Yaohan Of California, Inc.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yaohan of California, Inc. and United Food and Commercial Workers Union, Local 1288, United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 32-CA-5763 June 10, 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 16 August 1984 Administrative Law Judge Russell L. Stevens issued the attached decision. The General Counsel and Charging Party filed ex- ceptions and supporting briefs and the Respondent 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,2 and conclusions3 only to the extent consistent with this Decision and Order. The Charging Party has requested oral argument The request is denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties II The General Counsel and the Charging Party have excepted to some of the judge's credibility findings. 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. We note that in sec III,C,4 of his decision, the judge credited the Re- spondent's assistant manager, Sakurai, over employee Monfredi in dis- missing the allegation that Sakurai threatened Monfredi in violation of Sec. 8(a)(1) We note that the judge's reason for discrediting Monfredi was based on a misreading of her testimony Thus, the judge indicated, erroneously, that Monfredi had testified that the remarks alleged to be unlawful threats were made during a conversation with Sakurai where four other individuals were present. The judge then noted that none of these individuals had corroborated Monfredi Although the judge cred- ited Sakurai, he noted further, however, that under either version of this conversation nothing contained therein either specifically or implicitly re- ferred to the Union and that Sakurai did not reprimand , discipline, or take action against Monfredi because of this conversation We agree with the judge that even crediting Monfredt's version of the conversation there is no basis on which to conclude that she was unlawfully threat- ened by Sakurai. However, we note that the record shows that Monfredi testified that the conversation in question occurred when she approached Sakurai at the Respondent's grocery store She did not testify that four other individuals were present Because we agree with the judge that even under Monfredi's version, no violation was established, we find his inadvertent error, noted above, insufficient to affect our decision about the merit of the violation alleged 8 No exceptions were filed to the judge's findings that the Respondent, through Manager Kanai and Assistant Manager Sakurai, violated Sec 8(a)(1) by interrogating and threatening employees , creating the impres- sion of surveillance of employee union activities, promising increased wages and benefits if employees would forgo the Union, and telling em- ployees not to speak with union representatives The General Counsel has excepted to the judge's failure to make a spe- cific finding about the allegation that Assistant Manager Sakurai violated Sec. 8(axl) by asking employee Allen why she was wearing a union pin We note that the above was but one of the three violations alleged to have occurred during a conversation between Allen and Sakurai concern- mg Allen's wearing a union pin The judge found merit in one of the alle- Contrary to the judge, we conclude that the Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging employee Zamora in retaliation for his union activities. In this regard, we find that the General Counsel has established a prima facie case raising the inference that Zamora's discharge was motivated by his union activities, and that the Re- spondent has failed to rebut this inference in that the Respondent has not established that it would have discharged Zamora even in the absence of his union activities.4 The pertinent facts are as follows. Zamora was employed by the Respondent in November 1982 as a part-time clerk at one of the Respondent's two retail grocery stores. At Zamora's employment interview, the Respondent's manager, Kanai, ad- vised Zamora that the Respondent was nonunion and wished to remain so. Zamora then assured Kanai that he could be trusted not to talk about the Union in the store. About 2 months after he was employed, Zamora was converted to full-time status and received a wage increase and increased job responsibilities. He never received any written reprimands during his tenure of employment with the Respondent. In April 19835 Kanai learned that a union busi- ness representative was speaking to employees about organizing. On 10 May two union represent- atives visited one of the Respondent's stores where they were followed around by Assistant Manager Sakurai. On 11 May, although it was his day off, Zamora went into the store where he worked to speak to Kanai about the possibility of getting a second wage increase. After Kanai refused to give him an increase, Zamora went directly to the union hall, signed an authorization card, and then re- turned to the store where he spoke with 17 or 18 employees about organizing. Assistant Manager Sa- kurai remarked about Zamora's presence in the store on his day off and asked Zamora if he had not anything better to do. Zamora then went to the Respondent's second store where he also spoke with employees about organizing. The following day Zamora was discharged. Zamora testified that he was summoned up to Kanai's office and told he gations and found that Sakurai violated Sec 8(a)(1) by requiring Allen to remove the pin The judge dismissed the second allegation and found that Sakurai did not threaten to discipline Allen. As noted by the General Counsel, the judge did not make a specific finding about the third allega- tion that Sakurai also unlawfully interrogated Allen during this same con- versation We find it unnecessary to pass on this interrogation allegation because the finding of an additional interrogation stemming from this one incident would be cumulative as other unlawful interrogations were found by the judge and any additional finding would not affect the remedy. 4 Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981) All dates hereafter refer to 1983 280 NLRB No. 32 YAOHAN OF CALIFORNIA was being let go. Zamora said he asked the reason for this action and that Kanai replied: "We want no union, we need no union here. I have to let you go.99 Kanai testified that he terminated Zamora after Zamora had approached him on 12 May and again requested a raise. Kanai said he told Zamora that he was being terminated for poor performance. Al- though the Respondent has a policy of issuing writ- ten warnings before terminating employees, Kanai said that he deviated from this policy because he was angry. Some 2 months after Zamora's dis- charge, another employee, Allen, argued with Kanai about getting a wage increase, but she was not terminated for this conduct. After Zamora was terminated, employee Boswell asked Assistant Manager Sakurai why Zamora had been fired. Boswell said that Sakurai did not answer but then said, "I know something's going on. We cannot afford to join the Union right now." As detailed in the judge's decision, following Za- mora's discharge, the Respondent, through Kanai and Sakurai, committed violations of Section 8(a)(1) by interrogating and threatening employees, creating the impression of surveillance of employee union activities, promising increased wages and benefits if employees would forgo the Union, and telling employees not to speak with union repre- sentatives. Against this background, the judge found it "quite clear" that at all material times the Respond- ent was opposed to its employees being represented by a union and that Kanai was antagonistic toward the Union. Nevertheless, the judge concluded that Zamora was not discharged because of his union activities even though the judge rejected the Re- spondent's contention that Zamora was discharged for poor performance. In this regard, the judge noted that Zamora never had received a written warning, and he had been given a raise and in- creased responsibilities during his tenure of em- ployment. The judge concluded, however, that it was Zamora's continuing to press for a second raise, not his union activities, which prompted his discharge." This conclusion was based chiefly on the judge's finding insufficient evidence to establish the Respondent's knowledge of Zamora's union ac- tivities at the time of his discharge. The judge noted that the only direct evidence of such knowl- edge was Zamora's own testimony concerning Kanai's remarks at the termination interview. The judge, however, concluded that Zamora's testimo- ny, if accurate, was ambiguous. The judge also 8 The judge apparently credited Kanai's version of the termination interview and found that Zamora again approached Kanai for a raise on 12 May 269 noted the presence of Sakurai and Supervisor Kono in the store during Zamora's solicitation of support for the Union on I1 May, but attached little importance to this, noting that Zamora's pres- ence in the store was "unremarkable," and that Zamora had attempted to conceal the true purpose of his visit to the store on 11 May. Thus, finding insufficient evidence of knowledge of Zamora's union activities, the judge dismissed this allegation. We reverse the judge and find Zamora's dis- charge to be violative of Section 8(a)(3) and (1). We note that the record is replete with evidence of union animus made plain to employees both before and after the onset of this organizing campaign. Additionally, Zamora was discharged abruptly prior to the end of his workweek, just 1 day fol- lowing his solicitation for the Union, and his dis- charge was contrary to the Respondent's policy of giving a warning prior to discharging an employee. Furthermore, the reasons asserted for the discharge do not withstand scrutiny. Thus, as found by the judge, the discharge was not prompted by Za- mora's "poor" performance where the record shows that he was given a wage increase and in- creased hours and responsibilities and never had re- ceived any written warnings. Also, the record shows that employee Allen was not terminated for arguing with Kanai over a wage increase, and the Respondent proffered no explanation for the dis- parate treatment of Zamora vis-a-vis Allen. With respect to the element of knowledge, the judge found that while the Respondent had general knowledge of union activities at its store, it had no specific knowledge of Zamora's activities.7 Even in the absence of ct..jited evidence of direct knowl- edge of Zamora's union activities, we conclude that the circumstances surrounding Zamora's dis- charge, noted above, are sufficient to create the in- ference that the Respondent was aware of Za- mora's union activities and fired him for that reason. See Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380, 1384-1385 (8th Cir. 1980), enfg. 247 NLRB 895 (1980). Thus, we note the Respondent's evident union animus; the abruptness of Zamora's discharge swiftly following his union activity; Za- mora's discharge was contrary to the Respondent's policy of first warning, rather than discharging, employees; the disparate treatment accorded Zamora vis-a-vis employee Allen; and the pretex- tual nature of the reasons asserted for the dis- 7 Contrary to the judge , we find nothing "ambiguous" in Zamora's tes- tunony that Kana, told him at the termination interview , "We want no union, we need no union here. I have to let you go." As it appears, how- ever, that the judge obliquely credited Kanat's version of the termination interview, we do not rely on this portion of Zamora 's testimony in con- cluding that Zamora was discharged in retaliation for his union activities. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge. Furthermore, contrary to the judge, we do attach importance to Zamora's having engaged in union activities in the store on 11 May within the clear sight of Sakurai and Kono. While the judge considered Zamora's presence in the store on his day off to be "unremarkable," we note that his presence drew the attention of Sakurai, who asked him whether he had not anything better to do on his day off. While Zamora may have been attempt- ing to conceal his union activities that day, his summary discharge on the following day indicates that his attempted concealment of his activities was unsuccessful. Additionally, we note that Sakurai linked Zamora's discharge with the Union in telling employee Boswell that "I know something's going on. We cannot afford to join the Union right now." Finally, contrary to the judge, we do not reject Boswell's testimony as "hearsay" since the remarks attributed to Sakurai constitute an admission which links the discharge of Zamora with the union orga- nizing activities. Accordingly, we conclude that the Respondent violated Section 8(a)(3) and (1) by discharging Zamora in retaliation for his union activities. ORDER The National Labor Relations Board orders that the Respondent, Yaohan of California, Inc., Fresno, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engage in union ac- tivities on behalf of United Food and Commercial Workers Union, Local 1288, United Food and Commercial Workers International Union, AFL- CIO-CLC, or any other labor organization. (b) Coercively interrogating and threatening em- ployees about their union activities , creating the impression of surveillance of employees' union ac- tivities; promising employees wage and benefit in- creases without the Union; and telling employees they are not to speak with union representatives. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Tony Zamora immediate and full rein- statement to his former job or, if the job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed , and make him whole for any loss of earnings and other benefits resulting from his discharge. Backpay is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Flor- ida Steel Corp., 231 NLRB 651 (1977). (b) Remove from its files any reference to the unlawful discharge and notify the employees in writing that this has been done and that the dis- charge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at facility, in Fresno, California, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 discharge or otherwise discrimi- nate against you because you engage in activities 8 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." YAOHAN OF CALIFORNIA on behalf of United Food and Commercial Work- ers Union, Local 1288, United Food and Commer- cial Workers International Union, AFL-CIO-CLC, or any other labor organization. WE WILL NOT coercively interrogate and threat- en you about your union activities; create the im- pression that we are surveilling your union activi- ties; promise you wage and benefit increases with- out the Union; or tell you that you are not to speak with union representatives. 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 Tony Zamora immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge , less any net interim earnings, plus interest. WE WILL remove from our files any reference to the unlawful discharge and we will notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. YAOHAN OF CALIFORNIA, INC. Elaine D. Climpson, for the General Counsel. Ted R. Frame, of Coalinga, California, for the Respond- ent. Barry S. Jellison (Davis, Cowell & Bowe), of San Francis- co, California, for the Charging Party. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Fresno, California, on April 24, 25, 26, and 27 and June 14, 1984.1 The complaint,2 based on a charge filed August 2 by United Food and Commercial Workers Union, Local 1288, United Food and Commer- cial Workers International Union, AFL-CIO, CLC (the Union), was issued October 27.3 The complaint alleges that Yaohan of California, Inc. (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act). i All dates hereinafter are within 1983, unless otherwise stated. This case was opened by Administrative Law Judge Harold Kennedy on March 1 , 1984, but was continued after the taking of some testimony that day, following Judge Kennedy's withdrawal from the case. I recom- mend trial ab initio, on April 24. 2 The complaint was amended by the General Counsel on March 12 and April 4, 1984 The complaint erroneously refers to the Union as Local 288 and was amended to Local No 1288 271 All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Charging Party, and Respondent. On the entire record, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent, a California corpo- ration with an office and place of business in Fresno, California, has been engaged in the retail grocery busi- ness. During the past 12 months Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000, and received goods or services valued in excess of $5000 which originated outside the State of California. I find that Respondent is, and at all times has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Union, Local 1288, United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC is, and at all times has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background4 Respondent is owned by a Japanese firm. Some of Re- spondent's personnel were sent from Japan to participate in Respondent's operations, as more fully described, infra. Respondent has two retail grocery outlets in Fresno, one of which is located on Kern Street (store 1) and one of which is located on C Street (store 2). The manager of both stores is Masaaki Kanai. Etsurou Sakurai is assist- ant manager of store 1. Tsuyoshi Inaba is assistant man- ager of store 2. Store 1 has a restaurant and delicatessen, in addition to a retail grocery outlet. Shuji Kono super- vises the restaurant and delicatessen, and also has respon- sibility for all cash register and checkout stands in both stores.5 Respondent purchased store 1 from a former owner, Boy's Market, and the store was reopened by Respond- ent July 6, 1979. Kanai became store manager July 1, 4 This background summary is based on credited testimony and evi- dence not in dispute. 5 The fact that Kanai, Sakurai, and Kono are supervisors within the meaning of the Act is not in dispute. It is clear, based on the testimony of witnesses and the record, that, although Kanai, Sakurai, and Kono may require the services of interpreters on some occasions wherein technical or difficult terms are used, all three persons are trained and experienced in use of the English language, and are fluent in English to the extent that ordinary business conversations and activity are involved All three persons understand and speak in English frequently each day during the course of work and social activity 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1981. At times relevant herein, store 1 had approximately 47 employees, including approximately 8 checkers, sever- al stockclerks, several bagboys, 4 to 6 employees in the restaurant, and approximately 5 employees in the delica- tessen. Store 2 had approximately 33 employees , includ- ing checkers, stockclerks, and bagboys. Both stores at times relevant herein were equipped with closed circuit television systems having several cameras located in stra- tegic positions on the floor of the stores with monitoring screens and camera controls located in store offices. The camera equipment was installed in store 2 in June or July 1983. The television screen in Kanai's office in store 1 is located almost in front of him, approximately 20 feet away. The screens are watched on a sporadic basis a couple of hours each day, or when suspected shoplifters are in the store. Watching is carried out by stockclerks or other store personnel, including Kanai. The Union unsuccessfully attempted in 1980 to orga- nize Respondent's employees at store 1 , and by letter dated January 19, 1983, addressed to "Manager" of Re- spondent, expressed interest in seeing that former Boy's Market employees be given an opportunity to work for Respondent. 6 Mary Jansen became a volunteer organizer for the Union in December 1982, and commencing in January 1984 became a regular organizer for the Union. Kirk Vogt, a union business agent, was involved in the Union's 1980 campaign to organize Respondent's em- ployees. Commencing in April 1983, Jansen and Vogt undertook a second campaign to organize Respondent's employees, and on April 19 Jansen called Respondent's employee Mechele Allen on the telephone at her home, to express union interest in meeting and talking with her about organizing the employees.' Allen and Jansen met April 21, at which time Allen signed a union authoriza- tion card. Thereafter, Allen talked with 12 or 15 employ- ees at store 1, and with two employees at store 2, con- cerning possible union organization. On April 26 Angela Martinez, another of Respondent's cashiers, met with Jansen following an earlier conversation between the two, and signed a union authorization card. Tony Zamora8 began work with Respondent in November 1982 as a part-time clerk, working 35 hours per week. On May I1 Zamora visited the union office and signed a union authorization card. He then became an active union organizer, and talked with 17 or 18 employees of store 1. Thereafter, he talked with five or six employees of store 2. On May 12 or 13, the date being in dispute as discussed infra, Zamora was fired by Kanai. Zamora later talked with Castro of the Union, and arranged for a meeting of employees and union representatives to be held in his apartment May 19. The meeting was held as scheduled, and was attended by 12 or 15 employees. On June 9 the Union sent a letter to Kanai, protesting what s The Union represented Boy's Market unit employees prior to Re- spondent's purchase of the retail grocery outlet 7 Approximately on the same date, April 19, Jansen talked with em- ployee Dolores Monfredi, one of Respondent's cashiers, and Monfredi signed a union authorization card. Previously, in March, Monfredi had talked with Bob Castro of the Union on two occasions about the Union. Monfredi had been a union member while working for Boy's Market 8 This employee is referred to as Zamora His uncle , Ron Zamora, who also worked for Respondent, is referred to by his full name. was alleged to be Respondent's harassment of Monfredi and Allen because of their engaging in union activities. The General Counsel alleges that Respondent violated the Act on numerous occasions, including the discharge of Zamora. The allegations of the complaint , as amend- ed, are discussed below. B. Respondent 's Animus Allen testified that when Kanai interviewed her in mid-January 1982 for a job and again when she started work January 27 Kanai told her Respondent was non- union and would stay that way. Allen said Kanai told her the same thing in November 1983 after she returned from maternity leave. Kanai testified that he never talked with Allen about the Union. Allen also testified that in February or March she and employee Angela Martinez were talking when Kanai joined them. Unions were men- tioned, and Martinez asked Kanai when Respondent was going union. Allen said "Angela, be serious . We'll go union in the year 3000, right, Mr. Kanai?" Kanai replied, "Yes, in the year 5000 we go union.-Union lots of trou- ble." Martinez, a part-time cashier at store 1, testified that when she was interviewed for a job in March 1982 by Kanai and Tom Shiomi the latter told her Respondent was nonunion. Jansen and Vogt testified in rather ambiguous manner to several incidents that possibly could have been con- strued as expressions or indications of antiunion animosi- ty on the part of Kanai and Sakurai. The latter both denied much of what was said or inferred by Jansen and Vogt. Zamora testified that when Kanai interviewed him for a job in November 1982, Kanai made it clear that Re- spondent was nonunion and intended to remain that way. As discussed infra, Respondent's antiunion animus was expressed on several occasions during incidents found to have been violations of the Act. On June 11, 1983, Respondent distributed to all its em- ployees the following letter: Dear Employee: We have heard that a union is attempting to or- ganize our employees. We feel very strongly that you do not need a union. We are working hard to provide fair and excellent working conditions for our employees. You now have and enjoy good con- ditions without paying union dues, or initiation fees, and without exposing yourselves to fines, assess- ments, and the possibility of strikes. Not one of you has lost one day's pay to get any of this. We are providing employment in the West Fresno area, and employment which probably would not be provided in the area by anyone else. Some of you may not be familiar with union or- ganizing tactics. The union organizer's purpose is to get you to sign a union authorization card. You should be on your guard! If anyone should tell you that by signing one of these cards, you are not obligated in any way- YAOHAN OF CALIFORNIA don't believe him! This is a common trick to get people to sign cards. Don't believe the Union solicitor who states: "This card is only to get an election or more in- formation." "A majority of employees has already signed." "It will cost you more if you don't join now." "If you don't sign now, you won't have your job after we win." Such statements are not true. Despite what the organizers may say, we do not believe that signing a union card is in your best in- terest.9 Very truly yours, /s/ M. Kanai Discussion It is quite clear, and it is found, that at all times mate- rial herein Respondent was opposed to its employees being represented by any union. C. Respondent's Knowledge of Union Activity Kanat testified that the first he knew of union activity was when Sakurai reported to him on May 16 that Sa- kurai had "met members of the Union in the store and that he was introduced to them . . . ." Other than that incident, Kanai testified, the first time he knew of union activity was when he received letters from the Union on June 9 informing him of the participation of Allen and Monfredi in union activity at Respondent' s stores. Sakurai testified relative to this subject in an ambigu- ous and somewhat self-contradictory manner. He said he did not know of any union activity prior to June 3, but that he saw Jansen and Vogt in store 1 on May 16, and he saw Jansen in the store a "couple of times" prior to that date. Sakurai testified: Q. All right, what did you tell Mr. Kanai about your conversation with Jansen and Vogt on May 16th? A. Well, the-I was surprised to see very beauti- ful Mary Jansen in my store, when I saw her before May 16th, because she was not the kind of person who comes to the west downtown store like ours, so there was talk about her and so I talked to Mr. Kanai that she looked like a model, Kanai, that that person that we thought was a model, in fact, was Mary Jansen, and she came today to the store. He stated that he told Kanai on May 16 that Jansen "is of the Union." He continued: Q. All right. And you knew then, at that time, that the union was interested in organizing the em- ployees of your store, isn't that correct? A. There was a-about the union activities, there was already such activity before that date, so since 9 Sakurai testified that Kanai told him this letter expressed Respond- ent's strong opinion that the employees did not need a union 273 that kind of activity does not concern my sphere of work, I did not take much notice of it. 10 Sakurai said later he did not know of any union activity in the store prior to May 16. Earlier in his testimony, Sa- kurai stated that on May 16 he was near the door when Jansen and Vogt entered and introduced themselves, and that he saw them later the same day outside the store, near the entrance. He said neither Jansen nor Vogt gave any reason for being at the store. Kono testified that the first he knew of union activity was when, at the end of May, he "got a report from Mr. Kanai about the Union, specifically that there was a union member who visited the store." He said he never saw Jansen in the store and does not know her by name. Allen testified that she talked with Kanai April 22, at a time when Respondent was conducting an employee ori- entation program. Allen testified: Okay, I was just about done and Mr. Kanai said, "Has the union lady called to you?" And I said no. And he said, "The union much trouble. Always I worry about the union." He said, "Union lady call to other employees, and that the union cause much trouble," and that he always worried about it. I asked him what did he want me to say if the union lady did call me, and he said, "I think that maybe you should don't talk to her." He said if the union came in that lots of employees would lose their jobs and the store might have to close. He told me, "But, I trust you." And I told him, no problem, and we shook hands and I left. Kanai denied this allegation by Allen, and said Respond- ent never had an employee orientation meeting, although he later changed his testimony and said there was an em- ployee orientation meeting, which was stipulated as having started April 18, for 6 days. I' Jansen testified: She started going to store 1 to talk with employees the first or second week in April-ap- proximatley three times the first 2 weeks in April, and almost on a daily basis from the second week in April until June. She wore a jacket with the Union's logo on it in 2- or 3-inch letters on the back and a small logo on the front. Vogt accompanied her after the first 2 weeks. She and Vogt talked with Sakurai on May 10 on two oc- casions. On the first occasion, Vogt, who had known Sa- kurai from an earlier date, introduced Jansen to Sakurai. They engaged in small talk in the store and left. Sakurai followed them through the store, and the three met again outside where they talked about unions in Japan and the United States and compared them. Vogt asked Sakurai to sit down and talk, and Sakurai replied, "Talk to the at- torney." On later occasions when she talked with Sa- 10 This testimony is ambiguous, as it is possible that Sakurai was refer- ring to the union activity of 1980 11 Quite a lot of trial time was devoted to testimony concerning the surveillance cameras in both stores and to the physical layout of the stores, including the interior windows of Kanat 's office. The General Counsel contends that those matters raise the inference that Kanai saw Jansen and Vogt and others engaging in union activity within the stores That inference could be based only on speculation and is not made 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kurai, they engaged in small talk. On one later occasion Vogt, who at the time was wearing a jacket similar to Jansen's, introduced Kanai to Jansen. Kanai pointed to a Patco button Jansen was wearing and said "I know you union." She replied yes. Vogt corroborated Jansen's testimony and testified: He first became acquainted with Kanai during the 1980 cam- paign, and with Sakurai during the 1983 campaign. Vogt said he and Castro delivered to Kanai in January the Union's letter to Respondent, mentioned above, concern- ing the Union's interest in former Boy's Market employ- ees. They introduced themselves , and Castro reminded Kanai that Castro had attempted to organize Respond- ent's employees in 1980. He said they were back again to organize the employees. As they left, they stopped at the employee bulletin board to copy names of employees from the work schedule, and Kanai asked what they were doing. Castro explained, and Kanai said they could not do that. They then left. Kanai testified that .he exchanged greetings with Vogt and Castro in January 1983, but had no discussions with them. He said they just put the union letter on his desk, and he told them he could not accept the letter-that they should send it to Respondent's attorney. Kanai said he did not recall Castro saying he was going to organize Respondent, because "No, I do not know. I don't under- stand English." Discussion Little credence is given much of Kanai's testimony. He was an evasive, unconvincing witness . His testimony that he could not speak English patently was false, in view of his long history of using English on a daily basis in deal- ing with employees. He is credited only when credit spe- cifically is given. Jansen and Vogt were credible witnesses, and their versions of events are accepted as accurate. Allen was a doubtful witness , and her antagonism toward Respondent was obvious. Ordinarily her testimo- ny would be given little credence, but between her and Kanai, she was the more convincing. Based on the testimony of Vogt, it is found that Re- spondent knew as of January that the Union intended to make another attempt to organize Respondent 's employ- ees, and that, based on the testimony of Jansen and Vogt, Respondent knew as of May 10 the organizational at- tempt was under way. Based on Allen 's testimony, it is found that, as of April 22, Kanai knew that a woman from the Union was talking with employees about orga- nizing Respondent's employees. D. Alleged 8(a) (1) Violations 1. Paragraph 6 of the complaint alleges that in late May Kanai interrogated an employee, created the im- pression of past and future surveillance of employees, threatened to interrogate employees , threatened to dis- charge employees, and promised to give employees wages and benefits, all in violation of the Act. This allegation refers to Martinez, who testified that she was called into Kanai's office the end of May, and: And then he said, "You know that the union people have been coming to the store," and if I heard any- thing from them. And I said, no, that I-that I knew that they had been coming into the store but I haven't heard anything from them. [Note: surveil- lance and interrogation.] And he said that-that I knew of the rule of the store was non-union . And he said, "You know Yao- han's policy is non-union. And when I hired you, I told you that." And I said, "Yes." And then he said that he fou-he knew that someone was involved in union activities. And I ask him, "Who?" And he said, well, he didn't now [sic], but he was going to find out who it was. [Note: surveillance and threat.] Well, he said he was going to put a bulletin-I mean a paper in the bulletin saying that part-time was going to get vacation benefits. And I asked him, "What about a raise?" And he said, a raise, too. [Note: promise.] 12 A. And-and then he said that if he knew that- of anyone that was involved in union activities, that they would be fired. [Note: threat.] Q. Okay. Anything else that you can recall? A. No, he just put his hands together and he said, "I'm sure that they'll be fired." [Note: threat.] Q. At the time that-that Mr. Kanai asked-you know, said that he would find out who was in- volved, did he indicate to you how he would do that? A. He just said that he would speak to-one by one. He meant the employees. [Note: threat.] Kanai denied ever talking with Martinez about the Union. Discussion As noted above, Respondent's antiunion animus is clear, as was its knowledge of union activity on the premises at the time of these alleged violations of the Act. The only question is one of credibility, since the al- legations, if true, would constitute violations of the Act.13 Martinez was a credible witness . As discussed supra, Kanai was not a convincing witness, and his denial of Martinez' testimony is not credited. It is found that these allegations of the complaint are supported by the record. 2. Paragraph 7 of the complaint alleges that about June 13 Kanai impliedly threatened an employee that the employee could be discharged for breaking Respondent's rule prohibiting union activity. 12 Under the circumstances related herein, this promise constituted a violation of the Act. Permanent Label Corp., 248 NLRB 118, 131 (1980); Pine Valley Meats, 255 NLRB 402, 409, 410 (1981) 19 In making this conclusion, the principles of the Board enunciated in Rossmore House, 269 NLRB 1176 (1984), have been carefully considered and applied. YAOHAN OF CALIFORNIA Martinez testified that she had another conversation with Kanai in his office, approximately in mid-June: A. I came to work and Mr. Sakurai asked me to go upstairs to Mr. Kanai's office. Q. All right. A. I did, and Mr. Kanai-he gave me this letter and he said-he just said, "You know the rule of the store is non-union." And I had to sign where the schedule is, my name. Q. Do you recall him referring to anything about-regarding anything when-when you were first hired? A. Oh, he told me the same thing he told me before, that when he hired me he told me the store was non-union. And he asked me again if I knew that, and I said, "Yes."14 Kanai denied Martinez' testimony relative to this issue. Discussion For reasons discussed above, Martinez ' testimony is credited and Kanai's denial of the testimony is given no credence. But for the general background of this controversy, possibly proof of a violation would be inadequate. How- ever, the implication of Kanai's remark under the cir- cumstances is clear. Martinez is a part-time clerk, still employed by Respondent. She was told when first em- ployed by Respondent that the store was nonunion. She was given a letter to employees that clearly stated Re- spondent's opposition to the Union, and she had to sign her name to show she received the letter. The only rea- sonable interpretation of Kanai's remark was that if Mar- tinez wanted to keep her job she would have to steer clear of the Union. That remark and the requirement that Martinez acknowledge receipt of the letter constituted a violation of the Act, as alleged. 3. Paragraph 8 of the complaint alleges that in mid- June Kanai interrogated an employee concerning her union activities. Martinez testified that she had another conversation with Kanai in mid-June: A. I was up in Mr. Kanai's office counting money. And he came behind me and he touched my shoulder and he said if I heard anything about the union, if I knew anything. And I said, "No." I said, "Mr. Kanai, why are you always asking me about the union? I don't know anything. I have no experi- ence in union." And at that time he just left. As noted earlier, Kanai denied ever talking with Mar- tinez about the Union. Discussion Kanai's questioning of Martinez, if done, patently con- stituted a violation of the Act.15 As discussed above, 14 The letter Martinez referred to is the letter to all employees, G.C. Exh. 4. 16 See, e g , Town & Country Supermarkets, 244 NLRB 303, 305 (1979). 275 Martinez was a credible witness . It is found that Kanai violated the Act, as alleged. 4. Paragraph 9 of the complaint alleges that about May 18 Sakurai threatened an employee that if she or her co- workers wanted a union they best had seek employment elsewhere. Monfredi testified that the night before the union meeting of May 19 in Zamora's apartment she talked with Sakurai and they argued about Zamora's discharge. She said Zamora, Martinez, Allen, and a union represent- ative named John were present. She said they talked about possible raises, and: Q. Was there anything said by Mr. Sakurai about what you could do- A. Oh, about me? If I didn't-oh, yeah. He said that-I asked him, "Well, don't you think that we're worth more than $4 an hour?" You know, and he said, "well, you know, that Yaohan couldn't give us more money right now, you know, because ,the business at the other store wasn't that, you know, picking up that good. And he told me if I wanted more money to find another job. You could, you know, Yaohan don't stop you." Sakurai acknowledged talking with Monfredi in May about raises, but denied saying anything about unions during the conversation. Discussion Allen, Zamora, and Martinez testified at length, but none of them was asked about, or testified concerning, this alleged incident. A union representative named John did not testify. Sakurai testified that the conversation involved the reason for Zamora's discharge, and that he said the reason involved a pay raise Zamora had asked for. There is nothing in the conversation, as related either by Monfredi or by Sakurai, that specifically refers to the Union. Nor is there reasonable basis for implying union involvement or concern, as it is apparent that several of Respondent's employees wanted and asked for raises. Possibly a union demand later would be made for em- ployee raises if Respondent became organized , but that matter is irrelevant to this conversation. Sakurai did not reprimand or discipline or take any action against Mon- fredi as a result of the conversation. In any event, no person allegedly present at the con- versation corroborated Monfredi, and Monfredi subse- quently was discharged for cause not related to this case. Sakurai's version of the conversation is credited. This allegation was not proven. 5. Paragraph 10 of the complaint alleges that about June 13 Kanai interrogated an employee about union ac- tivities and threatened to discharge an employee because of her union activities. Monfredi testified that she talked alone with Kanai in June about a warning letter she had received and that during the conversation Kanai referred to the letter he had received from the Union about her union activities. He asked why she was active with the Union, after she had told him when she was hired that she would have 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing to do with the Union. She said he did not have the right to ask about her union activities, and they argued. Monfredi testified: He slammed his pencil down and he just, you know,-you know, he just told me to-he was just mad. He slammed his pencil down and I-he just stared at me with that look on his face and I asked him, "Do you want me to go to work or not?" And he said, "Get out!" and I did. And I didn't know if he wanted me to go to work or not, I did. A. Oh, yeah, he told me-well, I told him, if I was, you know, such a bad employee there and I was such a bad person, then why don't you just fire me, then. Q. What was his response when you said that? A. He said, "No, Yaohan policy, no, warning slips first." Q. Did Mr. Kanai say anything about what you should do with respect to employment? A. Oh, he told me, you know, he told me, "Why don't you look for another job?" And I told him, "I am looking." Kanai denied ever talking with any employee about the Union. Discussion Monfredi's account of this incident is credited. The fact that Kanai unlawfully interrogated Monfredi con- cerning her union activity is clear. So far as a threat of discharge is concerned, the record is too ambiguous to provide a basis for fording a viola- tion of the Act. Clearly, Kanai was unhappy with Mon- fredi because of her union activity and invited her to look elsewhere for work. However, he did not discharge her, or threaten to. He explicitly stated that she could not or would not be fired without warning slips as a precedent. It cannot be presumed that warning slips would be forthcoming without proper cause. Monfredi ultimately was fired in July, for cause unrelated to this controversy. Monfredi was on thin ice after the conver- sation, but her fate was in her own hands. If she did nothing to receive warning slips, she would not be dis- charged. According to her testimony, Kanai specifically negated any threat to discharge her because of union ac- tivity. This allegation was not proven. 6. Paragraph 11 of the complaint alleges that on April 22 Kanai interrogated and threatened an employee, and told an employee that she was not to speak with union representatives. This allegation refers to the conversation between Allen and Kanai, quoted in section C above. For reasons stated in section C, Allen is credited. The questions asked and the statements made by Kanai patently consti- tute violations of the Act, as alleged. This portion of the complaint is supported by the record.1 e 1e NLRB v. Gcrsel Packing Co., 395 U.S. 575 ( 1969). 7. Paragraph 12 of the complaint alleges that, about July 15 Kanai and his secretary, Aiko Kamine,'7 told an employee if she wanted to engage in union activities she should seek employment elsewhere. Allen testified: Approximately the end of July, she met with Kanai and Kamine because she had incurred for Respondent a $200 check loss without asking a customer for identification. During the conversation, Kamine talked with her about her having "problems with the store policy" and about Allen not getting along with Sa- kurai and "no one not talking to me" (i.e., not talking to Allen). Allen replied, "Well, I don't care, with the per- sonal problems that I've been having. I like the quiet and the customers come in and cheer me up and that's enough." Allen then complained about low wages, and Kanai said, "if I wasn't satisfied to go find a job some- place else." They argued about wages, and Allen said Kanai should fire her if they wanted to get rid of her. Kanai replied, "No, we don't fire anyone." Kamine com- plained about Allen's absences because of her children, and they argued about that. They then returned to the question of wages, and Allen said "on welfare I could be making twice what I was getting for working and I felt that I was due for a raise." Kanai denied ever talking with Allen about the Union. Kamine was not asked about, nor did she testify con- cerning, this incident. Discussion No violation of the Act is found, based on Allen's tes- timony. This conversation originated because of Re- spondent's legitimate concern about a $200 loss incurred by Allen. Respondent also had legitimate concern about Allen's failure to get along with Sakurai and other em- ployees. Allen pressed the matter of low wages, and Kanai replied that she could seek work elsewhere if she was not satisfied with her wages. The Union was not mentioned, and Allen was not threatened or disciplined. This allegation was not proven. 8. Paragraph 13 of the complaint alleges that about July 29 Sakurai interrogated an employee concerning the employee's union sympathies, threatened to discipline the employee for wearing a union pin, and required the em- ployee to remove the union pin while permitting the wearing of other types of pins. Allen testified that approximately the end of July she talked with Sakurai: It was as you come in the right door, at Yao- han's, by the silver desk. There's a desk there where all the schedules are kept and I arrived early at work, so I was looking over the schedule. I had a small union button on my left collar, the left-side of my collar on my blouse and Mr. Sakurai walked up and said, "What is that?" And I said a union pin. And he said, "Why are you wearing it?" And I said, "Because I like it, and it matches my clothes." And he said, "Take it off." And I said why? He 11 Kamme was not shown to be a statutory supervisor, but when she appeared at this conversation in the company of Kanai, and spoke with Kanal's concurrence and approval, she acted as Respondent's agent. YAOHAN OF CALIFORNIA said, "You have-use your common sense," he said, "You're smart and have lots of common sense, and if you didn't have common sense I would have to hit you." And I laughed 1$ and I went ahead and I took the pin off. Allen further testified that Respondent has no general policy about the wearing of pins, and she gave several examples of other employees' wearing of pins, including pins of Michael Jackson, Fresno State, and Budweiser. Sakurai testified that he saw Allen wearing the pin and asked her what it was. She replied that it was a union pin, and he was in a hurry and left. He denied asking Allen to remove the pin. Discussion If Allen's testimony concerning the pin is accurate, Sa- kurai's conduct was a violation of the Act.19 There is no showing that the wearing of pins constituted a safety hazard or interfered with customers or other employ- ees.20 There is no showing that Respondent had a policy prohibiting the wearing of pins, and Sakurai did not deny that employees were permitted to wear pins for purposes other than to indicate union support. Clearly, the only purpose of Sakurai's conduct, if it occurred, was to re- strain union activity. Allen's testimony relative to this issue is credited, and it is found that Sakurai violated the Act as alleged. 9. Paragraph 14 of the complaint alleges that in August 1983 Kanai interrogated an employee about the employees' union activities, and requested the employee to advise Kanai if the employee was contacted by the Union. Michael Burton, a former boxboy and cashier, testified that he talked with Kanai in August 1983 after returning to work following an absence for school attendance: Well, when I arrived in his office, he mentioned that he was glad to have me back, you know, and how was school, and that Mr. Shiomi was glad that I was coming back and some of the employees, too, and that-I asked, "Will my salary be raised by me coming back?" And he told me no, and asked me have I been in contact with any of the union repre- sentatives? And I told him no, and he told me if I did, you know, would I notify him. I said sure. And he said, "Like I said before, we can't go union." Kanai denied ever talking with Burton about the Union. Kamine testified that she overheard (from her office next to Kanai's) the conversation between Kanai and Burton. She said she heard no talk about the Union. She 18 The General Counsel argues that this statement was an 8(axl) threat of reprisal . That argument is not accepted The statement by Allen appears strained and unlikely and is not credited . Further, even if the statement was made, it is apparent that Allen considered it in the manner of a joke. 10 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802 fn. 7 (1945). 20 Intermedics, 262 NLRB 1407, 1416 (1982) 277 acknowledged that she may not have heard all that was said. Discussion Kanai's remarks, if made, clearly constituted a viola- tion of the Act. Burton was a credible witness and his version of the incident is accepted as accurate . He no longer is em- ployed by Respondent. Kanai was not a credible witness, as discussed supra, and his denial of this allegation is given no credence. Kamine was not present with Burton and Kanai and her testimony was based on overhearing part of the conversation in another room. In any event, Burton was a more convincing witness than Kamine. This allegation of the complaint is supported by the record. 10. Paragraph 15 of the complaint alleges that about May 16 Kanai increased the wages of employees in order to undermine their support for the Union. Allen testified that she approached Kanai on several occasions about a raise. She was hired approximately the end of January 1982 and worked less than 4 months, when she left on maternity leave. She returned to work in November 1982. Approximately 2 months later, in January 1983, she asked Kanai for a raise and he told her Respondent usually gave raises after a year of work. She protested that she had been there "almost a year al- ready," and he said it was 8 or 9 months. Kanai agreed to give her a raise of 25 cents per hour, retroactive to December 1982. He told her that if she did not get preg- nant again, she would get another, and better, raise "in the next few weeks." She asked for another raise then, and he said, "No, in a few weeks." She again asked Kanai for a raise in March, to $5 per hour, as she had not received the one earlier promised, and he replied "Well, I think you should find another job." Allen argued with him, but Kanai held to his position. Allen said she would resign, when she found another job. Discussion As far as this incident is concerned, there is no basis on which to find a violation of the Act. Allen pressed Kanai for the first raise, and he reluctantly gave in to her. She pressed for another raise, and he refused. She quit, and there is no evidence that she was pressured into quitting or that the raise was refused for any reason re- lated to union activity. She could have stayed in her job at the same rate of pay she had been receiving. It was Allen who pressured Kanai, not the reverse. He did not violate the Act by responding to her pressure with a sug- gestion that if she insisted on $5 per hour she should fmd another job. It is noted that Kanai probably would not have been enthusiastic about retaining Allen on the pay- roll. In addition to the $200 loss discussed above, her cash register was short $50 on July 20,21 and she was warned on July 15 by Kanai and Kamine about her ab- senteeism, also discussed above. Clearly, she was a mar- ginal employee, at best. She was discharged in October 21 G C. Exh 18 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1983 because she undercharged a fellow employee for groceries at the checkstand. The parties stipulated that employees were given pay raises on May 16, as follows: Ron Zamora ................ $7.25 40 8.00 Manuel Aguinga.......... 6.00 40 6.50 Philip Samaniego......... 10.50 40 11.00 Reuben Zaragoza ........ 5.00 40 5.50 Vern Dirlam ................ 10.50 40 11.00 Mark Rodriguez .......... 6.00 40 6.50 Daniel Graves ............. 3.85 40 5.00 Daniel Costello............ 7.50 40 8.00 Ken Kaneichi............... 9.00 40 9.50 All the above were stockclerks. All were employed at store 1, except Graves, Costello, and Kaneichi. Discussion As noted above, Respondent has a total of approxi- mately 80 employees. Only nine of them were given raises May 16. None of the nine were shown to be active union supporters-most of them are strangers to this controversy, so far as the record shows. None of the raises appear excessive or unusual, and no pattern is evi- dent-all seem to be individually tailored. No promises of or threats to withhold these raises because of union activity were shown, expressly or implicitly. The only fact is that union activity was occurring in May. Howev- er, Respondent's policy was "Employees will be re- viewed annually for pay increases."zz The General Counsel argues "Such pay increases in conjunction with the precipitous discharge of an employ- ee [note: see sec. E, infra] in the midst of a union orga- nizing campaign are typical of the `fist inside velvet glove' and are designed to undermine support for the Union in violation of Section 8(a)(1)." That argument is speculative, and is found not to be persuasive. It was the General Counsel's burden to prove this alle- gation, and that burden was not met. Prima facie, the raises were given on May 16 for legitimate reasons. 11. Paragraph 16 alleges that on an unknown date in May 1983 Kanai interrogated an employee about the em- ployee's union sympathies. Bernard Williams is a former clerk and cashier who worked for Respondent at both stores between July 2, 1982, and February 18, 1984. Williams testified that in May 1983 he went to Kanai's office to ask for a raise. He said Sakurai and Kono were present, and as he was leav- ing the office, Kanai asked him "how did I feel about the Union, my opinion." Williams replied, "No union." Kanai testified that he did not remember ever talking with Williams about a raise and denied ever talking with Williams about the Union. Neither Sakurai nor Kono was asked about nor did either of them testify concern- ing this incident. Discussion This questioning by Kanai of an employee, if it oc- curred, patently would be a violation of the Act. The only question involves credibility of the witness. Williams no longer works for Respondent , and there is no apparent reason for his not being truthful . He testified in a calm, straightforward, and convincing manner, and his testimony is credited. As earlier noted, Kanai was not a convincing witness, and his denial was not corroborat- ed by Sakurai or Kono. This allegation is supported by the record. E. Alleged 8(a)(3) Violation Paragraph 17 of the complaint alleges that about May 13 Respondent discharged Zamora in violation of the Act. Respondent's knowledge of Zamora's union activity The fact that Zamora was an active union supporter and organizational assistant is not in dispute. The nature of his union activity is described above. Respondent denies knowledge of that activity as of the time of Zamora's discharge. As noted supra, at Zamora's initial interview for em- ployment, Kanai asked about Zamora's relationship with the union at his previous place of employment and made it clear that Respondent was nonunion and wanted so to remain. Zamora assured Kanai that he really was not concerned about a union. He told Kanai "I can work with or without the Union." He also told Kanai "he could trust me not to, you know, talk about the Union in the store." Zamora testified that in March 1983, as he was passing near Kanai's office, Castro, Vogt, and Kanai came out of the office. Zamora, Castro, and Vogt knew each other, and Zamora was surprised to see the two union repre- sentatives in the store . The three of them shook hands and exchanged greetings. At approximately 9 a.m. on May 11 he went to Kauai's office to inquire about a raise that he believed had been promised, but that he had not received. a 3 It was Zamora's day off, and he was dressed in a suit and tie. Kanai was surprised to see him dressed up, and jokingly asked "was I going to go become a business representative for somebody...." Zamora said no. Zamora then explained why he felt he had been promised a raise when store 2 was opened and com- plained about not receiving it. Kanai denied having made such a promise, and the two of them engaged in an argu- ment about a raise. Kanai said, "We have no money right now for a raise." The argument continued: And I said again, "Well, why-you know, why can't we have a raise? You know. We agreed this way." And he then again said that there 's no money for it. And I said, "Well, you know, I kept my word. You know, the union has been trying to con- tact people and I have not talked to them as of 88 Zamora testified that "Tamika" was behind a screen, within earshot, counting money. "Tamika" apparently was Tamika Walker, Respondent's 22 G.C. Exh. 17. bookkeeper YAOHAN OF CALIFORNIA yet." I go, "Why can't you keep your word and do the honorable thing and let me have the raise?" And he said, "No. I appreciate you not talking to the union. That's very important," he said, "But and I-I still can't give you no raise." I said, "Well, maybe"-I go, "I need to keep my job. I don't want to lose my job." I said, "So maybe I'll keep on working at the same pay rate, and then later on maybe I can get a raise." And at that point things calmed down and he was smiling again. I believe we shook hands and he said, as I walked out the door, "Yeah, O.K. Every- thing O.K. and-and maybe in the future you get raise." Zamora immediately went to the Union, told union rep- resentatives about his conversation with Kanai, and signed a union authorization card. He then returned to the store to get telephone numbers and addresses of em- ployees. He talked with 17 or 18 employees at store 1 about possible union . organization. The conversations were held at various places where employees worked. Sakurai and Kono were on the floor when he talked with employees, and Sakurai joked with him about being in the store on his day off. On one occasion when he talked with a checker, Kono was standing approximately a foot away. At that time the checker handed him a sheet of paper with a name and telephone number on it, and he told the checker that he was holding a meeting. At that time Kono was approving a customer check nearby within earshot, and Zamora was bagging grocer- ies for a customer. After he completed his visits with em- ployees in store 1, he went to store 2 to talk with em- ployees there. He arrived at the store at approximately 2:30 p.m. He continued his union campaign there, talking with five or six employees. Shiomi and Inaba saw him in the store, although he tried to carry on his conversations discreetly because he feared for his job if Respondent learned what he was doing. He tried to hide his actions. He worked May 12 without incident, and on May 13 at approximately 4 p.m. he talked with Kanai, who told him he was fired. They exchanged words, and: And I said "Is it because I had come in and asked for the raise, mentioned about my application, told you that the union was contacting people and that I had not talked to them yet? Is that why you're let- ting me go?" And he replied, "Yes, everybody Yaohan must be happy. We want no union, we need no union here. I have to let you go." Kamine testified that she was in Kanai's office when Zamora came in wearing a suit on his day off, May 10 or 11. Zamora had requested a meeting with Kanai. Sakurai testified that Kanai told him "first thing in the morning" on Friday, May 13, that Zamora had been fired, and that he did not know at that time of any union activity on the part of Zamora. Kono testified that he saw Zamora in store 1 the first or second week of May in the afternoon of one of Za- mora's days off, for approximately 20 minutes. He said Zamora was bagging groceries for Carmen , one of the checkers. He said he heard Zamora ask Carmen for her 279 telephone number, and he asked Carmen why Zamora wanted her number. He saw Zamora write something on a piece of paper. She replied that Zamora was giving a party, and she was invited. He said he did not tell Kanai or Sakurai, or anyone else, about the incident. Kono tes- tified that at the time of the incident he did not know of any union activity by Zamora or anyone else. He said he first learned of union activity at the end of May, when Kanai reported that a union member visited the store. Jansen testified that her first contact with Zamora was on May 10, when she called him on the telephone at 10 p.m., after Allen had called her and asked that she call Zamora. She said she and Vogt walked through both stores on May 10 and 12, and that testimony was cor- roborated by Vogt. Kanai testified that when he fired Zamora he did not know about the latter's union activity. Fely Boswell, a clerk at store 1, testified that she asked Sakurai why Zamora had been fired and that he replied, "I know something's going on.... We cannot afford to join the Union right now. . . . If we do, we're just going to have to close down, and it will be a lot of people will be out of work."24 Discussion The facts that Kanai talked with Zamora at the latter's job interview about the Union, that Kanai made it clear that Respondent did not want its employees organized, and that Zamora assured Kanai that he would not engage in union activity are not in dispute. Further, the facts that Zamora went to see Kanai about a raise on May 11 at approximately 9 or 9:30 a.m., that Kanai refused the raise, and that Zamora left Kanai's office unhappy and signed a union card dated May 11 are not in dispute. Finally, it is clear that as of the time Zamora left Kanai in the morning of May 11, Kanai did not know of any union activity on the part of Zamora.25 As discussed below, the parties sharply disagree on when Zamora was fired-May 12 or 13. However, re- gardless of which day it was, the question remains whether Respondent knew of Zamora's union activity as of the time he was discharged. Zamora signed a union card May 11, and based on the undisputed facts outlined above, it is found that his union activity relevant to this controversy started on May 11. That was his day off, and his visits to employees of both stores on that day would be logical. There is no evidence of any union activity by Zamora on May 12; it is limited so far as the record shows to May 11. The question remains whether Respondent learned of Zamora's activity of May 11. Resolution of that question can be based, if at all, only on inference. There is no 24 Sakurai denied any knowledge of Zamora's union activity as of the time of the latter's discharge . The General Counsel did not amend the complaint and stated at teal that no allegation was made that Sakurai violated the Act in this instance. This testimony has been considered in making findings herein. 25 The chance March meeting of Castro , Vogt, and Zamora, described above, is given no weight, as the key events relative to Zamora's dis- charge occurred in May. No union activity was indicated by that meet- ing-it showed only that Zamora was acquainted with Castro and Vogt 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct evidence of knowledge. 26 Kanai's denial of knowl- edge cannot, alone, settle the issue since Kanai was not a convincing witness. The General Counsel argues that Respondent's knowl- edge must be inferred from Zamora's presence in the store and his talking with employees when Sakurai and Kono were within earshot. Further, it is argued that Jansen and Vogt were in both stores on May 10 and 12. However, neither of those facts creates more than a pos- sibility that Kanai could have suspected therefrom that Zamora was engaged in union activity. Sakurai and Kono denied that they became aware of Zamora's union activity when Zamora was in the stores on his day off, and Zamora made it clear that he feared for his job and attempted to hide what he was doing. The only direct evidence of knowledge is Zamora's testimony, quoted above, concerning his talk with Kanai when he was fired.27 That testimony is ambiguous. If that testimony is accurate, it could be based only on Kanai's having learned prior to the discharge that Zamora had talked with union representatives. Kanai could have learned of that fact only through Sakurai and Kono, 28 if at all. This issue is not free from doubt. However, in view of the record as a whole, the doubt must be resolved in favor of Respondent. A contrary finding could be based only on speculation, which is not permissible. Zamora's work application Much trial time was devoted to this subject, but it is of little significance so far as the issues are concerned. It in- volved an incident that gave rise to an argument be- tween Kanai and Zamora, but contributes to resolution of issues only in a marginal manner. When Kanai held a job interview with Zamora, he made some notations relating to wages on the back of Zamora's application.29 That sort of notations customari- ly were made by Kanai when he interviewed applicants. Zamora testified: And at this point, he turned the application over, and he asked me, "How about 6.80 to start?" And he wrote this down on the back of my application. And then he said, "After"-I believe it was two months-"I'll raise you to 7.25," and he wrote this down on the back of my application . And then he said, "When the new store opens, we'll negotiate a large raise and equalize all of the stock clerks pay between both stores." 86 The General Counsel argues that Respondent 's knowledge of Za- mora's union activity at the time of the discharge may be inferred on the basis of the "small plant" doctrine. That doctrine has been applied in dis- parate manner by courts and boards, but there is broad agreement that, for the doctrine to be applied , there must be supporting evidence that the union activities were such that the Employer must have noticed them. Friendly Markets, 224 NLRB 967 (1976), Hadley Mfg. Corp, 108 NLRB 1641, 1649 (1954). Such supporting evidence is not present in this case. Zamora's presence in the store, talking with employees on his day off, was not remarkable and as noted elsewhere , Zamora admittedly tried to hide the reason for his talking with employees. 27 Boswell's testimony on this point was hearsay 28 Zamora testified that Shiomi and Inaba also were present when he was in the store, but that testimony was too uncertain and speculative to be of any weight. 29 The notes are shown on G.C Exh. 8. And I had walked around at that point to see what he was writing cause I was sitting across from him as he was writing this, and I looked down to see what he was writing. And he wrote-drew a couple little boxes with arrows showing the money I was going to be getting, and then he drew a box at the end, you know, showing the last raise, but he didn't write in the amount. Then up above that, I wrote down "Negotiate raise," or something like that, so I would understand what he was saying. We both agreed, "Yeah, okay." So then I-I told him, "Well, I'm used to making a lot more money than this, but with the raise to 7.25, and then when the new store opens, I think I can get by, so this sounds O.K." Zamora further testified that 2 or 3 weeks after the raise to $7.25 per hour was to have been received, but had not been received, he went to see Kanai. Kanai apologized for the oversight, gave him the raise, and immediately had a ,check prepared for Zamora's loss, retroactive to the date the raise was to have been effective. Thereafter, Zamora's weekly hours of work were changed from 35 to 40, his responsibility for aisle stocking was increased, and he became a part-time checker. On May 11 he again talked with Kanai and asked about the second raise agreed to when he was hired. Kanai said there was no money for a raise, and Zamora said they agreed when he was hired, that he would get a raise when store 2 was opened. Zamora reminded Kanai about the notes on the back of the application, and they obtained the application from the file. Kanai looked at it, became angry, and said, "Okay, I give you raise. And I pay you back to the new store opened, but then today's your last day." Zamora protested that Kanai was being unfair, and they had an exchange of words, quoted in section E above. They argued further, but parted on a friendly note. Zamora immediately went to the Union to complain, as discussed above. Kamine testified that when Zamora came to see Kanai about a raise, Kanai was not in, and she asked Zamora to wait. Zamora asked to see his application, which she got for him. The words on the back of the application, "ne- gotiate raise, new store opens," were not on the applica- tion when she gave it to Zamora. She was away from her desk 3 or 4 minutes, during which time Zamora had his application. When she returned, Zamora gave the ap- plication back to her, and she noticed that the words quoted above had been added. Those words are not in Kanai's handwriting, but the other notes are. Based on the rest of the application, "negotiate raise, new store opens," is in Zamora's handwriting. The penciled nota- tion "not Mr. Kanai's writing" was placed there later, by Kamine. Zamora then went in to see Kanai, but she did not tell Kanai at the time about the added words. Kanai testified that the words "negotiate raise, new store opens," which are written on Zamora's application, are not in his handwriting, nor are the figures "1-8," or the penciled figures "11/15/82." The penciled figures "1/31 and 5/11" are his, made May 11 to show when the new store opened and when he talked with Zamora. He first talked with Zamora at approximately 9:30 a.m. on YAOHAN OF CALIFORNIA May 11, when Zamora came to his office to ask for a raise. Zamora asked to see his file, and pointed out to Kanai the note concerning discussion of a raise when the new store opened. Kanai replied that he made no such promise, that the pay of other clerks had to be consid- ered, and that he could not give Zamora a raise because of his poor work performance. Zamora left, and again came to Kanai's office the following day, May 12, at ap- proximately 8 p.m. He again asked for a raise and said Kanai had promised him one. Kanai denied promising him a raise, and refused one "very strongly." They argued, and Kanai fired Zamora because of the latter's poor work performance and because Kanai was angry. Discussion Although, as earlier noted, this matter is of limited rel- evance to the basic issues, it is found that on May 11 Zamora added to his application the words "negotiate raise, new store opens," as contended by Kamine and Kanai. Zamora acknowledged that the handwriting on the last box is his, and the application of Zamora's uncle Ron Zamora shows a notation almost identical with that placed on Zamora's application by Kanai. Kanai's testi- mony that he told Zamora the latter may get a raise after the raise to $7.25, depending on work performance, and that no promise of such a raise was made, is logical and consistent with the record. That testimony by Kanai is credited. It is also noted that Zamora's contention is il- logical, since there is no apparent reason for a raise to be dependent on the opening of store 2. Zamora was hired as a part-time clerk in store 1. It is found that Kanai did not, when he interviewed Zamora, unequivocally promise the latter a raise after the promised $7.25 raise. As noted above, the raise to $7.25 was given as promised. The date of Zamora's discharge is a separate question, discussed below. Zamora's date of discharge Zamora testified that he was fired May 13 , as dis- cussed supra, and on his request, Kanai agreed to give him a good reference to other possible employers. His last check included pay through May 14, which meant that he received pay for 1 day, Saturday, he did not work. The check" is dated May 15, and shows an issue date of May 13. Kamine testified that she prepared Zamora's final check on May 13 at Kanai's request, and that the date of the check, May 15, was "simply mistyped." She said Kanai told her Zamora had been discharged the evening of May 12. She testified that Zamora did not work May 13. Sakurai testified that on Friday, May 13, he talked with Philip Samaniego, Ron Zamora, Mark Rodriguez, and Reuben Zaragoza as a group, told them Zamora had been fired, and gave them the choice of assuming addi- tional work occasioned by Zamora's discharge, with a raise, or continuing as before with the hire of a new clerk to take Zamora's place. The group decided to 30 G C Exh 9. 281 assume additional responsibilities and take a raise. Zamora did not work on Friday, May 13, or Saturday, May 14. Sakurai did not work May 12, and was told by Kanai first thing in the morning on May 13 that Zamora had been fired. Because of that, Sakurai had to change employee work schedules. Kanai testified that he told Kamine on May 13 to make a check for Zamora, who had been fired the pre- ceding evening, and to include pay for Friday and Satur- day, since Zamora was scheduled to work on those days. Zamora did not work after May 12. Kanai stated that he signed Zamora's unemployment insurance claim ,31 pre- pared by Kamine. The form shows that the last day of work was May 13, and he asked Kamine about it. She replied that the date was copied because it already was on the form when she prepared it. Samaniego testified that he is Respondent's head stock clerk and he attended, with Vern Dirlam, Ron Zamora, Rodriguez, and Zaragoza, a meeting with Sakurai on Friday, May 13, at 3 p.m. Zamora was not present and did not work May 13. When Samaniego asked Sakurai about Zamora at 11 a.m. or noon, Sakurai told him Zamora had been fired and advised him of the meeting late that day. At the meeting, Sakurai gave the clerks the choice of assuming Zamora's work, with a raise, or of Sakurai hiring a new clerk. The clerks decided to do the extra work and take the raise. Dirlam corroborated Samaniego, and further testified that he saw Zamora on a day he does not remember, at approximately mid-afternoon. Zamora had his "belong- ings" in his hand and made a gesture indicating "I'm through."32 At another time that afternoon, Zamora told him he was going to see Kanai because he had been promised a raise in January, but did not receive it. Zamora also said in that conversation that Kanai dis- cussed the Union with him during his prehire interview, and that he was going to tell Kanai that he had kept his part of the bargain by not going to see the Union and he expected Kanai to keep his part of the bargain by giving Zamora a raise, else he would go see the Union. Dirlam replied that if Zamora adopted that tactic he would be fired. An hour or so later Zamora told Dirlam he had seen Kanai, who gave him an option-a retroactive raise, with discharge, or continued employment with no raise. As of that time, Zamora apparently had not been fired. In Zamora's unemployment insurance claim, he stated, "I asked for my raise that was previously agreed upon, and I mentioned the Union, two days later, the boss said, `because you asked for the raise, and said something about the Union, we're letting you go."' Jansen testified that she received a telephone call from Zamora Friday, May 13, at approximately 5:15 or 5:30 p.m., and that Zamora said "something terrible had just happened" and he was extremely upset. He said he had just been terminated. She told him to write everything down, and they would discuss it the following Monday morning. 31 G.C. Exh 15 32 Dirlam appeared to be a truthful witness, but his testimony was un- certain and confusing Events as he related them are not clear 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ron Zamora corroborated the testimony of Dirlam and Samaniego concerning Sakurai's meeting with the clerks and the fact that Zamora was fired the day before the meeting. Discussion Whether Zamora was fired May 12 or 13, there is no dispute about the fact that he was paid through May 14. All Respondent's witnesses agreed that Zamora was fired May 12, and did not work May 13. Zamora contends he was fired May 13. Jansen testified that she talked with Zamora on the close of the work day on May 13, when he telephoned "as I had just walked in the door" between 5 :15 and 5:30 p.m. Her tes- timony indicates, but does not show, that Zamora had just been fired. Her union report for May 13 states only "Will work on Yaohan's and Azevedos." In view of the substantial union issues involved at Yaohan, it seems that a notation of any discharge there on May 13 would be likely. Kamine explained that Zamora's final check was dated May 15 through oversight. The unemployment insurance claim shows that the last day worked was May 13, but the first notation of that fact, at the top of the form, was Zamora's notation, and Kanai testified that Kamine told him on his questioning her about it that she just copied the earlier notation. Kamine explained that daily timesheets and schedules are of temporary use and that the computerized payroll does not show actual dates worked by employees. Although this matter is not free of doubt because of the conflicting and confusing nature of the evidence, pre- ponderance of that evidence indicates that Zamora was fired May 12. The testimony of Kanai, Kamine, Sakurai, Samaniego, and Dirlam is more convincing than that of Zamora. It is found that Zamora's last day of work was May 12. Zamora's work performance The facts that Zamora first worked part-time as a clerk; that he later was assigned from time to time to help out as a checker; that he was given one raise, dis- cussed above; and that he never was given a written rep- rimand are not in dispute. Sakurai testified that Zamora's work as a stockclerk was not good, that his shelves often were short of stock, that he worked too slowly, and that he often made mis- takes when exchanging merchandise. Sakurai said he talked with Zamora on at least five occasions about his poor work, but that Zamora did not improve. He said Zamora was almost the least satisfactory of the six clerks Sakurai supervised. On one occasion, Sakurai stated, he asked Kanai to transfer Zamora. Kanai testified that he never talked with Zamora prior to his discharge, concerning his work performance. Samaniego testified that he reprimanded Zamora on two or three occasions because the latter was doing poor work, and asked him to improve , which he did not. Sa- maniego testified that he never gave Zamora a written warning or recommended that he be discharged. He said stockclerks often make the same kinds of mistakes that Zamora did. Discussion The reason for Zamora's discharge is discussed infra. Regardless of that reason , any contention by Respondent that Zamora's work performance was involved is given little weight. It may well be, as Sakurai and Samaniego contend, that Zamora was not the best of employees. However, never was he warned in writing, nor was he disciplined, because of his work performance. He was given one raise after being hired , and he was given added work re- sponsibilities as an assistant checker. His mistakes were of a nature common to all clerks, and he was not shown to have caused, or to have been engaged in, any major problems. Respondent customarily gave employees written warn- ings, as testified to by Sakurai" and Kanai. Respondent's written store policy states, inter alia: Employees will be terminated on the third warn- ing report and/or terminated by not following the company's regulations. Because Zamora never was warned , in writing, it is found that his work performance was not a reason for his discharge. Reason for Zamora's discharge There is no reasonable question but what Zamora's in- sistence upon a raise was a principal, if not the only, reason for his discharge . He confronted Kanai in a chal- lenging manner over the advice of a fellow-employee, who recognized the perils involved, so far as Zamora's job was concerned. Prior to the confrontation with Kanai, Zamora altered the notes on his application in order to strengthen his argument for a raise. Kanai credi- bly testified relative to his anger with Zamora: When you fired Tony Zamora the night of May 12, why didn't you give him a written warning first? A. I was-I was very angry. Q. If you were very angry, why did you pay Tony Zamora for two days he did not work? A. Because I was fond of Tony and because schedule was already made up to 14th. Q. If you were fond of him, why didn't you take him back? A. Once the-I had a quarrel with him, I could not pull back. He pushed me almost to that I should raise I should give a pay raise for him that the- that he decides for me-that it was the invasion of my authority, and that I could not allow that loss of that position, that authority happen to me. Zamora testified that his request for a raise had its genesis in the agreement he reached with Kanai when he was hired, i.e., he would stay away from the Union, and Kanai would give him a raise when store 2 opened. 35 Monfredi was given more than one written warning before she was fired Melchor also received a written warning, as did Allen. YAOHAN OF CALIFORNIA Kanai denied that he made such an agreement , but there is no dispute about the fact that the two of them did dis- cuss the possibility of a raise at some future date. Kanai testified that the possibility vaguely was expressed-that it depended on how Zamora worked out as an employee. That contention is logical and is credited. According to Zamora, he and Kanai parted May II at the raise meeting on amicable terms, with Kanai's agree- ment to consider a raise at a later date. It is clear that Zamora was not fired May 11, although Kanai initially may have said, or inferred, that Zamora was being fired that day. Zamora, however, apparently decided that his negotiations with Kanai were at an end, and that he would help organize Respondent even in the face of all but inevitable discharge if Respondent learned of his ac- tivity. He went directly from Kanai's office to the Union, and returned to the store to organize employees. Zamora contends that he worked as usual on May 12. Kanai contends that Zamora was fired that day, at ap- proximately 8 p.m., after an argument about a raise. Kanai testified that although he liked Zamora personally he became angry during the argument and fired Zamora on the spur of the moment. Kanai contends that, when he fired Zamora, he did not know that Zamora had gone to the Union and had solicited employees to join the Union. Kanai testified that one reason for the discharge was Zamora's poor work performance, but as disclosed above, if that performance played any part in the dis- charge, it was a small part at best . It seems more likely that this work contention was Kanai's afterthought, rather than a cause for discharge. The question comes down to one of credibility. As dis- cussed above, neither Zamora nor Kanai impressed me with their credibility. Zamora clearly altered the notes on his application and engaged in some duplicity. On the other hand, Kanai exhibited antagonism toward the Union and toward any union activity on the part of Re- spondent's employees, and his testimony often had the ring of insincerity and falsity. As earlier noted, if Respondent can be charged with knowledge of Zamora's union activity of May 11, it can be based solely on speculation . Zamora must be taken at his word when he testified that he tried to hide what he was doing that day. From the record, it appears that he was successful in that attempt. An 8(a)(3) finding cannot be founded upon speculation. It was the General Coun- sel's burden to prove that Respondent violated the Act, and the evidence adduced does not discharge that burden. There is some support for Zamora's contention that on May 11 Kanai gave him an option of continuing to work at his then present wage, or receiving a retroactive raise with immediate discharge.34 If that testimony is accu- 34 See, e g., Dtrlam's testimony on this point 283 rate, the option was Zamora's, and he still could be working if he wanted to be. However, he chose to adopt a different course, and continued to press for a raise. That course resulted in his discharge, and it was that course, not his union activity of May 11, that was the reason for the discharge. Zamora acted alone, and no contractual provision between Respondent and a union was involved, hence no 8(axl) concerted activity was in- volved.35 But for Zamora's own, and individual, actions, he still could be employed by Respondent, because his union activity was not the cause of his discharge. 3 This allegation is not supported by the record. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with their operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Yaohan of California, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers Union, Local 1288 , United Food and Commercial Workers International Union, AFL-CIO, CLC is a labor organi- zation within the meaning of Section 2 (5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by interrogating and threatening employees concerning their union activity; creating the impression of surveillance of employees' union activities; promising employees they would receive wage and benefit increases without the Union; and telling employees they were not to speak with union representatives. 4. Respondent did not otherwise violate the Act, as al- leged in the complaint. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from in any like or related manner infringing upon its employees ' Section 7 rights, and to take certain affirmative action designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.] sa Meyers Industries, 268 NLRB 493 (1984). 96 Wright Line, 251 NLRB 1083 (1980)