S. E. Nichols Marcy Corp.

S. E. NICHOLS MARCY CORP. S. E. Nichols Marcy Corp. and Donald L. Arm- strong, Michael Hardiman, Carvel K. Ogden, Brenna Olmstead, Ramona Overrocker, Betty Vitullo, Donna Briggs, Yolanda LaPorte, Florence Shaffer, and Edward F. Aubert. Cases 3-CA- 6166-1, -2, -3, 3-CA-6291, -2, -3, -4, 3-CA- 6358, 3-CA-6457, and 3-CA6537 April 19, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 1, 1976, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The General Counsel filed cross-exceptions to the Administrative Law Judge's Decision and supporting brief, and the Respondent filed a brief in opposition to General Counsel's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree, that the Respondent violated Section 8(a)(l) of the Act by threatening to institute a slander suit against employee Florence Shaffer because of an antiunion statement she credibly claimed had been made to her by a supervisor. The Administrative Law Judge also found that the Respondent violated Section 8(a)(l) of the Act by instituting such a slander action, in the name of the supervisor in question, against Shaffer, seeking $50,000 in damag- es. We disagree with this finding. I The Respondent asserts that the Administrative Law Judge's resolu- tions of credibility, findings of fact, and conclusions of law are the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in N.LR.B. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949), '[T otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." Furthermore, 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 the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 138 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See, e.g., Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103 (1960): United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB 229 NLRB No. 19 The record shows that the supervisor involved herein, Assistant Store Manager Lawrence Barton, told employee Shaffer that if the rumor that she was in the Union ever became known to Manager Korcz it would mean her job. Shaffer repeated this statement at two employee meetings held by Respon- dent. The credited testimony indicates that the Respondent's president, during the course of the second of the above meetings, told Shaffer to "shut her mouth" and that "they" could sue her for saying such a thing. Additional testimony in the record reveals that the Respondent's president told another employee that "they" were going to sue Shaffer. The foregoing facts clearly support the Administra- tive Law Judge's finding that Respondent violated Section 8(aX)() by threatening to sue Shaffer because she repeated an antiunion remark made to her by Barton. The evidence is not clear, however, that the Respondent actually participated in the filing of the suit in which only Barton and Shaffer are named parties. We need not resolve this issue since there is longstanding Board precedent consistently holding that the filing of a civil suit, as opposed to the threat to file a civil suit, does not constitute an unfair labor practice.2 Consistent with this longstanding Board precedent, we therefore have decided to reverse that portion of the Administrative Law Judge's Decision which finds that the Respondent violated Section 8(a)(l) of the Act by instituting the slander lawsuit against Shaffer. Accordingly, we have revised the corresponding Order and notice provisions to conform to this Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, S. E. Nichols Marcy Corp., Marcy, New York, its officers, agents, successors, and assigns, shall take 382, 384 (1971); Frank Visceglia and Vincent Visceglia, t/a Peddie Buildings, 203 NLRB 265 (1973). Only in the 8(bXIlA) and 8(bXIXB) areas has the Board deviated from this position. In those cases, the Board has found that court action by a union to enforce illegal fines against employees and supervisors does constitute a violation of the Act. See, e.g., Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company), 185 NLRB 380 (1970), enfd. as modified 459 F.2d 1143 (C.A.D.C., 1972), reversed 412 U.S. 67 (1973); Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218 NLRB 1063 (1975). But cf. International Organization of Masters, Mates and Pilots, AFL- CIO (Cove Tankers Corporation), 224 NLRB 1626 (1976), in which the Board found a violation of Sec. 8(bXIXA) based on a union's institution of an in rem action in support of its unlawful picketing and in furtherance of its unlawful objective to compel the purchaser of a vessel to agree to and enforce the union's contract with the seller. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that action set forth in the said recommended Order, as so modified: 1. Substitute the following for present paragraphs l(f) and (1): "(f) Promising to improve benefits or working conditions to discourage the employees from engag- ing in union activities." "(1) Threatening court actions against employees because of their union activities." 2. Substitute the following for paragraph 2(a): "(a) Offer the 10 employees named herein immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in The Remedy." 3. Delete paragraph 2(e) and reletter the subse- quent paragraphs accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees as to their own and other employees' union activities. WE WILL NOT enlist and/or solicit employee signatures on antiunion petitions. WE WILL NOT enlist and/or solicit employees to withdraw union authorization cards. WE WILL NOT promise to improve benefits or working conditions to discourage employees from engaging in union activities. WE WILL NOT promise to reward employees for engaging in antiunion conduct. WE WILL NOT solicit employees to engage in surveillance or create the impression of surveil- lance. WE WILL NOT threaten employees with dis- charge or other reprisals because of their union activities. WE WILL NOT threaten or warn employees that management would find out who had signed cards for the Union. WE WILL NOT interrogate employees as to the contents of their affidavits nor direct employees to obtain copies of the same. WE WILL NOT threaten any court actions against employees because of their union activi- ties. WE WILL NOT bar employees from the store premises. WE WILL NOT discontinue commissions because of union activities. WE WILL NOT issue written warnings because of union activity. WE WILL NOT refuse to schedule Sunday work for employees at Christmastime because of their union activity. WE WILL NOT discharge, refuse to employ, lay off, or otherwise discriminate against employees because of their union activities, or because they have filed charges or given testimony under the Act. WE WILL NOT discourage membership in, or concerted activities on behalf of, the Union herein or any other labor organization, by discriminating against employees with regard to their hire, tenure, or any other condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization; to form, join, or assist labor organizations, including the Union herein; to bargain collectively through a bargain- ing agent chosen by our employees; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any such activities. WE WILL offer Donald L. Armstrong, Michael Hardiman, Carvel K. Ogden, Brenna Olmstead, Ramona Overrocker, Betty Vitullo, Donna Briggs, Yolanda LaPorte, Florence Shaffer, and Edward Aubert immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges, and make them whole with interest for any loss of earnings they may have suffered by reason of the discrimination against them. WE WILL make whole Yolanda LaPorte for loss of commissions she suffered by reason of discrim- ination against her. WE WILL make whole Betty Vitullo, Donna Briggs, Yolanda LaPorte, and Florence Shaffer for loss of 1975 Sunday earnings. WE WILL revoke and rescind the written warnings notices or letters issued to Brenna Olmstead, Ramona Overrocker, Yolanda La- Porte, Donna Briggs, and Edward Aubert, and expunge such documents from our files. S. E. NICHOLS MARCY CORP. 76 S. E. NICHOLS MARCY CORP. II. THE UNFAIR LABOR PRACTICES STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Judge: Based on charges and amended charges filed by the 10 discriminatees named herein, on the dates indicated, an amended and consolidat- ed complaint against S. E. Nichols Marcy Corp., herein the Respondent, Company, or Marcy, was issued on January 7, 1976, alleging violations of Section 8(aX)(), (3), and (4) of the National Labor Relations Act, as amended.' Respon- dent filed answers to the complaints denying it had engaged in the alleged unfair labor practices. Hearings in this proceeding were held before me in January and June 1976, and both the General Counsel and Respondent filed briefs. Upon the entire record in this case, and from my observation of the witnesses and their demeanor,2 I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is a New York corporation and, at all times material herein, has maintained a retail store in Marcy, New York, and has engaged at this store in retail sale and distribution of various products. Annually the Respondent, in the course and conduct of its business operations, sells and distributes products with a gross value exceeding $500,000. During the same period of time Respondent receives goods valued in excess of $50,000 transported to its place of business in interstate commerce directly from States other than the State of New York. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters, Butcher Workmen and Affiliated Crafts of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. The complaint in Case 3-CA6457 was filed on March 26, 1976, and the complaint in Case 3-CA-6537 was filed on May 13, 1976. 2 The facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N. LR. B. v. Walton Manufacturing Company & Loganville Panis Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction of the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 3 The original charge in Case 3-CA6166-1 was filed by Armstrong on July 30, 1975; the original charge in Case 3-CA-6166-2 was filed by Hardiman on July 30, 1975; the original charge in Case 3-CA-6166-3 was filed by Ogden on July 30. 1975; the original charge in Case 3-CA-166-4 was filed by Olmstead on September 8, 1975, and the amended charge in It is alleged in the complaints that agents and supervisors of Respondent interrogated employees; solicited signatures to an antiunion petition; solicited employees to withdraw their authorization cards; promised rewards, improved benefits, and working conditions; solicited employees to engage in surveillance of others and created the impression of surveillance; threatened discharges; solicited grievances; informed employees the Company would ascertain who signed authorization cards; maintained a rule which prohibited all union solicitations; interrogated employees concerning their affidavits and directed that they obtain such affidavits; instituted a slander action; threatened other employees with legal action because they filed charges; solicited employees to withdraw charges; barred employees from its store; and on or about September 1, 1975, granted company paid health insurance. It is further alleged that on the dates hereinafter indicated the Compa- ny terminated Donald Armstrong, Michael Hardiman, Carvel Ogden, Brenna Olmstead, Donna Briggs, Yolanda LaPorte, Florence Shaffer, Betty Vitullo, Edward Aubert, and constructively discharged Ramona Overrocker. It is further alleged that Respondent issued warning letters to certain of the alleged discriminatees, and also that Respondent did not schedule Sunday work for Vitullo, Briggs, LaPorte, and Shaffer, and ceased paying commis- sions to Yolanda LaPorte.3 The Union started its organizational campaign at the Respondent's Marcy store, the only facility or store involved in this proceeding, in late May or early June 1975. 4 Several union meetings were held in June, at which time authorization cards were passed out to the Respon- dent's attending employees who, in turn, contacted and signed up fellow employees. On July 17 the Union filed its petition for representation with the Board, which was served upon Respondent on or about July 18. The General Counsel maintains that, immediately upon being served with the petition, Respondent began engaging in an antiunion campaign including a massive amount of conduct violative of Section 8(aX)(1), (3), and (4) of the Act. A notice of hearing was given in the representation case on July 25, and on August 21 the Board conducted a representation election. The Union lost the election. During the summer months of 1975, the Company Case 3-CA-6166-4 was filed by Olmstead on December 9, 1975. The original charge in Case 3-CA-6291 was filed by Overrocker on October 24, 1975, and the amended charge in that case was filed by Overrocker on December 8, 1975. The original charge in Case 3-CA-6291-2 was filed by Vitullo on November 4, 1975, and served by registered mail on Respondent on or about November 6, 1975, and the amended charge in that case was filed by Vitullo on December 20, 1975. The original charge in Case 3-CA- 6291-3 was filed by Briggs on November 18, 1975, and the amended charge was filed by Briggs on December 29, 1975. The original charge in Case 3- CA-6291-4 was filed by LaPorte on November 18, 1975. and the amended charge was filed by LaPorte on December 29, 1975. The original charge in Case 3-CA-6358 was filed by Shaffer on December 8, 1975, and the amended charge was filed by Shaffer on December 29, 1975. The original charge in Case 3-CA-6457 was filed by Aubert on March 3. 1976; the original charge in Case 3CA-6537 was filed by Aubert on April 29, 1976. 4 All dates are 1975 unless stated otherwise. DECISION 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admittedly held "a lot" of small and large meetings with their employees at the store. 5 A threshold issue in this case is the allegation that Michael Dewey, Manny Mazzola, Sharon Michel, Nancy Musa, and Robert Riggalls are agents of the Respondent. As pointed out, rank-and-file employees were well aware of Nancy Musa's agency status even before union activity started, as she frequently carried official company forms around the store for employees to sign. In addition, Musa and Manny Mazzola on different occasions were also specifically designated by Respondent as their agents. Numerous times, at Respondent's frequent meetings with employees as aforestated, the employees were informed by Respondent's management personnel to see Nancy Musa or Manny Mazzola in order to retract their union cards, and this record further reveals that it was Musa and Mazzola who later sent employee withdrawal letters and antiunion petitions to the Union. As indicated, Mazzola admits sending antiunion petitions to the Union and soliciting employees to sign one such petition, and Musa admits sending 10 to 12 letters to the Union signed by employees asking that their cards be retracted. Even Store Manager Korcz' testimony that he told employees to withdraw cards with the help of an "experienced person," but did not name Mazzola or Musa, constitutes ratification of Musa's and Mazzola's violative conduct and also further reveals their agency status. In one meeting run by Manager Korcz, Mazzola even spoke out and solicited employees to withdraw their union cards on the occasion when Korcz had made some previous reference to retracting their cards by writing to the Union. It was also Nancy Musa who solicited Sharon Michel on July 19 to circulate one of the antiunion petitions, and which Michel then agreed to do, and after circulating the petition Store Manager Korcz thanked her as she was leaving the store. On or about July 21, Korcz himself told Michel that Musa wanted to see her, and that Musa had something for her to do. On this occasion Musa again asked Michel to circulate the antiunion petition, and while she was doing so she passed Korcz on the sales floor.6 On or about July 22, Korcz again specifically thanked Sharon Michel for obtaining signa- tures, and then asked Michel if she could get additional cards retracted and if she would talk to Carol Quinn, which Michel did. Because of this, Quinn and another employee wrote letters to the Union requesting the withdrawal of their cards. Later in the day Manager Korcz informed Michel that she would be "rewarded." Michael Dewey, a high school student who had not signed a union card, was called to work by Korcz an hour earlier than his normal starting time on July 19. When he appeared at the store Korcz told him to go to the appliance department and when he arrived there, Robert Riggalls, 5 The following-named persons occupied positions set opposite their respective names, and have been and are now agents of the Respondent at its Marcy store, acting on its behalf, and are supervisors within the meaning of Sec. 2(1 1) of the Act: Manfred Brecker James Mitchell Henry Korcz Linda Abramezyk President District Manager Store Manager Assistant Store Manager then in charge of the appliance department, had Dewey circulate an antiunion petition to all male employees, which Dewey then did at Riggalls' request. Dewey obtained about 15 signatures on the petition and after completing his task was asked by Riggalls which of the employees had refused to sign the petition. Dewey replied that Don Armstrong and Michael Hardiman (two of the alleged discriminatees) had refused. In the instant case the Respondent, as pointed out, actively sought out these five people to engage in antiunion activity and then thoroughly endorsed their actions. Of course, when the Respondent constituted or designated these employees to be their agents, the Respondent is then legally responsible for their statements made to employees relating to the Union and also for the consequences of such statements. In the final analysis, this record clearly shows that the Company conferred or gave certain antiunion instructions and duties to the five employees here in question, and then fully ratified their actions in carrying out such instructions. 7 For purposes here, I find that Dewey, Mazzola, Michel, Musa, and Riggalls were agents of the Respondent. The Respondent also placed the supervisory status of Thomas Smoulcey in dispute. Smoulcey was the manager in the home center department, was not eligible to vote in the Board election on August 21, and was not placed on the Excelsior list by Respondent. As also indicated, Smoulcey totaled and ascertained the commissions paid to employees in his department, he was present when employees in this department were discharged or disciplined, signed disci- plinary warning letters issued to employees in the area marked "supervisors signatures," assigned and directed employees' work, moved employees to different work as needed, and had his own desk in the stockroom which no other employee had. In addition, Respondent informed at least one employee in the home center department that Smoulcey was the immediate supervisor. From this record it is obvious that Smoulcey has many of the indicia of supervisory status as set forth in Section 2(11) of the Act and, accordingly, I find him to be a supervisor and agent of the Respondent. Portions of the 8(a)(l) conduct dealing with numerous efforts and statements by agents of the Respondent, to have employees retract their union cards and sign anti- union petitions, have been previously set forth herein with my discussion on agents of the Respondent, and those portions of the testimony cited therein need no further amplifications here. On or about July 19, Store Manager Krocz asked employee Aubert if he and other employees had signed cards for the Union, inquired if Aubert knew anything about the Union, stated that if Aubert had a card he would help him get rid of it, that Aubert would be "taken care of' Thomas Smoulcey Home Center Manager Lawrence Barton Assistant Store Manager 6 Musa's agency status is also apparent regarding her role in obtaining William Nugent's affidavit as it was Musa who gave Nugent the registered mail receipt for the letter he sent to the Board requesting a copy of his affidavit. I If they were not in fact vested with actual supervisory authority, they were repeatedly placed in positions by Respondent whereby employees would reasonably believe that they were acting as agents on its behalf. 78 S. E. NICHOLS MARCY CORP. and would be up to a certain wage at the end of the year, and then asked Aubert to let him know "what he heard." On the same day Respondent's agent Mazzola also asked Aubert if he and other employees (naming them) had signed union cards, and if so to send a letter to the Union and get his card back. About a week later Mazzola again asked Aubert the same questions, and a day or so later Respondent's agent Musa also inquired of Aubert if he had written the Union for retraction of his card - and Musa supplied Aubert with the necessary language, and his letter was then written and mailed, but Aubert did not supply the stamp. During the latter part of July, Aubert had another talk with Mazzola and on this occasion Mazzola informed him that if the Union was successful the Company would cut the work force in half, and if the Union did not get in - "the ones that signed cards would be fired." On or about July 30, Respondent District Manager Mitchell asked Aubert if he had signed a card, and then told him "we're going to subpoena the cards." Additional 8(a)(1) statements and conduct took place on or about July 25 when Assistant Store Manager Lawrence Barton told Florence Shaffer that he had heard a rumor she was in the Union, and further stated that if this rumor got back to Manager Korcz it would mean her job. Thereafter, at one of Respondent's meetings held the next day, Shaffer, during a discussion of job security, told Supervisor Mitchell, "If our jobs are so secure, why did Mr. Barton say that if the rumor got back that I was in the Union to Mr. Korcz it would mean my job." At another meeting by management held at the store on or about August 17, job security was again brought up and this time in the presence of Respondent President Manfred Brecker, and on this occasion Shaffer replied that Supervisor Barton had threatened her job. Brecker then told Shaffer she better "shut her mouth" because she could be sued for saying such things. Supervisor Barton, who had been on vacation, returned to work on August II, and Shaffer then con- fronted him with his prior statement of being fired if the rumor about her union activities got back to Korcz, but Barton replied "he couldn't remember that much" but if he said it "he didn't mean it as a threat or a warning." Later the same day, Brecker was again conducting a small meeting with employees, and on this occasion told them that if Barton had made the statement attributed to him by Shaffer, as aforestated, it would go on his record and he would be terminated. However, Barton, who was also present, then suddenly announced to the assembled employees that Shaffer would be sued for slander. Within a day or so thereafter Shaffer was served with a summons in a slander action, filed by Assistant Manager Barton, seeking $50,000. After Shaffer was served with the summons, she then went crying to employee Betty Vitullo about being sued. That same day Vitullo said to another employee in Barton's presence that Shaffer had been sued by Barton for $50,000 and this definitely showed a union was needed. After Vitullo returned from lunch she was 8 The Board in The Paymaster Corporation, 165 NLRB 381, 384 (1967), held that for a respondent to threaten employees with legal action because they gave testimony, and to accuse employees of giving false testimony, interfered with the Board's statutory process in violation of the Act. 9 In these situations and cases the Board and the courts have generally ordered such prosecutions halted. See N.LR.B. v. Granite State Joint Board, called into the conference room by Korcz, with two other employees present. Korcz informed Vitullo that she had made a statement that Shaffer had been served with a summons, and Vitullo readily admitted this. Korcz then said he had a grapevine, that it used to take a few days for information to get back to him, but that now it worked a little faster and in this situation it took less than an hour. Korcz went on to tell Vitullo that he paid her salary, that she worked for him, and she was to mind her own business. A few days later employee William Nugent had a conversation with Brecker and he asked Brecker what was going to happen with Shaffer. Brecker then told Nugent that they knew Shaffer was lying, and they were going to sue her. It has been held by the Board that in certain instances the institution of a lawsuit against an employee violates the Act, and it follows, therefore, that prosecution of such lawsuits constitutes restraint and coercion.8 Certainly, the continuing prosecution of the lawsuit against Shaffer because of the union statement and sentiment she credibly attributed to Supervisor Barton, and the subse- quent threat of additional legal action against another employee, as hereinafter detailed, are both clearly attribut- able to Respondent by the credited testimony in this record, and constitute violations of the Act. I am in agreement that it would be is difficult to think of a more coercive action than suing an employee (Shaffer), earning the minimum wage, for damages of $50,000. 9 On or about July 19 Home Center Manager Smoulcey inquired of Yolanda LaPorte if she had signed a union card, and "wished" that she would withdraw it. On or about July 23 Respondent's agent, Nancy Musa, asked Brenna Olmstead if she knew anything about a union, also inquired if she had signed a card, said that Olmstead could lose her job "because of this," mentioned something about the possibility of retracting her card, and then informed Olmstead that they were going to subpena the Union's cards to find out who had signed them. On or about July 19 Respondent's agent, Mazzola, asked employee Keith Ogden what he knew about a union. A few days later he wanted to know from Ogden about others who had signed cards, and told Ogden to inform them that they could write for a retraction, and to also tell employees that Musa would mail their letters. On July 19 Respondent's agent, Dewey, asked Ogden if he had signed a card, and did so at the time he was passing around the antiunion petition, as aforestated. On July 21 Mazzola asked Michael Hardiman if he would sign the antiunion petition, and Hardiman replied that he would not. Before the election, but after they had been discharged, Korcz informed former employ- ees Armstrong and Ogden that they were not welcomed or allowed in the store and following the election he again informed them that they were not welcome and requested that they leave the store. On or about August 20 employee William Nugent informed Respondent President Manfred Brecker that he had given a statement of affidavit to an agent of the Board. Textile Workers Union of America, Local 1029, AFL-CIO [International Paper Box Machine Co.], 409 U.S. 213 (1972); Booster Lodge No. 405, International Association of Machinists d Aerospace Workers AFL-CIO [Boeing Ca], v. N.LR.B. 412 U.S. 84 (1973); and Sheet Metal Workers International Association, Local Union No. 29 (Metal-Fab, Inc.), 222 NLRB 1156(1976). 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few weeks later Manager Korcz then asked Nugent if he had received a copy of his statement from the Board agent, and on September 13 Korcz again asked Nugent if he had received a copy of his statement. Nugent said that he had not and Korcz then asked if he was going to write for it, and Nugent replied that he would. On September 29 Korcz again asked Nugent if he had written for a copy of his affidavit, and Nugent said he had not. Korcz then asked if he would now write for it, and Nugent then acceded to his wishes. Korcz took Nugent to the office and dictated what to write, and Nugent signed the letter. On the next day Nancy Musa came to Nugent with a certified mail receipt, and Respondent then mailed to the Board the letter requesting Nugent's affidavit. On or about October 3, Musa asked Nugent if he had received a copy of his affidavit, and Nugent said that he had not. (Nugent had in fact received it that morning). Nugent testified he did not want the Respondent to get it, but on the next day Nugent finally gave Musa his affidavit, and shortly thereafter Musa told Nugent there was nothing in the statement that could hurt him and not to worry about it. Several days later Nugent received a call from Brecker. By this time Brecker had a copy of Nugent's affidavit, and asked Nugent why he had said certain things contained in his affidavit. Brecker then told Nugent if he wanted to he could listen to the store tapes of the meetings that the Respondent had, and he would also go see the Respondent's lawyer. On or about October 9 Manager Korcz asked Nugent if he was ready to go over his affidavit, and Korcz then took Nugent's affidavit and went through it and in some instances Korcz would write paragraph changes as they went along. Korcz then asked Nugent if he wanted to see the Respondent's lawyer and Nugent agreed to see him. Korcz then drove Nugent to see Attorney Basloe in Herkimer, New York. When they arrived in Kerkimer, Korcz spoke alone with Basloe, and then Nugent went into Basloe's office. At this time Basloe dictated an affidavit, but told Nugent if he had any objections to anything that was said to stop him. Nugent interrupted Basloe a few times and corrected things he said. The affidavit was then typed up and, after making a change in it, Nugent signed it. Nugent received his regular wages for this entire day. Respondent's insistence that Nugent secure a copy of his affidavit taken by an agent of the Board is violative of the Act, as Nugent made it clear on repeated occasions, and by his delays, that he did not want his affidavit seen by management. Nor can it be said that this coercion could fall into the category of pretrial preparation. The Board has set several safeguards which must be met before such interrogation of an employee can take place. It is apparent by this record that the Respondent has trampled upon these safeguards. See Johnnie's Poultry Co. and John Bishop Poultry Co., Successor, 146 NLRB 770 (1964), and cases cited therein. On Octber 24 Ramona Overrocker filed charges against the Respondent. On November 5 Korcz told Nugent some 'o Respondent also put into this record and exhibits a certain tape which recorded the meeting with employees Brecker conducted on August 7, and which supposedly substantiates Respondent's various positions taken and statements made. However, this tape cannot in any way detract from or of the girls in the store "were playing with the Union" and then Korcz told Nugent they were going to sue Ramona Overrocker "for perjury." On November 10 Korcz held a store meeting with the employees and on this occasion repeated that they were bringing Overrocker up on charges of perjury. As indicated earlier herein, such threats of legal action are clearly violative of the Act. Brecker testified that during the several weeks he, himself, spent in the Marcy store, management had "lots of meetings" with employees concerning the "uproar in the store," and it was necessary for him to get the store back to normal. Brecker further stated that his meeting with employees were "pretty happy ones," jokes were told, different employees also spoke, and he said he was under the impression that everyone enjoyed his meetings.' 0 It is, of course, well-established Board and court law that, in determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(l), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act; the fact that employees were neither fearful nor apprehensive of their rights is also immaterial. The foregoing testimony which has been credibly attributed to the Respondent includes several instances of interrogating its employees concerning their own and other employees' union activities; enlisting and soliciting em- ployee signatures and signing of antiunion petitions; enlisting and soliciting employees to withdraw union cards; promising to improve benefits or working conditions; promising to reward employees for engaging in antiunion conduct; soliciting employees to engage in surveillance of union activities and creating the impression of surveillance; threatening employees with discharges or other reprisals because of union activities; warning employees that the Company would find out from the Board who had signed cards; interrogating employees as to affidavits given to the Board and directing an employee to obtain a copy of his affidavit; instituting a slander court action against an employee because of her union activity; threatening another employee with legal actions because she had filed charges with the Board; and barring employees from the store. There is also an allegation in the complaint that the store granted to its employees company-paid health insurance on or about September 1. However, the credited evidence reveals that at almost every meeting with employees several of them were concerned about benefits under Blue Cross- Blue Shield and questions concerning these matters were continually raised. Management officials did mention this subject matter at their meetings, but only in respect to the fact that some of the Respondent's other stores already had such health benefits, and "sooner or later" the store in Marcy would also be getting it (which it did). But there is no evidence credibly attributed to the Respondent to the effect that the Company would be paying for it, or that it change coercive statements made to employees on all of the other occasions, as detailed herein, and in view thereof I place little or no reliance on this one particular tape or meeting. 80 S. E. NICHOLS MARCY CORP. would become effective on September I or on any other definite date. It appears that such health plans or programs had prior arrangements as to the effective date in each store. This allegation, paragraph VII, subparagraph (t), is hereby dismissed and, in the same paragraph, I also dismiss subparagraphs (k) and (r). I turn now to the alleged discriminatees. It is readily apparent from this record that Respondent was well aware of the fact that the 10 alleged discriminatees named herein were all active on behalf of the Union, and clearly, as pointed out, the atmosphere which prevailed at Respon- dent's store was conducive to a situation whereby employ- ees and agents continually informed management of their fellow employees' union activities. Moreover, at several of Respondent's store meetings employees spoke up and, even in the presence of supervisors or agents, accused fellow employees of being in the Union, and Store Manager Korcz also admitted that he had "a grapevine," as aforestated. In addition, Respondent's employee agent, Sharon Michel, was one of the first employees contacted by the Union and, along with circulating authorization cards, she also attended union meetings with other employees, so Michel had firsthand knowledge of all those interested and active on behalf of the Union. Respondent's agent, Mazzola, also attended union meetings with other employ- ees, so he too observed first hand those employees active for the Union. In addition, Respondent's agents, Mazzola and Dewey, were quite busy circulating antiunion peti- tions, as aforestated, so they were again in an excellent position to observe employees both for and against the Union, and the same can be said for agents Michel and Musa by their continual efforts in extending opportunities so that employees could retract their authorization cards. Michael Hardiman was terminated on July 21, after being with the Company about 30 days. He had signed a union card on July 8, attended several union meetings, and had solicited a few employees to join the Union. On or about July I Hardiman had been told by Manager Korcz that the paint department where he worked "looked very good." On Saturday, July 19, Hardiman had been asked by Dewey to sign an antiunion petition, but Hardiman refused to as he wanted to get more information. Dewey, after finishing soliciting signatures for the petition, was then asked by Robert Riggalls, also an agent of the Respondent as aforestated, which employees had refused to sign the petition, and Dewey replied that both Armstrong and Hardiman had refused to sign, and on this occasion Hardiman's supervisor, Smoulcey, was also present and witnessed Hardiman's refusal. I am in agreement that Respondent's reasons as to why Hardiman was terminated were inconsistent. Hardiman was supposedly told by Korcz that he had been on a probationary period, and that he had not worked out. However, as pointed out, there is no other evidence in this record to indicate that a probationary period even existed I His immediate superior, Smoulcey, testified that he was very slow, was told how to mix paint but kept on making mistakes, and stated that they had several customer complaints and that several customers returned a total of 27 gallons of paint. Korcz then further testified that he spoke to Hardiman about his shortcomings on several occasions: that, for example, he took several days to check a shipment of paint that normally would take a half day and even then the merchandise was priced incorrectly, he testified that at Respondent's store, and several employees testifying were not even aware of a probationary period. Manager Korcz also contended that Hardiman's bookwork was not accurate. However, on cross-examination Korcz admitted that he "didn't pay much attention to Mike's (Hardiman's) books because he didn't have time to really get into them yet," and that he never checked Hardiman's books after the first 10 to 15 days of his employment." In the final analysis, even if Hardiman had made some of the mistakes the Respondent assigned to him, there is still no credible evidence in this record which actually shows that any work related problem really caused his discharge, but what clearly had precipitated Hardiman's discharge was his union activity including his refusals to sign the two antiunion peitions presented to him on July 19 and 21. Donald Armstrong was also discharged on July 21. He started working for the Company in July 1974 and spent most of his time in the home center department of the store. Armstrong had been quite active on behalf of the Union. He attended several meetings, signed a union card, solicited employees to join the Union, and obtained signatures from them on union authorization cards. On July 19 he, like Hardiman, also refused to sign the petition against the Union being circulated by Michael Dewey. On this occasion Armstrong inquired of Dewey who had given him the petition, and he replied that Korcz had given it to him. Then a few days later, on July 21, Manny Mazzola also asked Armstrong if he would sign the antiunion petition Mazzola was circulating, and at this time Arm- strong did so.'2 Manager Korcz contended that Armstrong neglected his work, refused to count merchandise coming into his department when Korcz directed him to do so, and that he gave Korcz an insolent response relative to working a certain late night shipment. Korcz also stated that Armstrong was careless about his books, didn't keep accurate records of incoming merchandise in his depart- ment, that he neglected to keep records of raincheck orders and slips, that he was rude to customers, and further testified that Armstrong was late in relieving Keith Ogden in an adjacent department so that all clerks could take their lunch at an appointed time. Respondent argues that, if further evidence is needed that Armstrong was an insolent and uncooperative employee, it was Armstrong's reaction to a public address call to him that he couldn't understand; when Armstrong called back to the office and got the manager he then asked, "who made that dumbass an- nouncement?" Supervisor Smoulcey testified that he repeatedly had to get after Armstrong in order to keep his merchandise stock up, and that he spoke to Armstrong four or five times in a 6-month period about it. While Armstrong was probably guilty of rule fractions from time to time, and may well have also given a few uncalled for answers or comments on different occasions, I am still convinced that his discharge was actually triggered in keeping his list book Hardiman penciled in his own ideas of proper prices that he made up himself, and put these prices on the merchandise. 12 Between July 19 and 21, Armstrong and other employees involved herein had checked with Union Representative Donald Johnson as to whether or not they should sign such a petition, and Johnson had advised Armstrong and possibly others that the circulating of such a petition by the Company was an "illegal act," but nevertheless to go ahead and sign it. 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and motivated because of his union activities. For instance, Korcz stated that Armstrong was late and did not punch out when he was supposed to, but, as explained by Armstrong, he could not punch out at his designated time when he was running a cash register or when he was with a customer, and there is no testimony of any particular incident of this sort occurring immediately preceding Armstrong's discharge. Moreover, as also pointed out, Respondent's contention that they discharged Armstrong for a variety of reasons, most of which had occurred months before, is particularly difficult to believe in view of the fact that before the Respondent had knowledge of his union activity, Armstrong was assigned many of the duties of Supervisor Smoulcey during Smoulcey's vacation, and Armstrong was later praised by Korcz for having done an excellent job. It is also noted that Armstrong's discharge came as a surprise to his immediate supervisor, Smoulcey. During his testimony Smoulcey also contended that an incident which occurred about a week before Armstrong's discharge, and which resulted in a warning letter being issued to Armstrong, was a factor in Armstrong's July 21 discharge. However, Smoulcey later acknowledged that Armstrong got the warning letter more than 3 months previous to his discharge. As found herein, it was Armstrong's union activity which precipitated his dis- charge. Keith Ogden was discharged by the Respondent on July 26 after having worked at the store ever since 1971. He was designated as one of the four "key persons" by the Union and was in attendance at the first union meeting on June 9. In addition, Ogden signed a union card, attended subse- quent union meetings, solicited employees to join the Union, and obtained signed authorization cards from employees. On July 19 Respondent's agent, Dewey, inquired of Ogden if he would sign the antiunion petition Dewey was circulating, but Ogden refused, and a few days later Mazzola asked Ogden to sign the same or a like petition, as aforestated. The Respondent contends that, a day or so prior to his discharge, Ogden had neglected to bring merchandise into his department and to price it at a special sale price, nor did he post the notices and inform the night man of the sale.' 3 Apparently Korcz was also having some difficulties with Ogden about certain charge-backs that had been delayed in processing. Korcz further stated that Ogden was sarcastic to customers, and was careless in several aspects of his bookkeeping. However, I find that Ogden was discharged because of his union activities. He had never received a written warning during his employment, and shortly before his discharge Ogden was told by Korcz that he was doing a "real fine job" and should be getting a raise and an increase in percentage. As pointed out, Korcz stated that Ogden had failed to post a copy of a store ad in his department announcing a sale on certain items, but it appears that failure to post such an ad on time is a more or 13 Korcz testified that there was no excuse for not setting up the sale, that two men could have done it and still take care of customers, and that the sale was planned with advertisement, but not conducted. :4 Charge-backs are forms filled out and used when the store receives defective goods or merchandise is shipped to them by mistake. A white copy is then attached to the merchandise, but the merchandise itself then "sits in the store" or in a stockroom. Korcz admitted that on occasions such less common occurrence in the store, and that no discipline was meted out for failure to post store ads. Ogden had no knowledge about any customer complaints, and it is apparent from the testimony in this record that charge- backs can remain unprocessed and little is ever done about them, and charge-back merchandise is obviously not of critical importance to the store, especially in view of the fact that Ogden had never received a written warning about his handling of them. 4 In the final analysis, it is difficult to understand, if his conduct was really as intolerable as it was pictured to be, why Ogden was retained in the Respondent's employ as long as he was, and without even a warning being issued or made against him. The inescapable answer for his retention is that actually Ogden was a satisfactory employee, but then became an unsatisfactory employee when his union activities became known to the Respondent. Brenna Olmstead started working for the Company in 1974, was laid off on a seasonal basis in December 1974, then rehired a few months later, and in the same job as a cashier. The termination in question in this proceeding occurred on September 4. Olmstead signed a union card, solicited an employee to join the Union, and attended union meetings including the July 29 meeting at which Mazzola was present. Carol Quinn, also an early supporter of the Union, was told by Linda Abramezyk, an admitted supervisor, in early September just before Olmstead's termination, to answer a page from Olmstead as Brenna was her "partner in crime." Both Quinn and Olmstead had signed cards and worked for the Union together. Similarly, employee Linda Barbeau was told by Korcz not to work with Brenna Olmstead as she was not "a good influence." In July, Sharon Michel contacted Olmstead with an antiunion petition to sign, and Nancy Musa also spoke to her relative to the Union, as aforementioned herein. Also of note is the fact that Korcz "walked Brenna out the door" when Olmstead and Barbeau returned to the store on or about September 9. Respondent points out and argues that the reason for Olmstead's discharge was the excessive shortages in the cash register, and Korcz was having difficulties in monitor- ing the cash register.15 Korcz testified that he spoke to Olmstead in July about shortages; that there were shortag- es on August 22 and 30 and September 1, and that these shortages were not accounting errors as in most cases, but actual shortages - the cash was missing. Korcz also said she accepted an Air Force voucher as cash, and as a result of her neglect a customer got away without paying. Olmstead was given the only written warning she ever received from the store on or about July 30 for taking the above voucher and was given the warning despite the fact that cashiers had not received specific instructions on how to handle vouchers of this type, but on this occasion Olmstead also called the office, and was then instructed how to handle the voucher. Eventually, with the exceptions merchandise might stay with them for "months" or "years" and it made little difference since his store would have received credit from the charge- back. J5 Brecker had testified that the store had shortages in excess of $150,000 the previous year, and Korcz attributed most of it to cash register operations. 82 S. E. NICHOLS MARCY CORP. of a few cents, the store got the money for this purchase. On or about August 30, Olmstead made a mathematical error in subtraction and undercharged a customer $10, but the day after this happened the customer called the store to say she had found an error and would send the store $10. Olmstead was also discharged on the basis that there were shortages at her cash register, as aforestated. However, this record reveals that on numerous occasions other cashiers were also frequently over or short at their registers and, even assuming that Olmstead was improperly operating her cash register, yet she was not given any opportunity to work elsewhere in the store as other cashiers under such circumstances had been allowed to do. As Christmas was approaching Respondent had even more of an opportunity to place Olmstead elsewhere in the store, but yet she was discharged. Moreover, prior to Olmstead's engaging in union activity, Respondent had exhibited confidence and satisfaction with her work as she was recalled from a seasonal layoff in March or April. Olmstead performed well as a cashier according to head cashier Ramona Overrocker. Overrocker said that she was never asked by management to watch Olmstead's work although she was asked to watch other girls on cash registers who were having difficulties with the job. I agree that by issuing Olmstead a warning letter on July 30, shortly after Mazzola had attended the union meeting which Olmstead had also attended, it is apparent that Respondent was attempting to build a record against her in order to substantiate a poor work record, and this was the pretextual situation the Company desired in order to discharge Olmstead. Ramona Overrocker began working for the Respondent in 1971 as head cashier and the General Counsel alleges that she was constructively discharged on September 11. She signed a union card on June 18, and at one of the meetings presided over by Brecker prior to the election, Doris Randall identified Overrocker as being "wined and dined" by the Union. Furthermore, on or about July 19, Korcz asked his agent, Sharon Michel, if she thought Overrocker had anything to do with the Union. Similarly, Nancy Musa called Overrocker on or about July 20 and asked her several questions about the Union, and if she would retract her card. Like the other discriminatees named herein, there can be no serious question but that the Respondent had prior knowledge of Overrocker's union activity and interest. On September 11, Korcz informed Overrocker that a customer had gotten out of the store with a set of towels without paying, that she was incompetent and unable to handle her job, and as a result she was being demoted from head cashier to cashier with a cut in pay (from $2.35 to $2.20 per hour). Overrocker then informed Korcz that such treatment was unfair for "one mistake out of four years," and that she was quitting. Manager Korcz testified that the head cashier's job was the most important one in the store, that thousands of dollars pass through the registers every hour; the head cashier's job is to monitor the cashiers and, if a cashier is short or had a void, to approve the shortage on a slip; if the shortage is significant the head cashier is then to notify the office. Korcz further stated that Overrocker was demoted on September 11 because he could no longer trust her in this sensitive position since she had lied to him in that someone had approved a void for Brenna Olmstead which enabled a customer to get away with a set of towels. Korcz testified he then inquired of Overrocker who had approved the void, and her response was that she did not know. Korcz' testimony is that she at first denied signing the void, but when he informed Overrocker he was going to get the void back from the New York office, she then stated that she may have signed it. First of all it is noted that Overrocker served in the position of head cashier from 1971 until September 11, 1975, so at least during this period she must have been considered by Korcz as a very satisfactory employee. According to Korcz, Overrocker was demoted on Septem- ber 11 because she did not recall whether she had approved a void made out by Olmstead, and she was also then given a warning letter over this incident. This record shows, however, that voids were a commonplace occurrence at Respondent's store; yet it is Respondent's position that, because Overrocker could not at first recall this particular void, which document was not even presented for her to see, she was then demoted for this one incident after serving for several years as head cashier. The General Counsel points out that Korcz' contention to the effect he could not rely on Overrocker to give him a straight answer does not stem from this incident, but rather from the fact that Overrocker denied involvement in the Union during unlawful interrogations conducted by Korcz and by Nancy Musa. As pointed out, to demote an employee and cut the pay because of union activity which results in the employee quitting his employment is a constructive discharge in violation of the Act. In the instant matter Overrocker made it clear to Korcz that she was quitting because of his actions against her, hence Respondent's actions in demot- ing her and cutting her pay, which resulted in Overrocker's quitting, violate Section 8(aX)() and (3) of the Act, as does the issuance of the warning letter to Overrocker which was obviously being used in an attempt to build a record against her. It is alleged in the complaint that the Company discriminated against Briggs, LaPorte, Shaffer, and Vitullo by not allowing them Sunday work, beginning on Novem- ber 2 and going through the Christmas rush period. They are also named as discriminatees, as aforestated, and I will consider such allegations later on. This record shows that, on or about November 2, the Respondent's Marcy store began operating on Sundays for the 1975 Christmas season, and Shaffer, LaPorte, Briggs, and Vitullo were not asked to work the Sundays in this period despite the fact that in prior years of their employment they had been asked to work Sundays and had done so. Briggs stated that management had contacted and asked those employees who actually did work on the Sundays in question, and he testified that the main job on such Sundays during the Christmas rush period is operating the cash registers. LaPorte said that everyone else in her department either was asked or volunteered to work on these Sundays. Korcz testified that generally 90 percent of those who work on these Sundays volunteered their services and the rest are asked as needed, but in 1975 it was not necessary to ask anyone. In its brief Respondent points out and argues 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the 1975 Sunday work involved herein had scarcely started when these four employees filed charges; that Korcz was then interviewed by a Board agent the first week of November, at which time Korcz asked if these four people would resolve the issue if the Company asked them to work on Sunday; that the Board agent promised him he would let Korcz know, but did not do so. Respondent further contends these four employees were apparently more interested in embarrassing Korcz than in working these few Sundays. As pointed out, the reasons given by Korcz as to why these four employees did not work on Sunday include: Asking first of all for volunteers and if any of the four had volunteered they would have worked; stating that no one wants to work Sundays; wanting to have the employees earning the least amount of money be the ones who worked on Sundays; and giving testimony to the effect that if the Board attorney or agent had called back and told him that the four employees wanted to work, they could have done so. I agree that these statements are obviously inconsistent with one another, and especially Korcz' statement that volunteers are sought first. This position cannot possibly jibe with the testimony that the Respondent sought to save money by having the least paid employees work, as there would be no way of knowing beforehand who the volunteers would be - the high-paid or the low-paid employees. Moreover, a comparison of the salaries or wages of Briggs, Shaffer, LaPorte, and Vitullo with those of the employees who did work Sundays makes it apparent that the cost could not have been a factor in deciding who worked, since LaPorte was the highest paid of the four earning only $2.30 an hour, and yet numerous employees earning more than $2.30 an hour worked during the Sundays in question. As further indicated, out of the approximately 86 employees that were on the payroll in November, only 14 of them did not work Sundays, not including Shaffer, Briggs, Vitullo, and LaPorte. But out of these 14 employees several were truckdrivers, mechanics, or stockroom person- nel having nothing to do with sales, and several others did not want to work on Sundays. Therefore, as pointed out, only Briggs, Shaffer, LaPorte, and Vitullo were employees who performed the work done on Sundays during their nomal workweek, who wanted to work Sundays and had done so in prior years, yet were not allowed or given the opportunity to work Sundays during the period in question here. Similarly, the large percentage of employees who did work on Sundays, as aforestated, belies any contention by Korcz that Sunday work was not desirous or that no one wanted to work Sundays.16 It is clear that the only reason these four employees were not asked to perform work on Sundays was for discriminatory reasons in violation of Section 8(a)(l), (3), and (4) of the Act. 16 More cashiering is done on these Sundays than at any other time, and these four employees' jobs had been transformed into almost strictly cashiering work on Sundays. Korcz even admitted that Vitullo was one of his better cashiers, yet she too was not asked to work on the days when the need for cashiers was the greatest. IT It appears that most of the meetings held by management with employees were done so on working time. 's Vitullo had filed her original unfair labor practice charge against All four of these employees were also discharged on December 23, and I now turn to that aspect of this case. Betty Vitullo signed a union authorization card, solicited employees to join the Union by passing out cards, and attended both union and company meetings. A few weeks prior to the August election, Vitullo was attending one of the many meetings held by management, as aforestated; 17 on this occasion Respondent President Brecker inquired if anyone had belonged to a union before, and Vitullo raised her hand and signified that she had. In addition, shortly before the election, she refused to sign an antiunion petition, and on or about the same date was named by an employee at a company meeting with Brecker as being "wined and dined" by the Union. Moreover, in late July, Sharon Michel admitted talking to Nancy Musa, both agents of Respondent, and on this occasion Musa had inquired of Michel if she knew who had started the Union's campaign and Michel replied that she had started it, but then Musa stated that they believed Durante (Vitullo's maiden name) and Al Goncalves were among the employ- ees who started the union movement as they were both previously union members. At another company meeting in August, Musa made it clear, in Brecker's presence, that Vitullo supported the Union. Vitullo started working for Respondent in 1973, and at one time was a department head in cosmetics. In August her duties had been altered to the point where she was primarily a cashier. Vitullo was acknowledged by Korcz to be one of the store's better cashiers, and was given a wage raise about 3 weeks prior to the time when the Union's organizing efforts began.'8 On December 23, Korcz informed Vitullo that he was going to have to lay her off because of a seasonal employee cutback, but in a few months she would be called back when business picked up. Korcz testified that Vitullo became angry when the cosmetic department was rearranged to supply more self- service. He then explained that this change was not a change in the Marcy store only, but was made in the cosmetic departments of every store in the chain. Korcz concluded from observing her that "she really hated me." Respondent argues that a salesgirl in a retail store who detests her employer can do the Company untold damage, and points out that her first showing of petulance was when she lectured Korcz as to her rights as a union member, and on another occasion, relating to a store party, she deliberately planted this insulting remark with an employee so that it would get back to the store manager, - she said as to Korcz, "I have to work with him, I don't have to drink with him." Korcz once again had conflicting explanations as to why Vitullo was terminated. His explanation that she was not retained because of a change in cosmetics is difficult to understand in view of the fact that Vitullo could have been placed elsewhere in the store, and she had been working as Respondent on November 4, for not being permitted to work on Sundays and because at a store meeting on November 10, Korcz, after making a speech in which he mentioned the "diehards" in the store who wouldn't let the Union die, then went on and specifically signaled out Briggs, Shaffer, and Vitullo by asking them if they had any questions. Briggs and LaPorte filed original charges on November 18, and Shaffer filed her original charge on December 8. 84 S. E. NICHOLS MARCY CORP. a cashier almost exclusively anyway. Moreover, Korcz took great pains and time to emphasize how important the job of cashier is, and how he could lose his profits if they had a bad cashier and yet, as pointed out, he discharged a good cashier in Vitullo.19 It is apparent that Respondent discharged Vitullo in violation of Section 8(a)(1), (3), and (4) of the Act, and I so find. Donna Briggs started working for the Company in August 1972, and from time to time Briggs performed various jobs in the store. She worked in the stationery department, took care of the record department for I hour a day, and occasionally relieved the head cashier of her duties. It is also clear that Respondent was well aware of the union activity of Briggs. She was the Union's observer at the election on August 21, signed a union card, helped set up the first union meeting, attended all of the union meetings, passed out union cards to employees, and, in fact, was the second employee contacted by the Union. In addition, Nancy Musa, at a store meeting in Brecker's presence, a few weeks prior to the election, accused Briggs of being the cause of the Union's campaign, and on another occasion Musa told Briggs that there was no way that Briggs could ever make her believe that she was not involved with the Union. Respondent again contends that Briggs was also a part of the reduction in force following the Christmas rush period, as aforestated. Moreover, that her duties were in stationery, cashiering, and making signs, and, according to Korcz, when she was on vacation he got another girl to make signs who made them faster and better, so that when Briggs returned from vacation he left the sign painting to the other girl, but said that Briggs resented this. Korcz stated that Briggs' other duties were to maintain stock and take care of the stationery counter as well as the cash register as needed, but that the stationery counter remained shabby. Korcz also testified to an incident when she briefly refused to run a cash register upon request, but then after a short hesitancy did so. Korcz then testified he did not retain Briggs because of her attitude, which changed for the worst in August. Respondent offers numerous conflicting statements as to why Briggs was terminated. Now, and at the hearing before me, the above-mentioned reasons were all assigned as a basis for the discharge yet, on December 23, Korcz informed Briggs that she was being laid off because of a seasonal cutback in personnel. If there was any validity to the reasons now enumerated in the testimony of Korcz then, certainly, these reasons would have at least been mentioned and discussed with Briggs on December 23. In one phase of his testimony Korcz stated that in August "her attitude" changed. As pointed out, it is apparent from this record that it was not Briggs' attitude that changed, but rather it was Respondent's attitude toward Briggs that changed as they viewed her as being one of the instigators for the Union. Evidence of Respondent's viewing her in this fashion occurred after Briggs had visited various stores, including an S. E. Nichols store in New Hartford. She was confronted by Brecker and Korcz a few 19 In its brief Respondent also maintains that Donna Briggs, Yolanda LaPorte, Florence Shaffer, and Betty Vitullo were terminated December 23, 1975, as a part of a reduction in force after the Christmas rush, and further, weeks prior to the election and Brecker then told her she was suspected of soliciting for the Union in other stores in the area. On or about December 10, Briggs was getting ready to go to lunch and was asked by Korcz to attend and start working at a cash register. Briggs replied it was 3 minutes of 12 and her lunch period was from 12 to 1. Korcz states he then told Briggs to open the cash register as it was 5 minutes to 12, but Briggs hesitated before she opened up her register. Korcz then made the assertion that the hesitancy which he complained of was the fact that it took her "a couple of seconds" to walk from where they were talking to her register, and for this he issued the first written warning Briggs ever received during her entire employment with Respondent. It becomes increasingly evident, and I find, that her union activities were the real motivation which triggered the discharge, and by doing so the Respondent again violated Section 8(aX)(1), (3), and (4) of the Act. Yolanda LaPorte starting working for Respondent in November 1972. She signed a union card, attended various union meetings, and solicited an employee to join the Union. As pointed out, there can be no doubt that Respondent was aware of her activities and support on behalf of the Union. On July 19, she was interrogated by Supervisor Smoulcey as to whether she had signed a union card, as aforestated, and LaPorte then admitted to him that she had signed a card. LaPorte also refused to sign the antiunion petition presented to her on the first occasion in July, but subsequently did sign one in hopes she would then be left alone. Supervisor Smoulcey testified that LaPorte had a lot of merchandise without charge-backs, that he had asked her about them, and he relied on her promise to take care of them. Korcz testified that when annual inventory time came around, December 10, the charge-backs had not been taken care of and as a result she was written up for this. Korcz further stated that her attitude also changed and uncharacteristically so in view of her past performance; he said that she threw away a fluorescent bulb on which a claim was to be filed in order for the Company to get credit, and this again exhibited a change in attitude toward her employer. Although LaPorte had been asked to work Sundays and had worked them in every prior year of her employment, she was not asked to so work in 1975, as aforestated, even though she spent about 75 percent of her time operating a cash register. After not being allowed to work Sundays, LaPorte also filed an unfair labor practice charge included in an amended complaint and served on Respondent on December 10, and on or about this same date Korcz issued her a warning letter relating to the accumulation of charge- backs, despite the fact that Supervisor Smoulcey had given her 2 weeks in order to write up these charge-backs. After receiving this warning letter she was then given assistance on her cash register which then enabled her to write up the charge-backs. LaPorte said that at the time of her discharge that between 18 and 20 employees were terminated in the reduction of work force between December 22 and 24. 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on December 23, most all of the charge-back merchandise she had written up was still in the stockroom. On December 13, LaPorte received a second written warning and this time for throwing away a broken lightbulb. This was the second warning she received since Respondent was served with the amended complaint 3 days earlier, as aforestated, and was the second warning she had received during her entire employment with Respondent, as prior to December 10 she had never received any warnings. As pointed out, even clearer indication of the hostility harbored toward LaPorte by the Respondent is found in the elimination of commissions paid to her for the sale of lamps, which she had received since May when she began working in department 13. On December 1, LaPorte was informed by Smoulcey that she was no longer to receive commissions for such sales as a result of Korcz' orders. On cross-examination, among other statements, Korcz testified that LaPorte could have received commissions, that the commissions could have ceased on December 1, and that he might have stopped them. Korcz then went on to say he remembered telling Smoulcey that, if commissions were being paid on lamps, it was to be stopped as it was an error. He concluded his testimony regarding commissions on lamps by saying, "I would imagine he was paying them." 20 I am in agreement that the warning letters issued to LaPorte were merely an attempt to build a record against her, and Respondent violated Section 8(a)(l), (3), and (4) in its actions towards her as alleged in the complaint. Florence Shaffer has worked for Respondent since August 1974. She signed a union card, attended union meetings, including the July 29 meeting which Mazzola also attended, and solicited an employee to sign a union authorization card. Korcz testified at the hearing that Shaffer was not retained because of her dispute with Supervisor Barton, and that she was sullen and uncoopera- tive, so he transferred her to another department. It appears that the only specific complaint against Shaffer was a customer to whom she refused to issue a receipt and, on November 10, during store hours and in front of customers, when she executed some sort of a dance around her cash register. As previously detailed herein, Respondent aimed one of its most coercive actions of its antiunion campaign toward Shaffer when it sued her for $50,000. However, Respondent was not satisfied with this, but continued its unlawful pattern by also terminating Shaffer on December 23, after having previously failed to schedule her to work Sundays, as aforestated. Shaffer had never been laid off before, and once again there is no adequate explanation why Shaffer was fired. Korcz' only explanation appears to be that one day in November she "was dancing around the register," and that her attitude had changed as evidenced by a customer complaint. Prior to November, Shaffer had never received a warning and, as pointed out, if Shaffer did in fact receive a warning for dancing in November (it has not "I On December 23, Korcz merely informed LaPorte that she too was being laid off because of seasonal cutbacks. Again, had the other reasons now given as a basis for the discharge had any validity, it is highly likely they would have at least been mentioned to her on December 23. 21 Other cases wherein S. E. Nichols has been involved are: S. E. Nichols- Dover, Inc., 159 NLRB 1071 (1966). enfd. 374 F.2d 115 (C.A. 3, 1967); S. E. been placed in the record), that certainly is not justification for being discharged. It is readily apparent from this record that Shaffer was discharged in violation of Section 8(a)(1), (3), and (4) of the Act, and I so find. It is further pointed out that numerous employees with less seniority than Shaffer, LaPorte, Briggs, and Vitullo were not discharged and continued their employment at the end of the 1975 Christmas season. Of the approximate- ly 68 employees on the Respondent's January 10, 1976, payroll, more than half had less seniority than Vitullo, LaPorte, and Briggs, and about 30 employees had less seniority than Shaffer. This record and the exhibits reveal that approximately 20 employees who had been part-time people in November were not discharged and were still working in January 1976 (see G. C. Exhs. 41 and 42). It would appear, as further detailed, that Respondent, in relation to Shaffer, Vitullo, Briggs, and LaPorte, is again attempting to utilize a defense which the S. E. Nichols' chain of stores has unsuccessfully tried to use previously in a similar case. In S. E. Nichols-Dover, Inc.; Spencer Shoe Corporation and IMA C Food Systems, Inc., 167 NLRB 832, 835 (1967), Nichols claimed it laid off two employees as a result of its normal Christmas layoff and because one of the employees had a bad attitude. Administrative Law Judge Boyd Leedom set forth reasoning which fits into the pattern followed in the instant case. He stated: The reasons given her by management personnel were vague and inconsistent; and the reason for her discharge that seemed to emerge from the evidence offered in behalf of Respondents at the hearing, that is that she was let go as a part of a normal reduction in force following Christmas hirings to meet the Christmas increase in business, is wholly unpersuasive. She had not been hired for the Christmas rush and employees of much less service in the store were retained when she was discharged. Likewise the reason given her at the time of her discharge that she was being let go because of "incompatability" and again by other representatives of management that she was let go because of "bad attitude" are completely devoid of substance and appear to be only a word and a phrase seized upon as excuses to avoid acknowledging that she was being discharged because of her union activity. 2l It is also alleged that Respondent discriminatorily discharged Edward Aubert on April 8, 1976. Aubert testified at the first hearing before me in January 1976 and related a number of conversations with Respondent's supervisors and agents in which those individuals made statements violative of Section 8(a)(1) of the Act, as aforestated. The General Counsel contends that Aubert's real difficulties began after he so testified, and from then on Manager Korcz would no longer make "small-talk" with Aubert as had been his past practice. Aubert had worked at the Respondent's store in Marcy for about 5-1/2 Nichols Company, el al., 156 NLRB 1201 (1966), enfd. in part 380 F.2d 438 (C.A. 2, 1967); S. E. Nichols of Ohio, Inc., 195 NLRB 939 (1972), enfd. 472 F.2d 1228 (C.A. 6), contempt proceeding now pending before a special master; S. E. Nichols Shillington Corp., 195 NLRB 189 (1972), enfd. 475 F.2d 1395 (C.A. 3, 1973), cert. denied 414 U.S. 860 (1973), consent contempt adjudication entered January 15, 1976. 86 S. E. NICHOLS MARCY CORP. years, and during his last 7 months was in the receiving department. The record shows that on February 6, 1976, Aubert received a shipment of Hershey's candy. The delivery driver placed the boxes on the conveyor leading to the storeroom, and Aubert then stacked the boxes 3 high and in 11 rows. The driver and Aubert both counted the boxes, and Aubert signed the freight bill and the delivery driver left. Aubert then had Supervisor Lawrence Barton count the number of cartons or boxes and he gave Barton the tally. At this time Aubert left for lunch and was gone for about 1 hour. About 15 minutes after Aubert returned from lunch, Korcz approached him and asked why he had signed for 33 boxes of candy when there were only 32. Aubert assured Korcz that there had been 33 boxes when he left for lunch and said that something must have happened to the missing box while he was gone, but Korcz would not accept this explanation, and told Aubert that he was tired of his excuses. On February 9, 1976, Aubert was summoned to the office. When he arrived Korcz told him that he was being given a written warning for the box of candy that was missing, and for his failure to promptly send out a watch on a charge-back. Aubert replied that he had never seen the watch before, but Korcz told him that Barton had found the watch underneath Aubert's desk, and that he wanted charge-backs to go the same day they were received. Aubert then referred to the candy situation and told Korcz that he would have known if the box of candy was missing since he had stacked them in 3 rows of 11 boxes and both he and the driver had counted them. A week or so later Aubert informed the truckdriver who had initially delivered the Hershey candy that he had received a warning slip over the shipment, and the driver involved then told Aubert that his employer had extra cartons of candy and he would get one of them, but it would take a while to do so. Within a few weeks the driver replaced the missing carton of candy and Aubert then informed Barton that the driver had brought in the candy that was short, and Barton replied that he didn't care how Aubert got it "so long as he got the right number of cartons." On or about March 1, Korcz questioned Aubert concerning a tally of hardware distributions that had been made out for 18 cartons instead of the 17 cartons which the freight bill indicated. In his testimony Aubert conceded that he may have made a mistake, but stated that employees in the home center department, who had actually received the shipment had not marked off the freight bill properly to reflect the shortage of goods. Nevertheless, Korcz told Aubert it was his responsibility and then proceeded to give Aubert his second written warning. Korcz also informed Aubert that he would be terminated for his next mistake, that they would be watching for it, and that Aubert would not be able to collect unemployment if he received another warning. On March 2, Aubert had a conversation with Supervisor Smoulcey, the one who had actually received the hardware distributors and signed the freight bill for them. On this occasion Aubert told Smoulcey that it was not his fault that 22 On March 3, 1976, Aubert filed charges with the National Labor Relations Board over the two written warnings he had received. he had been written up, and Smoulcey then replied, "I know what they're doing but there's nothing I can do about it." 22 On March 8, Assistant Manager James Warden asked Aubert if he had filed charges against Korcz with the Board. Aubert admitted that he had, and then told Warden that Korcz had left him no choice, and that "when a rat gets cornered, he fights back." The next main event in sequence occurred on April 7, 1976, when Aubert received a shipment of 35 cartons of Wyler's soft drink mix, and 70 cartons of Kool-Aid. Aubert and the truckdriver counted the cartons while they were on the truck and another employee took the pallets off the truck with a towmotor. When the truck had been unloaded Aubert and the driver again counted the cartons and again came out with the result of 35 cartons of Wyler's and 70 cartons of Kool-Aid, and Aubert signed the driver's freight bill and the driver left. Aubert then went to the receiving room to make space for the cartons, and after that was accomplished placed the cartons on the conveyor, and then stacked the cartons as they arrived in the receiving room. The following morning Korcz informed Aubert that employee Edie DeLong had found the above shipment of soft drinks one carton short when she checked it in, and told Aubert to go back and count the cartons. Aubert then found out that there were 34 boxes of Wyler's stacked in the receiving room (only 104 counting the 70 cartons of Kool-Aid), and accordingly, informed Korcz that there was one carton missing. Aubert offered to contact the shipper to try to obtain another carton, but as Korcz was leaving the receiving department, he said to Aubert "when a rat gets cornered he fights back." Aubert then called the shipper and thereafter informed Korcz that they were to make the proper notation on the freight bill when it came in. However, about 30 minutes later Aubert was called into the conference room, and at this time Korcz read the two prior warnings that had been issued to him, and then informed Aubert "that the National Labor Relations Board wasn't running the store, Amalgamated Meat Cutters wasn't running the store, that Nichols was running the store and he would do what they tell him. They paid his paycheck." Korcz also then again stated, "When a rat gets cornered he fights back," and further told him that he wouldn't be able to collect unemployment. After this termination conference Aubert left the store. In addition to testifying against the Company in January 1976, Aubert had also signed a card for the Union, and in July 1975 had been subject to numerous and repeated interrogations and offers by supervisors and agents of the Respondent, as detailed earlier herein. In its defense and arguments the Respondent points out the following: That there had been no union activity since the election; that Aubert was not an active organizer and he constituted no threat to the employer; that, in March, Korcz assigned Assistant Manager Abramezyk to work with Aubert for a few days and to help him in his duties; that the receiving clerk is an extremely important employee and must be alert, accurate, and scrupulously honest, and if Aubert reported a full shipment and it was short, the 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company would have no knowledge of it unless it was discovered by the inaccurate method of matching invoices with inventory and sales; and that at various times Aubert was careless in his procedures and refused to mend his ways, and on several prior occasions Korcz had spoken to Aubert about his shortcomings.23 Aubert's first warning was given to him because he was supposedly short one box of candy and because he did not send out a watch on charge-back. First of all I will consider the candy situation and circumstances. Aubert gave credited testimony to the effect that both he and the truckdriver counted 33 boxes of candy, and further testified he had stacked the boxes in II rows of 3 each. Thus, if there actually had been a box missing it would have been obvious to him when he was stacking them. Aubert also credibly testified that he then had Barton count the number of boxes and he gave Barton the tally before going to lunch. Thus, it seems clear that there were, in fact, 33 cartons of candy in the receiving room before Aubert went to lunch. With regard to the watch, Aubert testified that he had never seen the watch before, as aforestated. Moreover, Korcz seemed to have had some difficulty remembering where he found the watch. Thus, on direct examination he testified that he found the watch on Aubert's desk, whereas on cross-examination he testified that he found the watch under Aubert's desk. Aubert testified that he was told by Korcz that Barton found the watch under his desk. Moreover, according to Korcz, the watch was brought to Aubert's desk on January 29 and found by him, undeliv- ered, on February 9. Korcz also testified that he ordinarily rummaged around Aubert's desk "maybe several times a week." The General Counsel argues that if this was true, why did it take nearly 2 weeks for Korcz to find the watch? It appears to me that Aubert received his second written warning on March I because he merely overlooked an improper notation on the freight bill in making out his tally, and the individual in the home center department who had received the goods was the one who did not make the proper notation on the freight bill, but, despite the fact that it was the home center department that caused Aubert's tallying error, it was Aubert who received the warning. I also agree that the issuance of this warning seems especially suspicious in light of Korcz' testimony that, since January 1976, the only written warnings issued to anyone at the store were those issued to Aubert. As pointed out, it is not as if Respondent had a policy of handing out written warnings for minor mistakes, but, to the contrary, it obviously had such a policy only when the recipient of the warning had testified in a Board proceed- ing or engaged in other activity protected by Section 7 of the Act. Turning now to the events and circumstances surround- ing the 35 cartons of Wyler's soft drink mix. Both Aubert and the truckdriver testified that they had counted 35 boxes of Wyler's, not once, but twice on April 7. Yet, by the morning of April 8, there were only 34 cartons. From this record it can be surmised that Edie DeLong supposed- ly informed Korcz of this "missing" carton sometime 2' Korcz testified that, prior to January 1976, he had verbally told Aubert to pay particular attention to merchandise coming in and if a before 2 or 2:30 p.m. on April 7, and Aubert did not finish work that night until about 5:30 p.m., but Korcz did not confront Aubert until he punched in for work the following morning. From these circumstances the General Counsel maintains that if there really had been a "missing" carton and DeLong had actually informed Korcz of it around 2:30 p.m., why did Korcz then wait until the following morning to confront Aubert with this fact? The record reveals that both Aubert and the truckdriver had counted the merchandise while it was still on the pallet, but Korcz maintained in his testimony that the cartons should not have been counted while they were on the pallet since the cartons could have been stacked on the pallet in such a way that the absence of a carton was concealed. However, Aubert and the truckdriver both testified that they were stacked on the pallet in five layers of seven to a layer, and the truckdriver, James Inman, testified that the seven boxes to a layer formed a perfect square on the 4' x 4' pallet, such that if a carton was missing it would be visible. Finally, on cross-examination, Korcz testified that Aubert was with him when they unloaded palletized shipments so he knew the procedures but then admitted he had never specifically instructed Aubert not to count merchandise on the pallet. I am in agreement that the only conclusion which can be reached from the credited testimony is that something happened to the 35th carton after Aubert had counted and stacked it. The General Counsel argues that it would surely not be surprising if Respondent's supervisors and agents were responsible for its disappearance. As pointed out, Aubert may not have been a model employee, but surely any glaring fault or deficiencies in his work would have surfaced during his 5-1/2 years with the store. Aubert openly admitted that he had been short in receiving in the past and has also made errors in his tallies. Yet, he had never been told that these mistakes would result in formal discipline. In fact, as recently as the beginning of January 1976, prior to Aubert's testifying in this proceeding, when he informed Korcz of a tallying error he had made, Korcz told him: "Don't worry about it. We're all human. We all make mistakes." Thus, in spite of these admitted faults, Respondent continued to employ him and, in fact, never even issued him any formal discipline - not until he was openly identified with the Union, as detailed previously herein. Moreover, Respon- dent's motivation for the warnings and termination, also pointed out, was amply demonstrated by Korcz when he twice repeated to Aubert at the time of Aubert's termina- tion the ditty that Aubert had told Supervisor Warden: "When a rat gets cornered he fights back." It also seems suspicious that when Aubert was being discharged, Korcz attempted to justify his action by asserting that neither the Board nor the Amalgamated Meat Cutters was running his store, and then followed this assertion with the "rats fighting back" remark. In his final analysis, the General Counsel presented a strong argument; he stated: shipment was short or damaged to note it on the freight bill as this was the only way he would know about it. 88 S. E. NICHOLS MARCY CORP. Aubert had never received a written warning in over 5 years of employment with Respondent prior to his testimony in this case on January 22. Then, inside of 2 months, he received three written warnings and was terminated. And, according to Korcz, these were the only written warnings issued by Respondent between February and June 22, 1976. Given the mysterious circumstances surrounding the issuance of these warn- ings, the timing of the warnings, and Respondent's prior history of retribution toward those of its employ- ees who exercised their Section 7 rights, it strains credulity for the Respondent to argue that Aubert's discharge was for work-related reasons. Respondent also agures that, at the time of Aubert's discharge, there were no union activities and the election had been over for several months, as aforestated. However, this overall record exemplifies that in many instances, as detailed herein, management continued and even intensi- fied many aspects of its antiunion campaign, including discharges, after the election, and obviously Korcz was also well aware of the persistent and continued interest in the Union since he mentioned in a store meeting in late 1975 that the "diehards" in the store would not let the Union die. It is readily apparent to me that Aubert was discharged on April 8, 1976, in violation of Section 8(a)(1), (3), and (4) of the Act, and I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below designed to effectuate the policies of the Act. It having been found that the Respondent discriminato- rily discharged Donald L. Armstrong, Michael Hardiman, Carvel K. Ogden, Brenna Olmstead, Ramona Overrocker, Betty Vitullo, Donna Briggs, Yolanda LaPorte, Florence Shaffer, and Edward Aubert, I shall recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they would normally have earned from the date of their 24 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. discharges, less net earnings during said period. All backpay provided herein shall be computed, with interest on a quarterly basis, in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Further, I shall recommend that Yolanda LaPorte, in addition to her backpay as provided above, also be immediately restored to the commission payments for the sale of items in department 13, as had been the practice prior to the discrimination against her, and be made whole for all such commissions and moneys lost from the date of such discrimination against her. As to the nonscheduling of Sunday work from November 2, 1975, to the end of the 1975 Christmas rush period, I shall recommend that Betty Vitullo, Donna Briggs, Yolan- da LaPorte, and Florence Shaffer, in addition to the above, be made whole for such loss of 1975 Sunday earnings by paying them the difference in the hours they worked on the Sundays during a comparable period in 1974. The exact amounts due each of them can be determined in a backpay proceeding if the parties are voluntarily unable to agree. In view of the nature and extent of Respondent's unfair labor practices, I deem it necessary, in order to effectuate the policies of the Act, to recommend a cease-and-desist order couched in broad terms to prohibit any violations of employee rights under the Act. CONCLUSIONS OF LAW 1. 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 interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, as detailed herein, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX 1) of the Act. 4. By discharging, refusing to employ, laying off, or otherwise discriminating against them because of their union activities, or because they have filed charges or given testimony under the Act, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (4) 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. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 Respondent S. E. Nichols Marcy Corp., Marcy, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 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. 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discouraging membership in the Union, or any other labor organization of its employees, by discriminating against them in regard to their hire and tenure of employment or any terms and conditions of employment. (b) Discharging, refusing to employ, laying off, or otherwise discriminating against employees because of their union activities, or because they have filed charges or given testimony under the Act. (c) Interrogating employees as to their own and other employees' union activities. (d) Enlisting and soliciting employee signatures on antiunion petitions. (e) Enlisting and soliciting employees to withdraw union authorization cards. (f) Promising to improve benefits or working conditions. (g) Promising to reward employees for engaging in antiunion conduct. (h) Soliciting employees to engage in surveillance and/or creating the impression of surveillance. (i) Threatening employees with discharge or other reprisals because of union activities. (j) Threatening or warning employees that management would find out who had signed union cards. (k) Interrogating employees as to their affidavits and directing employees to obtain copies of same. (1) Instituting and/or threatening court actions against employees because of their union activities. (m) Barring employees from the store premises. (n) Discontinuing commissions because of union activi- ties. (o) Issuing written warning letters because of union activities. (p) Refusing to schedule Sunday work for employees because of their union activities. (q) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: 25 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 (a) Make whole the 10 employees named herein for any loss of earnings they may have suffered by the discrimina- tion against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Make whole Yolanda LaPorte for loss of commis- sions as provided in the "The Remedy." (c) Make whole Betty Vitullo, Donna Briggs, Yolanda LaPorte, and Florence Shaffer for loss of Sunday earnings in 1975, as provided for in "The Remedy." (d) Revoke and rescind the written warning notices or letters issued to Brenna Olmstead, Ramona Overrocker, Yolanda LaPorte, Donna Briggs, and Edward Aubert, and expunge such documents from Respondent's files. (e) Withdraw and dismiss the slander or any other judicial proceeding instituted against Florence Shaffer, and remit any damages collected and pay any and all legal and court expenses or costs suffered by Florence Shaffer as a result thereof. (f) 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. (g) Post at is store in Marcy, New York, copies of the attached notice marked "Appendix." 25 Copies of said notices, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 90