full-time clerk and later replaced Shaffer. There is no argument about the employee status of Bloom and Corey. Between December 10 and March 19, when Smith quit, Keck worked Kindsfather, Bonnie Wallila, Rice, and Jean Keck. Kindsfather: This full-time employee quit January 17, 1976, and there is nothing in the record to show that she ever enjoyed any privilege or special status that would remove her from the community of interest of regular meeting. Her relationship with Karl Wallila is found to be incidental and of no legal consequence herein. 16 This requirement is found, based on the credited testimony on this subject by Keck, Wallila, and Vaupel, as well as on Respondent's documented evidence. 896 WESTERN DRUG Bonnie Wallila. This employee was, and still is, a regular part-time clerk. Her original hire was for valid and proper business reasons. There is nothing in the record to show that she has ever claimed to have, or has, any authority or position over other employees. She has a work history as an employee. Her relationship is with Karl Wallila, her husband, who is the store pharmacist and who acts as assistant manager in Keck's absence. There is no basis in the record on which she properly could be excluded in a union election. General Counsel contends that Bonnie Wallila was "privileged" because, according to Shaffer's testimony in response to a clearly leading question: "Bonnie Wallila was allowed to go to lunch, take her lunch period with her husband which sometimes, well, varied throughout the day, different times." That would be a trivial basis for excluding an employee from voting in a union election, and it is found unsupported in law. 1 Further, any laxity in hours by Bonnie Wallila was of no greater extent than, if as great as, that regularly engaged in by Smith, according to Smith's testimony. (See par. G, below.) The liberties Wallila took, if such is the case, did not bring her within the "special status" category of excludable employees.'s It may well be that Keck seized an opportunity to give some hours of work to Bonnie Wallila that Shaffer and Smith otherwise would have been given, but that is a different subject and is discussed elsewhere herein. It is found that Bonnie Wallila is, and at all times material herein has been, a regular part-time clerk for Respondent and eligible to vote in any union election. Jean Keck: This employee is the wife of Keck, the Laurel store manager, and she did not testify. Keck testified that she is on "leave of absence" following a personal problem that required her to cease working on March 29, 1976. That testimony was not explained or corroborated, and it is not credited. However, more is involved than the alleged "leave of absence." It seems highly doubtful that this employee would have been thought of by Keck, or by herself, as anything other than a part-time clerk for the Christmas season. She was well advanced in pregnancy during the Christmas season, and it is apparent that she was working for reasons other than financial necessity. Although Keck is not a substantial owner of Respondent (perhaps not an owner of any stock - this subject was not fully covered at the hearing), he is the manager of a sizable business in a small town, and it does not seem likely that his wife's interests would be compatible with that of the other employees. The disparity is shown, albeit not conclusively, in the lax manner in which her hours of work were handled. There is no reasonable basis on which to conclude that her hire in December was for any reason other than business necessity, but it is not realistic to conclude that she was a regular employee between the birth of her child and March 29. Rather, not only is it clear that she was a 1? Smith testified. also in response to a leading interrogatory, concerning allegedly disparate treatment of Bonnie Wallila. Because Smith's testimony generally is not considered reliable; because the nature of the alleged disparity does not show a special status for Bonnie Wallila: and because Mrs. Wallila punched a timeclock the same as all other employees, Smith's testimony on this subject is given no weight. i' Adami D. Goertl and Gust Goettl, d ;b/a Inernational Metal Products Compan i. 107 NLRB 65. 66 67 (1953): Pargas of Crescent City Inc., 194 NI.RB 616 (1971); tWeverhauser Compnan,, Sof Disposable Division, 211 NL.RB 1012 { 1974): American Chemial Corporation, 215 NLRB 94 (1974). transient employee who worked irregularly during work period, but it appears that her working at all initially was a result of business urgency and after Christmas was indulged in on less than a serious basis. The record does not show how much she worked in the first 3 months of the year, but any hours that she did work in derogation of the work of Shaffer and Smith can be determined at the compliance stage. It is found that Jean Keck was a transient or sporadic employee after hire, and that she would not be eligible to vote in a union election. Irene Rice: There is nothing in the record to show that Rice was hired, or retained on the payroll, for an improper reason. She worked regularly, part time, from her date of hire until the date of the hearing herein. Although she began work on December 29, Keck credibly testified that he committed Respondent on December 6 to hire her. The record contains no evidence on which it can be shown that Rice occupied special status or was given any privileges. Her relationship with Keck is remote. It is clear from Keck's credited testimony that her departure, scheduled for May 1976, was not anticipated when she was hired.'9 It is found that she was hired, and thereafter continued to work at all times relevant herein, as a regular employee, entitled to vote in any election. If she was given any work in derogation of the rights of Shaffer and Smith, that can be considered at the compliance stage. In summary, Keck's motive in retaining the four contested employees after the Christmas season is ques- tioned. The record shows that motive was to meet business requirements. General Counsel contends that, regardless of motive, the four were in a special category that precludes them from voting in a union election. The record shows that only Keck occupied such an exclusionary position. This allegation of the complaint is not supported by the evidence. The allegation of refusal to bargain is a separate question which is discussed below. B. Alleged Reduction of Work Hours Paragraph 10 of the complaint alleges that, since December 9, 1975, Respondent unilaterally has reduced the hours of its employees because of their activities on behalf of the Union. Normal hours of work at the Laurel store are from 9 a.m. to 9 p.m., Monday through Saturday, and from 10 a.m. to 6 p.m. on Sunday. Shaffer testified that prior to December 8 she worked an average of approximately 40 hours per week. She said her hours were "changed quite drastically" in February, when she averaged about 28 hours per week. She worked 28 hours per week during the first half of March, and 32 hours per week during the last half of March. On cross-examina- 19 General Counsel contends (primarily through the testimony of Smith, which is not considered reliable) that Wallila and Rice were hired for limited times only, hence their retention for longer periods shows an improper motive. That argument is without merit. Respondent established that the retention of the two employees was for valid business reasons. They were retained even after Corey and Bloom were hired, and after Shaffer and Smith quit. Obviously a union majority was no problem for Keck after Smith left on March 19 and Bloom was hired on March 20. Further, there is no indication in the record that, as of March 19, Respondent knew that Rice would be leaving in May. 897 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Shaffer acknowledged that her hours also were cut in either January or February 1975 to about 32 hours per week, following the Christmas season, but they were not cut "as drastically" as in 1976. Smith testified that she worked an average of 40 to 45 hours per week prior to December 8, but that she averaged 28 hours per week in February and 28 to 30 hours per week in March 1976. She said her hours were not reduced after the Christmas season of 1974. Shaffer testified that her husband works on Sundays and that she prefers to work that day. She said she took a regular Sunday turn with the two other full-time clerks prior to December 8, but that the last Sunday she worked was December 14. Smith testified that she wanted to work on Sunday in order to get the work hours, but that after January 1 she no longer was given Sunday work; it was given to Rice and Bonnie Wallila. The record includes much testimony concerning the posting of work schedules. General Counsel, Shaffer, and Smith contend that the schedules regularly were posted the latter part of each month for work the following month, but that after December 8 schedules were posted for only a week or two at a time, with many blank days showing no one scheduled for work. Smith testified that she went to Keck's home on January 4 to talk about schedules and hours: Well, I asked him if he was trying to wash me out, and he said no, that he thought I was a good worker, and he would hate to lose me. I told him that the situation was getting a little unbearable and that I was getting into a financial bind, and he said yes, he realized that, but there was nothing he could do about it; and, I asked him why he hired all the part-time help, and he said because he didn't want to get caught in a bind with nobody to work. Smith said she again talked with Keck the end of February relative to hours, and Keck said he could not give her more hours at that time. He said it probably would be another month before she could be returned to full-time work. Smith said she "had a reassurance" of going back to full time, but she was not sure she "could stick it out." Keck testified that hours of work for Shaffer and Smith were reduced in January and February 1975, and February and March 1976, with the latter being somewhat more severe because the store was new in 1975 and more training then was necessary. On the subject of Sunday work, Keck stated that both Shaffer and Smith told him they did not want to work on that day. Keck testified that all the employees complained about Sunday work during the summer months, and that Smith particularly complained because she wanted to be with her children on Sunday. Keck said part-time employees worked on Sundays because business is slow on that day, and it is a good time 20 This testimony by Shaffer was not the basis of any allegation in the complaint. The "close observation" of par. 15 of the complaint refers solely to Smith. Shaffer's credited and litigated testimony establishes, and it is found, that there was an 8(aXI) violation by Keck in that he altered working conditions after December 10 by being more strict on employees in retaliation for their union activity. for training. He said that, even if Shaffer and Smith had worked on Sunday, they would have earned the same amount since their total work hours would not have changed. As a general policy, overtime work is not given. Keck said all full-time employees worked 40-hour weeks in November and December 1975 and January 1976. Keck acknowledged talking with Smith about hours of work in early January and about February 15. There are discrepan- cies between Keck's and Smith's versions, but the differ- ences are not determinative of this issue. Discussion The fact of work-hour reductions is acknowledged by Keck. Only the motive and the amount are in question. Respondent contends that the reduction was required by the customary post-Christmas season drop in business, and that no discrimination was involved. Respondent's argu- ments are not convincing for several reasons. First, the record clearly shows Keck's and Wallila's union animus, as discussed herein. Second, Keck testified, and it has been found, that part-time clerks were hired primarily because of the impending Christmas season and secondarily to provide a backlog of readily available, experienced clerks. Those are legitimate and prudent reasons for such hires. However, the fact remains that Shaffer and Smith were among Respondent's first employees at the Laurel store, and Shaffer, particularly, was a reliable worker. There is no apparent reason for cutting their hours while continuing to give substantial working hours to part-time employees. It is reasonable to infer that, in view of Keck's union animus, the reason for the discrimination was the union activity of Shaffer and Smith. Third, Keck relies for support in his argument on the fact that hours of the full-time employees were reduced in January and February 1975, yet he acknowledged telling Smith that business might be such that she could return to full-time work in April or May. Fourth, Keck's contention that Sunday work was given to part-time employees for training purposes is not believable. Those clerks (except Rice) already had worked through the busy Christmas season, and all of them by the end of January had been on the job, which is a simple one, enough time to learn what was required of them. Finally, several actions by Keck show his intention to discriminate against Shaffer and Smith. E.g., Shaffer credibly testified that after December 8 she was assigned to more late shifts, she was required to maintain strict times of work and breaks, Keck became less friendly, and she was warned for the first time about being late.2 0 Smith testified, also, relative to more work on late shifts and being required to maintain strict times of work and breaks.21 It is found that this allegation is supported by the evidence. It is also found that Keck required Smith and Shaffer to take compensatory time off for irregular hours after 21 Smith further testified concerning several instances that she contended exhibited Keck's preference of part-time employees over Shaffer and Smith. That testimony is given no weight on this issue because of Smith's personal animosity toward Keck and Wallila and because of the nature of her testimony, discussed in para. G, below. 898 December 10, but not prior thereto, thereby discriminating against them because of their union activity. C. Alleged Interrogation by Keck and Wallila Paragraph 11 of the complaint alleges that on or about December 10, II, and 16, Keck and Wallila interrogated employees about their union activities. Shaffer testified that, on December 10, Keck talked with her for about 30 or 40 minutes, principally about the Union. She stated that Keck held in his hand the letter written by Brantley on December 9 demanding recognition of the Union. Shaffer testified: He kind of shook the letter, and he looked at me, and he said: "All I want to know is why"? I told him that from what I understood he didn't have the right to ask me why. He said: "You realize if anybody should ask me, I'll deny it." I told him that considering that Connie and I were the only two employees that worked Western Drug that it was probably very obvious that yes, I did sign a card. Shaffer said she talked later in the day on December 10 with Wallila and that the following conversation ensued: I was behind the pharmacy for some reason or another, and as I was leaving, Karl stopped me, and he said: "Hey, I hear you're going Union." And, I said, "Yeah." He said: "Why would you want to do something like that for"? And I told him my gripes about the insurance program and the overtime, and I thought the Union offered better benefits. And he said: "You should talk to my wife about the Union." He said: "All they are after is your money." I said, "Oh, is that right?" and turned around and walked off. General Counsel introduced no evidence concerning a conversation on December I I, but Shaffer testified that she talked with Keck again December 12: He asked me to come to the back room. He wanted to know what I had decided, if we had decided to go ahead with the Union or not, and I told him, "Yes, we had decided to go ahead with it." And he said, "I just wanted to know to make sure so I knew to get things started or not." Kindsfather testified that she talked with Wallila about December 17, after she had been invited by Shaffer and Smith to a union meeting, and that Wallila "asked if I had went to the union meeting, and I said 'no.' He said, well, he wouldn't have either." Keck gave a somewhat different version of his December 10 talk with Shaffer. He testified: I told Karen that I wished to speak with her. I went into the back room, she came back, and I told Karen that I wanted to speak to her on the basis of friends rather than employer to employee relationship. I told 22 Keck also asked during the December 10 conversation with Shaffer how the Union contacted the employees. Such an interrogation is coercive and is found to be a violation of Sec. 8(a)< 1) of the Ac' WESTERN DRUG her that I had received the letter, She said she knew. I told her that I felt pretty bad personally and I felt that I must be doing something wrong and, in the fact that she didn't feel that she could come talk to me if she had problems, and I told her that if she ever said anything to anybody about the conversation, I would deny it. I told her that I would not recognize the union as the bargaining agent for my employees at that time. She offered some pieces of information as to, she told me she didn't know exactly how it all started. She told me that they had had a meeting. She told me that she didn't want it. I believe she told me at this time she didn't want it to interfere with our friendship which we did have a personal relationship. I told her that I wanted to know if I was doing anything wrong for self-improve- ment and, basically, I believe that ended the conversa- tion. It lasted about twenty minutes, maybe thirty. Keck also testified concerning his December 12 conver- sation with Shaffer: A. I asked her if she was going to continue and she said yes. Q. By continue, what did you mean? A. Continue steps towards organizing. Wallila testified that, on one occasion, he talked with Shaffer in the pharmacy "and I asked her... I heard she was considering the Union and she said 'yeah'; and I told her it would be to her advantage to check into it on both sides before she made up her mind." Wallila testified to only one conversation with Kindsfa- ther, which he said occurred off store premises. He stated: I asked if she liked her job, and she said yes, she did like her job; and I told her at that time that the store - I thought the store would not tolerate a Union in the store; however, at the time I didn't know that I was assistant manager per se. I hadn't been informed of that, and that I guess it was my own opinion that I would have fired the girl that had started the action. Discussion Shaffer, as found above, was a forthright and convincing witness. To the extent that her testimony differs from that of Keck and Wallila, Shaffer is credited. Kindsfather also was a convincing witness and, to the extent that her testimony differs from that of Wallila, Kindsfather is credited. The statements and questions made by Keck and Wallila to Shaffer and Kindsfather clearly constituted interroga- tion2 2 about union activities. Further, being interrogations made by supervisors to whom Shaffer and Kindsfather were directly responsible, the statements and questions patently were coercive. Respondent contends that the Keck interrogations were not coercive because of the friendly and neighborly relationship between Keck and Shaffer, but that contention is contrary to the credited testimony of 899 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shaffer, who said the once cordial relationship ended on or about December 8. It is found that the evidence supports this allegation. D. Alleged Solicitation of Grievances Paragraph 12 of the complaint alleges that, on or about December 10, Keck and Wallila solicited the grievances of employees. Shaffer testified that, during her conversation with Keck on December 10, she told him that she signed a union authorization card because she felt the Union afforded better benefits than Western Drug did, and that Keck then asked, "Such as?" Shaffer then complained about not having group insurance, about working overtime without pay, and about low wages. Keck apologized about having overlooked the insurance matter and said he would take care of it at once. He also said, "Starting today, you will receive time and a half for overtime work." Finally, Keck stated that the employees "would get raises, and we would get time and a half if and when he could afford it." When she talked with Wallila on December 10, after talking with Keck, Wallila asked Shaffer why she wanted to join the Union, and Shaffer "told him my gripes about the insurance program and the overtime, and I thought the Union offered better benefits." Keck acknowledged that, during his December 10 conversation with Shaffer, he said he had overlooked her insurance and would take care of it. He also said she could take part in the company profit-sharing plan as soon as she met the age requirements. He denied promising either Shaffer or Smith a wage increase. Wallila did not testify on this subject. Discussion Solicitation of grievances, without express or implied promise to remedy them or to take action thereon, is not a per se violation of the Act.23 There is no evidence that Wallila promised to take any action relative to the grievance stated to him by Shaffer, hence the portion of this allegation relating to Wallila was not proved. However, Shaffer's credited testimony clearly shows that Keck solicited Shaffer's grievances when he asked what benefits the Union would provide that she then was not receiving. Keck went further and, after listening to Shaffer's grievanc- es, promised to remedy them.24 In view of the circumstanc- es under which the solicitation and promises took place, the coercion is clear. It is found that the portion of this allegation relating to Keck is supported by the evidence. E. Alleged Promises by Keck Paragraph 13 of the complaint alleges that, on or about December 10, Keck promised an employee a wage raise and payment for overtime work. The facts relating to this allegation are supported by the evidence, as discussed in section D, above.25 ':' Uarco. Incorporated, 216 NLRB I (1974). 21 See the allegation in sec. E., supra. 2, Keck's testimony that the employees did no overtime work is not credited. Shaffer is credited on this subject. F. Alleged Statements by Keck I. Paragraph 14(a) of the complaint alleges that, on or about December 10, Keck told an employee that unioniza- tion would result in loss of benefits, that Respondent would not tolerate unionization, and that employees desiring representation should work elsewhere. Shaffer testified in detail about her conversation with Keck on December 10, and she testified that Keck made the statements attributed to him in this allegation. Keck denied having made the statements attributed to him. As noted above, Shaffer was a credible witness. The union animus of Keck is amply shown by the record, as discussed herein. In assessing the testimony of Shaffer and Keck, and their appearance and demeanor on the stand, the conclusion is inescapable that Shaffer, rather than Keck, is to be believed. It is found that this allegation is supported by the evidence. 2. Paragraph 14(b) of the complaint alleges that, on or about December 15, Wallila told an employee that Respondent would fire employees and close the store before it would accept unionization. Kindsfather said she talked with Wallila in the store on a date she established as about December 16. She testified: I asked him what this deal was about the Union, and he said he didn't want to tell me what to do; but, Karen and Connie were trying to get a Union, and they wouldn't let the Union come in the store, because the Billings store wasn't involved; and they would either do some firing or they would close the Laurel store before they'd let the Union come in. Wallila testified that the only time he talked with Kindsfather about the Union was off the store premises, and his version of the conversation was different from Kindsfather's. Wallila's version is quoted in section C, above. As noted above, Kindsfather is credited. The statement by Wallila clearly is coercive and in violation of the Act. This allegation is supported by the evidence.2 6 3. Paragraph 14(c) of the complaint alleges that, on a date between December 9 and 22, Keck told an employee that Respondent thenceforth would dock employees for returning to work late after lunch. Smith testified that she talked with Keck on December 22. She stated: Back in the back room he told me that we were to be more prompt at checking in on the time card, or we would start being docked for the time that we were not back before, back from our lunch break. Keck did not testify specifically about this allegation, but generally denied any antiunion actions or statements. Smith is considered a biased and unreliable witness, as more fully discussed below. However, against the back- 25 Kindsfather also credibly testified that. during the conversation quoted above, Wallila asked her if she had attended a union meeting. This credited interrogation is found to constitute an independent 8(a)(I) violation. 900 WESTERN DRUG ground of the case in general, and the specific allegations discussed in the section next following, it is clear and found that Keck made the statement attributed to him by Smith. The only question is whether the statement is a violation of the Act. The Act is not intended to divest management of all control over its business and employees. Nor is it intended as a shield for employees who intentionally violate proper and reasonable rules. However, rules cannot be assessed in a vacuum; they must be considered within the context of any controversy in which the rules are involved. If a rule otherwise proper and reasonable is promulgated or en- forced solely in order to restrain, coerce, and interfere with employees involved in union activities, a violation of the Act has been committed. Keck's rule about future docking clearly is valid on its face. The record shows a generally good working relationship among the store staff and management personnel prior to December 10, and there is no showing that Keck was concerned prior to December 10 if the employees kept somewhat less than perfect hours. The fact that Keck's warning presaged a crackdown on employees is shown by Keck's actions relating to enforcement of hours, after December 10. Keck's union animus is found above. He was angered and resentful when he received the Union's demand letter on December 10, as shown by his conversation that day with Shaffer. After December 10, Keck and Wallila embarked on a program of reducing hours of work for union supporters, threatening union adherents, interrogat- ing employees about their union activities, and promising to remedy complaints and grievances. Such a sharp reversal of attitude and action only can be attributed to knowledge and resentment of union activities. Statement of a docking rule under such circumstances clearly had as its goal the punishment of union adherents, and the statement thereby violated the Act. 27 G. Alleged Close Observation, Docking of Wages, and Screening of Telephone Calls Paragraph 15 of the complaint alleges that, since December 9, Respondent has subjected an employee to close observation and criticism of her work, unprecedented docking of wages for being late, and screening of incoming telephone calls because of her union activities. This paragraph refers to Smith,28 and assessment of the evidence depends to a large extent on assessment of Smith's testimony. The record, and observation of the witnesses and their demeanor, makes it clear that Smith has a deep-seated dislike of Keck and possibly as much of her testimony originated from that dislike as originates from her concern about union activities. Her personal animosity colors many 27 Laila Moore, d/b/a Moore Mill and Lumber Company, 212 NLRB 264 11974): Performance. Inc., 208 NLRB 618 (1974). "2 Shaffer testified that Keck or Wallila came near to where she and Smith were talking, on several occasions after December 8, which they had not done prior to that date. This testimony is too equivocal and uncertain to he of probative value in assessing this allegation. and it is given very little supportive weight. of her statements, and her testimony is not considered reliable. Her attitude is exhibited in an exchange with Respondent's counsel, following her testimony that she did not ask Keck why one of her paychecks in January showed a 20-cent raise, because "I figured they made a mistake, and I wasn't going to tell them about it." She told Respondent's counsel upon cross-examination, "I knew it wasn't a mistake at the time" she testified on direct examination, and that she earlier testified to the contrary because "It sounded good." Smith testified that she was raised 10 cents per hour in November, but that she did not appreciate it; she said "I took it as a slam." She complained to Keck about getting a smaller Christmas "bonus" than Shaffer, but the difference between the two was $5, and the "bonus" was paid by Keck personally, which Smith said she did not "know for sure." She testified that she was not treated fairly by Keck, yet she acknowledged that she frequently came to work late and started "slacking off" in January 1975 because "I have two children." Further, she acknowledged that she fre- quently changed her work hours and schedules with Keck's permission because of school activities and doctors' appointments. Yet, in spite of the alleged mistreatment by Keck, she nominated him for the Junior Chamber of Commerce "Boss of the Year Award," made in January 1976, which Keck received.29 Smith testified at one point that she did not indicate in earlier testimony that her relationship with Fellows and his wife was "very friendly" since she "didn't really know them that well." Yet, her testimony shows a long and quite friendly relationship with Fellows, personally and in business, and it shows an offer by Mr. and Mrs. Fellows to Smith that Smith could live in their home. General Counsel seeks to bolster Smith's veracity by the fact that Smith made notes of conversations and actions at the store, upon Brantley's advice, after organization attempts were started. However, that fact is given no weight since no reason was advanced to show that her notes would be more reliable than her statements made under oath. For the foregoing reasons, Smith's testimony is not credited except when credit is specifically noted or the testimony is accepted in context. 1. Observation and criticism Smith testified that, prior to December 8, she was never criticized or reprimanded about her work but that she was so criticized after December 8. In support of that statement she testified relative to three incidents: It was right after Christmas. I was building a display. Darrell didn't like my color combination and told me to change it. There is testimony by Smith that her hours were more closely regulated by Keck after December. That testimony is consistent with the record and is credited. The promulgation of the rule concerning stncter hours, based on similar reasons set forth in sec. F, is found to be a violation of Sec. 8(aXI) of the Act. 29 Smith did not deny Keck's testimony on this subject. 901 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He came over into my department and told me to get rid of all the promotions and make displays on the ends and get rid of anything that was laying around. He told me that if I would keep my department cleaner and put in more time that I could build up my sales, and they would compensate for the hourly rate he couldn't pay me. Keck testified that there was no change after December 10 in his observation and criticism of Smith's work. He stated: Probably for nine months I had asked Connie to clear off the tops of the glass cases of the promotional displays. I brought a new section of fixture out, which I borrowed from our Grand Avenue store, specifically for the displays, and talked with her about transferring them over there, and it was never done. And I understand that she also is busy at this time of year, that when I did speak to her about it, I asked her specifically to do it and it was not done. As far as the color combinations on the end of the aisle, I didn't feel personally that it was appealing and I think that's my prerogative, and the idea is to make the display appealing so that people will purchase from it. Keck testified that he previously had talked with Smith about her inventory control and two cosmetic lines. Discussion Smith's testimony indicates nothing more than ordinary observations by Keck that would be expected of a store manager. There is no indication that his observations and criticisms were abusive or arbitrary. Keck is credited in his testimony that the observations and criticism were not unusual and were made in the normal course of business. The evidence does not support this allegation. 2. Unprecedented docking of wages Smith testified that, prior to December 12, occasionally she was late reporting for work or returning from breaks, but that her wages were not docked for that reason, nor was she required to take compensatory time. She testified that she talked with Wallila on December 22: I got my paycheck, and I was docked for an hour; so, I went back to inquire about it, because I had run an errand for the store the day that my time card showed I was 15 minutes late. Darrell wasn't there that day, but I told Karl. He was in charge at that time. I told him that I took the bank statement and went to the post office, and I told him I would take an hour from the time I left the bank, and I should have had somebody initial my time card, and I didn't, but they docked me an hour for 15 minutes. He then had it made up later on my next check. Wallila did not testify relative to this incident. He did testify, however, that since he first started working at the store employees have been docked or required to make up time for being late; that a quarter-hour basis was used for computation purposes. He gave no specific instance. He also said he has warned one employee, on one occasion, about being late. Keck testified that he allows employees reasonable leeway one time, but that he does not permit unreasonable deviations from timeliness. He said his policy never has changed. Keck stated that Smith was late on four occasions during the month of January, and he talked with Smith about one occasion: There was a policy in the store and this was known to the employees that if they forgot to punch in or if they were asked to do, to run a store errand come back and they had come back late and were unable to punch in at the proper time, it would be written in and initialed by the manager. All write-ins have to be initialed and that's basically all that she had to do. Q. She failed to do that? A. That is correct. Q. And you docked her? A. I did. I was not aware that she was sent off on an errand either. Q. Did she ask you about it? A. She did. Q. What action did you take? A. I immediately notified the home office that I had made an error and please include the payment for that time in her next check. Discussion Neither General Counsel nor Respondent produced documentary evidence to support testimony concerning the date of this alleged incident. Smith testified the incident was on December 22; Keck testified (ambiguously) that the incident was in January. However, regardless of testimony about the date, it is clear that the incident occurred after December 10. A further discrepancy appears in that Smith said she talked only with Wallila about the incident. Keck said he instituted the conversation about the incident with Smith. Again, that discrepancy is not material since Smith and Keck agree that Smith was docked after December 10, and later repaid, and the docking is the point in issue. The record shows that, prior to December 10 at least, the employees were allowed some latitude in their hours and often were given special consideration by Keck. Docking never was resorted to. Smith testified relative to another issue, that she regularly and rather frequently was late, and that statement was corroborated by Keck. But, even though the record shows that Smith was not a punctual or precise clerk, Keck permitted the situation to continue, with only an occasional reprimand of mild nature. In view of such a background, and in further view of Keck's antiunion attitude, the fact of the docking appears as a further move by Keck to crack the whip in retaliation for Smith's union activities. The docking occurred soon after union activity was known to Keck, and it occurred at or about the same time as other antiunion acts discussed herein. Clearly the docking was part of a pattern of retaliation. Smith later was repaid, but that is beside the 902 WESTERN DRUG point. The material fact is the docking, which clearly was initiated by Keck immediately upon seeing the opportunity to do so, and without checking with Smith or Wallila. His eagerness to seize the opportunity is apparent, regardless of whose version of the incident is selected. The evidence supports this allegation.30 3. Screening of incoming telephone calls Smith testified that, prior to December 8, there was no occasion upon which people who called her on the telephone were asked to identify themselves. She said her sister-in-law called her on the telephone just before Christmas, and Wallila, who answered the telephone, asked the caller to identify herself. Smith said a second incident occurred in January: A. She called, and Karl asked her to identify herself: and she told him who she was, and he sounded like he didn't believe her, and he told her that he didn't know where I was. Then, he called me to the phone, and she was quite upset about it; and after she hung up, I went back and told Karl it was none of his business who called me. Q. Did he respond to this in any way? A. He just said he didn't know where I was. Wallila testified that he does not recall Smith's sister-in- law calling on the telephone. Relative to the second telephone call, Wallila said, "I may have asked her to identify herself. I can't really remember." Wallila further testified: Q. Connie Smith further relates that after that incident, she approached you and told you it was none of your business who called her. Do you recall that incident? A. Yeah, I recall that. Q. Was it your custom and practice to ask persons calling for employees to identify themselves? A. Yeah, when the person is unavailable, I take a message, so they can return the call if they were busy and can't wait so the call can be returned to them. Q. And that's the only purpose? A. Yeah. Q. Did you pursue that same policy personally prior to the time the Union organization started on 8 December, 1975? A. Yes. Q. Was there any change in your attitude regarding phone calls of employees? A. No. Keck testified that it always has been the practice of the store to ask callers to identify themselves, and that the practice has not changed. "' Wallila's testimony that docking has been a practice since he started work at the store was not supported, even by Keck. and it is not credited :"1 Smith also contended that she was being harassed by Keck when the latter reprimanded her because a friend came into the store to talk with her. Discussion Keck's testimony about store policy and practice relative to telephone calls is consistent with ordinary business practice and that testimony is credited. His testimony that such policy and practice has not changed also is credited. Smith's testimony is not credited, partially because of reasons explained in section G, above, and partially because not asking callers at a business establishment to identify themselves would be contrary to commonsense and store policy. Even if Smith's testimony were credited to the extent that two callers were asked to identify them- selves, that fact would not result in a violation of the Act unless other facts showed that there was a policy or other change linked to union reasons. No such policy change is found. This allegation is not supported by the evidence.3' In view of the findings in section G, 2, above, the general allegation of an 8(aXl) violation in paragraph 15 of the complaint and its supporting paragraph 20 is found proved. H. Alleged Wage Increase Paragraph 16 of the complaint alleges that, on or about January 1, 1976, Respondent unilaterally raised the wages of its employees. There is no controversy about the fact that, effective January 1, 1976, employees received a raise. General Counsel argues that the raise was given to discourage union activity. The defense is that a raise was given because of an increase in the minimum wage established by Federal law, and that those employees who already received the minimum wage were raised a propor- tionate amount in order to retain equality of pay. Shaffer testified that she did not ask about the raise she received because: "Well, I had assumed that the minimum wage went up to $2.30 to $2.35. I'm not sure which one, and that my wages went up according to it." 32 Keck stated that the only reason for the raise was the change in the law, and Respondent introduced Exhibits 4 and 5 in support of the allegation. Discussion It is clear from the record, and found, that the raise given by Respondent on January 1, 1976, was given solely to comply with the law, so far as employees were concerned who received less than the minimum wage. Shaffer stated she assumed that was the reason, and Respondent's Exhibits 4 and 5 clearly show that reason. Further, Exhibit 4 was written prior to December 10, when Keck first learned of union activity at the store. Exhibit 5 is in response to Exhibit 4. This allegation is not supported by the evidence. I. Alleged Inducement To Quit Paragraph 17 of the complaint alleges that, on or about January 11, 1976, Fellows encouraged and attempted to Keck's explanation, that the visit was personal and objectionable from a business point of view, is credited. No violation on this point is found. 32 Smith also testified that she assumed the raise "might have been required by the law." 903 DECISIONS OF NATIONAL LABOR RELATIONS BOARD induce an employee to quit her job because of the then pending representation issue. Smith testified that she went to see Fellows on January II: A. I went to Walter because he knew my hours had been cut, and I wanted to find out if he had an opening at the Grand Avenue store, that I wanted to go back to work for him; and he told me no, he didn't have an opening at the time, but if he should have one that he would consider me. He said that he didn't know what the situation was at Laurel, and he couldn't understand why Darrell was being the way he was, cutting our hours, and that he thought that I should stay in cosmetics, that I had a lot of potential; but, I should get out of the Laurel store, because things were going to get worse before they got better, and they definitely were not going to get better. Q. Do you recall anything further? A. Yeah. He knew I was coming to see him before I went, and he did some checking for me at a few different cosmetic companies in Billings to see if they were hiring; and he talked to a gal that had used to work for him, and she said at that time they were not hiring anybody new. Relative to Fellows' advice, Smith testified on cross- examination: Q. Did you interpret that as a friendly piece of advice or as a threat? A. As a friendly piece of advice. Walter and I are friends. Q. He was trying to help you out? A. Yes. Q. He was trying to get you a job someplace else? A. Yes. Smith further testified on cross-examination that she did not consider Fellows as one of Keck's bosses, and that she went to see Fellows to solicit employment in his store. She stated: Q. (By Mr. Burton) Wasn't the tone of the entire conversation, encompassing everything that was said during it, based on the friendly relationship you had with Mr. and Mrs. Fellows? A. Yes. Fellows testified that he first knew Smith when he hired her at the Billings store before the Laurel store opened in 1974. He said they had been friends since that time, and that Smith came to see him several times in 1975, both before and after December 8, because of her difficulty in getting along with Keck. He said that difficulty dated from the time Keck first hired Smith for the Laurel store. Fellows said he was sympathetic with her and attempted to get her another job in order that she could be away from Keck; at one point he offered to let Smith live with Mr. and Mrs. Fellows to assist her in making a change. 33 Fellows :':' Smith testified to the same effect. :14 Keck credibly testified that he never discussed with Fellows the possibility of Smith's quitting her job. testified, relative to his conversation wtih Smith, on January 1 i: No, I didn't call her, but she came - but that's not unusual, because like I said, I felt we were friends; and a lot of times prior we discussed what would be the best and, you know. Discussion Several things are well established by the record. First, Smith and Fellows are good friends. Second, Smith dislikes Keck and has not gotten along well with him since the store opened. Third, Smith has unburdened herself to Fellows about Keck on several occasions, both before and after December 10. Fourth, Fellows is not Keck's boss and has no managerial authority over the employees in Keck's store. Finally, when Smith went to see Fellows on January 11, she went there solely as a friend and on no other basis. Based on the foregoing the conclusion is inescapable that, when Fellows advised Smith on January I that she would be better off in a different job, he was talking only as a friend and was doing what he could to assist Smith in a feud with Keck, that long antedated any union activity at the Laurel store. The record is devoid of any indication that the Union was discussed or considered by Fellows, or that Fellows had any interest in union activities at the Laurel store.34 Under such circumstances, it is clear that Fellows' statements to Smith were not coercive in any way - they constituted friendly advice and nothing more and were given upon Smith's own solicitation. No violation of the Act occurred.3 5 J. Alleged Refusal To Bargain It is found, above, that Keck hired the four contested employees before he had any knowledge of union activity at the Laurel store and that the four were hired for legitimate business reasons. Therefore, the Union did not have a majority on December 10, when Keck received the union demand letter. It also is found, above, that during the time Shaffer and Smith were employed by Respondent after December 10, Kindsfather worked part of the time and Bonnie Wallila and Rice worked the entire time. Kindsfather, Bonnie Wallila, and Rice all have been found to have been regularly employed clerks, eligible to vote in any unit election. At no time material herein did the Union hold signed authorization cards for a majority of employees. A bargaining order, as requested by General Counsel, is not proper under such circumstances.3 6 The allegation of refusal to bargain is not supported by the evidence. 35 William B. Patton Towing Company and Tex-Tow, Inc., 180 NLRB 64 (1969); American Ship Building Co. v. N.LR. B., 380 U.S. 300(1965). 33 The Contract Knitter, Inc., 220 NLRB 558 (1975). 904 WESTERN DRUG IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(aX)() and (3) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from any other manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Western Drug, Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local No. 1573, chartered by Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following words and acts Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(l) of the Act: Interrogated employees about their union activities and sympathies: became more strict in working conditions; solicited grievances of employees; promised a wage raise; promised to begin payment for overtime; promised to remedy grievances; threatened loss of benefits; threatened not to tolerate unionization; threatened to fire employees and close the store rather than accept unionization; threatened to dock wages of employees for being late, in change of existing practice; docked an employee's wages for being late, in change of existing practice; reduced employees' hours of work; and required that employees take compensatory time off. 4. By reducing employees' hours of work, by unprece- dented requirement of taking compensatory time off, and by docking an employee's wages for being late in change of existing practice, Respondent violated Section 8(a)(3) of the Act. 5. Respondent did not, through alleged conduct, violate Section 8(a)(5) of the Act. :7 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. 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 basis of the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 37 The Respondent, Western Drug, Laurel, Montana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of the Act, by the following conduct: Interrogating employees about their union activities and sympathies; becoming more strict in working conditions; soliciting grievances of employees; promising a wage raise; promising to begin payment for overtime; promising to remedy grievances; threatening loss of benefits; threaten- ing not to tolerate unionization; threatening to fire employees and close the store rather than accept unioniza- tion; threatening to dock wages of employees for being late, in change of existing practice; docking an employee's wages for being late, in change of existing practice; reducing employees' hours of work; and requiring that employees take compensatory time off. (b) Discriminating against its employees in violation of Section 8(a)(3) of the Act by reducing employees' hours of work, by unprecedented requirement that employees take compensatory time off, and by docking employees' wages. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole employees Shaffer and Smith, whose work Respondent discriminatorily reduced, and Smith, whose wages discriminatorily were docked and who was required to take compensatory time off, for an)' loss of earnings, including interest of 6 percent per annum, they may have sustained as a result of the discrimination Respondent practiced against them. (b) Post at its place of business in Laurel, Montana, copies of the attached notice marked "Appendix." 38 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. "I In the event that this Order is enforced bh 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." 905 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed so far as it alleges violations of the Act other than those found above. 906