Eagle Discount Supermarkets, Lucky Stores, Inc.

1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eagle Discount Supermarkets , Midwestern Food Di- vision, Lucky Stores, Inc. and United Food _ and Commercial Workers Union Local No. 1540, United Food and Commercial Workers Interna- tional Union, AFL-CIO. Cases 13-CA-22302 and 13-CA-22507 21 August 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS, HUNTER AND DENNIS On 12 September 1984 Administrative Law Judge James M. Fitzpatrick issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, the General Counsel filed exceptions and a supporting brief and the Respondent filed a brief in answer to the General Counsel's excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge determined that the Respondent vio- lated Section 8(a)(3) and (1) of the Act' by termi- nating Richard Pawlish because he asserted rights under the collective-bargaining agreement, by de- nying Judi Ryan her right to have her union repre- sentative present during an investigatory interview, and` by suspending and terminating Ryan because she sought union assistance in securing her rights. The judge also dismissed allegations that the Re- spondent unlawfully discharged three cashiers. We agree with the judge's determination that the termi- nation: of the cashiers was lawful. However, we do not adopt his findings of violations with respect to the Respondent's treatment of Pawlish and Ryan. Accordingly we shall dismiss the complaint in its entirety. As fully described in the judge's attached deci- sion, the Respondent acquired several grocery stores from another retail chain, Kohl's, I May 1982. The employees working at these stores were represented by the Charging Party Union. As part of the transfer of ownership 'agreement , the Re- spondent and the Union agreed to the continued ef- fectiveness of most terms of the collective-bargain- ing agreement, with the exception, inter alia, of just The judge inadvertently omitted from his conclusions of law that he found the Respondent's actions to have violated Sec 8(a)(3) as well as Sec 8(a)(1) of the Act However, it is clear from the remainder of his decision as well as the remedy that he intended to find such violations cause for discharge provisions during a 30-day pro- bationary period for all store personnel. During this probationary period termination was within the sole discretion of the Respondent. Of approximate- ly 450 employees affected by this transfer of own- ership about 40 were terminated under the proba- tionary plan. x, t Richard Pawlish Paw'lish worked for Kohl's= at its Schaumburg lo- cation for over 3 years at the time -of the Respond- ent's takeover. He was a part-time stocker . He nor- mally worked 3 hours during 3 or 4 evenings per week and had the most seniority of any stocker in the store. In January 1982 Pawlish acquired a full- time job and worked 5 days a week for another employer, but retained his part-time position with Kohl's. According to the credited testimony of Pawlish's supervisor, Pawlish's work performance began to deteriorate when he began the full-time employment . Taylor often had to urge Pawlish to quicken his pace of work and, when he failed to complete his normal work load, Taylor had to finish his work for him. During the week of 3 February 19822 Pawlish was scheduled for only 11 hours.- The contract pro- vided that part-time employees were entitled to a minimum of 12 hours per week . Pawlish com- plained to Assistant Manager Kulakowski who was in charge of scheduling . He told Kulakowski that if he were not assigned more hours he would exercise his contractual bumping rights to get additional hours from more junior employees . Kulakowski re- sponded that if Pawlish insisted on obtaining more hours he would arrange the schedule so that Paw- lish was given hours that were incompatible with his other job and then fire him for failing to comply with the schedule . The following week Pawlish was scheduled for no hours at all. He and his union representative conferred with store man- agement about this and Pawlish claimed hours to which he was entitled under the contract. A few days later an employee with less seniority than Pawlish was called in to work despite the contract provision requiring that the most senior available employee (Pawlish) be called . The Union' filed grievances over these matters and they were suc- cessfully resolved. After the takeover of the store by the Respond- ent store management' reviewed all employees 'to determine who should be retained beyond the pro- bationaryperiod and who should not. On 14 May Pawlish's store manager, Hollis, met with other Schaumburg supervisors to discuss employee per- 2 All dates hereafter refer to 1982 unless designated otherwise 275 NLRB No. 204 LUCKY STORES - formance. Hollis excused Kulakowski from'. the meeting when Pawlish was discussed because he knew that there had been -problems between the two of them in the past. Taylor. and other supervi- sors evaluated Pawlish as a slow worker and noted that his limited, availability, coupled with his desire to obtain additional hours as ' his outside 'work schedule allowed, created difficulties in formulating workable weekly schedules. Taylor --emphasized that Pawlish -continually failed to complete his tasks during his regular shift and recommended that he not be retained. On''18 May Hollis spoke with the Respondent's district manager Cress about the Schaumburg employees. Hollis testified-that he recommended - against 'Pawlish's continued employ- ment and that he cited inconvenience caused by Pawlish's method- of claiming hours, his limited availability for work, and the-slow pace of his per- formance. On 26 May Cress decided who would remain working for the Respondent at Schaum- burg.' He accepted Hollis' recommendation to ter- minate Pawlish. On 27 May Hollis ' told Pawlish that he would not be retained. Pawlish asked him whether this decision was'based on the fact that he had another job and Hollis replied that that was part of-it. The next day when Pawlish picked up his final 'paycheck Hollis asked what he was going to do about being fired. Pawlish said that he was going to fight it whereupon 'Hollis advised him against it. While rejecting the General Counsel's argument that the Respondent's asserted' reasons for terminat- ing Pawlish were pretexts the judge determined that Pawlish's 'discharge was motivated in signifi- cant part because he had claimed his contractual rights for additional hours during his employment with the Respondent's predecessor. Under this mixed motive 'analysis the -judge found that the scheduling problems which' arose between Pawlish and Kulakowski during 'February continued to affect store management's view of Pawlish so as to taint its evaluation and' recommendation ' to Cress. He concluded that this 'unlawfulI motive-retalia tion. for Pawlish's having exercised contract, rights with his prior employer-was, admittedly the-pri- mary reason for the termination as revealed by the reference to Pawlish's "unavailability" as leading to the discharge. The judge interpreted "unavailabil- ity." to encompass the scheduling disruptions which ensued whenever Pawlish .found' that his outside work-schedule permitted extra time to work at his part-time position. The judge then reasoned that the other proffered reason-slowness resulting in productivity problems-was less important and would not alone have led to his dismissal. 1439 We disagree with the judge's analysis. We find that the evidence does. not establish 'a prima -facie case of unlawful discharge. Although Pawlish as- serted contractual rights to obtain additional hours from his former employer during February, and while this may have antagonized Kulakowski, there is -no basis for imputing unlawful retaliatory moti- vations upon the Respondent's actions some 3 months later. The remoteness in time between Pawlish's exercise of protected activities and his termination, plus the removal of Kulakowski from the supervisory meeting when Pawlish was being discussed, demonstrate that the Respondent should not properly be found to have acted unlawfully in dismissing Pawlish. There is no evidence of union animus on the Re- spondent's part. The Respondent and the Union agreed to continued recognition and to the applica- tion of most aspects of the existing collective-bar- gaining agreement when the ownership of the stores changed. Part of their agreement was that the Respondent could dismiss personnel at its dis- cretion during a 30-day probationary period, there- by lifting requisites of just cause for discharge and the use of a progressive disciplinary system. How- ever, the record shows no wholesale terminations of union members or activists during this period nor is there any evidence to indicate that- the Re- spohdent endeavored to rid itself of the Union as a 'bargaining partner. The only animus which might have existed was limited to a personally fractious relationship between Pawlish and Kulakowski, the effects of which were alleviated by virtue of Hollis' removal of Kulakowski from participation in the probationary evaluation of'Pawltsh. . In addition, Pawlish's other supervisors com- mented unfavorably regarding his performance. Credited testimony establishes that Pawlish's per- formance and productivity deteriorated at the time he began working a full-time outside job. Taylor noted that he repeatedly urged Pawlish to step up his pace, but that Pawlish's response was merely to 'allude to the long` working hours which.,-he was -facing (due to his full-time job) and continue to 'leave much work undone at the end of his shift. Based bn the foregoing we conclude that the tenuous link between' Pawlish's assertion of con- tract " "rights and his "subsequent dismissal fails to support a prima facie case of a violation ' of the' Act. We reverse-the fudge's finding 4'A' violation., Judi Ryan Ryan began working for Kohl's in 1977. By March 1979 she attained the position of deli man- 1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . ager3 of the Hanover Park store , a position she held until that store closed late in 1981 . Following the closing of that store Ryan 's placement was the subject of dispute, with a permanent assignment re- maining unsettled until February 1982 when certain grievances were resolved in Ryan's behalf., Ryan was on maternity leave from mid-February until August 1982 . During her absence the Respondent acquired ownership of the store's in which Ryan had worked and her assignment upon her return was again the subject of controversy. Ryan again grieved the issue . On 11 August Ryan-began work- ing at the Glen Ellyn store under Manager Peters- dorf. She was subject to a 30-day probationary period. - Scheduling arose as a problem almost immediate- ly. Ryan told Petersdorf that her child care respon- sibilities made it inconvenient for her to have to open the deli in the mornings. Petersdorf agreed to keep her situation in mind when arranging the schedule . Ryan was not scheduled to work on 12 August and was_ out sick on ' both 13 and 14 August . When she returned to work and saw the posted - schedule Ryan objected to the number of successive workdays she was given . The schedule was then revised . On 19 August Ryan again raised objections to the following week 's schedule. This led to Petersdorf asserting that she would have to abide bythe schedule and Ryan threatening to take her problem to the 'Union. On •20 August Ryan worked until . 9:30 p.m., one- half hour past her scheduled quitting time , because she was tied up with a late customer. Ryan did not put the deli in good order before she left. When Petersdorf arrived the next morning he discovered that the deli case was in disarray , some ' unwrapped cheese was left out on the counter , and the refrig- erator door was ajar . When Ryan came in to work Petersdorf gave her a written reprimand about the condition of the deli. The writeup contained ad- monishments about Ryan 's poor attitude and work habits. The judge rejected the General Counsel's contention that the Respondent's issuance of 'the written -reprimand was unlawful retaliation for Ryan's threatening to seek the Union 's assistance in her scheduling dispute. He concluded that the warning was issued solely because of the manner in which she left the deli the night before . We agree. On 24 August Ryan was scheduled to begin work at 1 p.m. At noon Ryan called Petersdorf and told him that she was unable to. get a babysit- -ter. She asked if it. would be all right not to report as scheduled. Petersdorf replied that it was not all .right in view of the difficulty he would have trying 9 Despite the title "deli manager" this was a unit position and Ryan was included within the unit represented by the Union to -find a replacement, but that if she could not come in, she could not come in. Midway through her shift on 26 August Ryan was called to Petersdorf's office. Petersdorf told her he wanted to discuss her attendance with her. Assistant Manager Kulakowski was present in Pe- tersdorf's office.4 While the evidence is not entirely clear . on the precise sequence of ensuing - events, it 'is clear that Ryan asked that she be permitted to -have a union representative present as her witness and that Petersdorf handed her a written warning concerning her absences on _13 and 14 August and her having called off work on short notice on 24 August. Ryan read the writeup but refused to sign it. 5 Petersdorf stated he would read the warning to her whereupon Ryan began to leave the room; stat- ing that she wanted her union representative present . At that point Petersdorf pointed to the, telephone on.his desk and said,. "Here, call and we can set_ up a meeting whenever you want to talk." Ryan did nothing. Petersdorf then attempted to read the warning aloud and Ryan left the office and walked down the hall . Petersdorf followed her, reminding her that he was her boss and that it was important that they talk: He told her she could either return to his office or punch out and leave. Ryan followed Petersdorf back into his office. Pe- tersdorf attempted unsuccessfully to have her read the warning or to listen to him read it to her. At that point Petersdorf told her to punch ' out and that' she was suspended . Petersdorf called District Manager Cress about what had, happened. Upon Cress's instruction Petersdorf telephoned Ryan later that day and told her she was fired. The judge determined that the Respondent vio- lated Ryan's Weingarten6 right to ' have a represent- ative present at an investigatory interview which she reasonably believed would result in discipline. He concluded further that she was suspended and discharged because she insisted upon her right to a representative and also because she had filed griev- ances during the summer of 1982 concerning her -assignment dispute . We disagree. Instead we find that Petersdorf called Ryan into his office on 26'August for the_purpose of deliver- ing to her a disciplinary writeup concerning her poor attendance and to advise ' her verbally of the necessity of improving her attendance . Petersdorf did not need or seek additional information from 4 Kulakowski was present when Petersdorf gave Ryan the warning on 21 August 5 This warning was not entered into evidence but the 21 August warn- ing was The form provided a place for the recipient to sign the warning and also a statement that a signature is not required Ryan did not sign the first warning 6 :'NLRB v J Weingarten , 420 U S 251 (1975) LUCKY STORES 1441 Ryan concerning the problem . Indeed, he was well aware of its seriousness and was taking disciplinary steps based on what he already knew to be an un- acceptable record. Because of the narrow purpose of the meeting no Weingarten rights apply. As fully stated in Baton Rouge Water Works, 246 NLRB 995 (1979), once an employer has reached a decision to impose certain discipline on an employee no Sec- tion `7' right 'to' union representation arises when a meeting is held simply to inform or to impose that discipline upon the employee . Inasmuch as Peters- dorf had reached a final determination to issue a disciplinary writeup to Ryan about her excessive absenteeism prior to calling her into his office and delivering the writeup was, the purpose of the meeting, we conclude that Ryan's request for union representation was not within the ambit of Wein- garten. ,Accordingly, -we find that the Respondent did not violate the. Act by its conduct during this meeting. - Further, we find that the Respondent's suspen- sion of Ryan was not unlawfully motivated, but rather was in response to her insubordinate con- duct during the meeting. Ryan's confusing and contradictory behavior during this session led to Petersdorf's exasperated decision to suspend her pending his consultation -with higher authority on. what next step to take . When Cress was informed about this probationary employee 's extremely poor _ attendance record , her repeated disagreements with the schedule because . of the restrictions on her availability, and the unacceptable work habits she exhibited during the short time she had been work- ing for the Respondent, the bases for her termina- tion appear well-grounded in legitimate business in- terests. Accordingly -we conclude that the Re- spondent's suspension and discharge of Ryan during her probationary period are not violative of the Act. . • - ' ORDER - The complaint is dismissed. MEMBER DENNIS , dissenting in part. Contrary to the majority, I would adopt the judge's findings, essentially for the reasons he stated, that the Respondent violated Section 8(a)(1) and (3) by its treatment of employees Richard Pawlish and Judi Ryan. DECISION - STATEMENT OF THE CASE JAMES M . FITZPATRICK, Administrative Law Judge These cases involve five employees of a supermarket chain which sold the stores in which they worked to an- other chain under an arrangement , agreed to by the Union, whereby all employees in the transferred stores became probationary employees of the purchasing chain. Four of the five employees involved here were terminat- ed during the initial probationary period , and the fifth, who was on leave, was terminated during her probation- ary period after she returned to work. I conclude below that the first employee was terminated unlawfully be- cause he sought additional hours of work with the prior employer pursuant to the union contract . I conclude'that the second, third, and fourth employees were terminated for -valid business reasons. I conclude that the fifth em- ployee was suspended unlawfully and then terminated because she insisted on union representation ,at a discipli- nary interview and also because she threatened to seek union assistance , regarding the scheduling of her hours of work. These proceedings originated on June 16, 1982,1 when United Food & Commercial Workers Union Local. No. 1540, United Food and Commercial Workers Interna- tional Union, AFL-CIO (the Union) filed charges in Case 13-CA-22302 with the National Labor Relations Board (the Board), and filed amended charges on August 16, that Eagle Discount Supermarkets , Midwestern Food Division, Lucky Stores, Inc. (Respondent or Eagle) had committed unfair labor practices prohibited by the Na- tional Labor Relations Act A complaint based on these charges issued August 18 alleging violations by Respond- ent of Section 8(a)(3) and (1) of the Act in discharging and then failing to reinstate four employees . In its answer to this complaint, Respondent denies illegality in the dis- charges claiming (a) that the employees engaged in no protected activities related to their termination , (b) that with other probationary employees they were terminated for legitimate business reasons, and (c) that Board pro- ceedings should be deferred to arbitration under the ap- plicable collective-bargaining agreement.2 In the meantime, on August 30 the Union filed charges in Case 13-CA-22507 on which a complaint issued Octo- ber 25 alleging that Respondent violated Section 8(a)(1) and (3) of the Act when it issued a warning to another employee because she engaged in conduct protected by the Act, and subsequently denied her request to be repre- sented by a union agent during a disciplinary interview which Respondent then continued without the presence of a union agent, with the result that the employee was discharged. The complaint as orally amended at the hearing, alleges dual theories of unlawful employer dis- crimination ; (a) because the employee engaged in pro- tected concerted activities , and (b) because she was denied a representative at the disciplinary interview. Re- spondent admits the warning was issued and that the dis- ciplinary interview resulted in her discharge,. but denies it refused her request for a union representative and also denies that the warning or the discharge resulted from her having engaged in conduct protected under the Act. On October 25 the two cases were consolidated and were heard before me at Chicago, Illinois, on January 18 through 21 ,' 1983 At the hearing the interested parties ' All dates herein are in 1982 unless otherwise indicated 2 The question of whether these proceedings should be deferred to ar- bitration is dealt with hereinafter in the body of. this decision 1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and counsel were afforded the opportunity to present evidence and make arguments. Based on the entire record,3 including my observation of the witnesses and consideration of the briefs of the General Counsel and Respondent, I make the following FINDINGS OF FACT I. THE EMPLOYERS, THE UNION, AND THE TRANSFER OF STORES Kohl's Food Stores, which is not a party to these pro- - ceedings, operates a chain of retail supermarkets in Wis- consin and Illinois. -Respondent Eagle, a California cor- poration with an office at Rock Island, Illinois, also oper- ates supermarkets in Illinois and elsewhere in which it engages in the retail sale of groceries and other products and from-which it annually receives gross revenues ex- ceeding $500,000 and purchases directly from points out- side Illinois goods and services valued over $5000. Eagle is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Union, a labor organization within the meaning of Section 2(5) of the Act, represents retail' clerks employed by Kohl's as well as Eagle and has col- lective-bargaining agreements -with both concerns cover- ing clerk employees in the supermarkets involved in this case. These agreements provide, inter alia, for resolution of contract disputes through grievance procedures and through arbitration which may be sought by either party, and also provide that "there shall be no strikes,' cessation of work, picketing, boycotts or lockouts pending the final decision of any disputes 'submitted to arbitration Effective May 1, 1982, Kohl's sold to Eagle a group of eight supermarkets- in the Chicago area, 'among them markets at Schaumburg and Glen Ellyn, Illinois As part of the transfer arrangement, the two companies agreed with the Union that everyone, whether -supervisor or rank-and-file employee, employed by Kohl's in the eight stores would, without interruption in service, 'become employees of- Eagle in the same capacity as they had with Kohl's, and that the terms and conditions of the union contract would apply to them with the following conditions: all supervisors and employees transferred would become- probationary employees of Eagle for a period of 30 days, -pursuant to article 7 2 of the union contract -relating to' probationary employment by which an employer may at its discretion discharge employees during. the probationary 'period; would retain their "Kohl's" seniority within the group 'of stores for not more than 2 years and thereafter would.-have seniority within the Eagle system as a whole, and during the 2-' year period` employees of the eight 'stores would not have the right to transfer to 'other -Eagle' stores 'nor 8 The record considered does not include 'two exhibits, an affidavit of William Dzik and a brief of attorney Neal D 'Rosenfeld submitted in an unrelated proceeding in the United States District Court for the Northern District of Illinois, and which, after the record herein was closed, were offered by Respondent in the present proceeding Inasmuch as their pres- ence in this record would not affect the findings and conclusions reached in this decision, I reject them and mark them as R Exhs 17'and 18. re- spectively, to be retained.with the record herein would employees of other Eagle stores have the right to transfer to the .eight stores involved here . Based on the uncontradicted testimony of Robert James Brown, Eagle's industrial relations manager who represented Eagle in reaching the' understanding , I fihd the Union agreed it would play no, role respecting terminations by Eagle of employees in the eight stores during the proba- tionary period , and that the disciplinary rights of em- ployees under article 7.2 of- the union contract as well as the "just cause" requirements for discharge under article 15.1 of the contract would not apply during the proba- tionary period.. Pursuant to.this arrangement , approximately 450 per- sons employed by, Kohl's -were transferred to Eagle as probationary employees -Of these, 310 survived proba- tion with Eagle and about 40, including the 5 involved in these proceedings , were terminated . The final determina- tions as to which employees to keep and which to let go were made by the Eagle district managers in the two dis- tricts in which the supermarkets were located , and were based upon the recommendations of the managers of each store. In the case of the Schaumburg and Glen Ellyn stores, these final decisions were made by Eagle's district manager Ronald Cress. . - IL. THE, ISSUE OF DEFERRAL TO, ARBITRATION Respondent here apparently urges deferral to the arbi- trable process under the collective-bargaining agreement. In its answer to the first complaint (13-CA-22302) in- volving four employees in the Schaumburg stores, Re- spondent - asserts, "This complaint should, be -deferred to the arbitration remedies in the labor contract, between Eagle and the - Charging Union." In answering the second complaint (13-CA-22507) involving the Glen Ellyn store, Respondent does not raise the deferral issue, but in its posthearing brief 'it inferentially does, stating, "In conclusion, Eagle submits that, in the absence of the uncontested agreement for probationary status, these dis- charges apparently referring to both cases would have been resolved by arbitration Perhaps the Union was em- barrassed before its membership by the agreement. In any event, an unfair labor practice proceeding should not be viewed as a replacement. For the reasons stated above, Eagle respectfully requests that-the complaints be dismissed." Requests to defer to the arbitrable process are incon- sistent' with the understanding between the companies and the Union that the grievance' and arbitration proce- dures of the contract would-be' inapplicable to-the proba- tionary employees: Article XVI'of the collective-bar- gaining agreement allows either employer or union to seek arbitration,: yet Respondent has not sought arbitra- tion.of,these disputed discharges and has opposed union efforts to do so. Following discharge' of the employees involved in the first complaint (Case 13-CA-22302), the Union filed grievances with Eagle and sought arbitration of those terminations. In response Eagle- took the posi- tion the terminations were not arbitrable because of its understanding with the Union governing the status of the employees transferred The Union acceded to that posi- tion and withdrew the grievance and requests for arbitra- LUCKY STORES tion while reserving its contention that these employees were terminated because they had. asserted their rights under the collective-bargaining agreement Given this scenario , in which grievance and arbitration procedures by agreement are not available and neither party brings the matter to arbitration,4 Respondent's request to defer to arbitration is academic. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Pawlish Case 1 The issue Richard Pawlish was employed by Kohl' s as a part- time stocker in the' Schaumburg store from October 1978 until the store was taken over by Eagle May 1, 1982, and then by Eagle as a probationary employee until May 27, 1982, when he was discharged. Pawlish had the most se- niority of the four or five part-time stockers employed at Schaumburg. He usually was assigned to work evenings from 6 to 9, three or four evenings a week. During his 3- hour shift he was expected to-"block" all 10 aisles in the store, excluding the dairy and frozen food sections Blocking involved bringing the products to the front of. the shelf, straightening and turning them to display the front of the packages, removing cardboard, emptying containers, and overstocking items, and generally prepar- ing the aisles for the next day's business. Pawlish had been a satisfactory employee for Kohl's, as indicated by his 3-1/2 years' service without written or verbal reprimands. Nevertheless, under Eagle, he did not survive the probationary period. On May 27 Gerald Hollis, then store manager at Schaumburg, told him that Eagle did not want him to say on The issue presented here is whether he was terminated because he engaged in union or other activities protected by the Act, namely, filing grievances or claiming hours pursuant to the col- lective-bargaining agreement with the Union. The evi- dence shows he did engage in such activities and that Kohl's managers, who later became Eagle managers, knew of it. 2. Job performance Pawlish usually worked 3 hours a night on Mondays, Tuesdays, and Thursdays, and sometimes Fridays and Saturdays, all part-time work. In early- January 1982, he obtained another job which was full time and at which he worked a 10-hour day from 7 o'clock in the morning to 5 o'clock in the evening on Mondays through Fridays, making a 40-hour week for that'employer. The Kohl's job apparently then became a second job. On the nights he worked at Kohl's he reported directly from his- full- time job, working.3 hours more until 9 p:m. According to Daniel Taylor, the night manager at Schaumburg who had been there as long as Pawlish and supervised him, Pawlish's performance at Kohl's deteriorated when he got his other full-time job. He was unable to finish block- ing the 10 aisles in the 3 hours he worked, although other stockers working other nights, as well as Pawlish's replacement, completed their tasks. As a result, Taylor 4 See United Technologies Corp, 268 NLRB 557 fn 17 (1984) 1443 frequently had to finish his assignment for him Because Taylor's testimony in this regard refers to the period commencing with the acquisition by Pawlish of the full- time job, I infer- he did not have difficulty finishing his assignments prior to then. Based on Taylor's testimony I find that while they were still working for Kohl's he continually told Pawlish to hurry up, but his urgings were ineffective. After Eagle took over, he continued to tell him he was moving too slowly, but Pawlish was unable to pick up the pace. Although Taylor gave him no written warnings, and Pawlish denied receiving even verbal warnings, I credit Taylor as a responsive, forth- right witness, who exhibited no bias toward Pawlish Also, his account of slowness on the job is consistent with acquisition by. Pawlish of his full-time job after which he reported to Schaumburg By contrast, Pawlish seemed-to have a poorer recall of past events.5 3 Efforts to obtain additional hours of work Beginning in November 1981 and continuing into the following February, Pawlish sought additional hours of work from Kohl's. At that time Greg Wallner was man- ager at' Schaumburg and Thomas Kulakowski was the grocery manager or assistant manager responsible for scheduling the hours of work of grocery department em- ployees, including Pawlish and other stockers. Pawlish, who normally worked 3 hours on three or four evenings a week, preferred not to work certain times such as Wednesday, Friday, and Saturday nights. Although there is no evidence he refused ,to work these times, he did make his desires known to Kulakowski. On the other hand, he hoped to obtain daytime hours on weekends and other times when he was free, and he asked Kula- kowski for such additional hours. He testified he was not complaining but merely asking either for more hours work or that he be scheduled at different times than Ku- lakowski had scheduled him. Kulakowski usually re- sponded that he would see what he could do. But Paw- lish never' got the extra hours There is no question but that accommodating Pawlish would have involved some inconvenience for management in rearranging the sched- ule with other workers. There is also evidence that as- signing him to daytime work- would. involve tasks with which he was less familiar and might require some in- struction from supervisors I infer such instruction would be minimal in view of his experience and the absence of evidence that it would have been substantial. On Wednesday, February 3, noting that he was only scheduled for 11 hours the coming week, Pawlish asked Kulakowski to•assign him additional hours, stating that if he were not scheduled an adequate number of hours he would have "to bump" more junior employees to obtain them In taking this position Pawlish asserted rights under the collective-bargaining agreement 6 Kulakowski 5 In another connection, namely. his conversation with the store man- ager at the time he was terminated, Pawltsh's testimony varied from what he had reported in a pretrial affidavit 8 Pawlish was the most senior stocker at Schaumburg Under the terms of the collective-bargaining agreement, specifically arts VII and VIII, more senior employees were entitled to claim-working hours assigned to less senior employees Also, part-time employees were entitled to a mini- mum of 12 hours work per week . 1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened him with retaliation, saying that if he bumped other employees, Kulakowski would schedule him for days he could not come in and, if he then did not come in, he would fire him Pawlish said he did not want that inasmuch as he had just purchased a new house and did not want to be fired. Kulakowski subsequently rear- ranged the schedule for- the following week by assigning no hours whatever to Pawlish Noting this schedule posted Thursday, February 4, a fellow employee called Pawlish and informed him he was "laid off." With Union Business Agent Samuel Zunich, Pawlish then went to the store and in a conference with Wallner and Kulakowski, claimed the hours to which he was entitled under the collective-bargaining agreement. When he asked Wallner why he was laid off, the store manager answered, "No comment " On Sunday, February '7, Pawlish again was passed over in that another employee with less seniority was called in to work a total of 8 hours even though under the collective-bargaining agreement management was required to call Pawlish as the most senior employee available. Zunich filed, grievances with Kohl's covering the scheduling of hours, the "layoff," and the failure to call him in as the senior employee. These apparently were satisfactorily resolved 4 The decision to discharge Pawlish " .On May 14, subsequent "to Eagle's takeover of the eight Kohl's stores; Hollis, who had become Schaum- burg's manager about February 11 under Kohl's and continued under Eagle, met with Assistant Manager. Ku- lakowski and with Taylor and two.other grocery depart- ment. supervisors, Klepich and Marcus, who like Taylor were key carriers They reviewed all employees in the grocery department When they were about to discuss Pawlish, - Hollis asked Kulakowski to temporarily leave the meeting because he was aware of the past problems xbetween .him and Pawlish over the claiming of hours• which Hollis understood was a right set forth in the union contract. Consideration of Pawlish then continued with the others. According to Hollis, the other supervi- sors reported, "that' he was slow, not convenient to the hours we needed him, he would -unannounced to us, we wrote our schedules by, seniority, and if a senior person wanted more hours, all they had to do was let us know, you know, and we'd rearrange our schedules to fit their seniority, and Mr. Pawlish would have a habit that he would get a day off from his other job or whatever and would just claim the hours unbeknowst to us; where if he would have asked, he'would have had'them. And 9 out of 10 times it .was for a job that he' was not familiar with."' Taylor testified he reported-to Hollis'that'Paw- lish consistently failed 'to -finish his assigned' work' and recommended -he' not, be retained because-he hampered the night operation. In his own testimony Hollis agreed, with' that of Taylor that assigning Pawlish to work 'with 7 Art VIII' of the collective-bargaining agreement requires that store management post the weekly work assignments schedule by 4'p in 'off the previous Thursday, and that employees with seniority 'wishing to claim additional working hours under the agreement must make their claims within 24 hours of such posting There is no evidence, nor does Respond- ent contend, that the requests for additional work made by Pawlish were untimely under the terms of the agreement . which he was less familiar could involve some instruc- tions from supervisors which - could be inconvenient unless management had substantial lead time on such as- signments. After conferring with his assistants, Hollis determined. which employees he would recommend for retention and which for termination, and on May 18 he gave:-his rec- ommendations to his superior, Ronald Cress, manager for Eagle's District 2. He recommended that Pawlish not be retained. He testified that, 15 to 20 -percenti•ofthis'presen- tation to Cress on Pawlish involved the inconvenience resulting from his claiming additional hours of work and that he also, told him of Rich's availability, he was not available to us when we needed him . .. .. He appar- ently also told Cress of Pawlish's fatigue after -having worked all day elsewhere and his resultant slowness. Cress, who made the final decision on whether to keep or terminate, did so on the understanding that Pawlish's biggest problem was unavailability for the hours the store required him to work. As Cress understood it'from Hollis, his hours of work with his other job conflicted with the hours management wished him to-work.- Sec- ondly, there was' a problem with his 'productivity. Thus, from Cress' testimony one would believe that the first reason for not keeping him on was that the store needed him to work daytime hours when he was working on his other job. Yet no 'evidence at the store level indicates that management wanted to use him during daytime hours. He had had the other daytime job only since Jan- uary. His longtime function in the store was as a part- time nighttime blocker. Management had re sis-ted his ef- forts to claim daytime work because it was an inconven- ience to them in arranging the schedule -and because'it could involve some instruction from management. The purported reasons for dissatisfaction with Pawlish thus shifted with the level of management. On May 26, prior to the posting of work'assignments for the following week, Cress made his decision on which employees to terminate at Schaumburg. He did so without benefit of personnel files from Kohl's and chiefly on the basis of the recommendations of Hollis. As to Pawlish, he apparently had no. information from any other source. He decided to terminate Pawlish as well as three cashiers (discussed hereinafter) at Schaumburg. He informed Hollis of his decisions "and instructed him to carry them out Hollis terminated Pawlish when he re- ported for work the next day, May' 27. Pawlish asked him why Eagle did not want him to stay on and whether it was 'because of 'his `other job, and Hollis replied that that was part of it. He 'gave Pawlish a name and tele- phone number to call in case he wished to talk further with someone, saying it was not his (Hollis')'decision. When Pawlish came in May 28 ' to pick up his final .check, Hollis' handed him the check and asked him what There is no' evidence that Pawlish. refused any assignments He testi- fied that he preferred not to -work Wednesday nights, and- Friday and Saturday nights The record does not show he -.Was asked to -work •af those times Other part-time blockers worked on the- nights.when he ,did not The only specific reference in the record tot his unavailability relates to the occasion in February when Kulakowski threatened to assign him hours when he could not work and then to discharge him-for not appear- ing . , - LUCKY STORES 1445 he was going to do about being fired Pawlish replied he was going to fight it. Hollis attempted-to dissuade him from doing so, saying he did not think that would be wise because it probably would cost him money for law, yers Pawlish said, he had not realized that and if it was going to cost him money, he could not afford it and was not going through with it Although Hollis denied telling Pawlish it would cost-him a lot of money for lawyers if, he fought his case, I credit the contrary, testimony of Pawlish1because- it seems unlikely he would have invent- ed the comment Both-agree as to the balance of the con- versation. Pawlish later discussed the matter with union agent Zunich who informed him he would incur no costs; for attorneys The Union. took action by filing the charges in this case 5 Conclusions regarding termination of Pawlish The General Counsel offers a two-pronged analysis in the Pawlish, case- first, that the-,so-called business reasons relied-on by Respondent to justify the termination were in reality a pretext to cover up the true reason which was that he had earlier -engaged in protected activity and, second, the pretextual aspects of the ,matter aside, the record establishes a mixed motive situation in which valid business considerations are inadequate to overcome the prima facie case of discriminatory discharge I conclude the evidence does not establish a pretextual motive Cress himself had 'no prior personnel records on Pawlish nor is there evidence that he personally was mo- tivated to eliminate union support ers,•or. that he personal- ly knew of any union activities of Pawlish. In short, there is nothing to suggest that'Cress indulged in a pre- text. While Hollis had fuller information about the back-. ground of Pawlish, I similarly conclude that there is in- sufficient evidence that Hollis' recommendation to Cress was a pretext for eliminating Pawlish because he had previously engaged in some 'union activity. Hollis' rec- ommendation appears to have been. based- upon what others reported to him. The information from Taylor goes only to valid business considerations. Apart from' Kulakowski, there is no specific evidence about. what other assistants in the grocery department reported at the evaluation session. Kulakowski 'was excused from that session when it came to considering Pawlish, obviously because Hollis mistrusted his judgment for reasons of - bias' As Taylor testified, a great many employees had difficulty getting along with Kulakowski. Although the controversy between Kulakowski and Pawlish occurred prior to Hollis' tenure at Schaumburg, it is'clear Hollis knew there were such problems and there is no indica- tion that Kulakowski did not, inform Hollis about Paw- lish. What Hollis reported to `Cre`ss in support of his .rec- ommendation included information, from others, undoubt- edly including Kulakowski, that the claiming of hours by Pawlish caused inconvenience and perhaps extra work for the supervisors. I infer Kulakowski gave-such infor- mation to Hollis because he was responsible for assigning hours to. Pawlish and others in his . department which subject was included in Hollis' evaluation and recom- mendation. None of this shows the requisite antiunion animus for finding pretext. Accordingly; I conclude that the motivation in the discharge of Pawlish must be eval- uated under the formula of Vanport Sand & Gravel, 270 NLRB 1358 fn 2 (1984). - Using adual-motive analysis, I find the evidence estab- lishes a prima facie violation of Section -.8(a)(l) of the Act in that Pawlish was terminated in significant part be- cause .with Kohl's he had asserted rights provided under the collective-bargaining agreement. NLRB v. City Dis- posal Systems, 460 U.S. 1050 (1984), Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 49 (2d Cir 1967), Vanport Sand & Gravel There is no evidence that apart from the incident with Kulakowski in February he claimed evening hours from employees with less seniori- ty. What he sought were additional hours in the daytime on weekends or other times when he -was not engaged in his regular daytime job, and his basis for seeking such as- signments in preference to other employees was his se- niority. Whether this was fair or unfair to others, con- venient or inconvenient to the store, is immaterial He was timely in seeking changes in the schedule and was clearly operating within the framework of the collective- bargaining agreement, the bargain struck between Kohl's, and the Union. When the stores were transferred from Kohl's to Eagle, the companies. agreed with the Union that the terms-, of the collective-bargaining agreement would remain in effect, except that transferred employ- ees would be probationary for 30 days. This arrangement left unaffected the employee rights to preferred assign- ments based on seniority which Pawlish had asserted. I find the Union did not, after the fact, bargain away his right to claim hours. Absent some such specific bargain, his'rights remained protected and Eagle as successor em- ployer may not lawfully penalize him for-having ezer- cised them with his prior employer. C & R Coal Co., 266 NLRB 208 (1983); Love.'s Barbecue Restaurant No. 62 v. NLRB, 640 F.2d 1094, .1100 (9th Cir. 1981). The differ- ence between Pawlish and the cashiers Nilles, Hage- meier, and Merenda, discussed hereinafter, is that' their exercise of protected ,rights was not the,principal reason they were terminated. Inasmuch as a prima facie case„of unfair labor practice is established, it is appropriate --to examine whether other reasons considered for the discharge of Pawlish would have resulted in his termination in the absence of his pro- tected conduct. When Hollis terminated him on May 27 and Pawlish asked 'whether it- was because of his other job, Hollis indicated that was part of,.it, the inference being there were additional reasons. The other reason ac- tually considered was his slowness or, as Cress put it, his productivity. which, in his, final analysis, was a secondary reason.. The primary, reason was unavailability, which ;.Hollis defined. as not being convenient to..the hours that the store needed him -in• that after schedules were estab- dished he, would,,claim hours based on his seniority .As found, above, ,these claims were timely, under the terms of the collective-bargaining agreement. - Although Pawlish's slowness after he acquired his full- time fob was, a,.valid reason for, Eagle, not keeping him on, it was the .lesser - reason, • the- main reason being. un- availability as described by Hollis, whose recommenda- tion Cress adopted. Accordingly, I find a preponderance of the evidence does not establish that in any event Paw- 1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lish would have been 'terminated for slowness . I conclude that the prima facie case has not been rebutted -and that- in, terminating Pawlish Respondent committed an unfair labor practice.in violation of Section 8(a)(1) of the Act NLRB v. City Disposal Systems, supra; Interboro Contrac- tors, supra; Vanport Sand & Gravel, supra; see also Wright Line, 251 NLRB 1083 (1983); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). B. The Cashiers The Schaumburg cashiers involved here are Carolyn Nilles, Nancy Hagemeier, and Collette Merenda. The General Counsel contends they. were terminated because of their union or protected activities . Respondent 'con- tends it had valid business reasons for terminating them. 1 Cashiers' background Nilles had extensive experience, in the grocery indus- try, having worked since 1961 in a variety of jobs includ- ing checker, clerk in the aisles, produce clerk , night as- sistant cashier, assistant chief cashier, and, since January 1972, chief cashier. She joined the Union September 7, 1961, when she entered the industry Kohl's hired her as a chief cashier9 in October 1977, and made her ,responsi- ble for training new-checkers. She also reviewed compa- ny,,procedures, suggested some improvements,', and in 1978 set up and administered training classes for manag- ers,and supervisors : When the Schaumburg store opened in November 1978, she was assigned 'there as • head cash- ier: Hagemeier joined the' Union in 1977 when she was hired by Kohl's as a checker. By the time the Schaum- burg store opened she had been promoted to front-end manager and was assigned to that store in that capacity. Thereafter she received successive promotions by being assigned to work in the office, then as second girl in the office, and finally' as assistant cashier directly under Nilles. In this latter' capacity she at times prepared the office for opening at the beginning of the day, closed it at the end of the day, balanced checkers' tills at the end of a shift, relieved others -during 'breaks, and generally watched the front end of the store. Kohl's hired Merenda as -a checker in August 1978 and, assigned her to the Schaumburg store when it opened. She joined the Union in October 1978 In the spring of 1980 she was promoted to assistant cashier in the office. By working -together, Nilles, Hagemeier, and Merenda became good friends. 2. Security investigation' In the Kohl's system 'supervisors from time to time were shifted from one store to another 'During a period which included August 1981, Jerry Paulding. was as-: signed as grocery manager at Schaumburg , an assign- ment equivalent to assistant store manager . His uncontra- dicted• testimony indicates that two employees,-a checker and the produce manager, complained, to him, of. not re- ceiving proper credit from the office staff, which consist- The terms "cashier" and "bookkeeper" are interchangeable in the in- dustry ' - - - ed of Nilles, Hagemeier, and Merenda, `for cash or prod- ucts they believed they had handled .- These complaints indicated some mistrust of, and dissatisfaction with, the office staff. In Paulding's words, there were "some rats" in the store but he could not put his finger on the specif- ic deficiency . Subsequently , after being reassigned to other stores, - he passed ' on these feelings about the Schaumburg office staff to other store managers includ- ing Barry Sheehan of the Elmhurst store and to Hollis when he was assigned in _ February 1982 to manage Schaumburg. Paulding warned Hollis there was a clique of employees in that store. Paulding, Sheehan, and Hollis later gave their views to Cress, district manager for Re- spondent Eagle. When Hollis became manager at Schaumburg he was, with this background , suspicious of the bookkeeping and the business practices of the office staff. In mid-March, together with Donald Gabrys , Kohl's district supervisor who, over a period of 5 months , had noted above-normal overages and shortages in the Schaumburg records, Hollis set up a trap to test the bookkeeping procedures. They surreptitiously removed $40 cash from the office till of Nilles. In spite of this artificial shortage , the office books, as closed that evening by Hagemeier, reflected no shortage Five days later, on March 16, Hollis and Gabrys replaced the $40. That evening Merenda closed, yet the following morning the books appeared to bal- ance, reflecting no overage. Although it was not then ap- parent, Merenda's closing included an item of $44 which was not noted the following morning -but which subse- quently was noted by the bank where store deposits were made: Her closing therefore had taken account of the'$40 artificial overage. Because the artificial discrep- ancies were not apparent, Gabrys and Hollis requested Kohl's security division to investigate. The investigators questioned Nilles and Hagemeier on March 18 and Mer- enda on March 19, and in the 'course of their questioning they suggested the three cashiers, in collusion with each other, had maintained a "slush fund" to cover accounting discrepancies, and they asked each to submit to a poly-. graph test. Hagemeier at first agreed. Whether Nilles and- Merenda made any response at the time of request is not apparent. But the day after each was questioned, they separately informed Union Business Agent Zunich of the investigation, including 'the request to take a polygraph test, and he counseled each to cooperate fully in the in- vestigation, to'answer all questions truthfully, but not to take a polygraph test. His advice was consistent with the provisions of the collective-bargaining agreement. 10 On March 25 when, Gabrys informed Hagemeier that ar- rangements were made for her polygraph test, she with- drew her consent, telling him of the advice from Zunich and saying that she was not comfortable taking the test in view of that advice. About the same time Gabrys 'simi- larly informed Merenda that arrangements were made for her polygraph test and she also refused.to.take it be- cause of the Union's advice. On March 28 he telephoned 10 Art XIX of the collective -bargammg. agreement provided in perti- nent part, "No employee covered by this Agreement shall be required by a representative of the Employer to be the subject of a lie detector test for any reason whatsoever" LUCKY STORES Nilles at the store, informing her that the date for her polygraph test had been set and'she too refused to take it because of the Union's advice., Thus, Kohl's security in- vestigation was left without whatever input the poly- graph tests might have provided. - 3 Demotions and transfers On April `1 Hollis informed Hagemeier she was being transferred to-the' Bloomingdale store and admitted to her"thit it was because she refused-f6 take the polygraph test. That same day he told Merenda she was transferred to the Elmhurst store, also telling her he. felt it was be- cause she refused the polygraph test Both were also-de- moted and at their new stores were assigned to work as checkers 'instead of in the office. On April 9 Gabrys in- formed Nilles she was reassigned to the Glen Ellyn store as a checker, a demotion. When she refused the transfer, he sent her home to think about it, but on the advice of Zunich, she insisted on remaining in the Schaumburg store even though both Hollis and Gabrys attempted to shame her into accepting the transfer to Glen Ellyn. 4. The cashier grievances All three cashiers complained to Zunich about their reassignments and demotions and, he filed grievances with Kohl's for each, claiming violations of the collec- tive--bargaining agreement." The following Monday, April 12, Nilles was' allowed to return -to work at Schaumburg as a checker. On reporting, she informed Hollis a grievance- was being filed on her behalf and, ac- cording to her testimony which I, credit, Hollis declared Zunich was a fool to think he could do anything for her because the Company would be sold within 3 weeks. On Tuesday, April 13, she was injured on the job and from then until May 2 she was on leave because of the injury. On April 4, Hagemeier's first day at Bloomingdale, she questioned Store Manager Jerry Paulding why she was assigned to work as a checker rather than to the office. He replied he had been instructed not "to -put her in the office. When she indicated she would grieve her demo- tion as well as her transfer, Paulding, in an obvious effort to dissuade her from pressing her grievance, commented he did not_ know why she would want to do that, that she would be fine at Bloomingdale. On two other'occa- sions while she was at Bloomingdale; he advised her-to- drop her grievance. On the - first of these he noted that when the expected takeover by Eagle took place,'store managers would be evaluating employees as to who would stay and who would go. On. the next occasion;' about April 23, he asked her whether she had dropped her grievance yet. When she replied she had not, he-told her that there was no way Hollis, would allow her to make her 30 days' probation if she returned to Schaum- i I The grievances for Hagemeier and Merenda, filed April 5, `claimed that as a result of their refusals. in accordance with-the union contract, to take lie detectortests, they- were given involuntary transfers with'result- ant demotions, loss of pay, and reduction in hours, all in violation of the contract The grievance for Nilles, filed April 14, claimed that she was demoted from head cashier in violation of the contractual requirements that she perform the duties of her job classification and contrary to con- tractual prohibition of demotion from a seniority group without just cause ' i ' 1447, burg. As an alternative he offered her a job at another store, saying he did not want to see her "blow a job she had for 4 years " In a similar vein , Barry Sheehan, Merenda's store man- ager at Elmhurst, asked her some time during the third week she worked there why she insisted on being trans- ferred back to Schaumburg, an apparent reference to her grievance seeking reinstatement to her earlier position. She answered she had been trained for that store. He then assured her that at Elmhurst her hours were safe, that her 30 days' probation under Eagle would be safe, but that transferring -back to Schaumburg would harm the replacement employees there.' 2 In spite of these urgings the three cashiers persisted. with their grievances: 5. Resolution of the cashier grievances - On April 26 Zunich successfully resolved the griev- ances for all three cashiers with Kohl 's management on the basis of their return to their old positions at Schaum- burg. He told Hagemeier her record would be clear, that Eagle would have no knowledge of her transfer to Bloomingdale or her grievance, ands that she would start' clean with Eagle. - With the resolution of their grievances on April 26, Hagemeier and Merenda should have been returned- to their old positions. However, when they reported to Schaumburg on April 27, 13 they found Hollis was upset . that the grievances were resolved in their favor. In fact when John Weber, buyer for the wine department, no- ticed they had returned, Hollis commented to him that Nilles also was returning and predicted they would not be around long because Eagle was a fair company and they would not survive the probationary period. He thus, indicated his intention to carry forward into the Eagle- probationary evaluation his opposition to Kohl's resolu-' tion of the grievances In contrast to this he told Weber that Weber had nothing to worry about during the pro-, bationary period, that he was staying, that Hollis wanted to keep him in the Schaumburg store This reassurance reflected his confidence that his recommendations to Eagle higher management would be effective. Although Hollis could not recall predicting the cashiers would not survive the' probationary period neither did he categori- cally deny doing so. I credit Weber who was still em- ployed by, Eagle, appeared pursuant to subpoena, and testifiedcontrary to his own best interests. On April 29 Hagemeier and Merenda, intending to as- suage any hurt feelings resulting from their successful re- versal of their transfers away from Schaumburg, ap- proached Hollis and assured him they did not hold him responsible for their transfers, bore no grudge toward him,'and now wished to do their jobs. He said-fine. They then inquired about the Eagle takeover and in particular whether, as Zunich had assured them, they would have clean records with Eagle which would have no knowl- edge of-the transfers or. grievances. According to Hage- meier, whom I credit, Hollis replied, "Don't count on 12 One of the replacement cashiers at Schaumburg was Sheehan's wife 13 Nilles was not able to return until May 2 - 1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it." He indicated that officials of, the two companies had together reviewed the. trouble spots in the stores taken over Following the demotion of Nilles on April 9 and her injury on April 13 resulting in her enforced leave of ab- sence, Kohl's transferred Susan King, head cashier at Bloomingdale, to Schaumburg in that capacity. Thus, it was to her immediate supervision that Hagemeier and Merenda. returned on April 27, while Kohl's still ,operat- ed I the store She supervised, them during the balance of the Kohl's regime and during the first part of the Eagle operation until their termination in late May. Similarly, she supervised Nilles following her, return on May 2. Nilles' status, according to King, was first assistant cash- ier (although she received head cashier pay), Hagemeier was third assistant cashier, and Merenda' was a checker and office relief -person King was obviously a more strict supervisor than any of the three had been accus- tomed to. During the last days of the'Kohl's regime she formed certain opinions about Hagemeier and Merenda which she carried over into the Eagle probationary period. With the return. of Nilles she similarly formed opinions respecting her: The views of King, which in ' some respects were biased and verged on nitpicking, -, were adverse to all three cashiers and particularly to Nilles. On May 2 when Nilles returned to work, she informed Hollis that her grievance had been favorably settled during her absence and she was returning with the classi- fication of chief cashier. • According to her credited testi- mony, Hollis replied that with her, Hagemeier and Mer- enda all in the same store, they were not going to make their 30 days' probation; that if the others (Hagemeier and Merenda) had not been transferred back, he might have "hidden" her by having her take a vacation, or a, holiday, or work on a register Nilles, apparently referring to,what Zunich had said to. Hagemeier, mentioned they would all have a clean record from Kohl's and that nothing of what had hap- pened would be known to Eagle Hollis replied that Kohl's district manager Gabrys and Eagle's district man- ager Cress had been riding together for 6 weeks and for- her not to believe this did not come up in their conversa- tions. Nilles assured him she ° already had talked with King and they both felt they could work well together.... Hollis then stood up, stating, "Anyone that crosses me, they only cross me once. I never get even, I always go one better." 14 Two -days later when Cress visited the store, she was 'introduced to him as Carolyn. He smiled and asked her last name. She replied Nilles. On hearing this, the smile left his face. _ 6. Evaluations by King Susan King testified that when she first' arrived at Schaumburg in mid-April, she found the office in disar- ray. Although she -did not correct the situation, she blamed Nilles 'for-the condition Nilles, according to King, had ignored "a great many" Kohl's procedures and policies For example, she noted the file containing 14 Hollis did not deny this conversation and in fact admitted that one of his common cliches is "I never get even, I go one better " customer checks returned for insufficient funds which she described as in "terrible condition." -She character- ized as a violation of company policy letters drafted by Nilles and used in lieu of printed'forms which had not been available. The books showed what King described as excessive opening cash balances for days of the week when less cash should have been adequate None of the cashier staff, so she said, were adequately trained to use the Data Checker equipment- with which the store was equipped, with the result that' cash discrepancies by checkers occurred more frequently than necessary. She found -a 4-month accumulation of unprocessed winning lottery tickets King also felt that after Nilles returned, she resisted King's supervision as well as.the new Eagle methods they were learning, and she informed Hollis that Nilles had- a poor attitude. She testified that Nilles made and received too many personal telephone calls. She also criticized her methods for handling merchandise coupons. I infer she reported-these matters to Hollis. Her evaluation of front end employees, including Nilles, cul- minated in late May with a - conclusionary 'report • to Hollis that Nilles was a very inconsistent employee who did not meet Eagle's standards for customer service or book work procedures, and should not be retained. There is reason to question the objectivity of King's evaluations' She admittedly felt threatened by Nilles as a competitor for her job. She seemed to indulge in overkill in accumulating a large number of deficiencies, some of which were minor, during a period of stiess and uncer- tainty when all employees faced a new' employer and' new systems. She overstated the amount of time she spent during the probationary -period working with Nilles, as well as with Hagemeier and Merenda, when in fact she spent most of her time with Linda Stojan who was detailed by Eagle to train her. In her testimony Nilles explained away most, if not all, 'of these alleged faults. But whether King was really justified in. all of her criticisms or not, there is no denying that she oncluded that Nilles was deficient and so reported to Hollis in ac- cordance with his instructions when she was assigned to Schaumburg to look for and report to him any mistakes she observed. As to Hagemeier, King concluded that she had a nega- tive attitudF in resisting King's training. She also thought she had a "snippy" attitude in dealing with customers. However, the record indicates that King's evaluation of Hagemeier was perfunctory and based on limited obser- vation. She reported to Hollis that Hagemeier's attitude had not improved during probation, that her priorities' were not in 'line, that she had not improved in following Eagle procedures or with respect to customer service, and she recommended she not be retained., King's observation-of Merenda was even more limited than that of Hagemeier. Merenda spent most of her time checking and little time in the office where she only re- lieved others,during breaks.or when the'office was short- handed. Her working hours coincided with King's only on Thursday evening and on Saturday King admittedly observed her less than Nilles or Hagemeier Based on this limited -observation she grudgingly admitted Mer- enda "didn't do a bad job on the register." But King LUCKY STORES 1449 found that in the office her personality changed, that she became autocratic vis-a-vis the other checkers who re- sented being inferior to the office staff. King did not elu- cidate on this evaluation. Apparently she never men- tioned any such problem to Merenda. She gave her no training in office procedures From the record as a whole it is inferable that King gave Hollis a negative report on Merenda. Considering Hollis' strong 'opposition to the return of the three cashiers to Schaumburg, his prediction to Weber that they would not survive probation, his in- structions to King to look for mistakes and report them to him, and the way in which she did so through her evaluations, I infer that part of King's function was to. assure fulfillment of Hollis' prediction and I conclude her testimony is worthy of little, if any, weight. 7 Evaluations by Stojan Linda Stojan had been an Eagle employee -for 13 years, all of it under District Manager Cress. At the time of the events in this case she was chief cashier at another store and on May 1 was assigned to Schaumburg for a 2= week period to train the office staff in Eagle business methods. When she- arrived, at which time King had been in place as chief cashier for 2 weeks, the office was dirty, cluttered, and unorganized; in her words, "a mess " Stojan spent most of her time training King so she could train the other office employees. She spent a little time with Nilles, very little with Hagemeier, and none with Merenda. If Hagemeter came to her with a question, she answered it, but most of the training of others was left to King During a visit by Cress in her second week at the store, she gave him a negative report about Nilles with particular emphasis on' (a) the fact that she had, without clearance from the manager, cashed some checks over the $50 limit, (b) her failure to make written notes on in- structions Stojan gave her, and (c) what Stojan took as- Nilles' overly unctuous manner toward her 15 Apparent- ly she made no adverse report to Cress about Hagemeier and Merenda because she told Cress there was a problem with one of the front end girls, Nilles, thereby inferen- tially approving the others. Stojan also told him she sensed tension between Hollis, King, and Nilles, and-that. Nilles. had greater difficulty grasping new bookkeeping procedures than did King or other cashiers Stojan previ- ously had trained 8 Reports to Cress About a week before Kohl's transferred the stores to Eagle, Cress and Gabrys, as district managers for their respective companies, discussed the capabilities of the various store managers and department heads in the stores, including Nilles. Gabrys informed Cress there had 1' Nilles testified that she had understood the Kohl's check cashing policy, which would allow some discretion to the head cashier in cashing checks of established customers, remained in effect While initially there was some basis for that view. Stojan testified credibly. and I find, that Nilles persisted in applying that standard after Stojan specifically admon- ished her not to exceed the 550 limit without approval by the store man- ager been cash irregularities and possibly improper bookkeep- ing at Schaumburg. He also described the security check involving the removal of $40 on one occasion and its return on another without the shortage or overage being reflected in the closing balances. - Cress received his next input when he visited Schaum- burg after the takeover and Stojan told him about Nilles' problem' with the check cashing policy. On May 18 he and Hollis discussed all the Schaumburg employees, in- _ chiding Nilles, Hagemeier, and Merenda. Hollis told -him of the problems that had existed -when it w a s a Kohl's store. In regard to Nilles, Cress testified that Hollis told him of bookkeeping irregularities, the incidents involving the artificial $ ,0 shortage and overage, and also poor morale among store employees, which Hollis attributed chiefly to Nilles. He-reported sloppy work habits in the office, and the possibility of force-balancing of the books. Although he described Nilles as the main character, he pointed out that Hagemeier and Merenda also were in ' the office during-at-least one of the $40 incidents He also told' Cress they shared responsibility with Nilles' for low morale in the store and possibly for some unfair treatment of the other cashiers, which he did, not particu- - larize. Cress was disturbed by the picture presented of three cashiers virtually controlling the- store, as well as by the circumstance that the manager reporting to him was himself intimately involved with the incriminating histo- ry being reported. Apparently mistrustful of what he had heard, he did some further checking with other managers whom he thought might be knowledgeable Robert Pe- tersdorf, manager at Glen Ellyn, cohfirmed that when he was assistant manager at Schaumburg -and while Nilles was chief cashier there were some questionable proce- dures, - sloppy bookkeeping, and a morale problem. 16 Jerry Paulding, manager at Michigan City, told him there had been an overabundance of shortages and over- ages at Schaumburg, possibly irregularities in computing sales on occasions when the - Data Checker system became inoperative, and also a morale problem attributa- ble to the three cashiers Barry Sheehan, manager at Elmhurst, corroborated what Petersdorf and Paulding reported and further suggested in regard to morale that other' employees at Schaumburg were apprehensive about what the cashiers, who had access to work sched- ' ules and the tills of the checkers, might do He specifical- ly told Cress that while Merenda was assigned to his store prior to being transferred back to Schaumburg, she had exhibited a severe attitude problem in regard to the scheduling of'her working hours and had told Sheehan she knew she was returning to Schaumburg so it really did not matter what he thought of her - 9. The decision to terminate the cashiers Based on all he had learned, Cress decided to termi- nate Nilles, Hagemeier,,'and Merenda effective May 29. 11 Petersdorf testified, and I find, that he was assistant manager at Schaumburg for about a year in 1978 and 1979 He told Cress about a clique of employees in the office which included Nilles, Hagemeter, and others (but not Merenda who did "not work in Schaumburg then) who stuck-together and should be broken up 1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 26 he informed Hollis which employees' should be terminated and instructed him to inform them ;using the reasons Hollis had reported to him. . At lunch that day Hollis commented to Weber that to- morrow, would be D Day and they (presumably the em- ployees) would -find out who's staying and who's leav- ing. -He said he had waited a long , time for this day to come and that those three girls (an apparent reference to the cashiers) would be the first to go. The next day, May 27, he terminated each of them effective -Saturday, May 29. In answer to Nilles' question as to why she was being terminated, he said simply that Eagle had determined she had a bad attitude and in answer to her further questions he indicated her bad attitude was not vis-a-vis customers but, "You have -a bad attitude and a personality conflict with fellow workers." In answer to Hagemeier's query as to why she was being terminated, he said the other girls no longer trusted her to balance their cash drawers. He refused to. specify further and' instead referred her to Cress. When Merenda_asked why she was being termi- nated, and specifically whether it was her personality since she got along well with,others, Hollis agreed she got along well with other employees and had a fine atti- tude. He then said he did not have a reason to give her in black and white, and indicated she simply did not sur- vive the probationary period. She then commented that she, did not feel- she ever had a probationary period and he replied, "Officially I don't think you did,either,, you should never have come back to this store, you would have made it if you had stayed in Elmhurst." Subsequent to termination of the ,cashiers, Zunich con- ferred with James Brown, Eagle's industrial relations, manager, because he thought the terminations were im- proper in view of management's knowledge, of the prior grievances 'Brown defended the terminations on the ground he had talked to several "people" and the three cashiers "did not get along with these people." He sug- gested Zurich talk to those persons and find out for him- self. During 'the 2 years Zunicli had serviced the Schaumburg store for the Union, he had heard nothing of such problems, so he interviewed 12 other employees at Schaumburg. None had had any problem with .the cashiers. Although he returned to Brown with this iiifor- mation, Brown, after consulting Cress, ' refused to alter the decisions to terminate. There is some question whether Cress knew of the grievances which resulted in the three cashiers being re-' turned to Schaumburg. 'He did not admit such knowl-' edge. Neither, did he generally deny it 'He' made limited denials, to the effect that Gabrys had not spoken of the Union nor told him 'they had fled ' grievances with' Kohl's, and that Hollis _m, describiiig the security mvesti- gation had not`^mention-d' "grievance." On 'th"e,'othei' ' hand, he did know from Hollis that following the Kohl's • security investigation the three were transferred from ' Schaumburg, and that prior_to the Eagle takeover they had been transferred backMover `the'objections-of Hollis. He also knew from Sheehan that Merenda had been transferred from Schaumburg to Elmhurst and that she said she knew she was going back to Schaumburg so- it did not matter .what Sheehan, thought of her. Also, Zunich testified without contradiction that the day- before Cress made his decisions to terminate, Zunich conferred with Brown in the presence of Cress and ex- pressed his hope that the cashiers would not be terminat= ed because of their grievances Although Brown replied he did not know who was being terminated, Cress appar- ently made no response. Considering the above in light of his considerable experience in.the industry, including labor relations with this Union, I find that Cress knew, at least generally, of the grievances. . 10.•Conclusions in the cashier cases The cases of Nilles, Hagemeier, and Merenda lend themselves to the same analytical approach as that of Pawlish but with a 'different result.- On the issue of whether prima facie cases have been presented, the con- clusions must be affirmative, considering the personal animus of. Hollis, his opposition to the grievances, his recommendations to Cress, and the timing of events The comments of Paulding and Sheehan indicate Hagemeier and Merenda would have survived had they acceded to their reassignments and demotions. ' The statements of Hollis indicates that if all three had not been returned to his store, he might even have worked things out so that Nilles could have survived. Thus, the opinions expressed by these store managers suggest that had the three cash- iers accepted their reassignments and demotions without protest, the reports might not have been so negative As with Pawlish, I find prima facie, 8(a)(1) violations as to the cashiers. See NLRB v. City Disposal Systems, 460 U.S. 1050 (1984); Interboro.Contractors, 157.NLRB 1295 (1966), enfd. 388 F.2d 49 (2d Cir 1967); Vanport Sand & Gravel, 270 NLRB 1358 fn. 2 (1984). The second consideration is whether Nilles, Hage- meier, and Merenda would have been terminated even if they had submitted to the polygraphs and had not filed grievances. All employees were evaluated by Eagle during the probationary period Without the grievance resolutions, all three' cashiers would not have been as- signed to Schaumburg during evaluation. Hollis opposed their. return, which reinstatedwhat he viewed as an un- desirable clique in that store Had they not been reassem- bled, reports of Hollis, Paulding, and. Sheehan might have been more kindly Even so, a preponderance of the evidence indicates they would have been terminated. even if the grievances had;never been filed because the bulk of the information on which Cress made his final decisions. was available without aid of polygraphs or whether or not grievances were filed The Nilles demo- tion, which she grieved, grew directly out of the $40 shortage and overage traps, which Gabrys and Hollis en- gineered, and, the resulting security investigation. Viola- tion. of the lie detector provisions of the collective-bar- gaining agreement was not a basis of the Nilles grievance and,, so far as. the, record shows, was not a consideration in resolving, it, as necessarily was the case with the Ha- gemeier and Merenda grievances. Cress did not limit his evaluation of the cashiers to their performance during probation. He included in his assessment their performance with Kohl's, not excluding matters which might have been considered in resolving their. grievances. Normal evaluation of probationary em- LUCKY STORES ployees would seem to encompass such matters. Nothing in Eagle's transfer arrangement with - Kohl's and the Union specifically excluded such matters from consider- ation. ,That understanding might have provided, but did not, that subjects of past disputes resolved through griev- ance procedures would be excluded from consideration in evaluating probationary employees. The collective- bargaining agreement allows broad employer discretion in deciding whether to allow probationary employment to ripen into permanent employment and the probation- ary status contemplated in that agreement logically ap- plies also to the probationary status agreed upon in the transfer of the stores. Cress utilized his discretion in that sense in considering information from a variety., of sources, including hearsay and personal opinion. A substantial amount of information came to him from Hollis who unquestionably bore animus toward the cash- iers, particularly Nilles, because of their resistance to de- motion and reassignment and their grievances and the resolutions thereof arrived at between Kohl's higher management and the Union. The General Counsel's theory, here is that this animus infected and motivated Cress. I find it did not He mistrusted Hollis' evaluation and sought other sources of information. Before arriving at a final decision, he possessed substantial adverse infor- mation about the three cashiers which was not attributa- ble to the animus of Hollis and which alone justified a discretionary business judgment not to retain them. Even knowledge of their refusals to submit, to polygraphs and of their grievances does not, absent some evidence spe- cifically indicating aversion to those positions, tend to show animus in Cress On the contrary, his long history in dealing with the Union and his responsibility for oper- ating an entire district of Eagle stores involving a large number of employees under the collective-bargaining agreement providing grievance procedures and banning compulsory polygraphs, suggests acceptance of those conditions in employee relations. Apart from what Hollis told him, Cress had heard of a history of above normal shortages and overages while the three cashiers, with Nilles in charge, were a team op- erating the Schaumburg office. He had- heard informed opinions that they were a clique in the store as well as reports of low morale among department heads and checkers as a result of that situation and because of their loose bookkeeping procedures and handling of cash. And reports of untidiness in the office while Nilles was in charge corroborated those reports. Cress also knew of the unanswered problem of the $40 shortage, the security investigation which followed, and the obvious suspicion that the cashiers had a "slush fund" for "forced" balanc- ing of the books. In this regard, the-refusal of all three to take polygraph tests obviously left the investigation un- finished and burdened by whatever adverse inferences might be drawn therefrom. Although the collective-bar- gaining agreement shields employees from compulsory polygraph tests, it does not rule out suspicions flowing from refusals to take them. -It certainly provides no safe- guard against such suspicions on the part of a successor employer not involved in the investigation - Cress also had a negative report on Nilles from Stojan, a- trusted subordinate of long standing, concerning her 1451 performance during the probationary period which indi- cated either her reluctance or inadequate flexibility to -readily adapt to Eagle business methods His talks with Petersdorf, Paulding, and Sheehan confirmed what Hollis had told him Although the adverse implications of these reports fell most heavily on Nilles, Hagemeier and Merenda individually were given adverse reports and also necessarily were implicated as part of her office clique. In addition, Hagemeier -had been responsible for closing the books the day of the artificial, $40 shortage and for opening them the morning after the artificial overage.17 And Merenda suffered from Sheehan's nega- tive report that she exhibited a severe attitude problem while assigned to his store. In view of this information, I find that in making the decision to terminate the three cashiers, Cress was not motivated by personal or antiun- ion animus or by antipathy toward employee , use, of grievance procedures. Although he must have consid- ered their refusals to take polygraphs, I find he had more than adequate other business reasons for his decision. These legitimate business reasons included some which reasonably could be expected to have been dealt with, and put to rest, in the grievance procedures with Kohl's. This unsettling disinterment of old questions is unfortu- nate for the employees involved. The inequity of this, however, is not material here. What is of concern to the policies of the Act is that such undoing of grievance res- olutions discourages employees from using or relying on grievance procedures and may encourage reopening mat- ters already settled. Another consideration is whether a successor employer such as Eagle inevitably is bound by such past resolutions. A suspicion rises from this record that Kohl's lame-duck settlement of these grievances was taken with a view to the pending takeover by Eagle, a peace-at-any-price maneuver. In any case, only Kohl's and the Union representing' the grievants were party to the settlements. Eagle was not. If, in' what amounts to a reversal of those resolutions, the three cashiers are casu- alties, they suffer as a result of the larger bargain which modified existing bargains, including extensions of bar- gaining such as grievance resolutions In this larger bar- gain between the Union and the two employers, the suc- cessor employer recognized the Union as the representa- tive of the employees involved, agreed to employ with- out interruption all employees and supervisors of the predecessor in the same jobs and under the terms, of an identical collective-bargaining agreement. The principal consideration for such undertakings by Eagle was the Union's agreement that both supervisors and employees be on probation for 30 days. This, I find, allowed Eagle the discretion to pick and choose which supervisors and employees it deemed appropriate for its operations. This is what Cress did with regard to the cashiers. In so doing he did nothing fo directly affront the policy of the Act. Absent such an-affront, it seems generally preferable to leave the balancing' of 'conflicting liolicy considerations 17 Merenda had closed on the day of the induced $40 overage Al- though at first the accounts did not appear to reflect the overage, the amount in fact was accounted for in-a customer's check deposited in Kohl's bank account the following morning by Hagemeler and which she failed'to record on the store books - . 1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the results already reached in collective bargaining by Eagle, the inplace employer, and the Union rather than to a later Board decisional process. If, as in the Pawlish situation, employee insistence on contract rights were the specific and principal reason for termination, the Act would limit the exercise of employer discretion. By con- trast, in the "cashier situations much of the basis for Cress' decisions rests on past circumstances other than employee exercise of contractual or statutory rights. And the circumstances developed during the probationary period are unrelated to contractual or statutory rights The most troubling facet of Cress' decision is that he must have considered the refusals of polygraph tests, a position taken pursuant to the contract and on the advice of the Union.' A further troublesome consideration is the certainty that the grievance procedures must have dealt with 'some facts; such as the $40' discrepancies, which were in the picture considered by Cress. There is, how- ever, no- specific evidence that the cashiers' reliance- on contract rights and procedures were crucial to the deci- sion he made. By virtue of the arrangement with the Union and Kohl's, Eagle was required to accept all three reassembled in Schaumburg, subject only to the discre- tion allowed management by their probationary status. 'Considering the substantial amount of adverse informa- tion about them, I find that even if they had not invoked the contractual shield from compulsory lie detector tests and had not pressed grievances against Kohl's pursuant to the collective-bargaining agreement, Cress neverthe- less would not have kept them as permanent employees. For' these reasons I 'conclude that Eagle did not violate the Act in terminating Nilles, Hagemeier, and Merenda. C. The Ryan Case The General Counsel contends Eagle • unlawfully dis- criminated against employee Judi Ryan by issuing her a written warning August 21 and by discharging, her August 26 . The discharge followed an interview -between Ryan , and the Store Manager Robert Petersdorf in which, according to the General Counsel, he denied her the right to union representation. The General Counsel's theory with respect to the discharge is twofold , (a) that Eagle discharged her because she engaged in protected activities, management's asserted reasons for discharge ,being pretextual , and (b) because she insisted on her right to union representation during the interview on August 26.• Eagle contends both the. warning and the discharge were for,-valid, business reasons and that she, was not denied union representation. 1. Ryan's employment with Kohl's - Ryan was first employed by Kohl's in July 1977. At some point she was assigned to delicatessen (deli) work and in March 1979 was made deli manager (deli depart- ment head) at Kohl's Hanover Park store, a position she held until the store closed November 28, 1981.18 Hano- 18 The collective-bargaining agreement section on definitions provides, "A Deli Department Head is defined as the employee who operates the Deli Department under the direction of the Store Manager " ' 1 ver Park employees, including Ryan, were then out of work pending reassignment to other stores. James Pappas supervised the Kohl's delicatessen de- partments in the district and it was his responsibility to assign personnel to those departments With the closing of Hanover Park, Ryan immediately contacted him for a reassignment . He demurred, saying it would take a few days to; 'place employees. He asked her where she wanted to -be assigned. She selected Schaumburg, having temporarily worked there when that store opened in August 1978. The next day Union President William Tzakis' counseled her that she'should be reassigned as soon as possible to avoid losing- working time and she should so inform Pappas. She then told this to Pappas who not long thereafter assigned her effective December 4, 1981, to work as a deli clerk at Schaumburg where Karen Wendell was the incumbent deli manager On De- cember 5, 1981, she was temporarily reassigned to re- place a deli clerk at the Mt. Prospect store where she re- mained for about 2 weeks. She promptly filed grievances over the hours of work she had lost because of, delays in reassigning her since the closing of the Hanover Park store, thereby asserting her ' rights under the collective- bargaining agreement. , Following the Mt. Prospect assignment, she was tem- porarily reassigned successively to three other stores as a deli clerk She complained to Pappas, about being shifted from store to store, stating that she wanted to stay in one store and wanted to work as a manager rather than a clerk Pappas told her the hours she wished to work were not available at a single store and she would have to transfer around to various stores until more hours became available at Schaumburg.-She told him she knew of three other deli managers that had less seniority than she and over whom she had bumping rights. About the same time, in further piotest of his failure to assign her to a permanent site or to a position as deli manager, she on December 11, 1981, filed another grievance. Only then was she assigned a regular position at Schaumburg at the deli manager wage rate - but performing clerk's work. On February 17, 1982, at a meeting with Ryan, Business Agent Zunich and Ralph Rieter, Kohl's director of labor relations, her pending grievances were resolved in her favor on the basis of her being paid for the work- ing time she lost by not being promptly reassigned after the closing of the Hanover Park store and with her status being recognized as that of a second deli manager at- Schaumburg. These resolutions were confirmed by Rieter in letters to the Union on February 22 and April 27, 1982, and by a telephone conversation with Ryan on April 27. On February 18, 1982, having worked at Schaumburg for over 2 months, Ryan began her materni- ty leave from which she did not return to work until August 1982 when Eagle was operating the stores. It is: apparent Pappas did not agree she was entitled,to the status of a deli manager and- never accepted the grievance resolutions -reached between the Union and Kohl's He argued,to Rieter that since Hanover Park had closed, and she lost that store, and the Company had no other slot for her as a deli head,- they could not allow her to "bump" less senior deli heads who did a better LUCKY STORES job Even though - Pappas was deeply involved in the controversy over Ryan's status, he could not recall in testifying what position Rieter took on the matter. And although during her last assignment for over 2 months at Schaumburg, Kohl's paid her at the wage scale of a deli manager and Rieter officially ruled she was a deh man- ager prior to her maternity leave, Pappas persisted in his view and later , after Eagle took over the store, persuad- ed Cress she was only a clerk and not, as she claimed, a manager I find Pappas a disingenuous witness, not to be credited Credibility aside, however, his attitude' may have been influenced by the opinion of Paulding, manag- er of the Bloomingdale store where Ryan had served for about a week in March or April 1982 Paulding, a re- sponsive but opinionated witness, 'testified he reprimand- ed her for lack of cleanliness and failure to rotate prod- ucts in the showcase , that he would not have her as a deli manager, and that he told Pappas she was "a pig." 2 Ryan's employment with Eagle a Return from leave and continued doubt about job status Under the agreed arrangement for transfer of stores from Kohl's to Eagle, all rank-and-file employees and su- pervisors were accepted by Eagle as probationary em- ployees in the same job status they held with Kohl's. It is clear that on February. 17 when Ryan went on maternity leave she was a deli manager for Kohl's. It is undisputed that after the transfer she had' a right to return to her prior employment status, but with Eagle, and further that upon her . return she would be on probation for 30 days. In the irst week of June, well in advance of the time she hoped to return to work, she telephoned Hollis at the. Schaumburg store to ask about Eagle's policy on re- turning to work from a leave of absence . Hollis referred her to Cress. She then called Cress, identified herself as an employee on leave of absence, and inquired about her status when she was able to return, including the store to which she would be assigned She expressed her interest in Schaumburg , saying she was deli manager ' there and mentioning Kohl's letter to that effect. Cress pleaded un- familiarity with the situation , saying he would have to check first with Pappas, and that she should write'him a' letter explaining her position Although she' then wrote such a letter, he apparently did not receive it. But Cress did contact Pappas about Ryan, referring to her as deli manager at Schaumburg Pappas told Cress she 'had been a deli manager at Hanover Park-before that store closed but at Schaumburg- she was not a-deli manager but a"deli clerk, the manager being Karen Wendell . In answer to Cress' question as to what kind of an employee :Ryan had been, Pappas replied a "fair ' employee." And in' answer to his further question 'as' to where Pappas wished to place her on her return; Pappas said he-would assign her to Buffalo Grove but not as'a deli manager. Subsequently, when Ryan again telephoned him, Cress told her he had spoken with Pappas and had decided.to assign her as a deli clerk to Buffalo Grove when she re- turned Ryan asserted she was entitled to bump more junior deli managers, but Cress told her that Eagle .had the right to choose its own managers . During his testi- 1453 mony Cress pointed out that seniority is not a factor in selecting managers, including deli managers . He admitted he did not know whether Ryan was a deli manager at the time she went on maternity leave, that Pappas had not told, him she was He conceded that if in fact she was, the collective-bargaining agreement provided for her return to that-job. In late July, `about 2 weeks before she was ready to return to work, and pursuant to instructions from Cress, she telephoned Pappas and agreed with him to return to work August 9 Although she asked to be assigned to Schaumburg , her residence being closer to it, Pappa in- sisted she go to Buffalo Grove. She consented under pro- test, declaring she was going to the Union about it. Pappas showed his annoyance at this by tersely telling her to go - ahead and hung up the telephone . She contact- ed ' the Union and on` July 27 the Union filed two griev- ances with Eagle on her behalf, the first based on Pappas' refusal to assign her work as a deli manager, and the second for his insistence on assigning her to Buffalo Grove, -a distance of 23 miles beyond Schaumburg, al- though openings for, her existed at Schaumburg pending resolution of the first grievance. On August 2 Eagle's in- dustrial relations manager Jim Brown denied the first grievance on the ground that at the time Ryan went on, leave, she was a deli clerk , not a manager, that Karen Wendell, was the - deli manager at Schaumburg, and that Ryan would not return as a - deli manager but would return to a comparable fob to what she held before with regard to work and pay, pursuant to the collective-bar- gaining agreement ,On August 13, subsequent to Ryan's return to work, Brown reaffirmed this position in a-letter to the Union in which he noted that at Schaumburg she had performed the duties of a deli clerk at the deli man- ager rate of pay and- on her return was assigned to Buffa- lo Grove to comparable work at a comparable rate of pay. He again denied the • grievance . Apparently there was no disposition of the second grievance.19 On August 4 Ryan was directed to report to the Glen Ellyn store instead of Buffalo Grove and to contact Pe- tersdorf, manager at , that store, to arrange a schedule of work. She then arranged with Petersdorf to report to Glen Ellyn on Wednesday, August 11 . She told him she had a baby at home and it would be inconvenient for her to. open the deli department on any morning. He replied 'that scheduling in the mornings would not be a problem and he would keep her situation in mind in arranging the schedule. As agreed; she began work on August 11. She 'was -not scheduled for August 12 and was out sick August 13 and .14. When she saw the schedule for the following week (apparently on August 15) she objected to being • scheduled for work '10 days in a row As a result' the schedule -,was revised. -When the schedule was made , up, August_ 19 for-, the next week, she, and Peters- ,,19 -Zuiiich testified that during the period the Union's grievance letteis .and-,Eagle's responses thereto'were being exchanged, Ryan told him she was receiving threatening telephone calls to the effect that she would never make the probationary period if she did not withdraw her griev- ances Ryan ' did not testify about such threats In the circumstances, it being impossible to identify their source or to attribute them to Respond- ent, I give no weight to the testimony of Zunich on the subject 1454, DECISIONS OF NATIONAL LABOR RELATIONS BOARD dorf had a problem arranging the schedule to her satis- faction and he, in effect , told her she would have to accept the hours he assigned her. She argued that 'she should be a deli manager at Schaumburg and was work- ing at Glen Ellyn under protest , and she mentioned having filed , grievances with both Kohl's and Eagle, not identifying the subjects involved . As shown by her testi- mony, she earlier. had indicated her, wish not to work mornings and on this occasion indicated her desire to avoid working every . Sunday. Yet she wanted between 28 and 35 hours of work per week and in fact on this occasion, having been scheduled for less than 28 hours, was claiming additional hours from employees with less seniority . 20 Apparently exasperated at her limitations, Petersdorf, according fo her testimony , which I credit, informed her she would work the hours assigned to her or she could get out of the store . She told him that if she had to work every Sunday, she would contact the Union. He invited her to do so and further commented that she would work whatever hours she was scheduled, 2 to 50, and every Sunday if he wanted her to, and when she mentioned her seniority he became even more angry. -The General Counsel argues that Petersdorf "assigned Ryan schedules which were more onerous than those of less senior clerks, whereupon she advised him she would contact the Union if he did not schedule her hours more fairly ' and according to contract. There is abundant evi- dence that Ryan was dissatisfied with her schedules'and also that she placed - substantial limitations on her avail- ability while at the same time insisting on from 28 to 35 - hours' work per week There is no evidence Petersdorf violated the collective-bargaining agreement in making up the schedules . There is no evidence that the schedules of more junior deli clerks were less onerous than Ryan's. In fact there is no evidence concerning the schedules of junior 'clerks. The evidence shows she had special sched- uling desires; that Petersdorf accommodated her as to morning hours, but that nevertheless she was dissatisfied with other aspects of her schedules and they ended up in a' dispute during ' which she threatened to invoke union help and he in anger uttered 'some overreaching remarks. In sum, while it is clear she was dissatisfied and all her wishes were not accommodated, it is not shown she was treated ' disparately or given more burdensome work hours than others. -The record - as a whole suggests that scheduling problems are endemic in this industry. The union contract 'in allowing the-claiming of hours from junior employees provides -an agreed method for modify- ing work' schedules arranged by management . Factually, Ryan's" use of these contractual-'rights coincided with her. dispute witli:Petersdorf on August 19.'The -dispute, how- ever; was- much broader- than that, involving, more the hours she was unwilling to_ work - than the hours she wanted but was not initially- assigned: As found above, he did not specifically object to' her claiming hours under the contract . Although if is not- possible to separate out' , her claiming of, hours from - her broader efforts to negoti- ate her entire schedule to her liking, I find it was the 20 Petersdorf testified credibly, and I find, that he had no objection to. her claiming hours in accordance with the collective-bargaining agree- ment latter rather than her claiming of specific hours based on seniority and pursuant to the contract which angered Pe- tersdorf., b. The written warning of August 21 Ryan worked- as'scheduled on the evening of Friday, August 20, and closed the Glen Ellyn deli at the end of the day. She was scheduled to work only until 9 in' the evening,' but a late customer kept her until 9:25, at which point she partially cleaned up and left at 9:30 without completing the task of putting the deli in order. When Petersdorf arrived the next morning, August 21, and made his usual inspection of the store , he found the deli in disarray, with hotdogs and lunchmeat scattered around the display counter , unwrapped and dryed out cheese left out on the counter , and the refrigerator door open . He concluded no one had straightened up the night - before . When Ryan came in, he expressed his dismay to her .and issued her a written warning in the following language: Judi failed to wrap up in Saran Wrap some Lor- raine swiss cheese. As a result the cheese was dryed out and had to be thrown away. The self -service case is to be faced each night, but wasn't even touched by Judi . The cheese and lunchmeats were scattered all over the display case With Judi being a former deli manager these things should have been done automatically . Judi seems to have a big chip on her shoulder and has a very definite attitude problem towards her job and management. There must be a complete change in. Judi 's work habits and also in her attitude. Petersdorf asked her to sign the warning, which on the form used would have been an acknowledgment that the warning' was necessary. She refused. The form ' does not provide space for comments by the employee being rep- rimanded, other than the space for a self-incriminating acknowledgment as noted above , although employees often write their comments in the margin Even though Petersdorf was made aware that Ryan_ had been delayed the night before by a late customer, he considered she deserved the warning because, given her experience, she should have been able to leave the deli in' good order . He pointed out to her that the receipts for the- day indicated the department had not been' particu- larly busy. It appeared as if she had done very little work. Later that same afternoon Petersdorf -came to the deli to observe Ryan . While she worked at the meat slicer, he stood close behind her, looking over her shoulder She objected , saying she could not work with him look- ing over her shoulder . According to her uncontradicted testimony, h' told her she should get use to it because they would be breathing the same air for the next few weeks.2 i - - The evidence is convincing that Petersdorf had reason to issue the written warning of August 21. The General 21 This conduct is not alleged to-be an unfair labor practice LUCKY STORES Counsel argues that it was unlawful discrimination. One point urged to support this theory is the apparent harass- ment which Petersdorf indulged in later in the afternoon by his close surveillance of Ryan. I find his standing too close to her was harassment, as was his accompanying comment that they would be breathing the same air for the next few weeks, thereby indicating such close sur- veillance would continue. He thereby demonstrated both his anger over her foulup and, following only a few days after her threat to take her scheduling problems to the Union, animus because of her possible union activity. On this basis the General Counsel makes out a prima facie unfair labor practice. I find no violation, however, be-, cause even if Ryan had not threatened to seek union as- sistance, Petersdorf would have reprimanded her for her deficiencies the previous evening. The General Counsel also argues that Ryan was sub- jected to disparate treatment as well as harassment be- cause of her union activities. I find no convincing con- nection between her union activities and the surveillance noted above The logical cause for the surveillance was her failure to properly clean up her department the night before, which Petersdorf had discovered only that morn- ing. Counsel argues her failures were "minuscule" and that any other employee would not have been warned about them. But the evidence does not reveal a minor fault. Ryan had had extensive experience as a deli clerk and department manager. She, above all others in the store, reasonably could be expected to leave the deli in good order. When on the morning of August 21 Peters- dorf found significant disarray, including food left out in the open and, even though Ryan denied being responsi- ble for the open refrigerator door, he concluded, reason- ably, that she was responsible The record is barren of evidence that anyone else was likely responsible for the refrigerator door being open Similarly; there is no ex- planatory evidence which would lead to the conclusion that the condition of the display case was not attributable. to her neglect. Nor is there any explanatory evidence as to why she spent only 5 minutes cleaning up after the last customer left, or why she did not stay later to finish up In sum, her performance on August 20 and his reac- tion on August 21 fail to support the theory of disparate treatment. The General Counsel also argues that because Peters- dorf did not discuss the matter with Ryan before issuing her the warning, he treated her disparately because he usually makes an investigation, including talking with the employee, before issuing a written warning But even if,. as counsel argues, Petersdorf treated Ryan differently than he normally treats others, disparate treatment is not established. Different circumstances call for different re- sponses. Petersdorf's reaction was not unreasonable, in the_circumstances. The situation had been uncovered, by his own routine inspection which left no serious doubts as to her defaults. Even if he usually discussed problems with employees, nothing in the record suggests that was an invariable requirement, nor is there evidence, that other employees guilty of comparable conduct were treated more leniently On August 21, some time after she received the writ- ten warning, Ryan telephoned Union Business Represent- 1455. ative Henry Quinn. She described to him the subject of the- warning and said she did not agree with it A day or two later Quinn called on Petersdorf at the store and to- gether they went over the writeup According to Quinn, Petersdorf felt she deserved it. Quinn informed him that she disagreed and would dispute the written warning. No grievance was filed, however. Quinn did advise Busi- ness Representative Zunich about the warning when Zunich later undertook responsibility for pursuing the dispute over Ryan's termination c. The interview of August 26 As noted above, Ryan did not work'on August 13 and 14 because of illness. On Tuesday, August 24, she was scheduled to report for work at 1 p.m. But shortly before noon she telephoned Petersdorf informing him she did not have a babysitter and asked if it was all right if she did not come into work. He replied it was not be- cause he had a problem covering her spot, but if she could not come in, she could not come in. Company rules require employees to. call in if they cannot report as scheduled, but there is no time requirement for such call-, ins.22 At the hearing Ryan detailed her dilemma, namely, that her sitter had telephoned at 8:30 in the morning to cancel out the babysitting appointment and that she had been attempting unsuccessfully from 8.30 until 11:30 in the morning to locate a substitute sitter She testified she reported these circumstances to Peters- dorf. There is no explanation why she,waited until 11:45 to inform Petersdorf of the problem, leaving him only about an hour to find a replacement. He reasonably con- sidered that to be inadequate notice in the circumstances. On Thursday, August 26, about midway through Ryan's shift, Petersdorf called her into his office for the purpose of discussing her attendance but not intending either to -suspend or discharge her. Kulakowski was present as a witness, as he had been at the August 21 interview when she was given the written warning. Whether Petersdorf intended to give her another written warning on August 26 is unclear, but I find that, follow- ing instructions from Cress, he did intend to discuss her attendance with her. When Ryan arrived at the office Petersdorf asked her to sit down, saying he wanted to talk about some prob- lems they, were having, namely, attendance Noting that Kulakowski was present as a witness for Petersdorf, she requested either that Kulakowski leave or that she be al- lowed -to have a witness for -herself, meaning a union representative. I find, based on her testimony, that Pe- tersdorf asked her • who , she wanted and she said she wanted the Union. At some point Petersdorf apparently handed .her a written warning which, according to her testimony. which I credit, referred to her absences on August 13, and, 14, and to her calling in on short notice on August 24. She testified without contradiction that she, read the warning at the meeting, although the docu- 22 Ryan testified that company policy-requires at least 1 hour's notice and she may well have believed that to be the policy On the other hand, Petersdorf testified credibly that he was unaware of any time requirement for such call-ins Because as store manager he would more likely know of such a requirement, I credit him and find that none existed 1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, which presumably was in the control of'Respond- ent, was not offered in evidence. She further testified credibly, and I find, that Petersdorf himself made a tele- phone call during the meeting I infer from the circum- stances that he did this while she was reading the warn- ing - Subsequent to the August 21 warning, Ryan had con- sulted Quinn who erroneously informed her that the warning from contemplated that she could write her own comments on it 23 Following his counsel, she asked Petersdorf on August 26 if she could comment on the bottom of the form because Quinn had said she could. Ryan testified, -without specific. contradiction, that Pe- tersdorf said, "No, you're not going to do that, ' you're not having the union " When she heard his reply, she stood up as if to leave because she understood she could neither have-the Union nor comment on the form. Kulakowski testified, and I find, that she refused to sign the form and • that Petersdorrf then said he would read it to her. At this point she was already standing in the anteroom outside the door of the office. As Peters- dorf began reading, she walked away further in'the adja- cent room. Although he asked her to return and listen, she said no, that, she wanted her union representative there. According to Kulakowski, whom I credit as the most objective witness present, it was at this point that Petersdorf, apparently indicating the phone on his office desk, said, "Here, call and • we can set up a meeting whenever you want to talk." I find the sense of this was that he was willing to discuss matters with her union representative, bui at another time. Ryan did nothing and, according to Kulakowski, Petersdorf again started to, read the writeup to her. Although Ryan did not call Quinn, neither did she rescind her request for a repre- sentative. Apparently at about this point, according to the testimony of Petersdorf, Ryan said she did not want to listen to him and would leave if he talked Neverthe- less, he continued and she left his office area and walked down the hall. Petersdorf followed her. In-the hall he told her that he was her boss and it was important they talk and she could either return to the'office or punch out and leave. There is no evidence that he at any time told her the meeting was not investigatory in nature or that it would not have adverse consequences for her. Al- though Petersdorf testified she chose' to leave, Kula- kowski testified, and I find, that Petersdorf returned to the office followed by Ryan Petersdorf asked her to read the -writeup .but she refused to do so. He then pro- ceeded to try to read it aloud to her, but she would not listen According to Kulakowski, whom I credit, Peters- dorf then told her to punch out and that she-was sus- pended. I do not credit Ryan's testimony that he told her she was fired at this point because both Petersdorf and Kulakowski deny he said that, and further because he lacked authority to discharge her without first clearing with Cress which he later did, and further because, after talking with Cress, he did telephone her and discharge 23 As already noted, the form used on August 21 did not provide for employee comments other than a signature amounting to an admission of the correctness of the xi'armng There is no evidence of the existence of any other Eagle form designed for warnings I infer that the same type of form was used on August 26 as on August 21 her I base the above-findings on parts of the testimony of all three participants in the meeting, -none of whom gave a complete or an entirely chronological account of what occurred Although -Kulakowski confused a minor. aspect of the August 21 meeting with the August 26 meeting, both of which he attended, on the whole he was the most objective witness with the best recall of the order in which specific details occurred. When Petersdorf suspended Ryan, she left the store and went home. He immediately contacted Cress, report- ing his version of what occurred. I' do not consider Cress' understanding of events particularly helpful in de- termining what occurred at the meeting because he had to keep asking Petersdorf questions to make sure that he had the story correct Whether he did or not is problem- atical and it seems preferable to rely on the direct testi- mony of the participants in the meeting. Prior to Peters- dorf reporting to him, Cress knew that he was having problems with Ryan And at this point ,he understood from him that she had said Kulakowski was at the meet- ing as his witness and she wanted a-witness, a union busi- ness representative, and that Petersdorf had pointed to his telephone saying she could call and ask a union agent to come to the meeting, which she did not do. Cress un- derstood that Petersdorf nevertheless wanted to proceed with the meeting but Ryan instead walked out, which caused Petersdorf to suspend her. Cress felt the manager had a -right to proceed with the discussion and that it was insubordination for Ryan to refuse to participate. Cress testified in pertinent part: I think any store manager has the right to at least discuss a problem, since this particular morning he was not going to fire her or terminate her or sus- pend her or anything like that at the time. He just wanted to talk to her, she would have nothing to do with that I consider that as borderline insubor- dination. Predicated on that and the previous call that he had with her, it was my decision under the 30-day probationary period that we no longer needed her services . . . . I then told Bob to call her at home and tell her that. Petersdorf did telephone Ryan just as she arrived at home. Her mother, Noreen Marcham, answered the tele- phone and,stayed on the line while Ryan went to an ex- tension. According to Marcham, whom I credit, I find that he said, "I know you're going to be in touch with the union and I dust want to set the matter. straight as to why you're fired . it's because you have an attitude problem . . •. and besides, things just aren't working out." Ryan recalled, in addition, that he also said that she was not working up to Eagle's expectations: Accord- ing to Petersdorf, he told her that because of her attitude and the problems they were having, there was no need to go on further; that it was obvious she would not make the 30-day probationary period and she was terminated. 3. Resolution of the Ryan case The evidence establishes beyond question that Ryan had reason to fear adverse consequences when she was called to the office on 'August 26 The interview fol- LUCKY STORES - 1457 lowed by a few days that of August 21 at which Kula- kowski was also present and at which she received a written warning. The locale was the same, the manager's office Also she had been told a" few days earlier by Pe- tersdorf that he wanted to discuss some problems with her She knew he had been upset with her on that occa- sion, that they had had some scheduling problems, and also that she had had some absences Although Peters- ,dorf did not intend to either suspend her or discharge her when he called her to his office on August 26, that was not apparent to her, and during the interview he said nothing to dispel her reasonable apprehensions. He admittedly wanted to discuss with her what he perceived as problems His testimony indicates he intended an interchange between them. This implies he expected some input from her. The meeting was thus sufficiently investigatory to bring Ryan within the protection of NLRB v J. Weingarten, 420 U S. 251 (1975), and Baton Rouge Water Works, 246 NLRB 995 (1979) See also Interstate Security Services, 263 NLRB 6 (1982), Anchor- tank, Inc. v NLRB, 618 F 2d 1153 (5th Cir. 1980); Lennox Industries, 637 F 2d 340 (5th Cir 1981); NLRB v Texaco, 659 F.2d 124 (9th Cir 1981); and Gulf States Mfg. v. NLRB, 704 F.2d 1390 (5th Cir. 1983) It" is undisputed that Ryan requested a union represent- ative. I credit Petersdorf and Kulakowski over Ryan in finding that, Petersdorf offered her the telephone to call a union representative, and that she did not act on that offer. On the other hand, she did not overtly refuse to call and she could not reasonably be required to make such a call in the presence of management officials. Moreover, her making the call at that instant was not the only alternative open to Petersdorf if he intended to honor her Weingarten rights. Given the size of the Great- er Chicago area, it is obvious that a business representa- tive very likely would not have been immediately avail- able to participate. Yet, because she did not make an im- mediate call in their presence, Petersdorf insisted on pro- ceeding as if she had not asked for a representative. Ryan's refusal to remain and accede to his insistence on the interview was an assertion of her rights under NLRB v. J. Weingarten, Inc., supra. His insistence on proceeding in the circumstances, as well as her suspension and later discharge were violations of those rights and unfair labor practices under Section 8(a)(1) of the Act E. I du Pont & Co, 262 NLRB 1028 (1982), enfd. 724 F.2d 1061 (3d Car 1983) The General Counsel urges a second theory, namely, that Ryan was suspended and discharged because she en- gaged in protected concerted activities I agree. The complaint does not allege, and I do not understand coun- sel's argument to include, a theory based on Pappas' re- fusal to accept the determination of Kohl's higher man- agement that she held the status of a deli manager. The complaint alleges only, and Respondent has only been called upon to defend against the allegation, that the August 21 and 26 interviews and the suspension and dis- charge violated the Act, not that Ryan was unfairly treated by Eagle in not giving her a deli manager assig- ment This is not to say that the input which Pappas gave Cress as well as that which Petersdorf gave him, should not be considered in assessing Cress' motive in authorizing the discharge. Cress testified credibly, and I find, that he based his decision regarding Ryan entirely on information he acquired since the Eagle takeover. His knowledge included the' fact that Ryan had filed a griev- ance against Eagle plus the information from Petersdorf about the August 21 and 26 interviews Employer knowledge of the filing of a grievance does not alone es- tablish- animus toward the exercise of protected rights. This is especially so with Cress 'who routinely handled numerous grievances pursuant to the contractually agreed. upon procedures. But the lack of understanding of both Cress and Petersdorf of the meaning of employee Weingarten protection demonstrates an intent not to allow those rights to their full extent and to suspend and discharge employees asserting such rights in opposition to management's erroneous view. This attitude, as well as the harassment of Ryan on August 21 following by only a few days her declared intention to seek help from the Union on her scheduling requirements, establish a management purpose to discriminate with regard to Ryan's employment because she sought the benefit of rights to which she was entitled under the statute or the union contract. Such conduct violated Section 8(a)(1) of the Act. Vanport Sand & Gravel, 270 NLRB 1358 (1984); NLRB v. City Disposal Systems, 460 U.S. 1050 (1984), In- terboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 49 (2d Cir. 1967). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with the op- erations described in section I, above, have a close and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondents Eagle and Kohl's are employers within the meaning of Section 2(2) are engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By terminating employee Richard Pawlish on May 27, 1982, because with his prior employer Kohl's he ob- tained additional hours of work by-invoking the collec- tive-bargaining agreement, Respondent Eagle committed unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. Respondent Eagle did not commit unfair labor prac- tices within the meaning of the Act by terminating em- ployees Carolyn Nilles, Nancy Hagem eier, and Collette Merenda as of May 29, 1982 5. By reprimanding employee Judi Ryan on August 21, 1982, Respondent Eagle did not commit unfair labor practices within the meaning of the Act 6 By suspending and terminating employee Judi Ryan on August 26, 1982, because she refused to participate without union representation in an investigatory meeting with management from which she reasonably anticipated 1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consequences adverse to her employment, and because she had threatened to seek the Union's help respecting her work schedule, Respondent Eagle engaged in unfair labor practices proscribed by Section- 8(a)(1) of the Act. 7. The unfair . labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I' recommend that it be ordered to cease-and desist - therefrom and take certain affirmative action designed to effectuate the policies of the Act. I recommend'that Respondent be ordered to offer Richard . Pawlish and Judi Ryan immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other benefits and privileges, and that each be made whole for any loss of earnings in- curred as a result of being terminated. as probationary employees, with backpay to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest. as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). I further recommend that Respondent be required to pre- serve and make available to Board agents, on request, all pertinent records and data necessary in analyzing and de- termining whatever -backpay or other amounts may be due, and further, that Respondent be required to expunge from its files any reference to the terminations of Pawlish and Ryan. [Recommended Order omitted from publication.]