Harris-Teeter Super Markets, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harris-Teeter Super Markets, Inc. and Local 525, Meat, Food and Allied Workers Union, Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Cases 11-CA-308 and 11- CA-6542 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 23, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Harris-Teeter Super Markets, Inc., Charlotte, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE HENRY L. JALETIT, Administrative Law Judge: This consolidated proceeding involves allegations that the above-named Respondent violated Section 8(a)(1) and (3) of the Act by discharging three employees, Section 8(a)(1), (3), and (4) by discharging another employee, and Section 8(a)(1) of the Act by various acts of interference, restraint, and coercion. The proceeding was initiated by a charge filed by the above-named Union in Case 11 -CA-6308 on October 23, 1975.1 The charge was amended on December I I and complaint issued on February 23, 1976. On March 9 and 10, 1976, hearing was held in Charlotte, North Carolina, at which time it was adjourned to permit General Counsel to seek enforcement of a subpoena ad lestificandum which had been served on a witness who had failed to appear. During the adjournment, pursuant to a charge filed by the above-captioned Union in Case I I-CA-6542 on April 22, 1976, and amended on May 18, 1976, a complaint issued on May 21, 1976, containing the 8(a)(1), (3), and (4) allegations. Thereafter, General Counsel moved to consoli- date the cases and the motion was granted by order dated June II11, 1976. On June 29 and 30 and July 1, 1976, further hearing was held in Charlotte, North Carolina. Upon the entire record,2 including my observation of the witnesses, and upon consideration of the brief filed by General Counsel, I hereby make the following: FINDINGS OF FACT 1. THE FACTUAL SETTING Respondent is engaged in the retail sale of groceries, meats, and other goods in the States of North and South Carolina.3 Its general office and central warehouse are located in Charlotte, North Carolina. This proceeding involves the warehouse facility only where Respondent employs about 250 employees. James Lawrence, union organizer, testified credibly that the Union began talking to employees of Respondent about union representation in December 1974. In February 1975, house calls were made. In March, he met James Wright, one of the alleged discriminatees herein, and thereafter Wright assisted him in the attempt to sign up employees. Thereafter, union meetings were held at the Ramada Inn in Charlotte on May 31, June 14, July 12, August 9, and September 20. At the May 31 meeting, an organizing committee was formed with James Wright as general chairman, and alleged discriminatees Jerome Little and Jimmie Martin as cochairmen. On October 6, Jimmie Martin was discharged; on October 10, Jerome Little was discharged; on October 16, James Wright was discharged. Unless otherwise indicated, all dates hereinafter are in 1975. 2 Certain errors in the transcript have been noted and are hereby corrected. 3 Jurisdiction is not in issue. I find that Respondent meets the Board's direct outflow and retail outlet standards for the assertion ofjurisdiction. 231 NLRB No. 177 1058 HARRIS-TEETER SUPER MARKETS Earl Nixon testified on behalf of General Counsel at the hearing on March 10, 1976. On April 15, he was discharged. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interference, Restraint, and Coercion I. Jack Turner Turner is employed by Respondent as a dispatcher. He is not alleged to be a supervisor, but is alleged to be an agent of Respondent with regard to the promise of a pay raise to one Robert Roberts, a quondam driver of Respondent. Roberts was employed by Respondent in June 1974. He testified that in the spring of 1975 he asked Turner about his not having received a pay raise which he claimed had been promised to him. Roberts told Turner that the Company was headed for trouble because the men were talking union. He told Turner he would hate to see a union get in because of unfair treatment he had suffered at a union's hands some time earlier when employed elsewhere. Turner remarked "you mean the men were actually talking about organizing a union?," and Roberts told him yes, they were fed up with conditions and so was he. The conversation ended, but shortly thereafter Turner ap- proached Roberts to ask for some names (presumably of employees involved in the organizational activity). Roberts refused to supply any. Two days later, Turner approached Roberts and gave him a slip of paper notifying him of a 15-cent-per-hour merit raise. Turner said, "now this should be proof enough that if you will go along with us that we will go along with you." Roberts answered by pointing out that the raise was only for 15 cents, that he had been promised $4.50 after 6 months employment and the 15 cents only brought him to $4.40. He asked for the other dime and Turner told him to hold on, that he would get it. "Just remember, just go along on the union deal and we will take care of you" and "you will get your raise always to the top .... " The remarks of Turner are alleged to constitute an unlawful promise of future pay raises if Roberts reported union activities to the Company. The testimony of Roberts was uncontradicted and I have no reason not to give credence to it. Although I am not persuaded that Robert's testimony supports a finding that future raises were promised to him if he reported union activities, his testimony that future raises were promised to him if he went "along on the union deal" supports a finding that future raises were promised if he refrained from supporting the organizational activities of the other employees. Such a promise is unlawful. The only issue in the matter is whether Respondent is responsible for Turner's remarks inasmuch as he was not a supervisor. An employer may, in appropriate circumstances, be held accountable for the statements of nonsupervisors. 4 In the instant case, I find that Turner had apparent authority to make the statements he did and that they are imputable to N.L.R.B '. Da rton Morels. Inc., db ,a Holidav Inn of Dayton. 474 F.2d 328 ((.A. 6, 1973): Owens-(orning Fiberglas (Corporatrion. 185 NLRB 75 Respondent. Thus, 2 days after registering a complaint about wage rates to Turner, Roberts was given a 15-cent raise, and it was Turner who was assigned the task of notifying him of the raise. In the past, Roberts' supervisor, Dan Price, had notified him of wage increases. Moreover, Price admitted in connection with other issues discussed herein that he had told the dispatchers that there was union talk going on and if they heard anything to notify him. Under the circumstances and given the nature of Roberts' first conversation with Turner and the subsequent se- quence of events, the finding is warranted that Turner's remarks are attributable to Respondent and that Respon- dent thereby violated Section 8(a)(l) of the Act. The wage increase given to Roberts spawned another allegation of 8(aXl) conduct; namely, that the wage increase was an attempt to bribe Roberts to induce him to report union activities to Respondent. I see no purpose in characterizing Respondent's conduct in this matter in those terms. Nothing said by Turner in notifying Roberts of the raise suggested that the raise was to induce him to report union activities to the Company, and although Price interrogated Roberts shortly thereafter and solicited him to supply information (as discussed hereinafter) Price never mentioned the raise. Accordingly, as with the promise of Turner described above, I conclude that the granting of the increase, if unlawful, was so because it was intended to induce Roberts from supporting the organizational activi- ties of his fellow employees. Initially, it should be noted that if Roberts is credited, Price was aware of Roberts' conversation with Turner, because, according to Roberts, 2 or 3 days after Turner notified him of the raise, Price approached him at a store where he was making a delivery and initiated a conversa- tion with the remark "You say we have got troubles." The only inference that can be drawn from this remark is that Turner had reported his conversation with Roberts to Price. Price denied approaching Roberts or questioning him, but I do not credit him. Too much of his testimony is in conflict with that of other witnesses who had no motive to lie and too much of it is implausible. As to the very issue of the raise, the explanation offered by Price and his supervisor, Director of Distribution William Mitchell, simply did not withstand analysis. According to them, the raise was as a result of Roberts' complaint to Mitchell over Respondent's failure to raise him to top rate in 6 months. However, in descnbing their actions in this matter, both Price and Mitchell were indefinite about relevant dates (so was Roberts, but Respondent had records it could rely on to confirm dates). Neither offered a reasonable explanation for granting Roberts a 15-cent raise when he had received a 15-cent raise less than a month earlier (according to Roberts' uncontradicted testimony). Moreover, the asserted reason for the raise was to bring Roberts to top rate of $4.50 per hour and the fact of the matter is that he was only raised to $4.40 per hour. In these circumstances, I do not credit Price and Mitchell, and on the basis of the credited testimony of Roberts regarding his conversations with Turner and the (1970): Smith's Transfer Corporation of Staunton, I irginia, 162 NLRB 143. 157(19661. 1059 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timing of the raise, I find that the raise was granted to discourage union activity and that it was therefore violative of Section 8(a)( I) of the Act.5 2. Dan Price The complaint alleges 8 varieties of interference, re- straint, and coercion by Dan Price on 27 occasions. I see no useful purpose in enumerating the varieties. All the allegations concern Price's conduct toward Roberts and one Gary Martin and can best be disposed of by setting forth the testimony of each. a. Robert Roberts I have adverted briefly to testimony of Roberts respect- ing conduct of Dan Price. To state it more fully, according to Roberts, 2 or 3 days after notification of his raise, while making a delivery at a store some 5 miles from the warehouse, he was met by Price who took him off the job and drove to an area away from the store where they talked about the organizational activities. The conversation began with Price's remark "You say we have got troubles?" Roberts affirmed they had, that the men were dissatisfied. He expressed a dislike of seeing a union come in and offered to help. Price asked him if he knew any names or which union it was and Roberts told him he did not. Price asked him if he thought he could get any and Roberts said probably, but he would not want to get anyone fired for union activities. Price assured him that would not happen and he told Roberts to get in touch with him if he found out any names or the name of the union. Thereafter, Price called Roberts at his home twice and spoke to him at work on one or two occasions. Each time he would ask Roberts if he had any names and when Roberts said no, he asked to be kept informed. The foregoing, if credited, would support findings of unlawful interrogation and solicitation of an employee to inform on the union activities of other employees. Roberts' testimony was contradicted by Price who admitted to only one conversation about union activities with Roberts and who claimed Roberts approached him to give him information. I do not credit Price. Apart from other considerations, I note a striking similarity between Price's conduct vis-a-vis Roberts and his conduct vis-a-vis Gary Martin as described below. Accordingly, I find that Price engaged in coercive interrogation and unlawful solicitation of an employee to inform on the union activities of other employees in violation of Section 8(a)(l) of the Act. b. Gary Martin Martin is employed by Respondent as a truckdriver and Price is his supervisor. According to Martin, in late May he had a conversation with Price in a conference room in which Price asked him if he had heard that union cards were being signed. Martin told him no and Price asked him to see if he could find out who it was and if he did to call him, Sometime in June, Martin signed a union card at the request of driver Jimmie Martin (no relation). Afterwards, while on a delivery at a store in King's Mountain, North Carolina, Martin called Price to tell him he had signed a card and that Jimmie Martin was the solicitor. Price asked him how many had signed and Martin told him 10 or 12. After the conversation, as Martin was getting ready to leave the store, Price appeared. He invited Martin to his car where he asked him if he had seen the names on any of the cards. The conversation concluded with the admoni- tion that Martin call if anything else happened. On June 17 or 18, Respondent's president, Roy Ashcraft, spoke to employees about the Union's organizational activities and afterwards Martin expressed fears to Price that the employees would suspect him of telling the Company about the Union. Price assured him not to worry and told him to call if anything occurred. On or about July 7, Martin received notice of a union meeting scheduled for July 12. He telephoned Price to inform him and Price asked him to bring the notice to him. Martin did so the next working day. That same day (whether at the time Martin gave him the notice or later is not clear) Price asked Martin to do him a favor; namely, to go to the meeting and to call afterwards to let him know who was there and what took place. Martin attended the meeting and called Price afterwards. He told Price what had been discussed and Price asked him how many were there, including how many drivers. Martin told him 15 to 16 employees, but only one driver besides himself, Jimmie Martin. He also told Price he had some union cards and Price asked to see them. On July 14 or 15, Price met Martin at store 62 and they had a conversation about the meeting and Martin gave him some union cards. Price told Martin to call him if anything else happened and told him "I'll look after you." On July 23 or 24, Price returned the cards to Martin in an envelope with a note to back off, not to get involved. On August 5, Martin received notice of a union meeting scheduled for August 9. He gave the notice to Price the next day and on August 7 he asked Price if he wanted him to attend the meeting. Price told him no, that he knew who would be there. The foregoing is based on Martin's testimony. If credited, it supports a finding of unlawful interrogation and solicitation of an employee to engage in surveillance of and to report upon the union activities of employees. Price admitted to five conversations about the Union with Martin, four of which he claimed were initiated by Martin, and one which he initiated solely to return the one union card Martin had given him and to tell Martin to forget about the whole matter. According to Price, in none of his conversations did he interrogate Martin or solicit him to obtain information for him. In essence, Respondent's defense is that at all times Martin was a volunteer of information and Price did nothing to encourage him. I am inclined to believe that the first meeting between Martin and Price was initiated by Martin and would credit Price to that limited extent. I do so, however, only because Martin did not testify how that V I. L. R. B v. Erchange Parts Comparn'. 375 U.S. 405 (1964). 1060 HARRIS-TEETER SUPER MARKETS first conversation came about and his entire course of conduct reveals a willingness to supply information to Price. That circumstance does not legitimize the conduct of Price thereafter as described by Martin in interrogating Martin and asking him to see if he could find out who was getting cards signed, and his later interrogation and solicitation to engage in surveillance. 6 As to the content of the conversations between Martin and Price, the meetings at King's Mountain and Store No. 62, and the request that Martin attend the July 12 union meeting and report to Price, I credit Martin. Martin was still employed by Respondent at the time of the hearing and I can see no motive for him to fabricate testimony against his supervisor. Apart from that, Price's testimony strains credulity. According to his own testimony, he told the dispatchers (who are asserted to be employees) that there was union talk going on and if they heard anything to notify him or Mitchell. In addition, he testified that on occasion Mitchell would ask him what he had found out. Yet, despite these admissions, Price would have the trier of fact believe that Martin was the initiator of all their conversations, and that Price was, at most, a willing listener. I cannot believe this. Accordingly, I find that Price unlawfully interrogated Martin about the union activities of employees and unlawfully solicited Martin to engage in surveillance of the union activities of employees and to report the results of his surveillance to him and Respondent thereby violated Section 8(a)(l) of the Act. I find nothing in Martin's testimony sufficient to support additional 8(a)(1) findings. 3. Bill Williams Bill Williams is a supervisor. John Caddell is employed as his assistant, a nonsupervisory position. Caddell testified without contradiction that on April 12, as they were walking to a car, Williams asked him if he knew of any talk about the Union. Caddell told him no. Between that date and April 26, while in the office, Williams asked Caddell the same question four or five times, and each time Caddell told him no. On April 26, when Caddell said no, Williams rejoined that he believed Caddell knew more than he was telling. He said he wanted to know if Caddell was involved and anyone else in the warehouse. Caddell again answered no. Caddell was called to the office 2 hours later and was told by Williams that he was not doing a good job and if he wanted to continue as leadman he had better do a better job. An hour later, Caddell was called to the office again and was interrogated again. The foregoing interrogation is alleged to be unlawful. As noted, Caddell's testimony was undenied and I can perceive of no reason to discredit it. It seems too evident to require exposition that repeated questioning of an employ- ee about his union activities or that of other employees as described above would tend to interfere with, restrain, and coerce such employee in the exercise of rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. I so find. 'i (ello-Tal Companr. 143 NLRB 295 296 (1963); Murray Envelope (*orporalion or Al.i.vsippi. 130 NLRB 1574. 1576-77 (1961). 4. John Watson; Ben Tate Watson and Tate are supervisors. They are alleged to have violated Section 8(a)(1) of the Act by interrogating employees regarding their participation in a Board pro- ceeding. Employee Robert Sherer had been subpenaed by the General Counsel to testify at the hearing on June 30 relative to the alleged discriminatory discharge of Earl Nixon. Sherer testified that on June 28 he handed his subpena to his supervisor, Charles Roscoe. Roscoe turned it in to Supervisor Watson. Sherer testified that Watson returned the subpena to him and asked him why Sherer had it. Sherer replied to go to court. Watson asked him how he got the subpena, and how they got his name, and what was it all for. Sherer told him of speaking to counsel for General Counsel about employees riding on equipment. Watson remarked that Sherer did not work in the transportation department and when Sherer said he did not know how they got his name, Watson rejoined "yes, you do." Donald Mull and Eugene Nixon, two other employees subpenaed by General Counsel, testified to questioning by Watson similar to that described by Sherer. Jessie Dunn, another employee subpenaed by General Counsel, testified that on June 25, Tate walked up to him and said he had heard that Dunn had to go to court. He asked Dunn if he had been subpenaed. Dunn told him he had. The foregoing, in its essentials, is undenied and I credit it. The position of Respondent, to the extent it can be gleaned from the record, appears to be that the questioning was not unlawful because it had the legitimate purpose of finding out who would be absent from work in order to make scheduled assignments to have a sufficient work force. The record does not support such a position. Once Respondent had been notified by the employees in question that they had been subpenaed, it knew all it needed to know for the purpose of staffing its work force. There was no need to question the employees. Moreover, the questions asked by Watson and his remarks relative to the knowledge or lack of knowledge of the employees about riding on equipment demonstrate a purpose other than filling work assignments. Considering the nature of the questions and Watson's remarks, and the absence of legitimate purpose, I find that the questioning by Watson was violative of Section 8(aX I) of the Act. I find no violation, however, by reason of Tate's conduct. Inasmuch as other employees had been subpenaed, Respondent had a legitimate interest in finding out how many employees would be absent on June 30 because of the hearing. Tate's inquiry was limited to such interest and contained no remarks tending to coerce. True, Tate prefaced his inquiry with the remark that he had heard that Dunn had to go to court, a remark alleged to have created an impression of surveillance. I find no merit to the allegation. It does not appear that any secret was made of the fact that some employees had been subpenaed and while Tate's remark reflected that he had heard of Dunn's subpena there was no reason to infer that he had learned of 1061 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the subpena by unlawful surveillance. Accordingly, I shall recommend dismissal of the allegations relative to Tate's conduct. 5. Hugh Ashcraft As noted earlier, Ashcraft is president of Respondent. It is undisputed that on or about June 18 and September 18, 1975, Ashcraft spoke to groups of employees about the Union's organizational campaign. The complaint alleges that in the course of his speeches Ashcraft threatened employees by telling them that efforts in support of the Union would be futile, that the plant would be closed, and that employees engaging in union activities would be discharged. There is a serious conflict in the testimony as to what Ashcraft said in the course of his speeches, including whether or not he read his remarks from prepared notes. Ashcraft testified he read from prepared notes. None of General Counsel's witnesses admit to this, but four of them (Jimmie Martin, Gary Martin, Earl Nixon, and James Wright) acknowledged he had papers in his hands. I am persuaded that Ashcraft's testimony that he read from notes is true and I credit it. There is no contention that any statements in the prepared notes were unlawful and I find no illegality therein. The real question is whether Ashcraft deviated from the prepared notes, and, if so, to what extent. I conclude that Ashcraft did not deviate from the written notes in his speeches in June and that he deviated therefrom in his September talks but only to the extent to which he testified. This conclusion is based on the testimony of Ashcraft which I credit. Naively perhaps, I have difficulty believing that an official in Ashcraft's position and with his experience would obtain legal advice about what he could say to his employees about a union's organizational campaign and then proceed to ignore it to the extent portrayed by General Counsel's witnesses. For example, the prepared notes included the statement that it is "our intention to oppose the Union and by every lawful and proper means to prevent it from coming into this Company." At least one witness of General Counsel admitted Ashcraft made that statement in the course of his speech. While the fact such a statement was made does not mean that Respondent confined its opposition to the Union only to lawful and proper means, it is difficult to believe that contemporaneous with the statement Ashcraft said, as General Counsel's witnesses testified, that anybody engaging in union activity would be fired immediately. In short, I do not credit General Counsel's witnesses relative to Ashcraft's speeches. I am persuaded that their testimony represents their interpretation of the statements made by Ashcraft of Respondent's opposition to the Union, of the prohibitions against union activities during worktime which interfered with the work of employees, and of his reference to the fact that A & P had closed some of its stores. For the foregoing reasons, as I find nothing unlawful in the prepared notes or the deviations described Dunlap testified that Martin did not offer to take a polygraph or if Martin did he was not aware of it. Nor did he recall the police officer saying by Ashcraft, I shall recommend dismissal of the complaint allegations relative to Ashcraft. B. The Alleged Unlawful Discharges 1. Jimmie Martin a. The facts Martin was employed by Respondent in 1953 and had been working as a truckdriver since 1975. He signed a card early in the organizational campaign, assisted the Union in employee contacts, attended the union meetings, and was elected cochairman of the organizing committee on May 31. On October 6, Martin went to work at 3:15 a.m. After punching in, he obtained the dispatch orders and went to his truck and checked the load. After that was done, the truck was sealed by the dispatcher and Martin left to make deliveries to store 28 in Bennettsville, South Carolina. The order he delivered was short two cases of packaged meats. Nothing was said to Martin, as is normally the case, and he proceeded to make another delivery. At the end of the workday, at 1:45 p.m., accompanied by employee Thomas Cureton, Martin walked over to his car in the parking lot. Upon reaching his car, he noticed a case of packaged meats (identical to the cases missing on his delivery to store 28) on the rear seat of his car. Martin called out to Cureton that someone had put something in his car. At the time, there were guards in the parking lot and Martin called one over. Martin pulled the case out of his car, placed it on the hood, and told the guard that someone had put it in his car. A call was made to the guardhouse and Carl Dunlap, director of security, came out to the parking lot. On Dunlap's arrival, Martin told him that his car had not been locked and someone had put the case of packaged meats in his car. William Mitchell, director of distribution, was called and he and three other supervisors came to the scene. Mitchell asked what was going on and Martin told him someone was trying to set him up. Mitchell asked Martin where he had made deliveries and Martin told him stores 28 and 49 and Mitchell noted that the case had a store 28 sticker. He asked Martin if anyone had access to his car and Martin said the car was not locked. Mitchell asked him if he had told anyone to put something in his car and Martin said no. Mitchell told him all the evidence pointed to him. Martin denied guilt. Store 28 was called and the shortage was verified. At one point in time, a policeman arrived and the situation was described to him. He advised Dunlap there was insufficient evidence for the arrest of Martin. Martin testified that he offered to take a lie detector test and the police officer corroborated him. The police officer testified he told Dunlap that if he wanted to he could go to a private firm or to the police department to have a polygraph and Dunlap told him he would take care of the matter with his superior.7 From the parking lot, Martin went to Mitchell's office where he was told he was suspended. The following day, a test could be arranged. I give no credence to his testimony: rather. I credit Martin and the police officer who had no reason to lie about the incident. 1062 HARRIS-TEETER SUPER MARKETS Martin went to the office again where Mitchell told him the investigation was not finished. Martin told Mitchell that Mitchell knew he had not stolen the case that "you know what it's all about, it's because I'm Union chairman." Mitchell did not reply to this. On October 7, the decision to terminate Martin was made and he received notice on October 9. b. Analysis and conclusions The discharge of Martin, as well as the other discharges discussed below, poses the issue of Respondent's motive for the discharge. This is an issue which is always difficult, because it requires a judgment of a person's state of mind and seldom can be resolved on the basis of direct evidence except such as is wholly self-serving. In nearly all cases, the trier of fact must rely on circumstantial evidence and "informed estimates concerning the springs of human conduct." N.L.R.B. v. Hotel Conquistador, Inc., d/b/a Hotel Tropicana, 398 F.2d 430, 435 (C.A. 9, 1968). Certain elements of proof are common to all cases. Thus, there must be a showing directly or indirectly of company knowledge of the employee's union activity. In Martin's case, such showing was made by Gary Martin's and Supervisor Price's testimony. Another element is Respon- dent's disposition toward its employees' exercise of Section 7 rights. In this case, the 8(a)(1) findings above and Ashcraft's speeches, although not unlawful, demonstrate an animus toward the Union which is entitled to weight in determining motive. One circumstance to be considered in evaluating motive is the timing of the discharge. General Counsel argues that the fact that Martin was discharged so shortly after the Union's first distribution of leaflets at the plant on September 17, when considered with the facts of Ashcraft's speeches on September 18 and the discharges of two other union leaders, is a circumstance supporting a finding of discriminatory motive. The fact that two other union leaders were discharged within days of Martin is a circumstance which brings into serious question the truthfulness of Respondent's defenses. Apart from that, however, I am not persuaded that any significant weight can be given to the timing of the discharge. In this connection, I note that Ashcraft had given antiunion speeches in June and Respondent knew of Martin's union activities in June or July. The critical circumstance in Martin's case is the asserted reason for discharge; namely, the theft of a case of packaged meats. This circumstance poses two issues: did Martin in fact steal the product in question, and, if he did not, did Respondent discharge him in the good-faith belief that he had stolen it. As to the first issue, I find that Martin did not steal the product, nor conspire with others to do so. I base this finding on Martin's testimony which I credit, plus the evidence of the security system maintained by Respondent to guard against theft. Respondent operates a security system which includes the use of guards on a 24-hour basis, a system of cameras scanning the area, and limited access to the parking lot which required employees to pass by a guard office to get to their cars. Thus, on the day the product was found in Martin's car, his car was inaccessible to him except by passing the guard office, and it is undisputed he could not have carried the product past the guard office without being observed. Hypothetically, he or an accomplice could have gone behind the warehouse and thrown the product over a fence into the parking area and retrieved it after passing the guard's office. There is, of course, no evidence of such a plot, and the risks of discovery appear to me to be so great that I cannot believe Martin was involved in any such plan. Be that as it may, Respondent did discover that a case of its product was in Martin's car, and it can assert that the discharge of Martin was not unlawful even if he was not guilty of stealing the product because it was motivated by a good-faith belief that he was guilty. Such a defense has merit unless the record indicates that Respondent did not act in good faith. In my judgment, a finding is warranted that Respondent did not act in good faith, but rather that it seized upon the fact that the product was found in Martin's car as a pretext to discharge him because of his union activities. In the first place, given Respondent's strict security system, I cannot believe that it believed that Martin had stolen the case of packaged meats and placed it on the rear seat of his car. Any scenario for placing the case in Martin's car required an accomplice. Yet, not only did Respondent conduct the most superficial of investigations, but there is no indication its investigation was aimed in any way at finding out who the accomplice was. Yet, Respondent had a ready tool to conduct such an investigation. It could have subjected Martin to a polygraph test not only to determine his guilt, but also to confirm any suspicions of an accomplice. Despite Martin's offer to take a polygraph, Respondent did nothing either to exonerate him or to discover, and thereby eliminate, the method used to remove the case of packaged meats from either the warehouse or Martin's truck to Martin's car. Moreover, although an employee of 23 years, Martin was never offered an opportunity to defend himself such as by describing his whereabouts during that entire day. Such conduct bespeaks a purpose to find a reason to discharge Martin. There is direct evidence that such was Respondent's purpose. According to Robert Roberts, whom I credit, in late August in a conversation with Price about Martin's union activity, he asked Price what he was going to do and Price said "I don't know-we will come up with some- thing." In short, the totality of the circumstances, including Martin's many years of service, his prominence in the organizational campaign, Respondent's animus and Price's remark noted above, the existence of a security system which militated against Martin's guilt, and the cursory and superficial investigation of the matter and failure to examine Martin, as well as other employees, or to accept Martin's offer to take a polygraph, support an inference and warrant the finding that the asserted reason for discharge was false and was used as a pretext to discharge Martin because of his union activities. I so find. 1063 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Jerome Little a. The facts Little was employed by Respondent in September 1959 and discharged October 10, 1975. From April 1974 to the date of his discharge, he was employed as a forklift operator in the meat department of the warehouse. Part of his job consisted of restocking slots with merchandise. He was under the supervision of Foreman John Crawley and Supervisor Doug Jones at the time of his discharge. On July 15, Supervisor Jones took Little to the office of Assistant Director of Distribution Jim Jonas and discussed with him instances of misrotation of stock. (The stock handled by Little was perishable and dated. The stock with the oldest date was to be slotted first.) On September 22, Little was spoken to again about the same problem and was given a 2-day suspension. On October 10, Little was called in and terminated for misrotation of stock on October 7. b. Analysis and conclusions In certain respects, the case of Little is more difficult to resolve than was Martin's. The ultimate issue, the motive for the discharge, is the same, but the facts are not as readily ascertainable. For example, in Martin's case, it was clear that Martin could not have stolen the case of packaged meats and, for reasons given above, equally clear Respondent could not have believed he had. In short, the reason asserted for discharge was patently false. In Little's case, whether or not he was guilty of poor work perfor- mance as asserted is sharply disputed. Apart from the foregoing, the cases of Little and Martin are remarkably alike. Where Martin had been employed 23 years, Little had been employed 16 and was Respondent's ninth most senior employee. Martin was a cochairman of the organizing committee; so was Little. In Martin's case there was direct evidence that Respondent knew of his union activities; in Little's case, there is none, but knowledge may be inferred from the record as a whole in view of the substantial evidence that Respondent solicited employees to engage in surveillance of union activities and to report to supervisors what they learned, as described earlier herein. Supervisor Doug Jones denied any knowl- edge of Little's union activities, but I do not find him to be a credible witness for reasons which will appear below. As with Martin's case, the asserted reason for discharge poses two issues: was Little guilty of poor work perfor- mance, and, if so, was such poor work performance the real reason for his discharge. As to the first issue, it is difficult to glean from General Counsel's brief whether or not he contends that Little did not make the mistakes with which he was charged on July 15 and September 22. It is noteworthy that the complaint does not allege that Little's 2-day suspension was unlawful. Moreover, Little did not specifically deny making the mistakes; rather, the burden of his testimony was that he really did not know what mistakes he was charged with or how he could have made so many. Under the circumstances, and inasmuch as I am persuaded that Little's discharge was unlawfully motivated, I will accept the assertion that Little made the mistakes concerning which he had a conference on July 15 and September 22. Nevertheless, there are several reasons why I conclude that Little's discharge was unlawfully motivated. Central to that conclusion is my initial conclusion that Supervisor Jones was not a credible witness. Several circumstances led me to such a conclusion. First, despite a sharp conflict between Jones and Little respecting the consultations in Jonas' office, Jonas, who testified on other matters, was not examined by Respondent about the consultations. Second, despite the fact that Little had been performing the same duties since April 1974, no credible explanation was offered for Jones' checking of his work in mid-July 1975. According to Jones, he started checking when mistakes began showing up, but, in light of his meticulous documen- tation of mistakes beginning July 14, it must be assumed there were none prior thereto or written notations would have been made. As none was produced, we are left with no explanation for Jones' sudden interest in Little's work performance. Third, as noted earlier, Little's foreman was John Crawley, yet, not only did he not testify about Little's job performance, but, also, he was not even consulted regard- ing Little's mistakes. Instead, somewhat strangely, the day- shift foreman (Little worked on the night shift) was asked to verify Little's mistakes. While the day-shift foreman might have been more readily available for verification, one can assume that if Jones were interested in improving Little's work performance, he would have conferred with Crawley at some point. There is no showing he ever did. Fourth, there is the matter of the tardiness or sick call forms. These were the forms used by Jones to record Little's derelictions. They are obviously not intended for that purpose; yet, Jones not only undertook to use that form, but deemed it necessary to use one form for each mistake found on the same date (Resp. Exh. 6(a) through (d)) as though attempting to magnify the quantity of Little's errors. As a matter of fact, the entries on the tardiness or sick call forms have persuaded me that they were used to build up a case for the discharge of Little. From the outset, I was puzzled by the notation on each one reflecting a financial loss through spoilage because of Little's mistake. There is no evidence in the record concerning how long a particular item can be kept in storage before it spoils, yet every time Little made a mistake it resulted in spoilage. Upon analysis, I concluded this simply could not be true. Respondent's Exhibit 6(a) purports to show the misrota- tion of product dated July 24, instead of July 7 with a resulting loss of $37.40. This mistake was found July 14. The mistake must then have occurred no later than July 14. If this was the case, and the product dated July 24 was already in stock as of July 14, it had a shelf life of at least 10 days. It would appear to follow that the item misrotated by Little dated July 7 was still saleable for at least 3 days and spoilage could have been averted. Perhaps my analysis of Respondent's Exhibit 6(a) is wrong and there is an explanation for the spoilage. If so, it was never made. However, it appears to me that there can be no explanation for the entries on Respondent's Exhibit 26. That exhibit attributes to Little the misrotation of a 1064 HARRIS-TEETER SUPER MARKETS pallet dated October 6, 1975, instead of a pallet dated September 29, 1975, causing spoilage of $40. I am persuaded that could not be so. The mistake here attributed to Little, if it occurred, occurred on the night of October 7 or the early hours of October 8. According to Jones' testimony, he discovered the mistake on October 8. This was only hours after the mistake occurred. Why then was there spoilage? Upon discovery of the mistake, Jones could have directed someone on the day shift to correct the mistake by substituting the September 29 pallet for the October 6. That he did not do so and charged Little with causing spoilage of $40 suggests that either the mistake never happened, or that the mistake was deliberately permitted to stand to afford a pretext to discharge Little. When one analyzes Respondent's Exhibit 26, one is disposed to credit Little's testimony that the document was not shown to him on December 10 and that, as he testified, neither Jonas nor Jones could identify what he had misrotated. I credit Little in that regard and find he was not guilty of poor work performance on the night of December 7. In any event, even if he had made the mistake, it is abundantly clear that it could not have caused the spoilage referred to. In my judgment, the foregoing analysis ought to be sufficient to support the finding that the discharge of Little was unlawfully motivated. In addition, weight must be accorded to the fact that when Little perceived that he was not able to satisfy Jones he asked for a transfer and no consideration was given to his request. The ostensible reason was "If a man's doing a bad job one place, why transfer him to another place to do a bad job there." Such a reason has a certain logic, but it overlooks the fact that Respondent has been lenient in other circumstances, such as Little's own transfer to the warehouse when he had lost his driver's license when driving a company vehicle and a similar transfer to Earl Nixon. The kind of mistakes being made by Little were not such as to prophesy an inability to do other work. Finally, Little's discharge must be viewed in context of a pattern of conduct whereby out of an employee comple- ment of about 250 the 3 employees most actively involved in the Union's organizational campaign are discharged over a period of 11 days for separate reasons. The assertion that such discharges were for cause simply cannot be believed. Under the circumstances, the conclusion is warranted, and I find that Little's discharge was motivated by his union activities and that Respondent violated Section 8(a)( ) and (3) of the Act. 3. James Wright a. The facts James Wright was employed by Respondent in October 1964. He was discharged October 16, 1975. At the time of his discharge, he was a truckloader, a job he had held since 1972. According to Wright, on October 16, he was called to the office of Jonas where Jonas told him of receiving bad reports about his work; namely of goods damaged in the truck. He told Wright it had been decided to discharge him. Wright asked to see Mitchell to whom he complained that he had not received any prior bad reports. Mitchell repeated what Jonas had said. Wright was discharged. b. Analysis and conclusions Just as Little's case was similar to Martin's in many respects, Wright's case is similar to Little's. Wright was chairman of the organizing committee of which Martin and Little were cochairmen. There is some direct evidence that Respondent knew of his union activities. For example, Foreman Charles Roscoe admitted seeing Wright at the gate when, as I understand the testimony, union represen- tatives were distributing leaflets. Supervisor Jonas testified he did not know Wright was one of the leaders in the organizational drive, but he admitted he had heard rumors Wright was involved. Under all the circumstances, includ- ing the findings above of Respondent's solicitation of employees to engage in surveillance, the inference is warranted that Respondent knew of Wright's union activities. As with the other discharges, Wright's case presents the question of Respondent's motive. Respondent's asserted reason for the discharge is bad work performance consist- ing of truckloading errors and damaging merchandise by the manner in which Wright operated his forklift. As with Little's case, there is a sharp conflict in testimony between Wright and Respondent's witnesses. According to Supervi- sor John Watson, on September Il, he spoke to Wright about loading the wrong merchandise and he wrote up the conversation on an employee consult report, Respondent's Exhibit 9, and read the contents to Wright. Watson also testified that on October 14, he observed Wright running his forklift into pallets of merchandise and causing damage. He spoke to Charles Roscoe who was Wright's foreman at the time and asked him if this was usual, and Roscoe said "yes, day in and day out." Watson testified he prepared another employee consult report (Resp. Exh. 10) and he and Roscoe went to Wright and read the report to him. On October 16, Watson observed Wright run into a pallet of merchandise and cause damage in an amount of "$70-75." He went to Jonas and told him what had happened and Jonas told him to summon Wright. When Wright came in, Jonas told him of Watson's report and Wright was discharged. Charles Roscoe testified that at various times in 1975 he supervised Wright in the absence of Wright's regular foreman. According to Roscoe, he spoke to Wright a few times on unspecified dates about damaging merchandise with the forklift, and, on October 14. he observed Wright backing out of a trailer into a pallet and knocking merchandise off. He reported the incident to Watson who had him prepare Respondent's Exhibit 10. Watson took it over to Wright and read it to him. On October 16, Roscoe claimed he saw Wright backing out of a trailer and running into merchandise. He reported it to Watson and that was the last he heard of the matter. The third witness to testify about Wright's work performance was Jonas. According to him, he spoke to Wright three times in Watson's presence; on September I l, on an unspecified date, and on October 16, when he discharged him. 1065 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is a common thread to the testimony of Watson, Roscoe, and Jonas; namely, that Wright's work perfor- mance was unsatisfactory. Wright was not examined directly by either General Counsel or Respondent's counsel as to three incidents described by Watson and he did not expressly deny culpability. However, he was confronted with the employee consult reports of September I1 and October 14 and denied that they were ever shown to him or that he was spoken to on either date, and when he went to Mitchell's office to protest his discharge, according to Supervisor Watson's testimony, Wright asked why they were doing this to him and stated he had done nothing wrong. By indirection, then, it may be said that Wright denied the charges reflected in the reports of September 11 and October 14 and denied causing damage on October 16. In my judgment, Wright was a credible witness. Yet, I consider his testimony too imprecise to make a specific finding that he did not back into a pallet on October 14 and 16. A specific finding is not necessary; Wright may very well have backed into pallets, but I find that the incidents in question were not out of the ordinary, minor in nature," had not been the subject of any written warnings, and were seized upon as a pretext to discharge him because of his union activities. The conclusion that the incidents were not out of the ordinary and minor in nature is supported by Watson's testimony that when he saw Wright back into a pallet on October 14 and spoke to Roscoe, Roscoe said that went on "day in and day out," and the absence of any evidence of written warnings prior to September 11. As to the incidents of September 11 and October 14, 1 credit Wright that he was neither spoken to nor given a written warning. My reasons for crediting Wright are as follows. First, the employee consult reports which were assertedly shown to Wright bear a place for employee signature. Wright's signature does not appear thereon. This tends to support his testimony the reports were not shown to him. Of course, the explanation for the lack of his signature could be that he refused to sign. No such contention was made; to the contrary, it is admitted Wright was not asked to sign. No explanation was offered for not doing so. Second, Watson's and Jonas' testimony respecting the warnings does not withstand analysis. According to both, Wright made no comment about the complaints about his work; that is, he neither protested innocence, nor proffered explanation, nor promised to improve. It is inconceivable to me that supervisors would accept such taciturnity and not require some response either to determine whether they were being understood or to assure themselves that the employee's performance would improve. Third, insofar as the alleged September I warning is concerned, no explanation was proffered for involving Jonas in what was a first warning. Green McClain was Wright's foreman at the time and there is no explanation for his lack of participation in the warning. Fourth, insofar as the October 14 warning is concerned, there are serious discrepancies between Watson's and Roscoe's description of the giving of the warning with Watson testifying he wrote the warning and Roscoe stating K No evidence was offered to show that the incident of October 16 caused 70-S75 damage. he did, and with Watson stating at one point that Roscoe showed the report to Wright and explained what had been done wrong, while Roscoe testified Watson took the report to Wright and appeared to read it to him, Roscoe being uncertain about the reading because he did not stay. Finally, there is Wright's testimony that he told Mitchell he had no prior bad reports and there is no evidence that either Jonas or Watson contradicted him. In the light of the foregoing, I am persuaded that Wright's testimony that he was not warned about his work performance on September 9 and October 14 should be credited. As I indicated earlier, Wright may well have been guilty of unsatisfactory work performance as described by Respondent's Exhibits 9 and 10 and the incident of October 16; nevertheless, I am persuaded that this was not the real reason he was discharged. First, there are the facts that Wright was an employee of I 11 years' service, with over 3 years as a truckloader and no evidence that prior to September II his work had not been satisfactory. One must conclude this from the total absence of any evidence of written warnings and only generalized testimony of oral admonitions. Actually, there is even more significant evidence of Wright's satisfactory work perfor- mance than the absence of warnings. There is Wright's testimony that in August, only a few weeks before his alleged unsatisfactory work performance, he had a conver- sation with Mitchell, Jonas, and Watson in which Mitchell told him of an opening for leadman in the warehouse which he thought Wright would be the right person for. Wright had expressed interest and Mitchell told him he would talk to him later. When Wright spoke to Mitchell later, Mitchell told him they had filled the vacancy but that he was not to feel bad, because he was doing a good job and openings were always coming up. Although Mitchell, Jonas, and Watson testified, they did not contradict this testimony. Second, there is the circumstance that Wright's regular supervisor, Green McClain, was never consulted about Wright's performance or the decision that he be dis- charged. According to the uncontradicted testimony of Wright's helper, Ken Bailey, on the day following Wright's discharge, McClain asked him what had happened to Wright and Bailey told him he didn't know. Neither did Foreman Roscoe. Third, according to Wright's credited testimony, there is the circumstance that he was discharged without warning although the record indicates, as in the case of Little, that it was Respondent's practice to give warnings before dis- charge. It might be argued that a conclusion of discrimina- tion which relies on an absence of warnings by discrediting testimony concerning warnings is one supported by bootstraps rather than evidence. Yet, the conclusion is hardly any different if Wright was warned as asserted by Respondent. Assuming Wright was warned as Respondent described, there is the wholly unexplained circumstance that an employee with no prior warnings was taken to the office of a high level supervisor and threatened with discharge in the event of a recurrence of poor work. Such exceptional treatment of the matter and the evidence of the 1066 HARRIS-TEETER SUPER MARKETS existence of alternative discipline such as suspension (e.g., Little's case) warrant an inference that the warning was motivated by considerations other than poor work. Fourth, there is the circumstance that Wright worked with a helper. The first warning he assertedly received referred to misloading of merchandise. It would appear that there was a dual responsibility for misloading; yet, Wright's helper was never spoken to. As senior employee, the greater responsibility was Wright's, but that does not explain the failure even to speak to the helper. When Wright's helper became a loader and mistakes occurred, the team was broken up. In summary, upon consideration of the length of Wright's service, the absence of any warnings prior to September 11, the severity of the warning and its adminis- tration by a high level supervisor, the absence of consulta- tion with Wright's immediate supervisor, and the failure to inquire into the possible responsibility of Wright's helper, in conjunction with the findings made herein of Respon- dent's other unfair labor practices, including other pretex- tuous discharges, the conclusion is warranted, and I find, that Wright was discharged because of his union activities and that Respondent thereby violated Section 8(aX)(1) and (3) of the Act. 4. Earl Nixon a. The facts Nixon was employed by Respondent for two periods of time, the second from February 1972 to April 15, 1976, when he was discharged. At the time of his discharge, he was employed as a warehouseman and worked on the rear dock under the supervision of Foreman Marshall Little. On March 10, 1976, Nixon testified in the instant proceeding about the statements of Ashcraft at a meeting of employees on September 18, 1975, which has been described above. On April 15, Nixon took a break about 9:30 a.m. and he rode to the break area on the forks of a forklift operated by employee Ed McMurray. On his return, when at the door leading to the dock, Nixon heard his name called and turned to see that Price was calling him. According to Nixon, he walked over to Price who asked him how many times he had been warned about riding on the forklift. Nixon told him he had not been warned. Price asked him if Marshall Little had warned him and Nixon said no. Price directed Nixon to his office where, in due course, a conversation ensued among Nixon, Price, Marshall Little, and Jonas. At some point, Price asked Little if he had spoken to Nixon about riding on the lift and Little said he had. Nixon said he had not. Little then referred to an incident on April I when he had told Nixon riding the lift was dangerous. Price then told him that, since he had been warned, he was fired. Nixon argued that he had not been ordered not to ride on the lift and he remarked that the way Respondent was firing people he would have been a fool to ride the lift if he had been told not to. Price told him he had sent Little to tell Nixon to stay off the lift, and, moreover, there was a rule posted prohibiting the use of company equipment to ride to breaks or lunch. Nixon said he had not seen the notice. He turned to Jonas and said that was not right and Jonas said he would go along with what they said. Nixon was fired. b. Analysis and conclusions The discharge of Nixon is alleged to have been motivated by Nixon's appearance as a witness on behalf of the General Counsel on March 10 and for the purpose of discouraging the employees' union activities and further frustrate employee participation in the continuing unfair labor practice hearing in violation of Section 8(aX)(I), (3), and (4) of the Act. I find merit to the allegations. Unlike the other cases discussed, Nixon's case poses no credibility issue relative to the asserted reason for dis- charge. It is admitted that he rode the lift blades to and from the break area on April 15. Furthermore, it was stipulated that this is an unsafe practice. Under the circumstances, how can it be concluded that Nixon's discharge was unlawful? It is settled law that the existence of good cause for discharge does not preclude a finding that a discharge is unlawful where the evidence indicates that the real reason for the discharge is union or protected activity. In Nixon's case, several circumstances dictate a finding of unlawful motivation. First, there is the matter of a warning. As the discussion of the discharge of Little has shown, Respondent has a warning procedure, including, in Little's case, a 2-day suspension. In Nixon's case, Respondent sought to estab- lish that Nixon was warned, but it is clear that he was not. As noted above, after Nixon had denied being warned, Price asked Foreman Little if he had warned Nixon and Little said he had. The record indicates that on or about April I, Nixon was working with McMurray moving some "wraparounds" on a lift. McMurray was the driver and Nixon was standing on the pallet to hold the "wrapa- rounds" so that they would not drag on the floor. Little had seen him do this and Nixon testified that Little told him what he had done could be dangerous and he would not do it, to let the driver handle the load the best way he could. Little's version differed to the extent that he testified he told Nixon it was against company policy to ride the lift. He did not testify that his remarks were made as a warning to Nixon. Respondent offered into evidence an undated note which Little testified he wrote the week of April I. This note states: "On Thursday, April 1, 1976, I discussed Earl Nixon's lunch and break schedule, work schedule and procedures, for him not to ride on company equipment, because it was dangerous and against company policy." This note was never shown to Nixon, and Little had no explanation for writing it and turning it over to Price other than that it was his job. Under the circumstances, General Counsel contends the note is a fabrication. I was not impressed by Little's demeanor and I am not disposed to credit him. Thus, when he testified that the note was a warning, I do not credit him. Both his and Nixon's testimony regarding the "wraparound" incident (which the note admittedly related to in part) belie the assertion that the note was a warning. The incident itself did not involve a breach of a company rule (which is described below); it is undisputed that Nixon was not using company equipment for transportation, rather, he was assisting a fellow employee in the performance of his duties. Accordingly, I 1067 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude that Little's note was not a warning. Nevertheless, I am not persuaded the note was a fabrication. It appears to me that were it a fabrication, it would have contained an explicit warning and been more self-serving. According to Price, Nixon was fired because of Little's warning, plus a warning he had given Nixon on March 3. Evidence of Price's warning was assertedly memorialized in a note dated March 3, which stated, inter alia, that Price told Nixon "not to be on equipment or to ride on the blades of the lift at any time." This note was never shown to Nixon and Nixon denied that Price had spoken to him about that subject in March. Price has been found not worthy of credence earlier herein, and there is no reason to credit him in this matter. Assuming, arguendo, that Price did speak to Nixon on March 3, the situation is then similar to the Little note, because Price admitted that his remarks were not intended as a warning, but were just general conversation for Nixon's own safety. In short, the record supports the finding that Nixon was not warned of discharge or other discipline for riding company equipment. Of course, there is no rule of law that an employer must warn an employee before disciplining him for violation of company rules. Why then is the lack of warning evidence of unlawful motive? For one thing, Price testified that he would not have fired Nixon on April 15 if it had not been for his and Little's "warnings." Apart from that, there is the matter of the enforcement of any rule against riding on company equipment. Respondent's Exhibit 11 is a notice dated August 6, 1975, which states: "Effective immediately employees will not be permitted to use towmotors and other equipment for transportation within the warehouse, unless said equipment has been assigned in connection of employees' duties." Testimony was adduced as to whether or not the notice remained posted from August 25 to the date of the hearing. General Counsel contends that the notice was not posted during the brief period that Nixon worked in the ware- house and that Nixon had no notice of the company rule. Whether the notice was posted, or whether Nixon saw it is irrelevant. There is substantial evidence that the rule against riding on equipment was honored more in the breach than the observance. There is, first of all, the fact that Nixon was standing on the lift blade on his return to the break area when lift operator McMurray stopped to talk to his foreman. The foreman said nothing to either McMurray or Nixon. Additionally, McMurray testified that he carried Nixon to the break area 2, 3, 4, sometimes 5 days a week. He was never spoken to about this although he testified he was observed by supervisors. Employees Robert Sherer, Donald Mull, Eugene Nixon, and Jessie Dunn, and former employees Vernon Scott and Alfred Miller, all gave testimony to the effect that employees frequently rode on forklifts under circumstances where supervisors were bound to observe them. Eugene Nixon testified further that only 2 days before the hearing he had seen Foreman Ben Tate riding on the forks of a lift, testimony confirmed by Tate with the explanation that it was work related. I credit the foregoing testimony, given by witnesses who did not appear to have any interest in testifying falsely (except perhaps Eugene Nixon who is Earl Nixon's brother) and I find that the rule against riding on company equipment was not being complied with to a significant degree at the time of Nixon's discharge, under circum- stances warranting a finding of knowledge on the part of Respondent, and that except for one instance on Septem- ber 22, 1975, there is no evidence of any employee being warned of such conduct, much less discharged. In this connection, it is noteworthy that on occasion of the breach on September 22, both rider and driver were written up; in Nixon's case, the driver, McMurray, was merely told not to do it anymore sometime after Nixon's discharge. It is also noteworthy that the warning of September 22 was dated and on a company form. On the basis of the foregoing, and considering Respon- dent's other unfair labor practices herein found, the conclusion is warranted that Nixon's riding of the lift on April 15 was seized upon by Respondent as a pretext to discharge him because he had given testimony under the Act and in furtherance of Respondent's attempts to discourage its employees from engaging in union activities. Respondent thereby violated Section 8(a)(1), (3), and (4) of the Act. CONCLUSIONS OF LAW 1. Harris-Teeter Super Markets, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 525, Meat, Food and Allied Workers Union, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By promising and granting raises to employees to induce them to refrain from supporting the Union or engaging in union activities, soliciting employees to inform on the union activities of other employees and to engage in surveillance of their union activities, interrogating employ- ees about their union activities in the manner constituting interference, restraint, and coercion of employees in the exercise of Section 7 rights, and interrogating employees about the union activities of other employees or about their participation in a Board proceeding, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(aXl) and 2(6) and (7) of the Act. 4. By discharging Jimmie Martin, James Wright, and Jerome Little because of their union activities, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)( ) and (3) and 2(6) and (7) of the Act. 5. By discharging Earl Nixon in order to discourage employees in their union activities and because he gave testimony in a Board proceeding, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)( ), (3), (4), and 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, I find it necessary to order Respondent to cease 1068 HARRIS-TEETER SUPER MARKETS and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discharged Jimmie Martin, Jerome Little, James Wright, and Earl Nixon, in violation of the Act, I shall order it to offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to them of a sum of money equal to that which they normally would have earned as wages, from the date of their discharge to the date of the offer of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716(1962). The unfair labor practices committed by Respondent strike at the very heart of employee rights safeguarded by the Act. I shall therefore place Respondent under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER 9 The Respondent, Harris-Teeter Super Markets, Inc., Charlotte, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities in a manner constituting interference with and restraint and coercion of employees in their exercise of Section 7 rights. (b) Interrogating employees about the union activities of other employees or about their participation in Board proceedings. (c) Soliciting employees to inform on the union activities of other employees and to engage in surveillance of their union activities. (d) Promising and granting raises to employees to induce them to refrain from supporting the Union or engaging in union activities. (e) Discouraging membership in or activities on behalf of Local 525, Meat, Food and Allied Workers Union, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or in any other labor organization, by discharging employees or otherwise discriminating in regard to hire or tenure of employment or any terms or conditions of employment of its employees. (f) Discharging or otherwise discriminating against employees because they have given testimony under the Act. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist a labor organization, to bargain collectively through representatives of their own choosing and to engage in other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the National Labor Relations Act, as amended: (a) Offer Jimmie Martin, Jerome Little, James Wright, and Earl Nixon, immediate, full and unconditional reinstatement to their former jobs, or, if such jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date of their reinstatement in the manner set forth in the section of this Decision entitled the "Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of the amounts of backpay due under the terms of this recommended Order. (c) Post at its Charlotte, North Carolina, place of business copies of the attached notice marked "Appen- dix." '0 Copies of said notice, on forms provided by the Regional Director for Region I , after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint found not to have been sustained by the evidence be dismissed. 9 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 '0 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law when we discharged 1069 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jimmy Martin, Jerome Little, James Wright, and Earl Nixon, and the Board has ordered us to post this notice: WE WILL NOT discharge employees because of their activities on behalf, or support, of Local 525, Meat, Food and Allied Workers Union, Amalgamated Meat Cutters & Butcher Workmen, of North America, AFL- CIO, or any other labor organization. WE WILL NOT discharge employees because they gave testimony under the Act. WE WILL NOT question employees about their union activities or about the union activities of other employ- ees. WE WILL NOT question employees about their participation in a Board proceeding. WE WILL NOT promise or grant raises to employees to induce them not to support the Union or engage in union activities. WE WILL NOT solicit employees to inform on the union activities of other employees and to engage in surveillance of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them under Section 7 of the National Labor Relations Act, as amended. WE WILL offer to reinstate Jimmy Martin, Jerome Little, James Wright, and Earl Nixon, to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, and WE WILL make them whole by paying them the wages which they lost because we discharged them unlawfully. You are free to become and remain members of Local 525, Meat, Food and Allied Workers Union, Amalgamated Meat Cutters & Butcher Workmen, of North America, AFL-CIO, or any other labor organization. HARRIS-TEETER SUPER MARKETS, INC. 1070