Giant Open Air Market

GIANT OPEN AIR MARKET Rosso and Mastracco, Inc. d/b/a Giant Open Air Market and Retail Store Employees Union, Local 233, affiliated with Retail Clerks International Association, AFL-CIO. Cases 5-CA-7596, 5-CA- 7713, and 5-CA-7713-2 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 3, 1977, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief and a memorandum in response to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order. We disagree with our dissenting colleague's conclu- sion that employee Diane Miller was discharged in violation of the Act. To the contrary, we find that the Administrative Law Judge correctly found that the General Counsel failed to sustain his burden of proving that she was unlawfully discharged. On December 10, 1975,3 customer Pully informed employee Susan Lane that Miller claimed that Lane was "setting up" Miller to be fired. Lane then discussed the matter with Restaurant Manager Lou Dissell who told her to "let it ride" for the moment. Later in December, Miller told the same story to a number of fellow employees. The repetition of this rumor culminated in a confrontation between Miller and Lane on December 30, during which Lane denied having any intention of trying to effect Miller's discharge and Miller refused Lane's demand that she reveal who had given her such information.4 An argument then ensued, during the course of which Miller said Supervisor Dissell and Store I The Respondent has excepted to certain credibility findings made by the Administrative ILaw Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In accordance with our decision in Florida Steel Corporation, 231 NL.RB 651 11977), we shall apply the current 7 -percent rate for periods prior 231 NLRB No. 157 Manager David Burns were "bedding down togeth- er." Later that evening Lane telephoned Dissell at home and told her of the meeting and Miller's accusation concerning the relationship of Burns and Dissell. The next morning, Dissell immediately informed Burns of Lane's report. That same morning, Burns prepared a series of "writeups" preparatory to discharging Miller. He detailed, inter alia, her spreading of accusations that fellow employee Lane "was out to get me," her excessive absenteeism during the month of Novem- ber, and her defacing of company property by placing a union bumper sticker on a dishwasher. 5 Miller was then called into Burns' office where both Dissell and Lane were present. Lane repeated Miller's charge concerning the Burns-Dissell rela- tionship and Miller replied that it was common knowledge throughout the store. Lane then left. Miller was informed that she was discharged and was given the writeups. Aware that she was able to make comments in her defense on the writeups, she nevertheless signed them without protest and then left. Prior to leaving, Miller said she was being discharged for her union activities and told Burns, "I'll get you." An employee cannot insulate himself or herself from a discharge for cause simply because he or she happens to engage in activity protected by the Act. In Klate Holt Company, 161 NLRB 1606, 1612 (1966), the Board said: The mere fact that an employer may desire to terminate an employee because he engages in unwelcome concerted activities does not, of itself, establish the unlawfulness of a subsequent dis- charge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful. See also Golden Nugget, Inc., 215 NLRB 50 (1974). Thus, it is clear that employee misconduct which would justify a discharge, absent any protected activity, will also justify a discharge despite protected activity. 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. All dates hereinafter are in 1975. Darlene Smith, the alleged informant named by Miller at the hearing, denied she made such a statement to Miller. I Miller had put a union bumper sticker on a dishwasher in Respondent's kitchen during the week prior to her discharge. Her denial of this conduct was discredited by the Administrative Law Judge. 945 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There can be no doubt that Miller engaged in conduct which would justify her discharge for cause. She spread gossip and rumors which alienated customers and her fellow employees. Her earlier unfounded accusations about the theft of money by an unnamed fellow employee caused practically all the waitresses to complain to Dissell and Burns. She harassed customers and employees with her state- ments that the Company was out to get her. She complained to customers and employees about Lane allegedly setting her up for a discharge. Finally, her inflammatory accusations regarding an alleged Burns-Dissell affair precipitated her immediate discharge.6 In short, Respondent and its supervisors had ample reasons for Miller's discharge, absent any protected activity. Notwithstanding the fact that Respondent at one point threatened Miller with an unlawful discharge, the Administrative Law Judge correctly found that -- under all the circumstances herein - the General Counsel failed in his burden of proving that the assigned reasons for Miller's discharge were pretextual and the real reasons were her union activities. Accordingly, we shall adopt the Adminis- trative Law Judge's dismissal of this allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Rosso and Mastracco, Inc. d/b/a Giant Open Air Market, Norfolk, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: Although I concur in my colleagues' adoption of the Administrative Law Judge's Decision in all other respects, I do not agree with their adoption of the finding that Diane Miller was discharged for nondis- criminatory reasons. On the contrary, the evidence presented clearly established that Respondent dis- charged Miller because of her union activity, and that the asserted reasons therefor were merely pretextual. Miller, a waitress in the restaurant at Respondent's Store 10, had been an active union adherent, and 6Miller's inflammatory accusations were the principal subject of discussion at her discharge interview and she chose to meet this charge of misconduct by flatly reiterating her accusations of personal immorality against her supervisors. Under these circumstances, we find - unlike our both Store Manager Burns and Restaurant Manager Dissell testified that they had been aware of her activist stance for some time prior to her discharge. In particular, Respondent's knowledge of Miller's union activities, as well as its manifest animus against the organizing campaign and her part therein, is highlighted by Dissell's threat made to Miller on December 4, 1975, less than a month prior to her actual discharge, that if any information came back to her of Miller's continued union activities she would find a way to fire Miller. Similar threats had been made to Diane Riner and Michael Ohge, also employed at Store 10, and these employees were also subsequently either suspended or discharged. In finding that these other employees had been discriminated against in violation of Section 8(a)(3) of the Act, the Administrative Law Judge relied to a great extent on Respondent's union animus and the multitude of independent 8(a)(1) violations, including threats to these employees of discipline or discharge. Since Respondent's asserted justification for Miller's discharge is clearly pretextu- al and no more persuasive than those rejected by the Administrative Law Judge and my colleagues with respect to the 8(a)(3) violations against Riner and Ohge, it seems plain that Miller was similarly discriminatorily discharged. As noted above, it is uncontroverted that Miller was active on behalf of the Union while she was employed at Store 10. It is also uncontroverted that prior to the day of her discharge she had received no "writeups," despite the fact that Respondent general- ly required an employee to be written up three times prior to discharge. She had, however, been verbally warned that if she continued her support for the Union a way would be found to discharge her. Nevertheless, she continued to aid the Union in its organizational efforts, and on December 31 the way to discharge her was "found," and she was terminat- ed. On December 31, Store Manager Burns, in his words, decided to "package" nondiscriminatory reasons for her discharge, prepared four writeups, called her into his office, and without even giving her the opportunity to defend herself announced that she was discharged. However, it is not alone the inferences to be drawn from this sequence of events that convinces me that the writeups issued her were merely a pretextual basis for her discharge. The writeups themselves are internally suspect. The first one was based on absences which were not only excused but which had dissenting colleague - that Respondent's failure to encompass this final act of misconduct within her written writeups is totally without significance in evaluating the justification for Miller's termination. 946 GIANT OPEN AIR MARKET occurred well over a month prior to her discharge. Miller was not orally reprimanded at the time and, despite the fact that Burns was aware of the absences shortly after they occurred, no reason was given for the delay in the issuance of the writeup. Two other writeups involved complaints Miller had expressed to fellow employees and customers indicating that she thought another employee was trying to get her fired or that Respondent was out to get her. At the hearing, Miller denied that any of these complaints had occurred while she was at work and denied that she had ever been previously warned regarding what she considered to be a personal problem with another employee. Finally, the fourth writeup con- cerned an incident in which she allegedly put a union bumper sticker on a piece of equipment in the kitchen of Respondent's restaurant on December 29, 1975. Miller denied that she had put up a bumper sticker and testified that another employee had not been disciplined for a similar act. In any case, Respondent did not afford Miller the opportunity to defend herself prior to her summary dismissal. In view of the relatively minor nature of these reprimands, the sudden nature of their issuance, the absence of prior warning, and Miller's inability to contest them, I conclude Respondent was merely fulfilling the prediction it had made on December 4, 1975, when she was unlawfully threatened with discharge for continued union activity.' Consistent with and in addition to this finding, I view the writeup for the bumper sticker incident, even if not pretextual, to have been at least partially discrimina- torily motivated, as it is probative of the fulfillment of a condition placed on Respondent's threat to Miller, i.e., that it first learn of her continued union activity before she would be discharged. Accordingly, I would find that Respondent's discharge of Miller violated Section 8(a)(3) of the Act. ? For this reason I would also find without basis the argument suggested by Dissell at the hearing that Miller was discharged as a result of personal comments she had made concerning Supervisors Dissell and Burns. Although the majority has chosen to cite these comments as conduct which would justify Miller's discharge, neither these comments nor other instances of possible improprieties which were not covered by the writeups may be properly utilized as a basis forjustifying her discharge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection If you wish, not to do any of these things. WE WILL NOT unlawfully interrogate our employees concerning their union activities or the union activities of other employees. WE WILL NOT threaten our employees with store closures, discharge, or other reprisals in order to discourage union activities. WE WILL NOT maintain or enforce any policy or rule prohibiting our employees from wearing union pins or buttons while at work. WE WILL NOT solicit employees to report the union activities of other employees. WE WILL NOT create the impression employees' union activities are being spied upon. WE WILL NOT suspend, discharge, or otherwise discriminate against our employees because of their membership in, or activities on behalf of, Retail Store Employees Union, Local 233, affili- ated with Retail Clerks International Association, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer Diane Riner immediate and full reinstatement to her former job or, if her job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges previously enjoyed, and wE WILL make whole Diane Riner, Michael Ohge, Jeffrey Harris, and Raymond Jones for any loss of earnings they may have suffered as a result of the discrimination against them, with interest. Rosso AND MASTRACCO, INC. D/B/A GIANT OPEN AIR MARKET DECISION STATE OF THE CASE BERNARD NESS, Administrative Law Judge: Upon charges filed by Retail Store Employees Union, Local 233, affiliated with Retail Clerks International Association, AFL-CIO, herein called the Union, against Rossco and Mastracco, Inc. d/b/a Giant Open Air Market, herein called the Respondent, the General Counsel issued com- plaints which were consolidated alleging violations of 947 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, herein called the Act.' The Respondent has denied the commission of any unfair labor practices. Hearing was held before me on April 6, 7, 8, 20, and 21, 1976, at Norfolk, Virginia.2 Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Virginia corporation, is engaged in the retail sale of meat, produce, and related products at its stores in the metropolitan area of Norfolk, Virginia. During the 12-month period preceding the issuance of the complaints, the Respondent had gross revenues exceeding $500,000. During the same period, the Respondent pur- chased and received in interstate commerce products and supplies valued in excess of $50,000 from points located outside the State of Virginia. Based on the foregoing, and as admitted by the Respondent, I find that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaints allege, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11i. THE UNFAIR LABOR PRACTICES A. Background and Issues The Respondent operates retail grocery stores in the Tidewater, Virginia, area. Its retail grocery operation is unorganized. The Union's organizing campaign began in March 1975.3 It held meetings and union representatives visited the stores and spoke to individual employees in the restaurant area of stores during the employees' break period. The issues involved are whether the Respondent, in violation of Section 8(a)(l) of the Act, engaged in unlawful interrogation, threats of discharge and changes in working conditions, created the impression of surveillance of the employees' union activities, and offered benefits to an employee if he would report back information concerning union meetings; whether, in violation of Section 8(aX)(1) and (3) of the Act, the Respondent unlawfully reprimanded and suspended Jeffrey Harris and Raymond Arthur Jones, Jr., for wearing union buttons, and whether it suspended Michael Ohge, suspended and thereafter discharged Diane ' The charges and first amended charge in Case 5-CA-7596 were filed on October 20 and 28, 1975, respectively. The charges in Cases 5-CA-7713 and 5-CA-7713-2 were filed on January 13 and 23, 1976. respectively. Complaints were issued on March 10, 1976. 2 The complaints were amended at the hearing. The General Counsel's motion made at the commencement of the hearing to delete from the complaint in Case 5-CA-7596 subpars. 5(f) and (g) and a portion of 5(d) was granted. At the close of the General Counsel's case-in-chief the Respondent's motion to dismiss subpars. 5(m) through (q) was granted. No testimony was adduced in support of these allegations. Riner, and discharged Diane Miller because of their union activities. B. Independent Acts of Interference, Restraint, and Coercion 1. Francesco Lezzi, a cashier at Store 1, testified concerning a conversation with Store Comanager Gerald Locher on September 17. That evening, Lezzi accompanied his brother, Roberto, to Locher's home in order that Roberto might repair some stereo equipment for Locher's musical instruments. 4 Roberto is also an employee of the Respondent in the maintenance department. Francesco Lezzi testified that, while Roberto was repairing the equipment, Locher and he discussed Lezzi's interest in participating in a management training program. In the course of the conversation Lezzi brought up the Union and told Locher of his support for it. Lezzi credibly testified Locher stated that at a recent meeting of store managers they were told that the Respondent would close its doors if the Union came in. Locher also told him F. M. Frias, Respondent's executive vice president and general manag- er, told the managers they had the most to lose if the Union came in and they should get rid of the union supporters. Locher also told him to be careful - that Store Manager Johnson was "after him." Roberto Lezzi, also still em- ployed by the Respondent, testified he did not pay much attention to the conversation, being absorbed in repairing the equipment, but he did hear Locher say that the managers were told the Respondent would close its doors if the Union came in. Locher denied that the subject of the Union was even discussed on that occasion. He stated that, about 2 weeks later, the Union was discussed with Francesco in the presence of another employee, Cullers, at a restaurant but none of the statements attributed to him by Francesco was made even at that time.5 I find Francesco Lezzi's testimony, corroborated in part by his brother, Roberto, more credible and find that on Septem- ber 17 Locher told him the store managers had been told the Respondent would close its doors if the Union came in and that they should get rid of the employees who supported the Union. Locher also conveyed the impression that Store Manager Johnson was looking to discharge Lezzi. I find such conduct violative of Section 8(a)( ) of the Act. 2. Michael Ohge, 6 a cashier at Store 10, testified that on July 25, during his lunch break, two union representatives sat down with him in the restaurant section of the store. Assistant Store Manager Cox was sitting nearby. Less than an hour later he was called into the office by Store Manager Burns. Ohge credibly testified Burns asked him how deeply he was involved with the Union. Ohge admitted his support for the Union. Burns warned him he was treading on thin ice and should go elsewhere if he did 3 All dates mentioned hereinafter refer to 1975 unless otherwise indicated. 4 Locher also played with a band. 5 He was corroborated in part by Cullers. Francesco testified there was a further discussion about the Union at the restaurant but attributed Locher's threats to the first meeting on September 17. ' Erroneously spelled Oghe in the transcript. 948 GIANT OPEN AIR MARKET not like his job. Burns said Ohge was guilty of insubordina- tion and he would not tolerate causing dissension in the store. Burns cautioned Ohge that if he opened his mouth about the Union he would be sent home. Burns asked him who the members of the organizing committee were and asked how the Union obtained the names and addresses of the employees. Burns then went on to say Ohge was a marginal employee and only the good employees were going to get the preferred working hours whereas marginal employees would have to start working the late hours.7 Burns then criticized Ohge for making unfavorable re- marks about Assistant Manager Grimes, 8 for not suffi- ciently smiling at customers, and for complaining to customers about working conditions. Grimes then brought in the work schedule and Burns said that for the time being the schedule would not be changed but Ohge's work would be watched. Burns then prepared a written reprimand.9 Burns denied making the remarks attributed to him regarding Ohge's involvement with the Union or question- ing him about the Union. Burns testified he knew Ohge was involved with the Union and told Ohge the conversa- tion had nothing to do with the Union. Burns said he spoke to Ohge because two customers had earlier in the day told him Ohge had complained about his working conditions at the store. Burns said Ohge had also complained to other employees about Grimes' competency. I was not impressed with Burns' account of the conversation and credit Ohge's version. Accordingly, I find that on July 25 Store Manager Burns interrogated Ohge as to his and other employees' activities on behalf of the Union and threatened him with disciplinary action and a change in the working schedule because of his participation in activities on behalf of the Union. I find such conduct violative of Section 8(a)(1) of the Act. 3. Raymond Jones, a stock clerk in Store 4, testified that in the latter part of July he was called into the office by Store Manager Douglas Parker. Jones credibly testified Parker asked him if he was aware of union activities going on and asked him if he was involved and had attended union meetings. Jones admitted his involvement. Parker then told him he would arrange an appointment for Jones to talk to a personnel counselor of the Company and then he could compare the benefits. Parker mentioned a union meeting was to be held the following Monday night at the Holiday Inn and asked Jones if he planned to attend. Jones said he planned to attend and Parker told him he would speak to him afterwards. The day after the union meeting which Jones did attend he was again called to the office. Grocery Manager Kennedy was present with Parker. Parker asked Jones how many were at the meeting and asked how many employees from Store 4 attended. Jones told him three employees from the store were there. Parker acknowledged he knew there were three present and that "I've got my connections just like you." Although asked to name the other two, Jones refused. Parker said he knew the identity of only one of the other two who attended but refused to name him. After this discussion, Jones told the other two employees of his meeting with Parker.' 0 Berman I Ohge attended school and was a regular part-time employee at the store. - At this point Grimes was called in. told Jones he had already spoken to Parker. In early August, Kennedy approached Jones and told him to be careful if he was to be involved with the Union because the Respondent could find a reason to discharge him. Jeffrey Harris, also a stock clerk at Store 4, credibly testified that on about July 29 he went to Parker's office. Kennedy was also present but did not say anything. Parker told him he heard Harris had attended a union meeting the night before but did not say how this information came to him. Harris admitted his presence at the meeting. Parker then told him anything that was said was not meant to be a threat. Parker then discussed the company benefits and told Harris he would make an appointment for Harris to meet with the store counselor who would explain the Company's policies and benefits. About 10 or 15 minutes after their meeting, Kennedy approached him in the aisle where Harris was stocking the shelves. Kennedy told him he shouldn't be involved with the Union because he might get fired. Parker admitted speaking to Jones and Harris. He testified that Berman had volunteered to him that he had been to a union meeting and that Harris and Jones had also been there. Harris and Jones impressed me as being more credible witnesses than Parker or Kennedy whom I discredit. Apart from my observation of their demeanor, Parker and Kennedy appeared to attempt to legitimatize the unlawful statements attributed to Parker. Kennedy also denied telling Harris or Jones they could get fired for being involved in union activities. Having credited the testimony of Harris and Jones, I find that, in the latter part of July, Parker unlawfully interrogated them about their and other employees' union activities. I also find that Kennedy unlawfully threatened Harris and Jones with discharge if they supported the Union. I further find that Parker unlawfully created the impression of surveillance of the union activities of the employees by stating he was aware of the identity of employees who attended the Union and saying he had his "connections." His statements are not legitimatized by the fact that an employee, Berman, may have volunteered this information to him as Parker testified. In this connection, it is noted that Parker did not say how the information came to him. Although this latter conduct was not specifically alleged in the complaint as it refers to Parker, it was fully litigated and I deem it proper to make findings as to this conduct regardless of whether it was specifically pleaded. In this connection, it should be noted that these statements were part of the same conversation to which the allegation is directed. 4. The General Counsel alleged in paragraph 5(1) of the complaint in Case 5-CA-7596 that Ann Mitchell in May and Lou Dissell in July and December engaged in unlawful threats of discharge for union activities. No testimony was adduced concerning conduct of Mitchell or of Dissell in July and these allegations are dismissed. Diane Miller testified concerning Dissell's conduct in December. Miller was a waitress in the restaurant in Store 10 until her discharge on December 31, working under the supervision of Restaurant Manager Dissell. She had been an active union adherent. She testified that on December 4 she was 9 Resp. Exh. 3. io Eddie Berman and Jeffrey Harris. Berman was not called as a witness. 949 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called to the store by Dissell. At first Dissell spoke to her about some matters more fully discussed in the section of this Decision concerning her discharge. Dissell then said she had been observed leaving the store with a union representative and said Miller would have to be on one side or the other and if Miller still favored the Union she need not bother coming in the next day. When Miller said she wanted to continue working, Dissell told her that if any information came back to her of Miller's union activities a way would be found to discharge her. Dissell said if this conversation was reported she would deny it. Dissell admitted having the conversation but that it concerned other matters discussed infra and that no mention was made of the Union. I credit Miller's version and find Dissell threatened Miller with discharge if she supported the Union and the Respondent thereby violated Section 8(a)(1) of the Act. 5. The General Counsel alleged that Store Counselor Doris Jenkins created the impression of surveillance of the union activities of employees by telling employees she was aware they had attended union meetings and interrogated them as to why they attended such meetings. Store counselors are admitted by the Respondent to be supervi- sors and its agents. They visit the stores assigned to them on a regular basis and explain to the employees the Company's policies, procedures, and benefits and inquire of the employees if they had any problems that have not been resolved with the store management. Schedules are posted at each store each month notifying employees when the counselor would be visiting particular stores. Employ- ees Barbara Bray, Theresa Humphreys, and George Smith, all employed at Store 10, all testified they were each interviewed by Jenkins in September. They testified that Jenkins said to them she understood or knew they had attended a union meeting." Jenkins then discussed the Company's benefits with each of the employees. Smith credibly testified Jenkins asked him why he had gone to the meeting and what went on there. Bray credibly testified Jenkins also asked her what she thought of the Union. Jenkins admitted telling the employees in the individual interviews she understood or heard they had attended a union meeting. She testified that this comment was merely "an opening statement because I was very interested in all of the employees and it worried me that there was something that we were not doing that I could do." She was unable to state how she received the information that they had attended union meetings. In any event she did not tell the employees how this information came to her. I find that, by telling Bray, Humphreys, and Smith she knew they had attended a union meeting, such conduct unlawfully created the impression of surveillance of the union activities of employees. I further find that Jenkins unlaw- fully interrogated Bray and Smith concerning their sympa- thies towards the Union. 6. In about August, Reginald Cofield, a cashier at Store i, asked Store Manager Sidney Johnson about a wage increase he believed due him. Johnson told him he would check into it and to see him the following Friday. Cofield " They had attended a union meeting a few days before the interview. 12 Both Cofield and Johnson are black and testimony revealed that the store is in a predominantly black area. returned on Friday and Johnson told him an error had been made and he would receive the increase. Cofield credibly testified Johnson then asked him if he was loyal to the Company and said he had heard Cofield had been to union meetings. Johnson asked if Cofield had made up his mind and Cofield replied he had not. Johnson then said, if the Union gets in, the prices would go up, the poor black people in the area would not be able to afford higher prices resulting in a loss of business, and employees would be laid off.12 Johnson discussed the Respondent's benefits to employees and encouraged Cofield to go to more union meetings to learn more about the Union. Johnson told him he would pay him his regular wages for the time spent at the meetings and asked Cofield to report back to him what went on at the meetings and who attended. Cofield said he would think about it. Thereafter Cofield did not attend any more union meetings nor did he have any further discussions with Johnson. Johnson admitted meeting with Cofield and the subject of the Union and meetings were discussed. He did not impress me as a forthright and reliable witness but one more concerned with presenting a sanitized version of the discussion with Cofield. According- ly, I find that in August Johnson unlawfully created the impression of surveillance of the union activities of employees, threatened employees with layoff if the Union were selected as the bargaining representative, and solic- ited an employee to report to him the union activities of the employees. By the above conduct, the Respondent violated Section 8(a)(l) of the Act. 7. Audrey Stroud, an employee in Store 5, testified that in early September a union representative sat down with her while she was on her break in the restaurant section of the store. She was observed by General Merchandise Manager Faye Walters and Front End Supervisor Violet Stone.' 3 After the union representative left they asked her what he said to her and whether she was asked what her salary was. Several days later Walters asked her what she thought of the Union. Stroud responded she did not care one way or the other. Stroud also testified that on November 6 Walters said she thought Stroud was against the Union. Stroud replied she now favored the Union. Walters said she heard Stroud intended to have a union meeting at her home.14 Stroud admitted this was her intention and invited Walters to attend. Stone and Walters denied questioning Stroud about her conversation with the union representative in September. Walters' account of her conversation with Stroud in November was not convincing. I credit Stroud's account of her conversations in September and in November. Accordingly, I find that Stone and Walters unlawfully interrogated Stroud regarding her union activities and the Respondent thereby violated Section 8(a)(1) of the Act. 8. Diane Riner, employed at Store 10 in the health and beauty aids department until her discharge in December, credibly testified that in early September she was in an aisle in the store with Gwendolyn Batten, the nonfoods manager, when Batten identified some persons who had come into the store as union organizers. Batten asked her ,a They were aware the person with Stroud was a union organizer. l4 Stroud had become active in the campaign and was preparing to have a union meeting at her home the following Monday. 950 GIANT OPEN AIR MARKET what she had heard about the Union. Riner replied she didn't know anything about it.'5 Batten spoke critically of having a union represent the employees and then said, if the Respondent discovered employees were involved with the Union, it could find ways to discharge them. I discredit Batten's denials that she ever questioned Riner about the Union or threatened her as revealed by Riner's testimony. Accordingly, I find that Batten engaged in unlawful interrogation and threatened employees with discharge if they supported the Union. Such conduct violated Section 8(a)(l) of the Act. The General Counsel also alleged that in November, Respondent, through George Marshall, assistant grocery manager at Store 10, created the impression of surveillance by telling Riner that Grocery Manager Widgeon instructed him to observe the union activities of employees. The support for this allegation is based upon Riner's testimony. Marshall is Riner's next-door neighbor in a duplex and they frequently visit each other socially. On November 29 Riner had a party at her place. Present were union organizers and employees involved in the organizing campaign. Marshall was also present at her invitation. Riner testified that about I week later Marshall was at her place and the subject of the Union came up. She testified Marshall told her "Widgeon had asked him what went on in my house, how often union organizers came to my house and other Giant employees and he also informed me that he had told Charlie (Widgeon) about my party but that he could not remember if he told Charlie that any union people were at my house." Marshall testified he did tell Widgeon of Riner's party and that "a lot of union people" were there. He denied that Widgeon questioned him about the activities at Riner's house or that he made such statements to Riner. It should be noted that neither Marshall nor Widgeon was Riner's supervisor. I am inclined to credit Riner's version of her conversation with Marshall but nevertheless find that Marshall's statements to Riner cannot be considered creating an impression of surveillance violative of the Act, particularly when Mar- shall, a supervisor himself, was invited by Riner to attend the party and talked freely with the union representatives. Accordingly, I shall dismiss this allegation. C. The Suspension of Michael Ohge Ohge has been employed as a cashier at Store 10 since November 1973. He signed a union authorization card in April and thereafter was active in the campaign, becoming a member of the Union's organizing committee. As described above, on July 25 he was unlawfully interrogated and threatened by Store Manager Burns. At that time he received a written reprimand stating that he was constantly complaining about working conditions and complaining to other employees about Comanager Grimes in the presence m At the time Riner had not been approached by the Union. :6 Resp. Exh. 3. 7 He was admittedly one of the faster cashiers and usually worked the express line. 'I Gmitter was a policewoman and Ohge was aware she had a matter in which Dissell was an interested party l Frias lived nearby and frequently visited the store. "' Jolly was the assistant manager Store Manager Burns was not in the store at the time. of customers and thus creating ill feeling among employees and customers.' 6 The incident which led to his suspension occurred on October 8. Ohge was the cashier on the express line.' 7 He was checking out a customer, Carol Gmitter, whom he knew as a regular customer at the store. Ohge told her Restaurant Manager Dissell was in the hospital.' Their conversation lasted no more than a minute or two. At the time, Respondent's executive vice president and general manager, Frias, was on this line, several customers back.' 9 After Gmitter's purchases were packaged, she stepped back to the rear intending to get some more information from Ohge. When she saw the line wasn't getting shorter, she told Ohge she wanted to get some cigarettes and would be right back. When she returned there were still customers on the line. Ohge told her he would talk to her as soon as he was through with the customers. Gmitter noted he was busy and asked who the manager was. Ohge told her Robert Jolly was in charge.20 She then said she would talk to Jolly. At the time of the second conversation, Frias had already gone through the line. In the meantime Frias reported to Jolly that he noticed Ohge had violated company rules - that he had been talking to a customer on the line while waiting on another customer and had put the money tendered by him in the register before making change. 2' As they were talking they noticed Ohge and Gmitter again conversing.22 After Frias left, Gmitter came up and identified herself to Jolly as a policewoman and asked where she could get in touch with Dissell. Jolly refused to give her any information and she left. Shortly thereafter, Ohge was called into the office. Jolly told him he was suspended for 3 days for breaking two company rules - placing money in the drawer before making change and talking to a customer other than the one on whom he was waiting. Ohge protested that he never heard of such a rule about putting money in the drawer before making change and also explained that all he said to Gmitter while he was not waiting on her was that he would talk to her when he finished waiting on the customers and told her who the manager was. Jolly then showed him the written reprimand he prepared, stating that Ohge was suspended for 3 days for the two infractions. 23 Ohge returned to work after his suspension and at the time of the hearing was still employed there as a cashier. The Respondent contends Ohge was suspended because of his violation of the two company rules and in light of the reprimand given to him back in July. Jolly testified that he was "taken aback" when Frias reported to him that Ohge did not put the money tendered by the customer on the ledge of the register prior to making change. Jolly testified this was the practice that cashiers were directed to follow and the cashiers were so instructed. He testified he had never noticed a cashier "not following company policy with regard to putting the money on top of the register 21 No contention was made that Frias was given incorrect change. 22 This was the second conversation when Gmitter returned to Ohge's station. 23 Resp. Exh. 4. The form prepared by Jolly shows that Ohge was disciplined on July 25 for a similar occurrence: but the) were not at all related. 951 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to making change and then putting the bill into the cash till before they close the drawer." But at another point in his testimony he stated he had noticed cashiers placing the money on a metal plate on the left side of the machine. He said this latter practice was also an accepted practice. Inconsistent testimony was offered by Store Manager Burns who testified Jolly had told him he had warned Ohge on a prior occasion to put money on the ledge of the register. Burns also testified Jolly told him he had verbally warned other employees for not putting money on the ledge while making change. While it may be true that the Respondent preferred the money tendered by a customer be placed on the register ledge, this was not a policy which was uniformly followed or enforced. Ohge credibly testified that during the entire 2-year period he was cashier at the store he followed a practice of calling out the denomination of the bill tendered by the customer and the amount of the purchase to be deducted as he held the money in his hand. He then keyed in the register which showed the amount due. He then called out the change due, placed the money in the drawer, and took out the change. Charles Spivey and Charlotte Inman, also cashiers at the same store for 2-1/2 and 1-1/2 years, respectively, both credibly testified they followed the same practice as Ohge in recording sales and making change and had not heard of a rule requiring the money tendered by the customer to be placed on a ledge or had they been instructed by a supervisor to do so. They credibly testified they had never been told the practice they followed was improper even though supervisors had observed the manner in which they operated the register. Both Burns and Jolly pictured Ohge as an employee deficient in a number of respects, although admittedly one of the faster cashiers. They testified Ohge constantly talked either to other employees or to customers other than the one he was waiting on while operating the register. Burns testified Ohge was talked to about it "just about every day." Jolly testified that he warned Ohge about talking to other employees about 10 times and talking to other customers about 3 times.24 I was not impressed with the demeanor of Burns or Jolly. Their testimony seemed to be a contrived effort to convey the impression that Ohge was a poor employee who was constantly warned for violating company rules. I find their testimony unreliable wherever it conflicts with the testimony of the General Counsel's witnesses. I find that, prior to the October 8 incident, Ohge followed the practice of operating the register in the manner as he described, that this was a practice commonly followed by other cashiers at the store, and that such practice, although known by Burns and Jolly, was not criticized. I also find that Ohge had not previously been criticized for improperly talking to customers or that he chatted unduly or more than other cashiers with other employees. I do not credit Frias' testimony that he had never observed Ohge or any other cashier in Store 10 operating the register as described by Ohge, Spivey, Inman, and Gmitter.2 5 Nor do I credit his testimony that he was unaware Ohge was an active union adherent. 21 The written reprimand of July 25 did not address itself to these alleged infractions but referred only to the content of remarks made by Ohge to other employees concerning working conditions. 25 He testified he was in Store 10 about six times a week since the store opened in 1973. I am persuaded that the reasons advanced by the Respondent for Ohge's written reprimands and 3-day suspension were pretextual in nature. Ohge was known to be an active union adherent and was unlawfully threatened in July because of his union advocacy. He, nevertheless, continued his active support and was on the Union's organizing committee. In light of the Respondent's union animus including the various independent 8(a)(1) viola- tions found above, I find the written reprimands and the 3- day suspension were illegally motivated and violative of Section 8(a)(3) and (I) of the Act. D. The Discharge of Diane Riner Riner worked in Store 10 as a stock clerk in the health and beauty aids department from December 1974 until her suspension and discharge the following December. The department had been leased and in June the Respondent took it over. In early September, Riner was unlawfully interrogated by the nonfoods manager, Batten. It was shortly after this interrogation that Riner became active in the Union. Riner was the only full-time employee in her department. Her duties were to order merchandise for the department, price the merchandise, stock the shelves, wait on custom- ers, and assist as a cashier in the pharmacy. In August Bernice DeMoss began working in the nonfoods depart- ment and worked in health and beauty aids on Riner's day off, plus one additional day. On December 4, Riner received a 3-day suspension by Store Manager Burns and on December 9 he terminated her. As for the reasons for such actions, Burns testified; "It was the culmination of all her performance inadequacies, I think topped off with the Company policy violation in regards to soliciting. But not at all for any union involvements." We now look at the record. On June 26, not long after the Respondent took over the health and beauty aids department, Riner received a written reprimand for tardiness. On November 7, she received a second written reprimand, this one from Jolly. This reprimand related to a November 5 infraction. The Respondent had scheduled for that afternoon its first big promotion sale in the depart- ment since taking it over. Earlier in the day Jolly inquired if all the sale merchandise was on the shelves and properly priced. She acknowledged everything was ready.2 6 Some- time later that afternoon a management trainee noted that some sale merchandise was not on the shelves and a number of items were improperly priced. He reported this to Jolly. On November 7, Riner was called in by Jolly. Although she protested that it was because DeMoss had told her everything had been prepared for the sale that she gave this assurance to Jolly. He responded she was the one responsible for the department and gave her the written reprimand. On November 14, while DeMoss and Riner were stocking the shelves and talking about other matters while working, Riner brought up the subject of the Union. Riner 26 DeMoss had worked on Tuesday, November 4, in the department, it being Riner's day off. Riner testified that when she came in at noon on Wednesday DeMoss told her everything was ready for the sale. It was about an hour after she came to work that Jolly made his inquiry. 952 GIANT OPEN AIR MARKET asked her what she knew about the Union and said she had union literature if DeMoss was interested in reading it. Riner asked if DeMoss wanted to sign a union card. DeMoss disclaimed any interest. On December 4 Batten pointed out to DeMoss that two union representatives had just come into the store. DeMoss at that time mentioned to her that Riner had solicited her to sign a union card. Upon Batten's inquiry, she said it was while they were working. Batten reported this to Burns. Burns was told the incident had occurred in the latter part of November. Shortly afterward Riner was summoned to the office and Burns referred her to the company rule against soliciting while on duty. Riner admitted having solicited DeMoss while working and Burns said this was her third writeup and she was suspended for 3 days. She signed the written repri- mand. 27 On December 8, she called Burns who told her to see him the following day. On December 9, when she came to the store, Burns told her she was discharged. He presented her with still another writeup which listed a number of delinquencies. 28 She protested the legitimacy of the reasons and offered explanation, to no avail. She was terminated. Burns testified he prepared both writeups on December 4 and discussed both with Riner on that day and again on December 9. He testified he had not yet made up his mind on December 4 to discharge her and wanted to reflect upon it. It was on December 9 when she returned that he told her he had made up his mind to discharge her. Burns said he had inspected her department earlier that day and was dissatisfied with the conditions there. Later he was informed of the solicitation. He then prepared both writeups, spoke to Riner, and suspended her for 3 days. He said that, although he discussed with Riner all the infractions on the other writeup (Resp. Exh. 2), he had not yet decided upon the disciplinary action to take. He testified as follows: "I suspended her for that (solicitation) and after thinking about it, I told her to come back in three working days. She came back on the fourth day and I told her that in lieu [sic] of what I found in the department and going in her file and pulling out three writeups, that I felt it was time to discharge her." I am not persuaded that Burns testified with complete candor and credit Riner that only the solicitation was discussed on December 4 and she was not shown Respondent's Exhibit 2. Rather, I believe it was sometime after she was suspended that Burns prepared this additional writeup and listed all the infractions.2 9 I have no doubt that the Respondent did not consider Riner an exemplary employee but am convinced that, but for the report on her solicitation of DeMoss to sign a union card, she would not have been suspended or terminated. I cannot believe that had Riner been as poor an employee as pictured by the Respondent she would not have received either additional writeups or been discharged earlier.30 "? Resp. Exh. 1. 21 Resp. Exh. 2 - seven in number, generally based upon the condition of the department and also upon complaints from the pharmacist. 2', I credit Riner's testimony and find, contrary to Burns. that he made no inspection of her department earlier in the day on December 4 but only came by and looked at the work schedule. :"' Mason Pridgeon, the store pharmacist since it opened in 1973, called h) the Respondent. testified that he complained to Burns almost every day I am convinced that it was after Burns suspended Riner for soliciting that he later decided to discharge her. However, I do not believe that Burns' decision to discharge her was motivated by her previous infractions. Rather, I believe it was her solicitation that moved Burns, upon reflection, to discharge her.31 The question then to be decided was the decision prompted by the violation of the no-solicitation rule. It was after the suspension that Burns made his decision to discharge her and prepared the additional writeup to present what would appear to be a legitimate support for termination. I am convinced that but for the solicitation Riner would not have been suspended or discharged. The Respondent did have a rule against solicitation. It is obviously clear the Respondent had no objection to employees engaging in other than "shop talk" while working. Neither Batten nor Burns made any inquiry as to whether there was any disruption of work or the length of the conversation. I do not credit Bums' testimony that until he received the report froff Batten on December 4 he had no knowledge of her union activity. In this connection it should be noted that Assistant Manager Jolly testified he believed in late September she supported the Union. And it was before her discharge that Assistant Grocery Manager Marshall told Grocery Manager Wid- geon of the party at her home on November 29 with union organizers. I find that her activities were known to Burns at the time she was disciplined on December 4. In light of the Respondent's animus and independent 8(aXl) violations, I find that it was not the violation of the no-solicitation rule, per se, that motivated Burns to suspend and thereafter discharge Riner, but that he seized upon this, later buttressed by dredged up infractions, to rid the store of a union adherent who not only supported the Union but also had even entertained the union representatives and supporters at her home. Accordingly, I find the suspension of Riner on December 4 and her discharge on December 9 violative of Section 8(aX3) and (1) of the Act. E. The Discharge of Diane Miller Miller was employed by the Respondent as a waitress in the restaurant at Store 10 from August to December 31, 1975, when she was discharged. On December 4, she was called to the store by Restaurant Manager Dissell who told Miller it had come to her attention Miller had been saying an employee took money from a collection box. She told Miller to discontinue accusing anyone unless she could prove it.32 It was during this conversation that Dissell unlawfully threatened Miller as described above. On December 10, Susan Lane, also a waitress in the restaurant, was told by a customer, Mrs. Pulley, that Miller about Riner and suggested she be discharged. But yet the first writeup referring to the pharmacist was the one on December 9. at See his first quoted testimony above regarding his reasons. 12 A collection had been taken up for a hospitalized employee. Miller had been given money by a union representative to add to the collection. A shortage was later discovered. It had been reported to Dissell that Miller had been going around saying an employee must have taken the money. 953 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been at her home the previous evening and told Mrs. Pulley that Lane was planning to set up Miller to be fired.33 On December 30, Lane arranged to meet with Miller at the store. She asked Miller where she had heard of this rumor and denied any intention of getting Miller fired. They argued back and forth and Miller refused to name the informant.34 In the course of the discussion Miller said Dissell and Burns were having an affair. That evening Lane telephoned Dissell at her home and told Dissell of her meeting with Miller and of Miller's accusation concerning Burns and Dissell.35 The next morning Dissell informed Burns of the report received from Lane. Burns then prepared a series of writeups preparatory to discharging Miller and summoned her to the office.36 Burns testified he prepared the writeups because he wanted to "package" all the reasons for the discharge. Initially Lane was present at the meeting and related Miller's accusation concerning Burns and Drissell and left. Burns told Miller she was discharged and they discussed the writeups. I do not credit Miller's testimony that she did not place a union sticker on the dishwasher.3s Dissell and Burns testified they had been aware for some time that Miller was a union activist. Dissell stated that had Burns not discharged Miller when he did she, herself, would have taken such action because of Miller's accusa- tion directed to her morality. Based upon the record as a whole, I find that the evidence does not preponderate in favor of the General Counsel's allegation that Diane Miller was discharged because of her activities on behalf of the Union. Accordingly, this allegation will be dismissed. F. The Suspension of Jeffrey Harris and Raymond Jones Harris and Jones are stock clerks in Store 4 and, as described above, were unlawfully interrogated by Store Manager Parker and unlawfully threatened by Grocery Manager Kennedy. The Respondent's handbook states that no conspicuous jewelry is to be worn. On January 16, 1976. Harris affixed a union pin on his smock and Jones placed his pin on his collar. That evening, Assistant Store Manager Lawrence Wheeler observed them wearing the pins. First he called Jones to the office and directed him to remove the pin as it was against company policy. Jones argued the pin was not distracting and he did not consider it as violating a company rule. When Wheeler persisted in its removal, Jones refused. Wheeler then signed a reprimand form which he had prepared. Then Harris was called in by Wheeler and, upon Harris' refusal to remove the pin, a written reprimand was also completed by Wheeler. A few minutes later they were again called into the office by Wheeler and, upon their continued refusal to remove the pins, they were suspended for 3 days. Upon their return after the suspension, they ceased wearing the pins. :':' Corroborated by Mrs. Debbie Pulley, the daughter-in-law, to the extent that she was present when Miller made the accusations against Lane. :' The alleged informant named by Miller at the hearing, Darlene Smith, denied she ever made such statement to Miller. :'5 Dissell was not at the store that day. :6 G.C. Exhs. 2 - 5, covering several absences in November, complaining to customers and employees, the incident relating to Lane, the Burns-Dissell With respect to the Company's policy against wearing conspicuous jewelry, Wheeler testified to his interpretation of conspicuous jewelry as follows: Conspicuous jewelry would be anything that does not lend to a sober professional type air or appearance as far as employees are concerned. We are running a grocery store and we are appealing to everyday people. We are not appealing to street customers or what have you. When I say conspicuous jewelry, I am speaking of outlandish, oversized earrings, gaudy makeup and things of this nature. Anything that would draw attention to the person other than giving a sober, professional air. Wheeler also testified that the size of the pin would be a consideration. Much like an ordinary civic club pin, the pins worn by Harris and Jones were smaller than a dime and the only identifying legend were the initials "RCIA" hardly discernible with the naked eye at a distance of more that 2 feet.3 8 With respect to the wearing of the pins, there is no evidence of any customer complaints, of any diminution of business at the store, or of any animosity among employees created by the wearing of the pins. The law is clear that, absent special circumstances that justify a prohibition, the wearing of a small membership pin has been recognized as a protected activity.3 9 Apart from the existence of the rule against wearing conspicuous jewelry no special circumstances to justify the prohibition against the wearing of the union pins has been presented. Accordingly, I find that, by suspending Harris and Jones for wearing union pins on their clothing at work, Respon- dent violated Section 8(a)(3) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the 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. CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities or the union activities of other employees, by threatening the closing of the stores if the Union was selected as the bargaining representative, by threatening accusation, and placing a union bumper sticker on a dishwasher in the kitchen. 37 This occurred earlier in the week of her discharge. 38 G. C. Exhs. 9 and 10. 39 Republic Aviation Corporation v. N.LR.B., 324 U.S. 793 (1945); N.LR.B. v. Floridan Hotel of Tampa, Inc., 318 F.2d 545 (C.A. 5, 1963); Eckerd's Market, Inc., 183 NLRB 337 (1970). 954 GIANT OPEN AIR MARKET discharge of employees or changes in work schedules because they favored the Union, by creating the impression of surveillance of the union activities of the employees, by soliciting employees to report the union activities of other employees, and by maintaining and enforcing a policy or rule prohibiting employees from wearing union buttons while at work, the Respondent violated Section 8(a)(1) of the Act. 4. By temporarily suspending Michael Ohge, Jeffrey Harris, and Raymond Jones and by suspending and discharging Diane Riner because of their support for the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except for the foregoing, the Respondent has committed no unfair labor practices under the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices. I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As the Respondent unlawfully temporarily suspended Michael Ohge, Jeffery Harris, and Raymond Jones, the Respondent will be ordered to make them whole for any loss of earnings they may have suffered in consequence of their unlawful suspensions, by payment to each of them of a sum of money equal to the amount they normally would have earned during the period of their suspension, less their net earnings during such period, plus interest at 6 percent per annum. As it has been found that the Respondent discriminatorily suspended and discharged Diane Riner, it will be ordered to offer her full and immediate reinstate- ment to her former position or, if her job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered in consequence of her unlawful discharge, by payment to her of a sum of money equal to the amount she normally would have earned from that date of her suspension to the date of the Respondent's offer of reinstatement, less her net earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 'O 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. ORDER40 The Respondent, Rosso and Mastracco, Inc. d/b/a Giant Open Air Market, Norfolk, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employes with discharge or other disciplinary action or that the stores will be closed in order to discourage union activities or for supporting Retail Store Employees Union, Local 233, Retail Clerks International Union, or any other labor organization. (b) Maintaining or enforcing any policy or rule prohibit- ing its employees from wearing union buttons while at work. (c) Creating the impression of surveillance of the union activities of its employees. (d) Requesting its employees to report the union activities of its employees. (e) Interrogating its employees concerning their union activities or the union activities of other employees. (f) Suspending, discharging, or otherwise disciplining employees because they engage in union activities. (g) 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 is deemed necessary to effectuate the policies of the Act: (a) Offer Diane Riner immediate and full reinstatement to her former position or, if her job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make whole Diane Riner, Michael Ohge, Jeffery Harris, and Raymond Jones for any loss of pay they may have suffered, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its stores in the Tidewater, Virginia, area, and at all other places, copies of the attached notice marked "Appendix." 4 1 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. '4 In the event that the Board's Order is enforced b) 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." 955 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director of Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 956