Stop N' Go Inc.

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stop N' Go Inc. and United Food & Commercial Workers Union, Local 655, AFL-CIO. Case 14-CA-15837 21 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 11 January 1983 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting 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 brief' and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified. We agree with the judge that the Respondent violated Section 8(a)(1) and (3) of the Act in sever- al respects. However, for the reasons set forth below, we disagree with the judge's finding that a bargaining order is appropriate in this case. The Respondent is engaged in the retail sale of gasoline, groceries, and related products in nine separate convenience stores. The Union began an organizing campaign in mid-February 1982.3 By letter of 5 March, the Union informed Respondent that it represented a majority of the employees and requested bargaining. By letter of 9 March, Re- spondent rejected the Union's claim of majority status and refused to bargain. During this time period, the judge found, and we agree, that Re- spondent, inter alia, unlawfully interrogated em- ployees, threatened to discharge employees and to close the stores and, in fact, did unlawfully dis- charge two employees. In evaluating whether a bargaining order was warranted to remedy these unlawful acts, the judge concluded there were 67 unit employees and that by 3 March, 35 of these employees had signed au- thorization cards. Thus, according to the judge, when the Union requested recognition on 3 March, it represented a majority of the unit employees. The judge further concluded that the unlawful i The Respondent has requested oral argument The request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 All dates herein are 1982 course of conduct engaged in by the Respondent, which is summarized above but set forth in detail in the judge's decision, was so severe as to render a reliable election unlikely. Therefore, based on the fact that the Union had attained majority status and the severity of the unfair labor practices, the judge concluded a bargaining order was warranted. We reject this conclusion because the General Counsel failed to establish that the Union attained majority staus. At the hearing, over the Respondent's objection, the General Counsel introduced 41 signed authori- zation cards. Of the 41 cards, 8 were properly identified by the signers themselves and 6 were properly identified by the individuals who wit- nessed the employees sign the cards. An additional 27 cards presented by the General Counsel were introduced into evidence through testimony of the Union's two organizers: James Dougherty and Leo Morrow. A close examination of the testimony of Dough- erty indicates that, on cross-examination, Dougher- ty admitted that he "left some cards with one em- ployee to have another employee fill out" and later returned to pick them up. The testimony of Morrow reveals that, in examining the cards pre- sented by the General Counsel, he could not distin- guish the cards personally given to him by the em- ployees signing the cards from the cards he picked up at the store. Thus, these 27 cards were authenti- cated solely based on the testimony of the two union organizers who apparently neither witnessed the employees sign the cards nor received the cards directly from the signers. Such testimony is inadequate to prove that each of these cards was signed by the individual whose name appears on the card.4 These cards must therefore be rejected. Therefore, we find that, at most, the General Counsel established that the Union attained 14 valid authorization cards in a unit composed of 69 employees. Consequently, it was not shown that the Union ever achieved majority status. Under these circumstances, a bargaining order would be inappropriate. Gourmet Foods, 270 NLRB 578 (1984). Accordingly, for the reasons set forth above, that portion of the complaint alleging the Respond- ent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union is dismissed. 4 Cf Stride Rite, 228 NLRB 224, 234 (1977) (cards were introduced and authenticated by the testimony of the person to whom the signatories had returned the signed cards as this person knew the employees and could recall them individually) See also J P Stevens & Co, 247 NLRB 420 (1980) 279 NLRB No. 52 STOP N' GO INC. 345 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Stop N' Go Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(j) and paragraph 2(a) and reletter the subsequent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discourage membership in United Food & Commercial Workers Union, Local 655, AFL-CIO, or any other labor organization, by dis- charging any of you or in any other manner dis- criminating against you in regard to your employ- ment or any term or condition of your employ- ment. WE WILL NOT threaten to close our stores and refuse to rehire current employees if you select a union to represent you. WE WILL NOT threaten you with loss of wages and accumulated seniority if you select the above- named Union to represent you. WE WILL NOT threaten you with discharge if you vote in a Board-conducted election. WE WILL NOT say anything to give you the im- pression we are engaging in surveillance of your union activities. WE WILL NOT solicit, promise to adjust, or adjust employee grievances, nor WILL WE grant benefits in order to induce you to refrain from se- lecting the above-named union, or any other labor organization, as your collective-bargaining repre- sentative. WE WILL NOT tell you that we will not negotiate with the above-named Union if you select it to rep- resent you. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Karen Eberhardt and Michael Eberhardt immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, together with interest computed on any such backpay. WE WILL notify Karen Eberhardt and Michael Eberhardt that we have removed from our files any reference to their discharge and that the dis- charge will not be used against them in any way. STOP N' Go INC. John S. Stevens, Esq., for the General Counsel. Kenneth V. Byrne, Esq., for the Respondent. DECISION CLAUDE R. WOLFE, Administrative Law Judge. This case was tried before me at St. Louis, Missouri, on August 2 and 3, 1982. The complaint alleges violations of Section 8(a)(1), (3), and (5), all of which Stop N' Go Inc. (Respondent) denies. On the entire record, i my observations of the demean- or of the witnesses testifying before me, and the able posttrial briefs filed by the parties, I make the following FINDINGS AND CONCLUSIONS 1. SUFFICIENCY OF THE CHARGES Respondent contended in its answer to the complaint that the failure of the original charge in this case to name the proper parties, business enterprise, unit of employees, and important dates requires that the complaint be dis- missed on the ground of substantially and materially defi- cient pleadings. The original charge, filed March 24, 1982, alleged violations of Section 8(a)(1), (3), and (5) of the Act by Stop & Go. The amended charge of April 22, 1982, alleged violations of the same sections by Stop N' Go Inc. and specifically set forth the same unit, the same discriminatees, and the same general nature of independ- ent violations of Section 8(a)(1) which are alleged in the complaint issued April 29, 1982. The charges are suffi- , The decision of Appeals Tribunal, Division of Employment Security, State of Missouri, with respect to the separation of Karen Eberhardt, which was proffered at trial as the G C Exh 46 and rejected, is re- ceived into evidence It is settled that such decisions have probative value, but are not controlling Emory Convalescent Home, 260 NLRB 540, 548 in 21 (1982) Accordingly, I have considered it, but it has not been a controlling factor in my findings on Karen Eberhardt's discharge 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cient to suppport the complaint, and Respondent's con- tention is without merit. 11. JURISDICTION Respondent is engaged in the retail sale of gasoline, groceries, and related products at its places of business in the city of St. Louis, St. Louis County, and Jefferson County, Missouri. The pleadings establish that Respond- ent meets Board and statutory jurisdictional requirements and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. LABOR ORGANIZATION United Food Commercial Workers Union, Local 655, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES The Union began an organizing campaign in mid-Feb- ruary 19822 among the employees of Respondent's nine convenience stores which sell gasoline, groceries, and re- lated products. By letter of March 5, the Union advised Respondent that a majority of its full-time and regular part-time employees at the nine stores had authorized the Union to represent them, and requested Respondent to meet and negotiate a labor agreement. On March 9, Re- spondent sent a letter rejecting the Union's claim of em- ployee authorization, and stating, "it will be necessary for you to receive certification by an election conducted by the National Labor Relations Board, or by some inde- pendent party." Thereafter, on March 24, the Union filed the original charge in this case. An amended charge was filed on April 22, and the complaint issued April 29 al- leging numerous violations which are treated under the appropriate headings below.3 A. Conduct of Elsie Fox, Manager of Store 9 and an admitted Supervisor and Agent4 On February 18, Elsie Fox asked Eberhardt if she had any knowledge of union activities . Receiving a negative answer, Fox showed Eberhardt union cards and litera- ture, explaining that the Union had approached her daughter, Lori Fox, Patty Walk, and Karen Smith. Fox continued that Smith had joined the Union , but Fox had taken the materials from her daughter and told her to stay out of it.s Fox then asked if Eberhardt 's husband 2 All dates are in 1982 unless otherwise indicated 3 In his posttrial brief counsel for the General Counsel withdrew an allegation of a threat by Assistant Manager Long (see complaint par 5N) for lack of evidence 4 When the testimonies of Elsie Fox and Karen Eberhardt conflict with respect to allegedly unlawful statements of Fox, I have credited Karen Eberhardt because she impressed me as a candid witness testifying only to that which she recalled , and Fox was not as impressive and was evasive on cross-examination Some of the alleged conduct of Fox is identical in substance to that admittedly engaged in by former Supervisor Doris Hicks on the instruction of Patty Williams who supervised both Fox and Hicks, and, further, because Eberhardt is supported by her hus- band's testimony on one piece of interrogation ° On cross-examination, Fox reluctantly admitted that she had received cards from her daughter and had told her to stay out of the Union, had been approached, and if Eberhardt would join if ap- proached. Eberhardt replied she did not think so to the first question and that she did not know to the second. Considering Fox's advice that she had taken union ma- terials from her daughter and admonished her to stay out of it (which readily translated to stay out of the Union and made it evident to Eberhardt that Fox disapproved of union activity), Fox's questions of Karen Eberhardt with respect to her union activities and sympathies, and those of her husbands reasonably tended to intimidate Karen Eberhardt in the exercise of her statutory right to join or assist a labor organization, and were coercive in- terrogation into her union sympathies and those of other employees. Accordingly, I find that in each of these three instances Respondent violated Section 8(a)(1) of the Act. By relating the Union's approach to her daughter and other employees, and by specifically pointing out that Smith had joined the Union, Fox conveyed to Karen Eberhardt that she was taking note of employee union activity, created an impression of surveillance of employ- ee union activity, and thereby violated Section 8(a)(1) of the Act.' It is unnecessary to involve the Board in the mother and daughter relationship between Elsie and Lori Fox by deciding whether Elsie Fox's conduct toward her daugh- ter in private on this occasion violated Section 8(a)(1) of the Act. Such a finding would have no material effect on my recommended Order and remedy herein.8 Fox again asked Eberhardt, on February 23, if her husband had joined the Union. This time Eberhardt said he had. Fox then proceeded to ask Michael Eberhardt, on February 26 in his wife's presence, whether he had signed a union card. When he replied that he had, Fox said he had made a mistake because Sieveking would close the store for 30 days, make everyone reapply, and would not rehire those employees who had signed union- authorization cards. Donald and Henry Sieveking direct the operations of Stop N' Go, which is an enterprise held by the Sieveking family. The February 23 question was a repetition of unlawful interrogation and violated Section 8(a)(1) of the Act. On February 26,9 Respondent, by Elsie Fox violated Section 8(a)(l) of the Act by threatening employees with dis- charge of union adherents and by interrogating Michael Eberhardt with respect to whether he signed a union card. On February 25 Fox had earlier told her daughter Lori, in Karen Eberhardt's presence, that if the Union came in, the store would close for 30 days and union card signers would not be rehired. These statements were made within minutes of the departure of Patty Wil- liams, area supervisor, who had made similar statements to Elsie Fox in the presence of Karen Eberhardt, i ° and e Nebraska Bulk Transport, 240 NLRB 135, 156 (1979) Beck Studios, Inc, 260 NLRB 292 (1982) Reilly Tar Corp, 151 NLRB 1503, 1504 fn 1 (1965), G. F Business Equipment, 252 NLRB 866, 868 (1980) 9 The complaint alleges "on or about February 27 " This is sufficient to encompass February 26 Omico Plastics, 184 NLRB 767, 770 (1970) 10 Williams' statements are dealt with elsewhere in this decision STOP N' GO INC were threats of store closure and discharge violative of Section 8(a)(1) of the Act just as they were when Elsie Fox repeated them to Michael Eberhardt on the follow- ing day B Conduct of Doris Hicks, Manager of Store 3 and Admitted Supervisor and Agent Doris Hicks, who left Respondent's employment on March 13, credibly testified that she was told by Area Supervisor Williams on February 24 that the Union was organizing and the Sievekings would close all stores for 30 days, after which employees would have to reapply and any card signers would be fired Williams also di- rected Hicks to tell that to the employees. Darline Rich- ardson and Donald Eiring corroborate Hicks that she did so tell the employees at Store 3 on February 25. Accord- ingly, I find that Respondent, by its supervisor and agent, Doris Hicks, violated Section 8(a)(1) of the Act by threatening employees with store closure and dis- charge because they engaged in union activity. C. Conduct of Joan Jackson, Manager of Store 10 and an Admitted Supervisor and Agent The dates I find most appropriate for each event dis- cussed below differ in some cases from those assigned to them and argued by the General Counsel. The dates found are not significant variances from the complaint al- legations because there are broad complaint allegations of unfair labor practices by Jackson at "various times be- tween February 25, 1982 and March 19, 1982," and be- cause all violations found on dates I have assigned to them were fully litigated without objection and relate to the subject matter of the complaint. i i The facts found required credibility findings with re- spect to the three employees and Supervisors Jackson and Williams. Considering that neither Jackson nor Wil- liams directly addressed many of the accusations leveled at Jackson, and gave testimony largely confined to bare denials consisting of "no" answers to general questions, the more detailed and direct testimony of the employees which appears credible is entitled to greater weight. The very failure of the employees to give carefully coordinat- ed or embellished testimony militates against a conclu- sion of contrivance to make a better story, as Respond- ent suggests they did. Similarly, Respondent's contention that all the witnesses called by the General Counsel were biased and prejudiced and that Adams, Hamil, and Marks were obviously trying to attack their former supervisor, Jackson, is rejected as unsupported by either record evi- dence or observable deficiencies of demeanor The em- ployee testimony is not inherently unbelievable, is uncon- troverted in some instances, and is credited to the extent the facts related below so reflect. On several occasions in and after late February, Jack- son told Marks that if the Union went through, 12 Re- See, e.g, Ackerman Mfg Co., 241 NLRB 621 (1979) 12 "Went through" is reasonably translated as "was successful" in the context of its usage by Marks 347 spondent would shut down before going union and all employees would lose their jobs, in which case Jackson did not care if they had a union because they would have no jobs. Jackson's threats of store closure and dis- charge if they selected the Union to represent them clearly had a reasonable tendency to restrain and coerce employees in the exercise of their Section 7 rights, and violated Section 8(a)(1) of the Act. During the same period, i 3 Jackson told Marks, in a private conversation in the storeroom, that she knew em- ployees wanted the Union in the store and that if they got the Union in, they would lose their jobs because Sie- veking would shut the store down for 30 days and reopen with new employees. Jackson continued that if the Union did get in, employee seniority would start at "day one," employees would make less than minimum wage, and if the employees wanted the Union they de- served it. There is no formal seniority system at Re- spondent's stores, but Jackson's statement fairly implied that employees would lose any benefit they might have derived from accrued service. Jackson's statements were threats of job loss, store closure, reduced wages, and se- niority which had a reasonable tendency to restrain and coerce employees in the exercise of statutory rights, and therefore violated Section 8(a)(1) of the Act. Marks, Williams, and Jackson agree there was a called meeting of all employees in March wherein inventory was discussed. Adams and Hamil testified to events simi- lar to those Marks said took place. From this similarity in significant portions of their testimony, Jackson' s testi- mony that she only had one called meeting of employees in February and March, and the testimony of Marks, Jackson, and Williams that Williams was in attendance at the meeting called by Jackson, I am persuaded that Adams and Hamil were referring to the same meeting. Although the testimony of Marks and Hamil is some- what confused with respect to the date of the meeting, Paul Adams directly and believably placed it on March 2, and I find the meeting was held on March 2. I do not credit Hamil's claim, which caused considerable confu- sion in her testimony, that M. L. Reed was present be- cause Reed left Respondent's employment on February 25. The following account of the March 2 meeting is a fair summation of the credited portions of the testimony of the three employees and the two supervisors. That the three employees did not testify uniformly in all respects is not surprising in view of the passage of time, the frail- ties of human memory, and the varying degrees of atten- tion and significance that different listeners may accord to different portions of statements made to them as a group. Their testimony was more complementary than contradictory and has been considered in that light. 13 Marks agreed when the General Counsel asked if this incident was "about March the 2nd " She later placed it approximately 2 weeks before the group meeting, discussed below, which I find was on March 2 It ap- peared to me that Marks was guessing on the date, and I conclude this conversation with Jackson was some time between February 15, the date the first union card was signed, and March 2, most probably about the same time Doris Hicks was told by Williams, who also supervises Jack- son, on February 24 to make statements to employees like those Jackson made to Marks 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The meeting opened with Jackson delivering instruc- tions on the proper storage and rotation of milk and other stock inventory and the need for better cleaning of the premises. The sequence thereafter is not entirely clear, but Jackson told the employees she knew they wanted a union, hoped they got it because they deserved it, and not to cry to her when union dues were deducted from their wages because they had asked for it and were going to get it.14 Jackson asked what benefits the employees wanted from the Union, and said that she might be able to get them and therefore make the Union unnecessary.' 5 The employees mentioned hospitalization insurance and vaca- tion pay. Jackson them promised to try to secure these benefits from Sieveking.' 6 Marks mentioned that she had received no pay in- crease and had been employed well over 6 months. Jack- son replied that Marks would get it if Jackson felt she deserved it, otherwise Marks would remain at the mini- mum wage. Jackson continued that some of her listeners were making more than minimum wage and would go back to minimum "or probably lower" if the Union got in. At this juncture in Marks' testimony, the General Counsel asked if Jackson mentioned seniority. Marks re- sponded, "Not that I recall." The General Counsel then asked if "day one" was mentioned. Marks replied that Jackson "had informed us" that if the Union got in ev- eryone would lose what time they had in. It appeared to me that the General Counsel and Marks had passed each other in the night with Marks referring to events occur- ring before the meeting which have been discussed above and the General Counsel concluding Marks was testifying that Jackson said these things at this meeting On this testimony, which includes a denial, I cannot find that Jackson mentioned the reduction of accumulated se- niority to nil at this meeting. Respondent violated Section 8(a)(1) of the Act by Jackson's solicitation of employees to reveal what bene- fits they wanted and her promise to try to secure these benefits for the explicit purpose of inducing them to abandon union activity." The same or following day Jackson advised the em- ployees that they would receive a 1-week paid vacation if they worked 52 consecutive weeks of 40 hours. During this conversation she further said that if the Union came in, the store would be closed for 30 days and she would 14 Adams' testimony that Jackson said she knew who had signed cards and then asked the employees if they had signed cards is not credited Neither Marks nor Hamil so claim, and this is not the sort of thing they would easily forget Moreover, it is not probable that Jackson would in- terrogate employees immediately after telling them she knew of the sign- ers' identity 15 Adams' version that Jackson asked what benefits they wanted to stay out of the Union does not contradict Hamil's credited version, but merely states his correct impression of the message conveyed 's I do not credit Marks that Jackson said that if employees worked 52 consecutive weeks they would be entitled to a paid 1-week vacation Jackson concedes she did not know what the employee vacation was until March, and I am persuaded this knowledge flowed from a meeting with her superiors after this employee meeting, and Marks was testifying to an announcement after this meeting i7 Reliance Electric Co, 191 NLRB 44, 46 (1971) be able to rehire whomever she wanted to rehire.' 8 The latter comments are threats of store closure and dis- charge violative of Section 8(a)(1) of the Act. Jackson's announcement of the vacation is alleged as an unlawful grant of a benefit. Jackson concedes that she did not know what vacation policy there was for em- ployees until March 1982, and states that her contact with employees on this topic consisted of telling Vicki Newton, after Newton inquired about her eligibility for a vacation, that she would ask if Newton was entitled to a vacation. Williams avers the same vacation policy for employees announced by Jackson was in effect in July 1981 when she started work. Williams agrees she had not told employees of this valuable right. Employees Adams, Karen Eberhardt, Hamil, and Marks concur that they were never advised of any such right prior to March 1982. Former Supervisor Doris Hicks, who was em- ployed from November 1980 to March 1982, credibly states that employees had no paid vacations during her employment. Apart from the testimony of Williams, Re- spondent offered no persuasive testimonal or documenta- ry evidence to the existence of an employee vacation policy prior to March 1982, or that any nonsupervisory employee has received a vacation or was told prior to March 1982 that there was such a policy. The General Counsel has made out a prima facie case that Respondent granted a paid vacation benefit to employees in the midst of an organizing campaign for the purpose of discourag- ing union activity. I do not credit William's testimony to the contrary, and Respondent has failed to rebut the General Counsel's evidence. Accordingly, I conclude and find that the preponderance of the evidence requires a finding that Respondent granted its employees a vaca- tion benefit in March for the purpose of inducing them to abandon union support, and thereby violated Section 8(a)(1) of the Act as the complaint alleges. Hamil reports that about a week or so after the March 2 meeting, Jackson told her and employee Vicki Newton that Newton, who was the senior employee in terms of service and wages, would be reduced to no seniority and a minimum wage. Jackson also purportedly said that she could schedule Newton to 2 days and Hamil to a week, and Newton could then bump Hamil down to 2 days. Hamil does not testify to any conversation about the Union by Jackson on this occasion, and her testimony is somewhat confused. Confused as it is, Jackson does not deny such a conversation took place, and Hamil is cred- ited with a confused recollection of what occurred. This is not the most impressive evidence on which to posit a violation of the Act, but Hamil's testimony was elicited as part of her recital of consequences that Jackson said would be visited on employees if they selected the Union to represent them. Furthermore, Jackson did make simi- lar statements to Marks, during approximately the same time period in March, that employees would lose senion- is This is, I find, the same conversation in which Adams claims Jack- son said all employees would be discharged As I have noted earlier in this decision, I formed the distinct impression that Adams was inclined to testify to his conclusions Hamil was the more impressive witness in terms of demeanor, although confused on dates, and I have credited her version STOP N' GO INC 349 ty and wages, and made plain that this loss would occur if the Union was successful in securing the right to rep- resent Respondent's employees. In the circumstances, notwithstanding the lack of total clarity in Hamil's testi- mony, it is most probable that Jackson's statements did not arise in a vacuum, but were posited as a consequence of union success. Accordingly, I find Jackson threatened Hamil and Newton with a reduction in wages and se- niority if they selected the Union to represent them. This threat had a clear tendency to restrain and coerce these employees in the exercise of their Section 7 rights, and therefore violated Section 8(a)(1) of the Act. About March 10, Jackson told Hamil that if there was an election, employees who took off work to vote "or whatever" would "automatically" get fired. Jackson con- tinued that employees would have to vote an absentee ballot.19 The threat of discharge if employees leave work to vote in person in a Board-conducted election, which is the only type of election Jackson could reason- ably have been referring to, had a reasonable tendency to restrain and coerce employees in the exercise of their statutory right to select their own collective-bargaining representatives, and violated Section 8(a)(1) of the Act. D. Conduct of Patty Williams, Area Supervisor and Admitted Supervisor and Agent Karen Eberhardt testified, Williams did not deny, and I find that on February 25, while at store 9, Williams made the following statements. She asked Elsie Fox, in Eberhardt's presence, if Eberhardt was in the Union. When Fox said, "No," Williams related that she had been approached by union agents for negotiations, and she referred them to Donald and Henry Sieveking. Wil- liams went on to say that she had been told by the Sie- vekings that they would not negotiate, would close the store for 30 days, and would not rehire anyone who had signed authorization cards. Williams' statements in em- ployee Eberhardt's presence violated Section 8(a)(1) of the Act by, in a context of accompanying threats, advis- ing an employee that Respondent would not negotiate with the Union, see, e.g., Vincent et Vincent of Allentown Mall, 259 NLRB 1025 (1982), and by threatening em- ployees with closure and a refusal to rehire union adher- ents E. The Discharge of Karen Eberhardt Karen Eberhardt signed a union authonzation card on February 12. She was discharged on March 3. About 3:15 a.m. on that date she became ill at work. Inasmuch as her supervisor, Elsie Fox, had instructed her not to call Fox after Fox's working hours but to call Patty Wil- lams, Fox's supervisor, Eberhardt called Williams and re- ceived her permission to go home and leave coworker Martha Jordan working alone for the remainder of the shift. On March 3, about 2 p.m., Eberhardt called Fox and reported that she was still ill and would not be in to work her next scheduled shift. Fox asked why Eberhardt had left Jordan alone and why she had called Williams rather than Fox. Eberhardt told Fox that Williams had given her permission to leave, and reminded Fox of her earlier instruction to Williams after Fox left work. Fox responded that she was going to cut Eberhardt's hours and would hire someone that day. Fox then asked if Eberhardt would have called as a friend. Eberhardt re- plied that she would have but for Fox's instructions. Fox then asked Eberhardt why she did not go back to Merits, a former employer, and followed that with the informa- tion that Eberhardt was fired. Fox directly testified that she fired Eberhardt because she left the store in the middle of the night without Fox's knowledge and left another employee alone on the shift, contrary to Fox's rule. Fox's denial that she never told Eberhardt to call Williams rather than Fox is not credited Notwithstanding Fox's testimony that Eberhardt's dis- charge was caused by her leaving the store, Respondent stated in its answer to the complaint that Eberhardt was discharged for refusing to perform her duties as an em- ployee after a temporary stint as store manager and would not work in accordance with her supervisor's in- structions. Respondent's posttrial brief adds that Eber- hardt was discharged for insubordination because she told Fox she would not be an employee and work for Fox. Noting that although Fox states she twice admon- ished Eberhardt in February for giving instructions to employees after Eberhardt completed her 1-week substi- tution for Fox in January, I further note that there is no evidence of similar instances recurring after the purport- ed February admonitions, and there is no showing that Eberhardt was engaged in any such instruction giving when Fox decided to discharge her. These reasons ad- vanced by Respondent, plainly contrary to Fox's testi- mony or any fair construction of the facts surrounding Eberhardt's discharge, are found to be pretexts designed to obscure the real reason for the discharge. The threats of discharge and store closure made to em- ployees by Respondent's supervisors, including Fox, es- tablish Respondent's strong hostility to employee union activity Fox knew that Michael Eberhardt had signed a union card, and therefore had reasonable cause to sus- pect that his wife Karen had also signed one, which she had. The cause advanced by Fox is inherently suspect. Eberhardt merely followed instructions in securing per- mission from Williams, and did nothing to warrant her discharge by any reasonable standard There is no reason whatsoever on the record before me or in logic to find that Eberhardt would or even might have been fired for leaving work with permission had there been no union on the scene. When this flimsy cause, which I consider pretextual, is supplemented by other clearly pretextual reaons, in the overall context of intense hostility and other unfair labor practices, an inference of unlawful motive is warranted ,20 and the reason advanced by Fox becomes even more unbelievable. There is here a combi- nation of antiunion hostility, other serious unfair labor practices, union activity by Karen Eberhardt, reasonably 19 Hamil's testimony to this effect seemed truthful and was more be- lievable than the flat "no" response of Jackson to the question "Did you 20 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir ever tell anyone that they would be fired if they voted in an election" 1966) 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inferable knowledge or suspicion of that activity, and shifting and pretextual reasons for Karen Eberhardt's dis- charge. This adds up to a conclusion that Karen Eber- hardt was discharged for the purpose of discouraging union activity, and that her discharge violated Section 8(a)(3) and (1) of the Act. I so find. F. The Discharge of Michael Eberhardt Michael Eberhardt worked full time for another em- ployer and was only available to work for Respondent on Sundays and those occasions when Respondent's need coincided with a time he was not working at his full-time job. Although he did work occasionally as needed on other days, Michael Eberhardt's only reasonably predict- able regular employment was on Sundays . His last day worked was Sunday, February 28. He had not again been scheduled to work at the time of the August trial of this case. Michael Eberhardt signed a union card on February 21, and on February 23 his wife advised Fox that he had. He was given no reason for the failure to reschedule him for work. Karen Eberhardt was told by Fox on February 27 that she was going to keep Eberhardt on the schedule even though Sieveking had told her not to schedule him because she could not schedule anyone for one day. As noted above, Eberhardt did work the following day. Fox stated that she did not thereafter schedule him for work because he could only work 1 day and other employees wanted the hours. Eberhardt had been working regularly on Sundays since at least the first of the year, and there is no evi- dence, other than Fox's rather doubtful testimony (given her incredibility and evasiveness on other points) that any employee was seeking his hours . Fox's announced intention on February 27 to continue to schedule him to work despite instructions to the contrary , without any reference to employee complaints , would seem to be at odds with her assertion that any such complaints were a determining factor in failing to schedule him from the following week on. The record does not reveal when the schedule is made up, but I am pesuaded that Fox had not decided to take Eberhardt off Sunday work when she called him on February 28 to determine if there were pickets at the store . It seems probable that she would have then notified him that he would not be working on Sunday, March 7, if she had made her decision not to schedule him for that day. Respondent argues that Michael Eberhardt obivously was not discharged, but made himself unavailable for work by changing his schedule at his full-time job. The problem with this argument is that there is no evidence of any such schedule change at his full -time job in the week between Fox's assurance to Mrs. Eberhardt that her husband would be scheduled and the subsequent fail- ure of Fox to scheduled him. Moreover, the variation of this defense advanced in Respondent's answer to the complaint to the effect that Eberhardt was taken off the schedule because he was not available for any other day but Sunday is difficult to accept because Elsie Fox had stated a determination not to refuse to schedule him for that specific reason, and he had not been available for anything but Sunday work for at least 2 months, but had been regularly scheduled to work the Sundays in those months. Respondent's threats of discharge for union activity, combined with its knowledge of Michael Eberhardt's union sympathies and its advancement of questionable cause for the failure to call him to work after February 28, constitute a prima facie case of unlawful discharge. This conclusion is weakened by the fact that Fox knew of Eberhardt's sympathies when she told his wife she would continue to schedule him despite instructions to the contrary, and by the further fact that he was permit- ted to work on February 28. On the other hand, Re- spondent's failure to advance a believable reason strengthens the General Counsel's case. The key question is, "What happened between Febru- ary 28 and March 7 to cause Fox to change her mind about scheduling Michael Eberhardt?" The only signifi- cant intervening event in the record is the unlawful dis- charge of Mrs. Eberhardt. I am persuaded that the deci- sion not to schedule the husband was linked to the dis- charge of the wife. Whether Respondent's action against Eberhardt was prompted by a determination to discharge him as well as his wife because he also engaged in pro- tected activity or because his wife had been discharged, the ultimate conclusion is the same . If Eberhardt was denied employment because he was a union adherent, the denial was for the purpose of discouraging employee union activities. If the denial was motivated by the un- lawful discharge of his wife, it was an extension of un- lawful conduct and therefore itself unlawful.21 In either case a violation of Section 8(a)(3) and (1) of the Act exists. Michael Eberhardt was, I find , denied further em- ployment for one of these two reasons. Which reason is of no consequence. The denial violated the Act. G. Discharges of Donald Eiring and Darlene Richardson Eiring and Richardson worked in Store 3 on the third shift . Both signed union authorization cards on February 18. Doris Hicks, the store manager until March 13, testi- fied that she rated Richardson and Eiring as very de- pendable and among her best employees. Patty Williams had talked to Hicks about making Erring an assistant manager because Williams thought he would do a better job than that incumbent. After Hicks left, Williams told Eiring that she would need a manager and if Eiring wanted to give it a try she would consider it. There is no evidence that either Eiring or Richardson were warned about the quality or quantity of the work prior to their discharge here in issue. Jean Vuichard became store manager on March 15 and conducted a meeting of the store's employees on March 18. She issued instructions to clean up the prem- ises, which were very dirty according to Eiring, and on more careful operation of the computer consoles control- ling the flow of gasoline to the self-service pumps locat- ed outside the store . She also instituted careful account- ing for the gasoline receipts, as measured against the sales, and required each employee to ring his or her indi- 2' Staco, Inc, 244 NLRB 461, 482 (1979) (Baker) STOP N' GO INC 351 vidual sales on the one register he or she was assigned and responsible for balancing. Her careful instructions on gasoline sales was prompted by a continuing problem with the failure of gasoline receipts to tally with the record of sales. Gasoline is vended from self-service pumps located outside the stores but controlled by a computer console inside the stores. The purchaser can only draw so much gasoline as permitted to by the cash- ier who feeds the amount of purchase into the computer which in turn regulates the flow at the pump. There are two methods of purchase. One is to draw the gasoline and then pay for it. This can lead to buyers driving off without paying. The second method is to pre-pay which causes the cashier to allot the appropriate gallonage to the pump for withdrawal by the customer. Patty Williams credibly testified that there had been a metal sign on the pump at Vuichard's store since Febru- ary, which said to pay the cashier before attempting to draw gasoline between the hours of 7 p.m. and 7 a.m. This system was in effect during the night shift worked by Eiring and Richardson throughout Vuichard's tenure as their manager. Eiring and Richardson worked from 11 p.m. to 7 a.m. or midnight to 8 a.m. Although the dis- crepancy between gasoline receipts and sales seems to have been a problem at various stores, there is no evi- dence any employee was ever discharged as a result of this problem prior to March 29 Either at or shortly after the March 18 meeting, Vui- chard instructed Richardson to clean the cooler wall which was badly bespattered with stains from spilled food. Vuichard also told Richardson and Eiring to stock the cooler at night so there was sufficient product, soft drinks, and it would be cold the next day. One week later neither had been done. Vuichard then left written instructions for it to be done. This would have been on or about March 25. The cooler wall was not thereafter cleaned, so Vuichard cleaned it herself. Similarly, the cooler was not stocked with enough of the best-selling drinks to carry over the next day.22 Eiring and Richardson then worked the March 26 to 27, 27 to 28, and 28 to 29 shifts. 23 Between 4 and 5 p.m. on March 29, Vuichard called Richardson and told her that she and Eiring were fired because she was tired of work not being done as she instructed, Richardson had not cleaned as she had asked, the cooler had not been properly stocked, and their shift was coming up short on gasoline sales . Richardson disputed the reasons advanced by Vuichard. Richardson said Vuichard was being unfair, and she would see if she could get her job back. Vuichard responded that she knew they had signed union cards and why they did not see if the Union could get their jobs back. Vuichard concluded that she was "getting tired of all this crap," was tired, wanted to go home, and did not want to talk about it any more. Rich- ardson relayed this conversation to Eiring, her son-in- 22 1 do not credit Eiring's claim that Richardson cleaned the cooler wall a couple of days before their March 29 discharge Richardson does not say she cleaned it, and Vuichard was a more impressive and believ- able witness than either on this point 23 Richardson testified she worked the March 28 to 29 shift, and Eir- mg's testimony to the contrary is not credited law, who was sleeping at her house at the time of the phone call. Eiring then called Vuichard and asked why he was fired. Vuichard gave him the same reasons he had given Richardson. There was no discussion of the Union during this call.24 Eiring then called Patty Williams, with Richardson on the extension phone, and asked why he was fired. Wil- liams knew nothing about it and advised him to call Vui- chard to find out, and then call her back. That night Eiring called Vuichard again and asked ex- actly why he was fired. She replied that she had told him earlier and was now telling him he was fired be- cause the work was not getting done the way she wanted. Eiring said he and Richardson had been fired because of the union cards. Vuichard retorted that it had nothing to do with the discharges, and the Union could do nothing to her for firing Eiring. Either the following day or the day after, Firing called Williams, with Richardson again listening in, and reported that he had not heard why he was fired and had contacted the Union. This was patently untrue in that he had been told why he was fired, and this whole scenario begins to suggest an attempt to lure Williams into an admission the discharges were motivated by union activity. In any event, Williams replied that she did not know why he had contacted the Union because it made false promises it could not keep and she knew from her own 10-year membership that it would do nothing for him. She continued that she and Sieveking were tired of hearing about the Union, and Sieveking would not accept the Union but would shut the doors for 30 days and probably fire all employees and hire new ones. Williams' threats of plant closure and discharge be- cause of union activity violated Section 8(a)(1) of the Act, as did Vuichard's statement to Richardson that she knew Eiring and Richardson had signed union cards, which conveyed the impression that their union activities were under surveillance. Eiring and Richardson both signed union-authorization cards. Vuichard was aware of this when she discharged them. Respondent was hostile toward employee union activity, as evidenced by its other conduct found to be unfair labor practices. Eiring had been seen by other su- pervision to be an employee good enough to be consid- ered for a promotion. It does not appear that either em- ployee was ever directly warned of any disciplinary action, although it could be argued that supervisory in- structions contain an implicit warning of adverse conse- quences if not followed. The General Counsel has estab- lished a prima facie showing sufficient to support an in- ference that the union activity of Eiring and Richardson was a motivating factor in Vuichard's decision to dis- charge them. Respondent contends that Eiring and Richardson were discharged because they would not perform their job duties. In support of this contention is Vuichard's credi- ble testimony that they did not carry out her oral and 24 Eiring first ascribed some comments about the Union to this call, but later, correctly I believe, placed it during the second call to Vui. chard Vuichard also placed it during the second call 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD written instructions to clean the cooler wall and properly stock the cooler, and that she had to clean the wall her- self I agree with the General Counsel that the third reason given to Richardson on March 29 is diminished in weight by Respondent's failure to provide its records of gasoline pumped and payments received on the third shift. The record does, however, satisfy me that there were discrepancies between sales and receipts at several of Respondent's outlets, including the one where Eiring and Richardson worked, and I am not persuaded that the fact of gas shortages was pure pretext advanced to mask the real reason for the discharges. Rather, I am persuad- ed that the real reason which precipitated Vuichard's action was, as she told Eiring on his second call to her, that the work was not getting done the way she wanted. What we have here is the replacement of Manager Hicks with Vuichard, a more exacting taskmaster, who was not satisfied with the manner in which employees were car- rying out their duties. It requires no great insight to un- derstand that Vuichard was angered by the need for her to personally clean a wall she had instructed the employ- ees to clean and was exasperated by the failure to prop- erly stock the cooler. That she, in her exasperation, added the factor of gasoline shortages, a questionable factor at best, does not obscure the plain fact that Eiring and Richardson did not carry out her orders, nor does it require me to ignore these delinquencies The General Counsel points out that Michael Johnson, who may have worked as much as 32 hours a week on the same shift, was not discharged. Considering that he also signed a union-authorization card on February 21, and that the instructions to stock the cooler and clean the wall were issued directly to Eiring and Richardson, the regular full-time employees on the shift, and recog- nizing that Respondent was under no obligation to dis- charge the entire shift complement because of dissatisfac- tion with the performance of two shift employees, I am not convinced that the retention of Johnson warrants a finding of unlawful, disparate treatment or a conclusion that unsatisfactory performance was not the reason for the discharges. The matter is not entirely free from doubt, a common result in cases of this sort, but the probabilities favor Re- spondent in this instance, and Respondent has effectively countered the General Counsel's prima facie case. The General Counsel has not established by a preponderance of the credible evidence that the discharges were unlaw- fully motivated, and I find that Eiring and Richardson were discharged for cause, and not in violation of Sec- tion 8(a)(3) or (1) of the Act. H. The Violation of Section 8(a)(5) 1. The appropriate unit The complaint alleges that the unit of employees set forth below is appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. The unit alleged is: All full-time and regular part-time hourly paid em- ployees employed by the Employer at its retail out- lets located in: St. Louis, St. Louis County, Eureka, Cedar Hill, and Hillsboro, Missouri, EXCLUDING office clerical and professional employees, manager, guards and supervisors as defined in the Act. Respondent protests that this unit is not appropriate because it would infringe on an existing collective-bar- gaining agreement with the Teamsters Union, and be- cause each of the stores sought to be covered is an indi- vidual and separate entity for which Respondent's cen- tral office merely provides a "bookkeeping type func- tion," and whose employees have no community of inter- est with employees at other stores. Respondent is the parent of Sieveking, Inc. A third business is Sieveking Enterprises. All three have common owners and directors and a central office in Fenton, Missouri. There is also a garage at the Fenton address where tires are sold and tank truck drivers are dispatched to deliver fuel, oil, and gasoline, the former to homes and small construction sites. It is not clear whether gasoline is delivered by these trucks to the stores, but it is most probable that it is. There are 9 or 10 drivers, all of whom work out of the main office and are paid at that office on Stop N' Go checks. The wages, hours, and working conditions of the drivers and tire- workers are covered by a contract between Respondent and the Teamsters Union Their work is functionally dis- tinct. The tire-workers apparently perform their duties at the main office garage. The only contact drivers might have with the stores involved herein would be while de- livering gasoline, and there is no interchange between drivers and store employees. They are clearly not super- vised by nor employees of the retail outlets recited in the alleged unit, and the unit does not seek to include them. There is no showing that they have any community of interest with the store employees, or that a unit including the store employees, drivers, and tire-workers is the only appropriate unit. There is no history of collective bar- gaining for such an overall unit, and the Union does not seek to represent the drivers and tire-workers. Accord- ingly, I conclude and find that the unit alleged would not infringe on the existing collective-bargaining agree- ment as Respondent contends. The stores are located in St. Louis, St. Louis County, and Jefferson County within an area approximately 20 miles wide east to west and 30 miles long north to south. It does not appear on the evidence that any store is more than 10 or 12 miles from another. The individual store managers have and exercise the authority to hire, fire, and schedule employee work. All nonsupervisory employees start at minimum wage. There is no regular wage progression schedule, and employees receive no fringe benefits. All employees of all stores appear on the same paycheck register maintained at the main office. The store managers are directly supervised by the area supervisor who reports directly to owners Donald and Henry Sieveking. Managers may not grant wage increases without obtaining the area supervisor's permission . The area supervisor is responsible for all nine stores, and consults directly with the Sievekings as nec- essary on operational problems raised by the store man- agers. The frequency of her visits, other than weekly de- livery of the checks, is not shown in the record. The STOP N' GO INC. 353 nonsupervisory employees punch timeclocks. Their time- cards are delivered to the main office where their pay is calculated and checks issued. The area supervisor weekly delivers the checks to the individual store manager who then distributes them to the employees. The manager takes no part in the pay calculation process except the delivery of timecards to the main office. Billing, charges, the percentage of markup for products sold, and check cashing privileges are all handled by the main office. All nonsupervisory employees are clerks or cashiers per- forming duties substantially identical to those of their counterparts at other of the stores. There is no employee interchange between the stores25 and no history of pre- vious collective bargaining on behalf of the employees. There is a well-established presumption that a single store unit is appropriate,26 but it is also clear that a mul- tistore unit may be appropriate'27 and the Board has long held that the unit sought by a union need not be the most appropriate unit so long as it is an appropriate unit.28 The lack of substantial interchange and considerable autonomy of local managers in the day-to-day direction of employees lend support to the single store unit con- tention of Respondent,29 but I am persuaded that the General Counsel's reliance on Big Way Super Market, 226 NLRB 180 (1976), is well placed. Significant factors in both cases are strikingly similar . The Board therein found a unit of the employees of six grocery stores, one garden and pet shop, and a central operation, all located within a 25-mile radius (approximately the same as Re- spondent's stores), to constitute an appropriate unit. The individual store managers in Big Way had the power to hire, fire, schedule, discipline, promote, select for layoffs, and recall employees but there was a common personnel policy and wage schedules, as there is in this case. In both cases there is centralized control of labor relations and a common labor policy applicable to all locations. The maintenance of one paycheck register for all em- ployees underscores the conclusion that common person- nel policies extend to all Respondent's store employees. Lastly, the Union does not seek to represent the employ- ees in a smaller unit. The facts recited above establish that all Respondent's employees located at its nine stores have a common com- munity of interest warranting their inclusion in the same bargaining unit. Accordingly, I find the unit alleged in the complaint is appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act 2. The Union's majority status There were 69 employees in the unit on March 3, if E. Y. Long and M. E. Michaud are included . Michaud is in- dicated as an assistant manager on Respondent 's records, and the General Counsel was uncertain as to whether he 25 The mere fact that employees may occasionally be trained at one store to become managers at another is not, as the General Counsel seems to suggest, substantive evidence of employee interchange 26 Haag Drug Co, 169 NLRB 877 (1968) 27 See, e g, Big Y Foods, 238 NLRB 860 (1978) 28 See, e g, Tallahassee Coca-Cola Bottling Co, 168 NLRB 1037, 1038 (1967) would agree Long was in the unit.30 Long is alleged and admitted as a supervisor, but Respondent states she was not a supervisor on March 3. Concerning Michaud, the paycheck record entered into evidence as a list of em- ployees, including supervisors, notes she was an assistant manager. Respondent contends she was a supervisor who performed as a manager when the manager was not present, and the General Counsel deferred taking a posi- tion until her status was litigated. Both Michaud and Long signed union-authorization cards. Neither person's status was litigated. If both are included as unit employ- ees, 37 employees signed valid authorization cards31 prior to or on March 3 and the Union had a majority in a 69-person unit on that date. If one is included, the ma- jority is 36 of 68. If neither is included, the majority is 35 of 67. In any case, a majority of unit employees had des- ignated the Union as their exclusive collective-bargaining agent on March 3. The Union mailed its request for rec- ognition on March 5, and Respondent answered it on March 9. The date Respondent received the request is not definitely established. Respondent hired another unit employee on March 4 who did not sign an authorization card. This did not change the fact of the Union's majori- ty and I find it still existed on March 9. It is unnecessary to pass on the exclusion or inclusion of Long and Mi- chaud because there is insufficient evidence to do so, and the resolution of the issue would not reduce the Union's support to less than a majority in any event. For the same reasons it is unnecessary to determine whether Mi- chael Eberhardt is a regular part-time or casual employ- ee. 3. Conclusion The immediate reaction of Respondent to the Union's organizational efforts was a series of unlawful interroga- tions and threats of temporary store closure and refusal to rehire union adherents. These activities were accom- panied by the unlawful discharge of the Eberhardts. Except for the impression of surveillance conveyed by Vuichard, all these violations occurred within a 3-week period commencing 3 days after the first union-authori- zation card was signed. In view of Area Supervisor Wil- liams' direction to Hicks on February 24 to tell employ- ees that the stores would be closed 30 days and current employees who signed union cards would not be hired, and Williams' statements on February 25 to Fox that the Sievekings had said they would not negotiate but would close for 30 days and not rehire employees, I conclude that the antiunion campaign did not spring spontaneously from the reaction of a few managers to the perceived threat of a union, but was orchestrated by higher man- agement . Respondent's design was, I find, to discourage its employees from supporting the Union by coercion and by soliciting grievances and promising to remedy them and granting benefits, by cajolery, which would ipso facto tend to dissipate the Union's support. Any 3° Tr 203, 1 23 31 The cards are clear authorizations of the Union to act as the signers' representative for purposes of collective bargaining All cards were prop- erly authenticated and no serious question was raised regarding their va- lidity 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good faith that might otherwise be inferred from the content of Respondent's March 9 letter rejecting recog- nition is rendered nugatory by its unfair labor practices. It is true that all the unfair labor practices found took place at stores 3, 9, and 10. It is also true, however, that 21 of the 41 authorization cards submitted in evidence were signed by employees of these stores. From this evi- dence that over half the cards were signed at the one- third of the stores where the violations occurred, it might well be inferred that Respondent concentrated its campaign on those stores which produced the most union adherents. Whether this inference is valid or not, the direct threats of plant closure and refusal to rehire employees of the three stores are of such serious conse- quences as to be almost inevitably discussed among all employees, and are so severe as to render, by themselves, a reliable election unlikely, even if Respondent has not repeated its unlawful conduct since the violations found herein 32 Add to these threats the even more serious in- fraction of unlawful discharges, solicitation of grievances with promises to remedy and an actual remedy in the form of a vacation grant, coercive interrogations, the conveyance of an impression of surveillance of employee union activities, and the gravity of Respondent's course of conduct is obvious. A bargaining order is warranted because Respondent's unfair labor practices clearly have a tendency to under- mine the Union's majority and are of a type which will have a lingering inhibitory effect on employees and make it most unlikely that an election in the reasonably fore- seeable future could be conducted that will fairly reflect thie uncoerced choice with respect to the selection of a collective-bargaining representative. The employees' signed authorization cards are the most reliable indica- tion of their desire for representation in the absence of any reasonable likelihood of a reliable election. For all the reasons above, I find that Respondent vio- lated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as of March 5, the date the Union requested recognition,33 and that a bargaining order should issue.34 On the foregoing findings of fact and conclusions thereon, and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sections 2(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. The following unit of employees is appropriate for purposes of collective bargaining: 32 General Stencils, Inc, 195 NLRB 1109 (1972), enf denied 472 F 2d 170 (2d Cir 1972), Erie Coke & Chemical Co, 261 NLRB 25 (1982), Vira- con, Inc, 256 NLRB 245 (1981) 33 Trading Port, Inc, 219 NLRB 298, 301 (1975) Respondent's unfair labor practices occurring before March 5 are otherwise remedied by the order herein 34 NLRB v Gissel Packing Co, 395 US 575 (1969), Viracon , supra, General Stencils, supra, Warehouse Groceries Management, 254 NLRB 252 (1981), Ferland Management Co, 233 NLRB 467 (1977) All full-time and regular part-time hourly paid em- ployees employed by the Employer at its retail out- lets located in: St. Louis, St. Louis County, Eureka, Cedar Hill, and Hillsboro, Missouri, EXCLUDING office clerical and professional employees, manag- ers, guards and supervisors as defined in the Act. 4. At all times since March 3, 1982, and continuing to date, the Union has been the designated representative of all the employees within the appropriate unit for pur- poses of collective bargaining. 5. By coercively interrogating employees with respect to their union activities and those of others, Respondent violated Section 8(a)(l) of the Act. 6. By creating the impression it is keeping the union activities of its employees under surveillance, Respond- ent violated Section 8(a)(1) of the Act. 7. By soliciting, promising to adjust, and adjusting em- ployee grievances to induce its employees to refrain from designating the Union as their representative for the pur- poses of collective bargaining, Respondent violated Sec- tion 8(a)(1) of the Act. 8. By granting its employees a paid vacation as an in- ducement to abandon activity, Respondent violated Sec- tion 8(a)(1) of the Act. 9. By telling its employees it will not negotiate with the Union if they select it to represent them, Respondent violated Section 8(a)(1) of the Act. 10. By threatening employees with loss of wages and accumulated seniority if they selected the Union to rep- resent them, Respondent violated Section 8(a)(1) of the act 11. By threatening employees with discharge if they voted in a Board-conducted election, Respondent violat- ed Section 8(a)(1) of the Act. 12. By threatening its employees with store closure and a refusal to rehire them if the Union became their collective-bargaining representative, Respondent violated Section 8(a)(1) of the Act. 13. By discharging Karen Eberhardt and Michael Eberhardt for the purpose of discouraging union activity, Respondent violated Section 8(a)(3) and (1) of the Act. 14. By engaging in the above-described unfair labor practices for the purpose of undermining and destroying the Union's majority status, or to prevent it from attain- ing such status, and by refusing to bargain with the Union as of March 5, 1982, Respondent violated Section 8(a)(5) and (1) of the Act. 15. The violations of the Act found above prevent the holding of a fair election, and warrant the issuance of a bargaining order. 16. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 17. Respondent did not violate the Act by discharging Donald Eiring and Darline Richardson. THE REMEDY My recommended Order, in addition to the usual cease-and-desist and notice-posting provisions, will re- quire Respondent to offer Michael Eberhardt and Karen STOP N' GO INC. 355 Eberhardt unconditional reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to any rights or privileges they previously enjoyed, and make them whole for all wages lost as a result of their unlaw- ful discharge, such backpay and interest thereon to be computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).35 Respondent will also be ordered to remove from its files any reference to the discharges and notify the Eberhardts in writing that it has done so and that evidence of their unlawful discharge will not be used as a basis for future personnel actions against either of them. Respondent will further be ordered to recognize and bargain with the Union as the exclusive collective- bargaining agent of the employees in the unit found ap- propriate herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed36 ORDER The Respondent, Stop N' Go Inc., St. Louis, Missouri, its agents, officers, successors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating in any manner with respect to their tenure of employment or any terms or condition of employment. (b) Coercively interrogating employees concerning their and other employees' union activities and desires. (c) Threatening to close stores and refusing to rehire current employees if they select the Union as their col- lective-bargaining representative. (d) Threatening employees with loss of wages and ac- cumulated seniority if they selected the Union to repre- sent them. (e) Threatening employees with discharge if they vote in a Board-conducted election. (f) Giving employees the impression that their union activities are under surveillance. (g) Soliciting, promising to adjust, or adjusting em- ployee grievances for the purpose of inducing them to refrain from selecting the Union as their representative for purposes of collective bargaining. (h) Granting employees a paid vacation or other bene- fits as an inducement to abandon their union activity. (i) Telling employees it will not negotiate with the Union if the employees select it as their collective-bar- gaining representative. (j) Refusing to recognize and bargain with the United Food & Commercial Workers Union, Local 655, AFL- CIO, as the exclusive representative of all the employees in the bargaining unit described below: All full time and regular part-time hourly paid em- ployees employed by the Employer at its retail out- lets located in: St. Louis, St. Louis County, Eureka, Cedar Hill, and Hillsboro, Missouri, EXCLUDING office clerical and professional employees, manag- ers, guards and supervisors as defined in the Act. (k) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain with the Union as the exclusive representative of all employees in the unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment and, if an understanding is reached, embody such understanding in a written, signed agreement: All full-time and regular part-time hourly paid em- ployees employed by the Employer at its retail out- lets located in: St. Louis, St. Louis County, Eureka, Cedar Hill, and Hillsboro, Missouri, EXCLUDING office clerical and professional employees , manag- ers, guards and supervisors as defined in the Act. (b) Offer Karen Eberhardt and Michael Eberhardt im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) Remove from its files any reference to the dis- charge of Karen Eberhardt on March 3, 1982, and the discharge of Michael Eberhardt, effective March 7, 1982, and notify them in writing that this has been done and that the unlawful discharges will not be used against them in any way. (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 its nine convenience stores copies of the at- tached notice marked "Appendix."37 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. as See, generally, Isis Plumbing Co, 138 NLRB 716 (1962) as If no exceptions are filed as provided by Sec 102 46 of the Board's If this Order is enforced by a judgment of a United States court of Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board " 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the complaint be dis- days from the date of this Order what steps the Re- missed insofar as it alleges violations of the Act not spondent has taken to comply. found herein.