Superior Warehouse Grocers, Inc.

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superior Warehouse Grocers, Inc. and Robert Te- treault and Local 1428, United Food and Com- mercial Workers International Union, AFL- CIO. Cases 21-CA-22061, 21-CA-22242, 21- CA-22370, 21-CA-22418, and 21-CA-22555 30 October 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 19 June 1985 Administrative Law Judge Wil- liam L. Schmidt issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Superior Warehouse Grocers, Inc., Los Angeles, Covina, and Lynwood, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. Frank M. Wagner, Esq., for the General Counsel. Norman E Jones, Esq. (Jones, Jones, & Jones), of San Simeon, California, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This matter was heard in Los Angeles, California, on 4 December 1984. The charge in Case 21-CA-22061 was filed by Robert Tetreault on 14 March 1983 and was amended on 6 May 1983.1 On 17 May the Regional Di- rector for Region 21 of the National Labor Relations Board (NLRB or Board) issued a complaint in Case 21- CA-22061 on behalf of the General Counsel of the Board. Local 1428, United Food and Commercial Work- ers International Union, AFL-CIO, CLC (Union) filed the charge in Case 21-CA-22242 on 9 May; that charge was amended on 26 May. On 8 July the Regional Direc- tor for Region 21 issued an order consolidating Cases 21-CA-22061 and 21-CA-22242, and a consolidated amended complaint. On 28 June the Union filed Case 21- CA-22418. On 26 October the Regional Director for Region 21 issued an amended order consolidating the last ' Unless specified otherwise, all dates hereafter refer to the 1983 calen- dar year. two cases with the former two cases and an amended consolidated complaint . On 7 September the Union filed Case 21-CA-22555 which was amended -on 23 Novem- ber. On 3 December the Regional Director for Region 21 issued a second amended order consolidating all of the pending cases and a second amended consolidated complaint (complaint), which constitutes the operative pleading of the General Counsel in the instant proceed- ing, alleging Superior Warehouse Grocers, Inc. (Re- spondent) had engaged in various unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. The Respondent timely answered all of the General Counsel's complaints, including an answer of 27 Decem- ber to the operative pleading in this matter . The Re- spondent's final answer admitted certain allegations of the complaint and denied others including the alleged unfair labor practices. On the entire record, my observation of the witnesses who testified in this matter, and my careful consideration of the timely posthearing brief filed by the General Counsel, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation engaged in the retail sale of groceries and sundry items at Covina and Los Angeles, California, derived gross revenues in excess of $500,000, and purchased and received goods and supplies valued in excess of $50,000 from suppliers located outside the State of California in the 12-month period preceding the issuance of the complaint. The Re- spondent admits that it had been at all material times an employer engaged in commerce or a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. I further find that it would effectuate the purposes of the Act for the Board to assert jurisdiction over the labor dispute described below. II. THE LABOR ORGANIZATION INVOLVED At the hearing the Respondent amended its answer to admit that the Union has been at all times material a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction This case focuses on conduct on supervisors and agents of Respondent at its Covina, California store be- tween January and August. In addition to that store, Re- spondent operated a similar store in Los Angeles. The Covina store ceased operating in November. In March 1984, Respondent opened a store in Lynwood, Califor- nia. At the relevant times, James Oh was Respondent's president and was believed by employees to be Respond- ent's owner. Between December 1982 and August, the Covina store was managed at one time or another by Ronald Simmons, Larry Fellbaum, Frank Ingram, and 277 NLRB No. 10 SUPERIOR WAREHOUSE GROCERS 19 Gus Alvarez.2 All appear to have reported directly to Marie Song, known as the "store director" and believed by employees to be a relative of Oh. In the same period Robert Blueford was the assistant store manager at Covina and Michael Toupal was the grocery manager. Sandra Sexton was a frontline manager overseeing the work of 20 or so cashiers employed at Covina. Respond- ent admitted that all of the foregoing individuals were supervisors and agents. Respondent denied that James Blake, alleged to be a frontline manager, was a supervisor. As the evidence shows that Blake was Sexton's predecessor in that posi- tion and that the extent of Sexton's authority clearly shows that she was a supervisor, and as Simmons testi- fied without contradiction that Blake hired and fired em- ployees, I find that Blake likewise was a supervisor. Curtis Vandeveld, a representative of the Union, made efforts at various times since 1981 to organize the Covina employees. During one period, the Union deferred its or- ganizing efforts following a plea by Oh to allow- a period of time for the store to become a profitable operation. Oh promised that in return he would later discuss union recognition. The organizing drive appears to have been renewed in earnest in early January. Added impetus to that drive was provided in early March by Ronald Simmons imme- diately following his term as store manager .3 A petition for an NLRB election was filed in May but was later dis- missed following the close of the Covina store. The Union established a picket line at the Covina store in late July to protest Respondent's unfair labor practices. The picketing continued through September. B. The Alleged 8(a)(1) Violations Paragraph 6 of the complaint alleges 32 separate acts between January and 2 August by 9 of the Respondent's supervisors which are alleged as unfair labor practices in violation of Section 8(a)(1) of the Act in paragraph 10 of the complaint. At the hearing, Respondent amended its answer to admit that it engaged in all of the conduct al- leged in complaint paragraph 6 except subparagraph 6(d) which alleges that James Oh threatened employees with physical harm if the employees selected the Union as their collective-bargaining representative.4 However, Re- spondent did not amend its answer to admit that such conduct constituted violations of Section 8(a)(1) as al- leged in paragraph 10. Chronologically, the conduct ad- mitted by the Respondent is as follows: 1. On an unspecified date in January, Ronald Simmons interrogated employees concerning their union activities and the union activities of their fellow employees. 2. On an unspecified date in January, James Blake threatened employees with discharge because of their support for the Union. 2 Although the admitted allegation lists Alvarez ' position as frontline manager, the testimony shows that Alvarez was the store manger. 0 Tetreault's charge alleged discrimination by Respondent against Sim- mons but there is no evidence concerning the circumstances of Simmons' departure as the Covina manager 4 In admitting the conduct alleged in complaint pars . 6(g) and (h), the Respondent admitted that the agent and supervisor responsible was Frank Ingram rather than Larry Fellbaum as alleged in the complaint 3. About 1 February, James Oh engaged in the follow- ing conduct at the Respondent's Covina facility: threat- ened employees with closure of the business and dis- charge if they continued to engage in union or other pro- tected concerted activities; conveyed to employees the futility of seeking union representation; made promises of medical insurance benefits in an effort to have employees abandon their support of the Union; and solicited em- ployees to engage in surveillance of their fellow employ- ees' union acitivities. 4. About 12 March Michael Toupal engaged in the fol- lowing conduct at the Covina store: created the impres- sion of surveillance of employees' union or other protect- ed concerted activities; threatened employees with trans- fer to Respondent's Los Angeles facility and other re- prisals to induce them to abandon their union and other protected concerted activities; and threatened a reduc- tion in hours and other reprisals to induce employees to abandon support of the Union. 5. About 13 March James Oh engaged in the following conduct at the Covina facility: created the impression of surveillance of employee union or other protected con- certed activities; interrogated employees about union ac- tivities; threatened closure of the business and discharge if employees continued to engage in union and other pro- tected concerted activities; conveyed to employees the futility of seeking union representation; solicited employ- ees to abandon union support and other protected con- certed activities; and threatened a reduction in hours and other reprisals because employees had engaged in union and other protected concerted activities. 6. On an unspecified date in late March or early April, Frank Ingram threatened the closure of the Covina facil- ity if employees selected the Union as their collective- bargaining representative. 7. About 31 May Sandra Sexton interrogated employ- ees concerning their union activities and the union activi- ties of their fellow employees. 8. On an unspecified date in May, Sandra Sexton, at the request of Larry Fellbaum, engaged in the surveil- lance of employees' union activities at the Covina facili- ty. 9. On an unspecified date late May or early June, Frank Ingram threatened employees at the Covina facili- ty with discharge because of their support for the Union. 10. About 16 June Larry Fellbaum engaged in the fol- lowing conduct at the Covina facility: interrogated em- ployees concerning their union activities ; and threatened employees with discharge for engaging in union and other protected concerted activities. 11. About 20 June James Oh told employees that they could not select the Union as their collective-bargaining representative. 12. About 22 June James Oh engaged in the following conduct at Respondent's Covina facility: threatened em- ployees with surveillance of their union activities; told employees that Respondent would refuse to bargain with the Union if it was selected as the employees' collective- bargaining representative; told employees that the Re- spondent would force the Union to strike and picket if it was selected as the employees' collective-bargaining rep- 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative; made promises of pay raises if employees abandoned support of the Union; and made statements which created the impression that employees ' union or other protected concerted activities were under surveil- lance by Respondent. 13. About 22 June Robert Blueford engaged in the fol- lowing conduct at the Covina facility: interrogated em- ployees concerning union activities ; and promised pay raises if employees abandoned their support for the Union. 14. On an unspecified date in June, Respondent estab- lished a medical insurance program to induce employees to abandon support of the Union. 15. About 2 August Gus Alvarez threatened employ- ees with unspecified reprisals for engaging in union or other protected concerted activities. As noted above, complaint paragraph 6(d) alleges that James Oh threatened employees with physical harm if they selected the Union as their representative . Daniel Lopez, an employee of the Respondent at the Covina store from October 1982 until ' 18 July 1983, testified without contradiction about a conversation with Oh on 12 March in the presence of Marie Song, Mimi Sims, and Tom Curtis. Among other things, Oh told Lopez that he had "bought" someone in the Union who informed him that Lopez had signed an authorization card . According to Lopez, Oh "came unglued" and told Lopez that he wanted to choke him and accused Lopez of slashing his tires. Oh continued by saying that if the store was union- ized Oh would close the store and reopen later with new employees. Oh told Lopez that he could not fire him but he would reduce Lopez' hours enough to prevent Lopez from making a living. Oh also asked Lopez to withdraw his authorization card. Michael LaFond, an employee at Covina from 4 No- vember 1982 until 10 January, testified without contra- diction that Oh telephoned him at home in March to advise that Oh did not want "your union kind" around the Covina store. LaFond said that Oh told him that "if your union gets in here, I'll break your neck." Lopez and LaFond impressed me as forthright and candid witnesses who made every effort to recount these and other events to the best of their recollection. In the absence of any contradictory testimony, I credit Lopez' and LaFond's testimony concerning the above incidents. As the evidence shows that Oh-in an apparent rage- told Lopez he would "like to choke" him, and that Oh told LaFond that he would break LaFond's neck if the Union was successful , I find the General Counsel has sustained his burden of proving the allegation in com- plaint paragraph 6(d) by a preponderance of the evi- dence.5 The conduct alleged in paragraph 6 which has been admitted by Respondent or which I have found to be true includes a variety of threats and promises. That con- duct which does not specifically include threats or prom- ises did-as shown by the testimony of Lopez and LaFond recounted above and as shown by the testimony of other witnesses recounted below in connection with 5 In my judgment, the record is void of any basis for inferring that Oh-on either occasion-was speaking metaphorically. the 8(a)(3) allegations-occur in an overall atmosphere of extreme hostility by Respondent toward employee orga- nizational efforts. In these circumstances, I find that all of the conduct alleged in paragraph 6 would clearly tend to coerce and restrain employees in the exercise of their Section 7 rights. See Blue Flash Express, 109 NLRB 591 (1954). Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by all of the conduct alleged in complaint paragraph 6. C. The Alleged 8(a)(3) Violations The complaint alleges that the Respondent violated Section 8(a)(3) of the Act by engaging in the following conduct to discourage union activities: discharging Mi- chael LaFond on or about 10 January ; changing the work hours and the work location of employees Te- treault and Lopez on or about 12 March; constructively discharging Tetreault and Lopez on or about 12 March and refusing to reinstate them until 17. March; issuing written warnings to Tetreault and Lopez because they refused to accept the changed work hours and transfer of work location which was made on 12 March ; reducing the hours of work of Tetreault and Lopez beginning in or about the week of 27 March; issuing a written warn- ing notice to Tetreault on 4 April; discharging Tetreault on or about 4 April; making unreasonable work assign- ments, and maintaining unreasonably close observation and supervision of Lopez' work beginning on or about 21 April; demoting Lopez on or about 1 May and issuing two written warning notices to Lopez on the same date; discharging Lopez on 18 July; and discharging Karen Pedregon on or about 29 August . The evidence and my conclusions pertaining to each of the employees alleged to have been discriminated against is set forth below. 1. Michael LaFond a. The Evidence As noted above, LaFond was employed at the Covina facility from 4 November 1982 until his discharge on 10 January 1983. Hired by Oh, LaFond began as a stocker and helper in the Covina deli and frozen food section; he later became the deli and frozen food manager.6 La- Fond's immediate -supervisor was Gary Castle. When hired, Castle advised LaFond that his starting time would be 6 a.m. This news prompted LaFond to advise Castle that arrangements for his son's care would likely cause him to be a few minutes late on occasion. Castle assured LaFond that there would be no problem with that situation and Ingram, too, gave LaFond a simi- lar assurance shortly thereafter. Pertinent also is Ingram's later assurance that LaFond should not worry about the considerable overtime required to keep his department in shape. Ingram instructed LaFond to work as long as nec- essary for that purpose. Subsequent experience showed that LaFond normally arrived at work between 6:10 and 6 There is no contention nor evidence that LaFond's position ever placed him outside the Act's protection. There were no other employees in the deli and frozen food department when LaFond served as its man- ager. SUPERIOR WAREHOUSE GROCERS 6:15 a.m., and that he worked an average of 48 to 56 hours per week. In one period commencing in mid-No- vember 1982, LaFond worked 16 consecutive days. At some unspecified time prior to LaFond's discharge, Beny Smith, described by LaFond as a union representa- tive known to him from a prior place of employment, visited the Covina store, told LaFond of his effort to or- ganize the store, and ascertained LaFond' s interest in supporting an organizational effort. Later, on 5 January, union representative Brent Denkers visited LaFond's apartment and LaFond signed a union authorization card on that occasion. Thereafter, LaFond conversed with five or six store employees about the Union, both at the store and else- where. Among those to whom LaFond spoke was Frank Gomez, then the Covina grocery manager. LaFond pro- moted the Union to Gomez, but the latter demurred saying that he was not interested as he "just wanted to have his job and that was it." On arriving at work between 6:10 and 6:15 a.m. on 10 January, LaFond was summoned to the manager's office by Simmons. When LaFond complied, Castle (who ap- parently was already in Simmon's office) advised LaFond that he had to terminate him. Castle told LaFond that his discharge was "because of (his] tardi- ness." LaFond protested, reminding Castle of their earli- er conversation when LaFond was assured that there would be "no problems" on that score. Castle did not re- spond directly; instead Castle told LaFond that Ingram and he had been "told to let [LaFond] go." Before leav- ing LaFond was informed that his paycheck would be available later in the day after Oh arrived at the Covina store. Ingram was present when LaFond returned later in the day for his paycheck. LaFond pressed Ingram to ex- plain the reason for his discharge and Ingram said that it was because LaFond had worked too much overtime. That explanation prompted LaFond to recount the reason assigned by Castle and to press Ingram to explain the inconsistency. Ingram was unable to explain either the inconsistent reasons for LaFond's discharge or his failure to warn LaFond against working excessive over- time.' Instead, Ingram told LaFond: "I have to let you go. I've been told to let you go " Before LaFond depart- ed, Ingram called another employer in an effort to secure employment for LaFond. LaFond attempted to speak with Oh later that same day about his discharge but Oh refused saying that he was too busy. According to Simmons, Ingram instructed him to dis- charge LaFond. About 2 weeks after LaFond's dis- charge, Simmons said that Ingram also instructed him to discharge Calvin Cooper because-like LaFond-Cooper was suspected of signing a union card. 8 Purportedly, 7 No evidence was proffered that the amount of LaFond's overtime violated any general store policy or specific directive to him. s The complaint contains no allegation pertaining to Cooper and no other evidence was adduced concerning the discharge of Cooper, if it oc- curred at all. 21 Ingram told Simmons: "[G]et rid of J Cooper] the same way you did Michael LaFond for signing a union card." Sylvia Mercado, an employee at Covina from April 1981 to October, was told by Frontline Manager Blake that LaFond was fired becuase he was a union organizer and not because of unauthorized overtime. As recounted above, sometime in March, LaFond re- ceived a telephone call at his home from Oh. On this oc- casion Oh asked why LaFond was bothering him and told LaFond that he did not want LaFond's "kind" around his store. LaFond asked Oh what he meant by his "kind" and was told by Oh: "I don't want your kind around [the store] . . . and if your union gets in here, I'll break your neck." Respondent called no witnesses to explain LaFond's discharge. b. Conclusion The preponderance of the evidence supports the con- clusion that LaFond was terminated in violation of Sec- tion 8(a)(3) of the Act. As noted, Castle and Ingram provided LaFond with conflicting and inconsistent reasons for his discharge. Both attempted to evade responsibility for the illogic of their explanations to LaFond by asserting that some indi- vidual-never identified-had directed LaFond's termi- nation. This circumstantial evidence supports the conclu- sion that the reason each advanced on the day of La- Fond's discharge was not the true reason for his termina- tion. Simmons uncontradicted admissions regarding In- gram's statements about the reasons for LaFond's dis- charge in connection with Cooper as well as Oh's state- ments to LaFond in March and Blake's statement to Mercado lend strong support to the conclusion that La- Fond's discharge was the result of his union activity. Athough no evidence was advanced about the precise means by which the Respondent gained knowledge of LaFond's union sympathies, Ingram, Blake, and Oh's postdischarge statements leave no doubt that the Re- spondent knew of LaFond's sympathies toward the Union. Having weighed these postdischarge statements together with the illogical and inconsistent reasons pro- vided LaFond at the time of his discharge, the timing of LaFond's discharge, the lack of any explanation as to the reason for LaFond's discharge by the Respondent at the hearing, and the extreme union animus otherwise demon- strated by the Respondent, I find that the General Coun- sel has sustained his burden of proving the 8(a)(3) allega- tion pertaining to LaFond. 2. Robert Tetreault a. The evidence9 Tetreault, hired at the Covina store as a stockclerk on 10 January, was discharged effective 2 April. Grocery 9 The events described below are based on Tetreault's testimony. No contradictory evidence was offered by Respondent Based on my obser- vation of Tetreault while testifying, I am satisfied there is no reason to discount his testimony 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager Mike Toupal was Tetreault 's immediate super- visor at Covina. Prior to 14 March, Tetreault was sched- uled regularly for 40 hours of work per week but his actual workweek ranged from 40 to 48 hours. Tetreault signed a union card on 9 or 10 March away from the store premises ; no one other than the union rep- resentative was present . Thereafter, he attended a union meeting conducted by union representatives Brent Denkers and Curtis Vandeveld . 10 Ronald Simmons, Daniel Lopez, McCloskey Lim, and two other store em- ployees whose names Tetreault could not remember also attended. On 12 March Toupal approached Lim and Tetreault at their work area and asked to speak with them in the manager's office. In the office, Toupal told the two em- ployees that Oh knew that they had joined the Union and that Oh had ordered their transfer to the Los Ange- les store to thwart the union effort at Covina. Toupal also told them that Oh knew that he could not fire them so he (Oh) intended to make conditions so undesirable that they would not want to stay. Toupal provided addi- tional details saying that when they were transferred their hours would be cut and their work would be made undesirable. Toupal offered to serve as go-between with Oh in order to stave off the reported consequences if the two employees would agree to retrieve their union cards. Toupal concluded by giving Tetreault his home phone number to facilitate a call after Tetreault thought about this proposition." Subsequently, Tetreault learned that Lopez had like- wise been reassigned to the Los Angeles store. Store Manager Fellbaum told Tetreault that the reason for his reassignment was a labor shortage at the Los Angeles store. On 13 March Tetreault spoke with Oh at the Covina store. The two men were alone at the time. When Te- treault asked the reason for his transfer, Oh initially re- peated Fellbaum's explanation that it was due to a labor shortage and denied that it was because Tetreault had signed a union card. Nevertheless, Oh asserted that he was aware that Tetreault had signed a union card. Oh explained that he had "bought off a few union people" to obtain information about "who has cards in the store." Oh also told Tetreault that he would "do anything to keep [the] store from going union" and that if he became obligated to bargain with the Union, he would close the store and fire the employees. Oh told Tetreault that some day he hoped to be in a position to buy unionized stores and to convert them to nonunion stores. Oh explained that he would accomplish this object by telling employ- ees that they would have to get withdrawal cards from the Union or he would fire them. Oh told Tetreault that they were friends before he signed a union card and that he would have to get it back if he wanted his job at the Covina store and his livelihood. Oh offered to assist Te- treault to retrieve his authorization card . Following the is As noted before, it is my conclusion (in the section below dealing with Daniel Lopez) that this meeting was held on 12 March at approxi- mately 4 30 p.m As did Lopez, Tetreault testified that this meeting was held on 11 March. I Lim's reassignment was not alleged in the complaint nor was it liti- gated. conversation, Oh requested that he work that day at Covina because it was very busy. Over the course of the next day, Tetreault and Lopez met with union representative Vandeveld and each pre- pared a letter protesting their transfer as unlawful disci- pline to discourage their, support of the Union and stat- ing their refusal to accept the reassignment . Tetreault and Lopez delivered their respective letter to Marie Song who told them that she would pass it on to Oh. Tetreault then filed the charge in Case 21-CA-22061 al- leging that the Respondent had discriminated against Lopez, Simmons, and himself. On 16 March Fellbaum telephoned Tetreault with in- structions to report to the Covina store the following day. When Tetreault complied, Fellbaum gave him a written warning (his first) of termination signed by Fell- baum and dated 16 March. The reasons listed for the reprimand were: (1) receiving personal phone calls on March 12; (2) failing to report to work as scheduled on March 13; and (3) failing to notify the manager "per company policy per attendance."12 At the same time, Fellbaum told Tetreault that "things wouldn't be very good" for Lopez and himself, and that he would not be scheduled for as many hours of work as he had in the past. Between that day and his discharge on 2 April, Tetreault's workweek never exceeded 32 hours; frequently it was much less. On 21 March Fellbaum issued Tetreault a second writ- ten warning for being a half hour late for work. There is no evidence pertaining to a reason for Tetreault's tardi- ness on this occasion nor is this warning alleged in the complaint. On 26 and 27 March Ingram-in Fellbaum's pres- ence-spoke to Tetreault in the Covina manager's office. On this occasion, Ingram complimented Tetreault's work and asked that he transfer to the Los Angeles store as the frozen food clerk. Ingram guaranteed Tetreault that his workweek would increase to 40 and 48 hours, and that "possibly" his hourly rate would be increased. Ingram did not call for an immediate decision; instead he asked Tetreault to give the proposition some thought. Later in the day, Ingram and Tetreault discussed Los Angeles clerk's position further without a decision on Tetreault's part. That evening, in a brief discussion which occurred in the parking lot after work , Ingram ad- vised Tetreault to forget the reassignment as the position had been filled. On 4 April Tetreault telephoned the store and spoke with a stockclerk who advised Tetreault that his name appeared on the schedule . Tetreault reported for work but later learned that the clerk with whom he had spoken had mistakenly read the previous week's sched- ule. When the current schedule was posted, Tetreault noted that he was not listed at all. 12 Fellbaum told Tetreault that he would delete the portion of the rep- rimand concerning personal calls after Tetreault advised Fellbaum that the only call was from the Los Angeles store informing Tetreault of his work schedule there. However, a copy of the written reprimand in evi- dence shows that nothing was done to physically alter the reprimand document originally issued SUPERIOR WAREHOUSE GROCERS 23 Tetreault sought out Fellbaum to discuss the schedule. Fellbaum advised Tetreault that he had been terminated, and provided a third warning and a termination notice. The warning states that Tetreault failed to adhere to the posted schedule by working unauthorized overtime, and that he failed to correct merchandise prices which he had mismarked. The termination notice cites the latter as the "final circumstance leading to separation." Tetreault testified that the overtime occurred a few days earlier. At the end of his scheduled work on that occasion, Toupal told Tetreault to remain until he fin- ished the stocking work then in progress. When supplied with the separation paperwork, Tetreault argued to Fell- baum that the overtime incident had in fact been ap- proved by Toupal. Fellbaum acknowledged to Tetreault that he had not discussed the matter with Toupal and there is no evidence that he did so subsequently. Con- cerning the pricing error, Tetreault argued to Fellbaum that he was merely doing what Fellbaum had instructed him to do at the time and that he was not acting con- trary to the instruction. Fellbaum expressed a lack of in- terest in arguing; he told Tetreault that it does not matter as he intended to discharge Tetreault anyway. On 6 April Tetreault filed a first-amended charge al- leging Respondent had discriminated against Lopez, "other employees," and himself. On an unknown date in May, Respondent reinstated Tetreault with a 25-cent-per- hour increase in pay. Later, Tetreault quit of his own vo- lition. Respondent called no witnesses to explain its reasons for discharging Tetreault. b. Conclusions I find that the General Counsel has proven the com- plaint allegations to pertaining to Tetreault by prepon- derance of the evidence. The uncontradicted evidence shows that Tetreault's transfer to the Los Angeles store on 12 March was retri= bution for having signed a union card. Having been told by Toupal that his hours of work would be reduced and that the work which was provided would be made unde- sirable so that Tetreault would choose to quit, I find that Tetreault's refusal to accept the reassignment in these circumstances was fully justified, Toupal's explanation for these actions leaves no doubt as to the Respondent's unlawful objective. Tetreault's refusal to present himself at the Los Angeles store on 13 March is entirely outside the realm of insubordination which presupposes at least an arguably lawful direction not present here. Hence, Tetreault's choice of refusing to accede to the Respond- ent's unlawful scheme by not appearing for the assign- ment was tantamount to a constructive discharge as the complaint alleges and it follows that the 16 March writ- ten warning to Tetreault for his failure to report to the Los Angeles store is similarly unlawful as the complaint alleges. The General Counsel's uncontradicted evidence shows that Tetreault's average workweek ranged from 40 to 48 hours per week in the period preceding 12 March and that it was thereafter reduced for reasons explained only by Toupal on 12 March. That evidence compels the con- clusion that Tetreault's reduction in hours was motivated by Respondent's desire to retaliate against him for his union sympathies. This conclusion is strongly reinforced by the nature of the Respondent's other concurrent con- duct. Accordingly, I find that the Respondent unlawfully reduced Tetreault's hours of work after his return to the Covina store on 17 March. Tetreault disputed without contradiction the veracity of the allegations contained on his termination notice as well as the explanation provided to him by Fellbaum on the date of the discharge. In effect, Tetreault testified that, with respect to the repricing and overtime allega- tions contained in the Respondent's records, he was only following instructions given by the Covina managers. In this posture, the General Counsel has provided evidence that the reasons assigned for Tetreault were not truthful. As no witnesses were called by Respondent to contradict Tetreault's claim concerning the allegations shown on his final warning and discharge notice, it is my conclusion that the information contained on Tetreault's termination records is pretextual. Moreover, when Tetreault con- fronted Fellbaum with the inaccuracy of the overtime al- legation-which was the only claim cited on his termina- tion notice-Fellbaum asserted that "it didn't make any difference," a response which suggests other reasons ex- isted for Tetreault's termination. As the Respondent, (1) failed to provide evidence which supports the allegations of its records, (2) exhibited strong union animus, (3) was aware of Tetreault's union sympathies, and (4) had previ- ously undertaken to punish and to force Tetreault to quit in order to rid itself of a union sympathizer, I find it fair to infer that Tetreault's union sympathies were the sole or principal reason for his termination. Accordingly, I find that the Respondent violated Sec- tion 8(a)(1) and (3) of the Act with respect to Tetreault as alleged in the complaint. 3. Daniel Lopez a. The evidence Lopez was hired as a boxboy at the Covina store in October 1982. By March 1983, Lopez had been promot- ed to the position of stockclerk. Lopez typically worked from 3 to 9 p.m. and, until March, he averaged 30 to 40 hours of work per week. According to Lopez, in October or November, Benny Smith, known to him as a former employee of the Re- spondent, approached him in the parking lot to sign a union authorization card. That card was never produced at the hearing and Lopez asserted that he did not know what happened to it. Thereafter, Lopez heard nothing further about a union until attending a union meeting which Lopez-like Tetreault-said was on 11 March. In addition to those identified by Tetreault as being in at- tendance at this meeting, Lopez recalled that employees Tom Curtis and an individual known to him only as Mike were present at the meeting. Curtis Vandeveld, the union representative in charge of the organizational campaign at the Respondent's store, recalled that Lopez signed a union card at the March meeting alluded to in the previous paragraph which was held at a pizza parlour down the street from the Covina 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store. The authorization card executed by Lopez on this occasion was produced in evidence and is dated 12 March. In addition, the card bears Vandeveld's dated ini- tials on the reverse side, and a notation of the location in accord with Vandeveld's usual practice. Vandeveld's ini- tials are dated 12 March. According to Vandeveld, the 12 March meeting commenced at approximately 4:30 p.m. Vandeveld recalled that Curtis did not sign a union card. When cross-examined by Respondent, testimony was elicited from Vandeveld-without objection-that Curtis had subsequently admitted to Vandeveld that he provided Respondent with information about the union meetings in return for a promotion. That testimony was never denied. At some unspecified time on 12 March, Lopez re- ceived a telephone call from Bob Blueford informing Lopez that he was scheduled the following week on a 3 a.m. shift at the Los Angeles store. Apparently concerned about the permanency of this reassignment, Lopez spoke first with Store Director Song, and then with Oh. These conversations, according to Lopez, occurred shortly after the telephone call from Blueford. Oh informed Lopez, contrary to Song's earlier advice, that the Los Angeles assignment was not perma- nent as it was occasioned by a temporary labor shortage at that store. Nonetheless, the conversation quickly fo- cused on the organizing drive. Oh told Lopez that he was aware Lopez had signed a union card. Oh asserted that he became aware of this fact because he had "bought" someone in the Union. Oh asked why Lopez signed the card and told Lopez to get it back. Oh threat- ened to close the store if it was unionized and to reopen later with nonunion personnel. More immediately, Oh threatened to cut Lopez' hours to the point where he could not make a living. In Lopez' words, Oh also "came unglued" and told Lopez that Oh wanted to choke him and accused Lopez of slashing his tires. As noted in subsection B, above, Curtis was present during Lopez' conversation with Oh. As noted in the section dealing with Tetreault's dis- charge, instead of reporting to the Los Angeles store, Lopez-along with Tetreault-prepared a letter refusing the Los Angeles reassignment and delivered it to Song at the Covina store, accompanied by Tetreault. According to Lopez, this occurred on the evening of the same day he spoke to Song and Oh about his reassignment. On 14 March Lopez also accompanied Tetreault to file a charge in Case 21-CA-22061. It is undisputed that on 16 March, Fellbaum tele- phoned Lopez with an instruction to report to the Covina store at 8 a.m. the following day if he wanted to "salvage" his job. When Lopez reported to work on 17 March, Fellbaum spoke to him in the Covina office and gave him a written warning. This warning asserts that Lopez violated store policies by: (1) receiving a personal phone call on 12 March; (2) failing to report to the Los Angeles store on 13 March; and (3) failing to notify the manager of this failure to report. Lopez explained to Fellbaum that the telephone call, in fact, was Blueford's call to him directing him to report to the Los Angeles store. Hearing this explanation, Fellbaum made a written notation on the warning that the phone call was for com- pany business and in this manner apparently excused the infraction noted on the warning with respect to the phone call. Although it was undisputed that Lopez noti- fied Song in writing of his refusal to report to the Los Angeles store, he did not argue this point with Fellbaum on 17 March. After 17 March Lopez' scheduled hours were reduced to 24 or less per week. In mid-April, he was demoted from stockclerk to boxboy. One evening in the middle of April, Oh approached Lopez where he was working in the Covina store and asked why Lopez thought Oh was discriminating against him. Lopez told Oh that he would not talk to him unless he had a witness present. Oh responded by telling Lopez that he made things "too complicated" for him and walked away. Lopez testified that after that, Fellbaum and Blueford took an added interest in his work; three or four times a day one or the other of the managers would stand near Lopez and watch him work for extended peri- ods of time. Sandra Sexton, hired at the Covina store in early April as the frontline manager, said she was present at a meet- ing on 20 May during which Oh told an assembled group of managers that Lopez was among those who had "filed suit" against him with the NLRB. Oh threat- ened on this occasion to fire anyone who had anything to do with the Union and gave Sexton an instruction to take groups of cashiers to lunch in order to "give them his side of the story."13 In late April, Blueford gave Lopez two written warn- ings. The first, signed by Blueford and dated 26 April, warned Lopez for failing to complete his work assign- ment; the second, signed by Fellbaum and dated 28 April, warned Lopez for conversing too much with friends and coworkers. Lopez disputed the bases of both warnings at the hearing. He asserted that the former was occasioned by his inability to complete his regular work due to special assignments which Blueford ordered him to perform without regard to the time taken away from his regular duties. The latter warning occurred immedi- ately after Fellbaum verbally reprimanded Lopez and Einis Merryweather, another employee, for talking too much when Fellbaum intercepted them giving directions to a customer who had asked about the location of the coffee stock. Respondent's records disclose that no writ- ten warning was issued to Merryweather. The events leading to Lopez' termination occurred on 17 July. As recounted by Lopez, when he arrived at work, Gus Alvarez, then the Covina manager, assigned Lopez and Lim to the task of cleaning the warehouse. In the course of their work, Alvarez opened the warehouse doors to permit the two workers to relocate approxi- mately 10 empty breadracks outside on the receiving dock to facilitate their cleaning work. After the job was finished, the breadracks were intentionally left on the re- 13 Sexton did not appear at the hearing pursuant to the General Coun- sel's subpoena The findings herein are based on information provided by Sexton in affidavits Sexton executed during the General Counsel's investi- gation. Those affidavits were received in evidence pursuant to the stipu- lation of the General Counsel and the Respondent. No objection was interposed to the use of Sexton's affidavits SUPERIOR WAREHOUSE GROCERS ceiving dock and the doors were locked by Alvarez. Lopez went about other duties. Two or three hours later, Alvarez returned to the vicinity with a security guard, opened the receiving doors, and discovered three smashed (and unsalable) loaves of bread in the racks lo- cated on the receiving dock. It is undisputed that the loaves of bread had not been in the racks when they were relocated from the warehouse to the receiving dock. When queried by Alvarez, Lopez denied knowing how the loaves came to be placed in the breadracks on the receiving dock. When Lopez arrived for work on 18 July, Fellbaum, who apparently had advanced to a position of responsi- bility for both the Los Angeles and Covina stores, asked for an explanation about the smashed loaves of bread. Again, Lopez denied knowledge of the odd circum- stances. With that, Fellbaum handed Lopez a written warning which stated that Lopez was guilty of mishan- dling company merchandise, willful misconduct, i.e., put- ting bread out the back door, and failing to perform work as required. Lopez declined Fellbaum's invitation to sign the warning. To that Fellbaum replied that it did not make any difference and then handed Lopez a termi- nation notice which stated essentially the same thing. Lopez also declined Fellbaum's invitation to sign that document and asked for his pay. After Lopez was given copies of the aforementioned documents and his pay- check, he left and has never been reinstated to his em- ployment with Respondent. Respondent's records disclose no written warning was issued to Lim over the 17 July incident. Respondent called no witnesses to rebut the General Counsel's case concerning Lopez. b. Conclusions I find that the General Counsel has proven the allega-, tions of the complaint pertaining to Lopez. Although Lopez testified that he executed a union au- thorization card in October or November 1982 at the re- quest of one Benny Smith, no such card was produced in evidence, and the evidence is insufficient to show that the Respondent's managers ever became aware of that fact. Nevertheless, the contemporaneous documentary evi- dence prepared in connection with the March events es- tablishes that the phone call reassigning Lopez to the Los Angeles store occurred on 12 March, the same day that Lopez attended a union meeting and executed what proportedly was the second authorization card. 14 Al- though the evidence fails to disclose that the telephone call reassigning Lopez to the Los Angeles store occurred after the 12 March union meeting, it is reasonable to infer that it did and that Respondent did know of Lopez' involvement with the Union at the time. I have reached this conclusion because of the similarity of the Lopez, 14 I find that this documentary evidence reliably describes the se- quence of events inasmuch as it was prepared at a time close to the events in question and when there was no litigation pending which might provide a motive to fabricate the documents In particular, the 17 March waling notice refers to the telephone call received by Lopez as having occurred on 12 March and Lopez ' authorization card as well as Vande- veld's note thereon are both dated 12 March. 25 Lim, and Tetreault reassignments, the presence of direct evidence on unlawful motive pertaining to Lim and Te- treault, the Curtis link between the 12 March meeting and Respondent's knowledge, the absence of any proven business necessity for the reassignments , and the lack of any evidence that employees other than those attending the meeting were transferred. For these reasons, I con- clude that the evidence establishes that the involuntary reassignment was motivated by Lopez' union sympathies and, like Tetreault, he was justified in refusing to report to the Los Angeles store as directed. It likewise follows that the Respondent's warning of 17 March concerning his failure to report to the Los Angeles store was also unlawful. The remaining allegations of the General Counsel's complaint with respect to Lopez are that the Respondent unlawfully reduced Lopez' workweek after late March, that it made unreasonable work assignments and kept Lopez under unreasonably close observation and supervi- sion beginning in late April, that it had demoted Lopez from his position as clerk to the position of boxboy on or about the first of May and issued two unjustified written warnings to Lopez, and that it unlawfully discharged Lopez. The evidence supporting these allegations was simply uncontested by the Respondent. Clearly, Lopez' uncontradicted testimony establishes that prior to 17 March he routinely was scheduled for 30 to 40 hours of work per week and that following 17 March, his schedule was reduced to maximum of 24 hours. About a month later Lopez was demoted with no apparent explanation. The Respondent's hostility for the union sympathizers is spread all across the record and the evidence is plain that by 17 March, the Respondent was well aware of Lopez' union sympathies. In these cir- cumstances, I find that the General Counsel has estab- lished a prima facie case that the Respondent discriminat- ed against Lopez by the reduced work schedule and the demotion. As the Respondent failed to come forward with any rebutting evidence, it is my conclusion that by reducing Lopez' workweek and demoting him the Re- spondent violated Section 8(a)(3) of the Act. With respect to the written April warnings, Lopez' un- contradicted testimony establishes that those warnings followed closely on the heels of Oh's attempt to confer with Lopez about the discrimination allegation and Lopez' adamant refusal to discuss the matter in the ab- sence of a witness. Oh's hostility toward Lopez' activi- ties is also found in Sexton's statements. Lopez' testimo- ny further establishes that the surveillance of his work had not previously occurred and that both of the written warnings were without justification. Also supporting the Respondent's discriminatory motive with respect to the latter written warning in April is the fact that Merryweather, the other employee involved, did not re- ceive a written warning. Accordingly, I find that the General Counsel has established a prima facie case with respect to these allegations of the complaint and, as the Respondent failed to provide any rebutting evidence, it is 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my conclusion that the Respondent thereby violated Sec- tion 8(a)(1) and (3) as alleged-115 The absence of an explanation of the circumstances surrounding Lopez' discharge is equally puzzling . Lopez' testimony establishes that he had no knowledge concern- ing the unusual appearance of the unsalable loaves of bread on the breadrack. There is no evidence that Lim, the other employee associated with Lopez in performing the cleanup work on 17 July, was questioned or other- wise disciplined with respect to the mishandling of the bread products . As the record stands, the only permissi- ble conclusion is that Lopez was wrongfully accused of mishandling the unsalable bread products while Lim, who, if he was still a union sympathizer at all, was clear- ly not as persistent as Lopez, was never a focal point of the Respondent 's investigation of the incident. These cir- cumstances permit the inference-which I have made- that the Respondent's motive in focusing on Lopez as the wrongdoer was motivated by its desire to rid itself of another union sympathizer. For these reasons, I find that the General Counsel has established a prima facie case that the Respondent's discharge of Lopez was unlawfully motivated. As the Respondent failed to come forward with any rebutting evidence , I futher find that the Gen- eral Counsel has established that the Respondent violated Section 8(a)(3) of the Act by discharging Lopez, as al- leged. 4. Karen Pedregon a. The evidence Pedregon was hired as a checker at the Respondent's Covina store on 9 November 1982 and worked continu- ously until her discharge on 29 August 1983. From early April until late June 1983, Pedregon's immediate supervi- sor was Sandra Sexton. Pedregon signed a union authorization card on 7 March and attended some of the union meetings held at a Moose Lodge in Covina prior to her termination. There is evidence that Pedregon discussed the merits of the Union with other employees-primarily checkers-in and about the store . She recalled one occasion when she offered to provide union agent Vandeveld with some of the checker's names and telephone numbers if they were interested in the Union. There is ample evidence that the Respondent was aware of Pedregon's union sympathies. In late April, Sexton told Pedregon that Oh was aware of Pedregon's involvement with the Union and that Oh had expressed belief that Pedregon has started the organizing effort. Sexton's affidavits show that in May-in the course of a meeting with Oh in which the identity of the union sup- porters was discussed-Oh expressed the view that "Karen was very much involved in the union." In early June, Fellbaum instructed Sexton to remove Pedregon from work in the courtesy booth because of his belief that Pedregon was obtaining information about employ- 1 s The General Counsel also alleged that these events resulted from Lopez' having given testimony to the Board in support of Case 21-CA- 22061 As the remedy in either case is the same, I find it unnecessary to further conclude that the Respondent's actions violated Sec. 8(a)(4) of the Act ees' schedules and telephone numbers for the Union while working in that position . Immediately prior to Sex- ton's discharge in late June, Fellbaum accused Sexton of attending a union meeting in the parking lot with Pedre- gon and Lopez. In the first week of August , Pedregon was assisting another checker during a slow period when no customers were at her checkout stand . Alvarez ap- proached the two checkers, accused them of conducting a union meeting, and ordered Pedregon to remain at her own register . Later that same day, Alvarez confronted a boxboy named Curt about signing a union card earlier that day. In the course of exchange between Alvarez and Curt, Curt remarked to Alvarez that Pedregon also was for the Union. The day following the incident between Alvarez and Curt, Pedregon was injured in an accident off the Re- spondent's premises. Between 5 August and 29 August, Pedregon was under a doctor's care and regularly pro- vided the Respondent with information concerning her condition as well as her physician's assessment that she should not be engaged in work. On 28 August, Pedregon was released to return to work and telephoned Alvarez to report that fact . At this time Alvarez informed Pedre- gon that she was laid off due to a lack of business. When Pedregon reported to the store to collect a prior pay- check, she observed that there were five new cashiers at work who had not been employed at the store prior to her accident . In addition, approximately 3 weeks prior to Pedregon's accident, the Respondent had hired approxi- mately four to six new cashiers . Pedregon visited with Marie Song while at the store and Song informed Pedre- gon that she would not be rehired when business picked up. Respondent provided no evidence which contradicted Pedregon's testimony concerning the new cashiers. Nor was any evidence provided to support the assertion made to Pedregon by Alvarez that she was being laid off for a lack of business. b. Conclusions I find the General Counsel has established, by a pre- ponderance of the evidence, that Pedregon was laid off because of her union activities and sympathies. The General Counsel's prima facie case establishes that Pedregon was an active and known union sympathizer. As previously noted, the Respondent's hostility toward the Union and the union sympathizers is repeated throughout the record. Pedregon's testimony establishes that the lack of business reason asserted by Alverez for her layoff is contradicted by the presence of five new cashiers not previously employed at the store before her accident. These circumstances permit the inference that Pedregon's layoff was due to her union sympathies rather than any lack of business . As the Respondent failed to come forward with any rebutting evidence, I find that the evidence establishes that Pedregon 's layoff resulted from her union activities and sympathies as op- posed to the asserted lack of business reason. Accordingly, I find the Respondent violated Section 8(a)(1) and (3) of the Act, as alleged, in connection with Pedregon's layoff. SUPERIOR WAREHOUSE GROCERS 27 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent's set forth above, oc- curring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lend to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or in an industry affecting commerce within the meaning of Sec- tion 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 coercively interrogating employees; threatening to discharge employees; threatening to close its Covina store and terminate employees; promising employees pay raises and medical benefits and granting medical benefits; soliciting employees to engage in surveillance of employ- ee union activity, threatening to engage in surveillance of employee union activity, and creating the impression that employee union activities were under surveillance; threatening to transfer employees from its Covina store to its Los Angeles store; threatening hourly paid employ- ees with a reduction in the hours of work; soliciting em- ployees to abandon their support to the Union; telling employees they could not select the Union as their repre- sentative; and conveying to employees the impression that it would be futile to seek union representation, ad- vising employees it would not bargain with the Union, and telling employees that it would force the Union to strike and picket-all for the purpose of discouraging employee support for the Union-the Respondent en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging, laying off, and refusing to reinstate Michael LaFond, Robert Tetreault, Daniel Lopez, and Karen Pedregon; reassigning Robert Tetreault and Daniel Lopez from its Covina store to its Los Angeles store; changing and reducing the work hours of Robert Tetreault and Daniel Lopez; issuing written warnings to Robert Tetreault on 17 March and 4 April; issuing writ- ten warnings to Daniel Lopez on 17 March, 28 April (dated 26 and 28 April) and 18 July; giving Daniel Lopez conflicting working assignments and keeping his work under unreasonably close observation and supervi- sion on and after 21 April; and demoting Daniel Lopez from stockclerk to boxboy-all for the purpose of dis- couraging membership in, and support of, the Union- the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having concluded that the Respondent engaged in unfiair labor practices described above, I recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. Having carefully considered the extent, the seriousness and the protracted period of time over which the Respondent engaged in the unfair labor practices found above, I conclude the Respondent's conduct has been "egregious" within the meaning of Hickmott Foods, 242 NLRB 1357 (1979). Accordingly, it is recommended that the Respondent be, ordered to cease and desist from any other interference with employee rights. The General Counsel seeks an affirmative order of full and immediate reinstatement for Tetreault, Lopez, LaFond, and Pedregon at any of its current stores, a make-whole remedy for the aforenamed employees, an expungement remedy, and a make-whole remedy for Te- treault and Lopez for Respondent's action in reducing the work hours after 17 March. The record shows that the Respondent's Covina store was closed in November, that a charge was filed alleging that the Covina store was closed because of the employee union activity and that the General Counsel refused to issue a complaint with respect to that charge. In addition, the record shows that Tetreault was reinstated at a higher rate of pay in May at the Covina store. However, the record is silent about whether any Covina employees were offered employment at the Respondent's Los Angeles store or its Lynwood, California store following the closing the Covina store. In these circumstances, it is recommended that the Respondent be ordered to offer immediate and full reinstatement to LaFond, Lopez, and Pedregon at its Los Angeles or Lynwood, California stores on the same basis that Respondent may have offered other Covina store employees employment opportunities at other stores upon the closing of its Covina store. As Tetreault was reinstated at the Covina store in May, which he accepted, and later quit, Respondent will not be required to make an offer of reinstatement to Te- treault. Similarly, it is recommended that Respondent make LaFond, Lopez, Pedregon, and Tetreault whole for any loss of earnings and benefits resulting from the discharges found unlawful herein. To the extent that it is concluded in the course of the compliance investigation that LaFond, Lopez, and Pedregon would have been of- fered an employment opportunity at the Respondent's Los Angeles or Lynwood stores, the backpay period shall continue until a valid offer of reinstatement is made to them; otherwise, the backpay period for LaFond, Lopez, and Pedregon shall terminate as of the date those employees would have been laid off as a consequence of the closing of the Covina store. In addition,-it will be recommended that the Respond- ent be ordered to make Lopez and Tetreault whole for the loss of earnings resulting from the reduction in their work hours after 17 March. All backpay shall be com- puted in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be added to said amounts in accord with Olympic Medical Corp., 250 NLRB 146 (1980), and Florida Steel Coip., 231 NLRB 651 (1977). And see generally Isis Plumbing Co., 13$ NLRB 716 (1962). Trust fund reimbursements, if any, 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be in accord with Merryweather Optical Co., 240 NLRB 1213 (1979). It is further recommended that Respondent be ordered to remove from its records any reference to the warning notices issued to Lopez and Tetreault found unlawful herein as well as any reference to the discharge of LaFond, Lopez, Pedregon, and Tetreault. It is further recommended that the Respondent be or- dered to notify LaFond, Lopez, Pedregon, and Tetreault in writing that such action has been taken, and that any evidence of these unlawful warnings and discharges will not be considered in any future personnel actions affect- ing them. Sterling Sugars, 261 NLRB 472 (1982). Finally, it is recommended that the Respondent be ordered to post or mail the attached notice marked "Appendix" in order to fully inform employees of their rights and the outcome of this matter. If any of its Covina store em- ployees were reassigned to other locations upon the clos- ing of the Covina store, Respondent will be required to post the notice at the other location. In the event all of the Covina store employees were laid off rather than of- fered employment opportunities at its other stores when the Covina store closed, then a copy of the attached notice shall be mailed by the Respondent to the last known address of those Covina store employees laid off at the time that store closed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed16 ORDER The Respondent, Superior Warehouse Grocers, Inc., Los Angeles, Covina, and Lynwood, California, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their ac- tivities on behalf of, and sympathies for, Local 1428, United Food and Commercial Workers International Union, AFL-CIO, CLC. (b) Threatening to discharge employees because of their activities on behalf of Local 1428. (c) Threatening to close its store and terminate em- ployees because of their activities on behalf of Local 1428. (d) Soliciting employees to engage in, threatening to engage in, and creating the impression that employee ac- tivity on behalf of the Local 1428 is under surveillance. (e) Threatening to transfer employees to another store and engage in other reprisals because of employee activi- ty on behalf of Local 1428. (f) Threatening hourly paid employees with a reduc- tion in their hours of work because of their activity on behalf of Local 1428. (g) Soliciting employees to abandon support for Local 1428. 3 G If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (h) Conveying to employees the futility of representa- tion by Local 1428, telling employees that they cannot select Local 1428 as their representative, advising em- ployees that it will not bargain with Local 1428, and tell- ing employees that it will force Local 1428 to engage in a strike and picketing if employees select Local 1428 as their representative. (i) Discharging, laying off, and refusing to reinstate employees because of their activities on behalf of Local 1428. (j) Reassigning employees to other stores because of their activities on behalf of Local 1428. (k) Changing and reducing work hours of employees because of their activities on behalf of Local 1428. (1) Issuing written warnings to employees because of their activities on behalf of Local 1428. (m) Giving employees conflicting work assignments and keeping their work under unreasonably close obser- vation and supervision because of their activities on behalf of Local 1428. (n) Demoting employees because of their activities on behalf of Local 1428. (o) In any other manner interfering with, restraining, coercing, or discriminating against employees because of the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Michael LaFond, Daniel Lopez, and Karen Pedregon immediate and full reinstatement in the manner set forth above in the remedy section. (b) Make Michael LaFond, Daniel Lopez, Karen Pe- dregon, and Robert Tetreault whole for losses they suf-' fered as a result of the discrimination found unlawful herein in the manner set forth above in the remedy sec- tion. (c) Remove from its records any reference to the un- lawful warnings issued to Daniel Lopez and Robert Te- treault and the discharges of Michael LaFond, Daniel Lopez, Karen Pedregon, and Robert Tetreault, and notify the employees in writing that this action has been taken and that evidence of its unlawful conduct will not be considered in any future personnel actions involving them. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at places of business in Los Angeles and Lyn- wood, California, copies of the attached notice marked "Appendix" if, upon the closing of its Covina store, any employees employed at Covina were offered and accept- ed employment opportunities at those stores." 7 Copies of 17 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." SUPERIOR WAREHOUSE GROCERS 29 the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) In the event alternate employment opportunities were not offered to any employee of the Covina store when that store closed, signed copies of the attached notice shall be mailed by the Respondent to the last known address of such employees who were employed at the Covina store immediately prior to its closing. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an administrative law judge at which we were provided with the opportunity to present evidence and argument, the National Labor Relations Board concluded tht we violated the National Labor Re- lations Act by engaging in certain conduct designed to discourage employee support for and activity on behalf of Local 1428, United Food & Commercial Workers International Union, AFL-CIO, CLC, when that labor organization attempted to organize the employees of our Covina store in 1983. To remedy this matter, the NLRB has ordered us to post this notice and to comply with its terms. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT coercively question you about your union activities. WE WILL NOT threaten to discharge you to discourage union activities. WE WILL NOT threaten to close any of our stores and terminate employees in order to discourage union activi- ties. WE WILL NOT promise you pay raises or medical bene- fits or grant any such benefits to dissuade you from en- gaging in union activities. WE WILL NOT solicit you to engage in, or threaten to engage in, or create the impression that we are engaging in, surveillance of any of your union activities. WE WILL NOT threaten to transfer you in order to dis- courage your union activities. WE WILL NOT threaten you with the reduction in your hours of work to discourage your union activities. WE WILL NOT solicit you to abandon your support for any union. WE WILL NOT advise you that: it will be futile to seek union representation, you may not select a union as your representative, we will not bargain with any union you may select, and we will force any union you may select as your representative to engage in a strike or picketing. WE WILL NOT discharge or lay off any employees in order to discourage employees from engaging in union activities. WE WILL NOT reassign employees to any other store in order to discourage your union activities. WE WILL NOT issue written warnings to you in order to discourage your union activities. WE WILL NOT give you conflicting work assignments or keep your work under unreasonably close observation and supervision in order to discourage your union activi- ties. WE WILL NOT demote you in order to discourage your union activities. WE WILL NOT in any other manner interfere with, re- strain, coerce, or discriminate against you in order to dis- courage you from exercising the rights you have under Section 7 of the National Labor Relations Act. WE WILL offer immediate and full reinstatement to Mi- chael LaFond, Daniel Lopez, and Karen Pedregon in the manner directed by the National Labor Relations Board. WE WILL make Michael LaFond, Daniel Lopez, Karen Pedregon, and Robert Tetreault whole, together with interest required by law, for any loss of earnings and benefits they suffered as a consequence of our action in discharging, laying off, or reducing their hours of em- ployment. WE WILL remove from our records any reference to the written warnings issued to Daniel Lopez on 17 March, 26 and 28 April, and 18 July 1983, the written warnings issued to Robert Tetreault on 17 March and 4 April 1983, and to the discharge or layoff of Michael LaFond, Daniel Lopez, Karen Pedregon, and Robert Te- treault and WE WILL notify those employees in writing that this action has been taken and that any evidence of our unlawful conduct against them will not be consid- ered in any future personnel action related to them. SUPERIOR WAREHOUSE GROCERS, INC.