Williamson Piggly Wiggly, Inc.

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williamson Piggly Wiggly, Inc. and United Food and Commercial Workers Local 347, United Food and Commercial Workers International Union, AFL-CIO-CLC. Cases 9-CA-21015-1, -2, 9-CA-21234, 9-CA-21256, and 9-CA- 21554-1,-2 30 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 23 December 1985 Administrative Law Judge Martin J. Linsky issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, limited to issues pertaining to the dis- charge of Johnny Lucas, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record' in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 1 The Respondent has requested oral argument . The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. Y 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, particularly in fight of the credi- bility issues concerning Lucas' testimony raised by the Respondent, and find no basis for reversing the judge's findings, including his finding that Lucas was "a generally credible witness." The Respondent cites certain evidence concerning Lucas' supervisory status which the judge did not specifically address We have considered that evidence in the light most favorable to the Respondent . We con- clude, however, that the record as a whole establishes that Johnny Lucas was not a supervisor and is therefore entitled to the protection of the Act. The Respondent contends that Lucas hed on the witness stand con- cerning the transfer of Tracy Kendrick from the produce department. Lucas testified that then-employee Jerry Layne approached him and told him that Kendrick was not doing his work . Lucas further testified that he told Layne to tell Store Manager Trout about the problem. Lucas denied that he talked to Trout about Kendrick. Lucas was then confronted with his affidavit in which he stated that he told Trout about the problem and Trout moved Kendrick out of the produce department . Lucas testified that he did not recall having such a conversation, but there was a possi- bility he could have had . Even assuming that Lucas did tell Trout about the problem with Kendrick, at most, Lucas was acting as a conduit, merely reporting a problem from Layne to Trout. There is no credible evidence that Lucas recommended Kendrick's transfer or that Trout did not independently make the decision to transfer Kendrick. Thus , the evi- dence does not establish that Lucas effectively recommended Kendrick's transfer Although Lucas denied having the authority to hire, Jerry Layne testi. fied that Lucas rehired him. Layne testified that he quit work for 1 day but then decided to return. According to Layne, he asked Lucas to ask Store Manager Trout if Layne could return to work. Lucas told Layne that Lucas did not have to ask Trout and allowed Layne to return to work The Respondent failed to present any corroborating documentary evidence that this incident occurred, and there is no credible evidence that Layne had officially quit or that Trout was aware that Layne had quit. Even assuming that this incident occurred as Layne testified, at and conclusions9 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Williamson Piggly Wiggly, Inc., Pikeville, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. most, it establishes the exercise of supervisory authority on a sporadic and irregular basis, and is insufficient to establish supervisory status under the Act. Concerning Lucas' 1980 firing of Dexter Addington, we agree with the judge that at the time of that incident Lucas had additional authority as acting night manager, but that at the time of his discharge Lucas did not have the authority to fire. In sec. III,C,1, par. 6, of his decision, the judge found that Lucas rec- ommended Jean Layne for a raise several times but she did not get one. The record, however, contains no evidence that Lucas recommended Layne for a pay raise, and that in his testimony , which the judge general- ly credited, Lucas denied recommending Layne for a pay raise. Because we agree with the judge that Johnny Lucas is an employee, rather than a supervisor, we find it unnecessary to pass on the judge's alternative finding that even if Lucas was a supervisor his discharge would have been unlawful as it was intended to prevent unionization. Raymond D. Neusch, Esq., and Janette Johnson, Esq., for the General Counsel. Mark W. Lawson, Esq., and Kurt J. Pomrenke, Esq., of Bristol, Virginia, for the Respondent. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. United Food and Commercial Workers Local 347 and United Food and Commercial Workers International, AFL- CIO-CLC (Charging Party or Union) filed charges against Williamson Piggly Wiggly, Inc. (Respondent) in Case 9-CA-21015-1 on 26 June 1984, in Case 9-CA- 21015-2 on 29 June 1984, in Case 9-CA-21234 on 10 September 1984, in Case 9-CA-21526 on 30 November 1984, and in Cases 9-CA-21554-1, 9-CA-21554-2, on 10 December 1984. On 29 January 1985 the National Labor Relations Board, by the Regional Director for Region 9, issued an order consolidating cases and second consoli- dated amended complaint. Hearing on this second con- solidated amended complaint was held before me in Pi- keville, Kentucky, on 18-22 March, 15-19, 29, and 30 April, and 1-3 May 1985. The hearing concerned itself with whether Respondent had violated the National Labor Relations Act during the course of a union organizing campaign at its super- market in Pikeville, Kentucky, which had a work force of approximately 90 persons working in various depart- ments such as grocery or stock department, meat depart- ment front end (cashiers), bakery and deli department, and produce department. The Pikeville store has gross sales of approximately $ 11 million a year. It is my conclusion that Respondent violated Section 8(axl) of the Act on numerous occasions during this 280 NLRB No. 125 WILLIAMSON PIGGLY WIGGLY union organizing campaign when it coercively threat- ened and interrogated its employees thereby interfering with the free exercise of their employees ' rights under Section 7 of the Act. In addition, I conclude that Re- spondent violated Section 8(a)(1) and (3) of the Act when it discharged Johnny Lucas and when it issued a letter of reprimand to and later discharged Shelia Bevins. I conclude that Respondent did not violate the Act when it discharged Willis Fields, Chris Vanover, and Jean Layne nor did it violate the Act when it issued a letter of reprimand to Donnes Coleman . Last, Respondent did not unlawfully impose more onerous working conditions on Jean Layne or change her Thanksgiving week seche- dule in violation of the Act. The union organizing campaign began in June 1984 and ended in December 1984 when a Board -supervised election was held in Pikeville, Kentucky. The union lost that election by a vote of 55 to 27 with 8 ballots being challenged. Because the Union could not show that it ever had majority support among the bargaining unit em- ployees, a bargaining order is neither appropriate nor sought by the General Counsel. On the entire record in this case, to include posthear- ing briefs filed by the General Counsel and Respondent, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Kentucky corporation, has been en- gaged in the retail sale of grocery and related items at Pikeville, Kentucky. Respondent admits, and I find, that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that the Charging Party or Union is now, and has been at all times materi- al, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview On 8 June 1984, the Friday before he was to start a 1- week vacation, Produce Manager Johnny Lucas was ad- vised by Store Manager Jim Trout and Produce Supervi- sor Jack Hagy that a new work schedule was being put into place for the produce department . Lucas did not like the new schedule. Later that same day Lucas and Donnes Coleman, another produce department employ- ee, drove to Williamson, Kentucky, to complain to Dis- trict Supervisor Claude Varney about the schedule change which affected both of them. Varney was un- available. As Lucas and Coleman were driving back to Pikeville, they agreed that the employees in the Pikeville store, none of whose employees were represented by a union, needed a union to represent them. On Saturday, 9 June 1984, Lucas called Jack Smith, Respondent's owner, at corporate headquarters in 1161 Grundy, Virginia, and requested to see him about some important matters. An appointment was arranged for Monday, 11 June 1984. Thereafter, Lucas met with Barry Campbell, president of a Steelworkers Local, and secured some Steelworkers' union authorization cards. Lucas spoke with a number of his follow employees from the Pikeville store over the weekend and got sever- al to sign Steelworkers union authorization cards. Monday, 11 June 1984, Lucas and 15 other employees of Respondent's Pikeville store met at a local elementary school in Pikeville. The 16 employees then drove to Grundy in several different cars. The 16 employees first met as a group with Jack Smith, president and owner of Respondent, and his son- in-law, Personnel Director R. Franklin David, and there- after each employee met individually with Smith and David. They met individually with management at the request of management. A variety of complaints were made by the 16 employees, e.g., produce department schedule change, lack of pay raises, cursing of employees by Store Manager Jim Trout, suspected stealing from the store by Store Manager Jim Trout, and failure of some of the employees to be promoted. No specific mention of unionization was made by the employees to Smith or David on 11 June 1984. It is obvious that the employees, in concertedly complaining to management on 11 June 1984 about terms and conditions of employment, were engaging in concerted activity protected under the Act. On 18 June 1984, on his first day back to work after vacation and after Respondent became aware of his union activity, Johnny Lucas was contructively dis- charged by Respondent. On 24 June 1984 Willis Fields, I of the 16 employees who went to Grundy on 11 June 1984, was discharged. On 25 June 1984 Respondent re- ceived a letter from the Union (although the employees initially signed Steelworkers authorization cards, they quickly switched to the UFCW) indicating it was con- ducting an organizing campaign at Respondent's Pike- ville store. During the next several months until the election in December 1984, which the Union lost, Respondent is charged with having committed numerous violations of Section 8(a)(1) and (3) of the Act. At the time of the hearing of this case, the fate of the 16 employees who went to Grundy on 11 June 1984 was as follows: 5 had been discharged, 5 quit voluntarily, and 6 were still em- ployed by Respondent.' It is alleged that the discharges of four of those fired, Johnny Lucas, Willis Fields, Jean Layne, and Chris Vanover, were unlawful. B. The 8(a)(1) Violations Section 7 of the Act gives employees certain rights, providing: i Those fired were Johnny Lucas, Tommy Parker , Willis Fields, Jean Layne, and Chris Vanover. Those who voluntarily quit were Craig Goff, Wayne Cossell, Donnes Coleman, Mike Thacker, and Mark Slore. Those still employed at the store at the time of the hearing were Lonie Kinney, Randall Thacker, William Slove, Steve Buchfield, Roger Slove, and Larry Spears. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees shall have the right to self-organization, to form join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized in section 8(a)((3). Section 8(a)(1) provides that "It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights quaran- teed in Section 7." In other words, no tips-no threats, no interrogation, no promises, and no surveillance. An em- ployer should not threaten employees, interrogate them, make promises, or conduct surveillance or create an im- pression that it is conducting surveillance of its employ- ees protected activities . It is alleged that Respondent vio- lated Section 8(axl) by the conduct of several of its su- pervisors or agents. I will address the allegations as they pertain to the particular supervisor or agent whose con- duct is alleged to have violated the Act and I will do so in chronological order. I note that all 8(a)(1) violations that I find took place at the store and no where else except for the interrogation of Johnny Lucas in a vacant office in the same shopping plaza as the store. Respondent admitted that Jack S. Smith (president), Claude Varney (vice president), R. Franklin David (per- sonnel director), Mike Teagle (chief of security), Jim Trout (store manager), Allen Keathley (assistant store manager), Gloria Damron (head cashier), Charles Asbury (meat department manager), and Jerry Layne (produce department manager) were supervisors and agents of Respondent within the meaning of the Act at the time they are alleged to have violated the Act. Re- spondent denied that Racine Keathley was a supervisor or agent. I agree. I do not agree, however, with Re- spondent that Aaron Lilly and Troy Bevins were not agents of Respondent. They were agents in my opinion. There is no evidence the employees held themselves out as prounion by wearing prounion buttons or the like or that any employee made it a point to tell management they were prounion. See Rossmore House, 269 NLRB 1176 (1984), in which the Board held that the standard to be applied in deciding if an employer's actions violate Section 8(axl) is whether, under all the circumstances, the employer's conduct had a reasonable tendency to coerce, restrain, or interfere with rights guaranteed by Section 7 of the Act. It is hornbook labor law that an employer may not interrogate employees about union ac- tivity, create the impression that union activity is under surveillance, or threaten discharge or business closure if employees support the union. McLean Roofing Co., 276 NLRB 830 (1985). 1. Jim Trout On 9 June 1984, the very next day after Johnny Lucas and Donnes Coleman had gone to see Varney in Wil- liamson to complain about the new produce department schedule, Trout coercively interrogated Donnes Cole- man, whom I believe, about why he had gone to Wil- liamson, and tried to explain to Coleman why the new produce schedule was better than the old way. On 12 June 1984 Trout coercively interrogated Willis Fields, who I believe, and who had gone to Grundy the day before with Lucas and the others. Trout coercively interrogated Fields about why Fields went to Grundy and if Johnny Lucas had forced him to go. On 12 and 15 June 1984 Trout coercively interrogated Chris Vanover. Vanover, who I believe , had gone to Grundy with the group of 16 on 11 June 1985. Trout tried to butter up Vanover by telling him that he was not mad at him and he would always have a job with Re- spondent, but he went on to tell Vanover that he "was going to get even with everyone that went to Grundy." This was an illegal threat to retaliate against employees for exercising a Section 7 right of concertedly complain- ing to management about terms and conditions of em- ployment. On 20 June 1984 Trout unlawfully interrogated Chris Vanover when he asked Vanover if he knew anything about a union meeting. On 25 June 1984 Trout told Randall Thacker and Lil- lian Thacker, both of whom I believe, that Johnny Lucas and his brother Junior Lucas would never work again for Respondent. Lillian Thacker, a middle-aged woman who quit Respondent's employ in the latter part of 1984, had no motive to fabricate. I credit her testimony re- garding the conversation. Trout, of course, denied it. Be- cause I conclude that Johnny Lucas was an employee entitled to protection under the Act and was construc- tively discharged because he engaged in protected con- certed activity, I necessarily conclude that Trout violat- ed the Act in telling other employees that Johnny Lucas would never again work for Respondent. This statement could only have a chilling effect on the employees in the free exercise of their Section 7 rights. The inference is clear that Lucas exercised his rights under the Act and Respondent got rid of him and he would never work for Respondent again. I credit employee Brenda Elswick who said that Trout told her about 27 June 1984 that she should be talking to the other "girls" and getting them to do "the right thing." This can only be understood to mean, and was understood by Elswick to mean, that she should talk against the Union with the other female employees and get them to resist unionization. About 29 June 1984 Trout told employee Shelia Bevins, whose letter of reprimand and discharge will be discussed infra, that Johnny Lucas "was going to get a lot of innocent people in trouble" and that Lucas would never work for Respondent again. The clear message in- tended to be conveyed, and in fact conveyed, was "Lucas was prounion and he's finished-if you support the Union you'll be out as well." Bevins was fired 4 months later. In early July 1984 Trout unlawfully interrogated em- ployee Robert Napper when he asked if Napper had at- tended a union meeting. Sometime prior to this, Trout unlawfully threatened Robert Napper, who was still an WILLIAMSON PGGLY WIGGLY employee of Respondent at the time he testified, by tell- ing Napper that Johnny Lucas was no longer with the store and that Lucas was trying to bring a union into the store. The connection between being "pro-union" and "out of work" was clearly made. Trout told Napper that Respondent's owner would close the store if the union got in. He further told Napper that other employees would be around to tell him how he could get his au- thorization card back from the union if he had signed one. Thereafter two employees did approach Napper to "assist" him in getting his card back. Sometime thereaf- ter, Trout again told Napper that if the Union got in the store would close. I credit Kathy Burnette's testimony about the events of 17 July 1984. Burnette, who is quite religious, when asked by the General Counsel to repeat curse words that she allegedly had heard spoken by Trout refused on moral grounds to do so. It is hard to discredit witnesses like that. She testified that on 17 July 1984 Trout, imme- diately after handing her some employer campaign litera- ture, told her that Johnny Lucas had started this "mess" and would never again work for Respondent. Burnette was still an employee of Respondent at the time she testi- fied. "Mess" was meant to refer to and was understood to refer to the union organizing campaign. In August 1984, Trout ordered Robert Napper, who is referred to above, to accompany him. They drove through town and Napper, at Trout's direction, tore down union campaign posters that bore messages such as "Vote for the union," "Bring the Union in for Piggly Wiggly." None of the posters were obscene in nature or derrogatory of Respondent or its management. Trout admits he directed Napper to remove the signs. Muncy Corp., 211 NLRB 263 (1974), enfd. 519 F.2d 169 (6th Cir. 1975), informs us that this is illegal. During the course of this exercise Trout informed Napper that the owner of Respondent would never allow the store to become unionized. About 8 August 1984 Trout unlawfully interrogated Chris Vanover. He asked Vanover where union meetings were being held and if he knew who was going to them. Vanover denied any knowledge of where meetings were being held or was going to them . Trout told Vanover he did not think the store would go union because some of the employees were fearful that the store would close if the Union came in. Later that month, about 22 August 1985, after another employee had told Vanover how he could get his card back from the Union, Trout asked Vanover if he had gotten his card back yet. An employ- er can tell an employee how to get back an authorization card but cannot assist the employee to do so or followup on whether the employee does so . Mariposa Press, 273 NLRB 528 (1984). About 15 September 1984, in a conversation between Trout and Kathy Burnette, who is mentioned above, in which Burnette was complaining about a low work eval- uation, Trout repeated to Burnette that Johnny had start- ed all this "mess" at the store (an obvious reference to the union organizing campaign) and that he would never work at the store again. This amounts to an unlawful threat, "if you are involved in this mess-prounion-you well might not be working for Respondent in the future 1163 or ever again." In addition, Trout told Burnette that both he and she knew which cashiers were involved in this "mess," i.e., which cashiers were prounion, thereby creating the impression that the union activity of the em- ployee was under surveillance because, as noted above, none of the employees were wearing prounion buttons or otherwise making it a point to stand out as prounion in the eyes of management. Trout made reference to a "cost of living" increase in this conversation with Bur- nette, which the General Counsel alleges was a promise of a benefit calculated to interfere with the free exercise of Section 7 rights . I do not agree. It was an isolated remark, i.e., no other employee was told this, and the record regarding the pay policy of Respondent was in- sufficiently developed at trial for me to conclude that this remark violated the Act. About 29 September 1984 Trout asked employee Ran- dall Thacker why he had testified at a related representa- tion hearing (Case 9-RC-14523) that Johnny Lucas was not produce manager. Thacker denied that he had not so testified. Trout said, "I'll remember this." This was clear- ly a threat calculated to inhibit Thacker in the free exer- cise of his Section 7 rights. Thacker was still an employ- ee of Respondent at the time of the hearing. About 23 October 1984 Trout told employee Craig Goff, who later quit Respondent's employ, in a conversa- tion about Johnny Lucas, that Johnny Lucas would never work another day in "Pike County or Pikeville." Either employee Tommy Parker, who was also a party to this conversation, or Goff mentioned that maybe Lucas would work at Kroger's, a supermarket in Pike- ville that was unionized. It was clear that Trout was threatening these employees because a connection was plainly drawn between being prounion and no longer working for Respondent. In all the instances cited above, I fmd that Respond- ent, through its store manager Jim Trout, violated Sec- tion 8(aXl) of the Act. Trout was alleged to have com- mitted several other 8(a)(1) violations but I do not so find on the basis that employees overheard parts of the conversations not intended for their ears, which Trout claims he did not remember , but which if remembered in context well might have been innocuous or the remarks attributable to Trout were amenable to different interpre- tations. I am giving Respondent the benefit of the doubt in light of the large number of violations clearly estab- lished. With respect to the violations I sustain, I fmd Trout's denials unconvincing. Trout was simply not a credible witness. Whereas the witnesses relied on by the General Counsel, Donnes Coleman, Willis Field, Chris Vanover, Randall Thacker, Lillian Thacker, Brenda Elswick, Shiela Bevins, Robert Napper, Kathy Burnette, and Craig Goff, all impressed me by their demeanor as honest men and women. 2. Allen Keathley Allen Keathley was assistant store manager of the Pi- keville store during the union organizing campaign and was still in that position at the time of the hearing. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit the testimony of Chris Vanover that during the first half of July 1984 Keathley asked him about where the union meetings were being held and if Van- over was attending them and that Keathley told Vanover that if the Union got in either the store would shut down or everybody's hours would be cut. Approximately 1 week later Keathley and Vanover spoke again. In this conversation Keathley asked Van- over if he had signed a union authorization card and re- peated that if the Union got in the store would close. Keathley's denials are not credited. Keathley is a young man with what appears to be a good future with Respondent. He was shrewd enough to be aware that Respondent did not want its employees unionized. I am afraid this gave Keathley a selective memory. I do not credit the testimony of Tommy Parker, who was later fired by Respondent but who is not alleged as a discriminatee in this case, when he testified about a conversation with Keathley at the end of August or the beginning of September 1984 . I do not believe that Parker was ever told by Keathley that Respondent had a source in the Government who would let Respondent know how its employees vote in the union election. This testimony just did not have a ring of truth to it. I do credit Parker, however, when he testified that Keathley asked him how many votes the Union had. This conver- sation was initiated by Keathley and amounted to an un- lawful interrogation. Keathley admits that he had such a conversation with Parker but that Parker initiated it. I credit Parker that it was Keathley who initiated the con- versation. A factfmder is perfectly free to believe all or some or none of a witness' testimony after having con- sidered all the factors that go into a credibility determi- nation. In a conversation about 17 September 1984 between Keathley and Parker, which conversation was initiated by Keathley, Keathley again reiterated that if the Union got in Respondent would probably shut down the store. I note that since his discharge, Parker relocated to Lorain, Ohio. At the end of October or beginning of November 1984, Keathley and employee Craig Goff, who later vol- untarily quit Respondent's employ, had a conversation. Keathley and Goff were friends and what was said during the conversation did not violate the Act until Keathley solicited Goff to try to get his fellow employ- ees to vote against the Union . This was improper on Keathley's part. 3. Racine Keathley It is alleged that Respondent , acting through Racine Keathley, violated Section 8(axl) of the Act on several occasions. It is my conclusion that Keathley was not a supervisor or agent of Respondent within the meaning of the Act and, therefore, I need not address whether the statements attributed to her actually were made and whether they violated the Act. I would note in passing that Keathley did not impress me as a truthful witness except to those matters in which she was corroborated by credible witnesses or other credible evidence. An in- stance of her lack of candor was when she claimed she could not remember how much Respondent grossed in sales during a period of time until Respondent 's lawyer indicated she should answer the question as best she could and suddenly she remembered with shocking pre- cision what the gross sales receipts were . Her answers were designed, I conclude, to help Respondent regard- less of the truth or falsity of the answer. She had no authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees or responsibly to direct them . Keathley, who is the aunt of Assistant Manager Allen Keathley, holds the position of office manager. She performs book- keeping chores to include processing returned checks. On occasion Keathley fills in for the head cashier or for the assistant manager, both of whom Respondent admits are supervisors, but her occasional exercise of superviso- ry authority when filling in for a supervisor does not make her a supervisor under the Act for all purposes. No remarks allegedly violative of the Act are attributed to Keathley while she was filling in as either head cashier or assistant manager. 4. Gloria Damron Gloria Damron is head cashier and Respondent admit- ted that she is a supervisor and agent of Respondent. About 22 June 1984 Damron approached cashier Shelia Bevins, a thoroughly credible witness, and unlawfully in- terrogated her. Damron asked Bevins if anyone had talked to her about the Union or if she had signed a union authorization card, and warned Bevine that she should think about it very seriously. I credit Bevins' ver- sion of events over Damron's, who was still employed by Respondent at the time of the hearing. About 25 June 1984 Dam on asked cashier employee Kathy Bumette, as cashier, if anyone had spoken to her about the Union. Bumette, who is referred to above, who still worked for Respondent at the time of the hear- ing, and who I found to be absolutely credible, told Damron that Trout and another employee had spoken to her about the Union. The next day Damron called Bur- nette into the front office and asked her if she had signed anything. Damron then immediately backed off and said, "Whoops, I shouldn't have said that." Dam on was right. She should not have said that. It amounted to un- lawful interrogation. 5. Jerry Layne Jerry Layne replaced Johnny Lucas as produce man- ager. Johnny Lucas, the General Counsel contends and I find, was not a supervisor of Respondent but the General Counsel alleges, Respondent admits, and I find that Jerry Layne was a supervisor and agent of Respondent. I do so because subsequent to Johnny Lucas constructive dis- charge the duties of the produce manager and other de- partment managers were enlarged . Subsequent to Johnny Lucas' constructive discharge, departmental managers (to include produce manager) began to issue written let- ters of reprimand-Jerry Lucas was specifically told by Trout when Layne became produce manager that he had this authority. It is obvious he would not have known it otherwise because it was not until July 1984 that a de- partmental manager first issued a written letter of repri- WILLIAMSON PIGGLY WIGGLY mand. Prior to July 1984 only the store manager, the co- manager, and the assistant manager had issued written letters of reprimand. Prior to Johnny Lucas' constructive discharge, the produce manager lacked the authority to fire or effectively recommend that an employee be fired. Jerry Layne, when he became produce manager on 19 July 1984, was told he had this authority by Trout. He would not have known it otherwise. The ratings of produce department employees prepared by Johnny Lucas were merely pro forma drafts that were signed by Jim Trout, the store manager. I do not believe that Jerry Layne unlawfully interro- gated Jean Layne about her support for the Union or asked her whether she had attended union meetings. Jean Layne is married to Jerry Layne's brother but Jean and Jerry, to put it mildly, hate each other's guts. This will be discussed later in the decision when I address the alle- gations of disparate treatment accorded Jean Layne to her discharge. Suffice it to say that because of the in- tense dislike and jealously between the two Laynes, I find it incredible that Jerry Layne interrogated Jean Layne. Jean Layne was furious when Jerry Layne who had not worked for Respondent as long as she had was picked for produce manager over her and the Laynes were barely civil to one another from that point until her discharge in late November 1984. During the summer of 1984 Jerry Layne approached Donnes Coleman, a produce department employee, and told Coleman that if he would consider "backing out of everything" Layne would see that he got the job of as- sistant produce manager. Layne denies this. I credit Coleman. Coleman, who voluntarily quit Respondent's employ in March 1985, impressed me as a truth-telling individual. If Coleman wanted to lie he could have said that Layne told him to revoke his authorization card and campaign against the Union in just those words rather than use the words he attributes to Layne. Coleman's tes- timony had a ring of truth to it. Jerry Layne would have wanted to get Coleman's support because Jean Layne, the most senior produce department employee, was very much a thorn in Jerry Layne's side. I do not credit Jean Layne over Jerry Layne regard- ing an alleged conversation Jean Layne says the two of them had in the beginning of October, in which Jerry Layne allegedly said, in response to Jean Layne's state- ment that Johnny Lucas might get his job back, that President Jack Smith would close the store before he would rehire Johnny Lucas or see it go union. Relations between the two were so strained that I do not believe that such a conversation took place. About 12 November 1984 Jerry Layne asked Donnes Coleman if he had attended a particular union meeting. Coleman said he had not. Jerry Layne then called Cole- man a "damn liar" and said that he had seen Coleman up where the meeting was held. Jerry Layne thereby unlaw- fully interrogated Coleman about whether Coleman at- tended a union meeting and also created the impression of surveillance of employees' protected activities by Re- spondent. Jerry Layne's statement to Jack Hurley, following Jean Layne's discharge, that if Coleman did not do more work he would be fired was not a violation of the Act. 1165 6. Charles Asbury Respondent admitted that Charles Asbury, its meat manager, is a supervisor and agent of Respondent. It is alleged that Asbury in the presence of several em- ployees about 7 July 1984 said that if the Union got in Respondent would close the store. I am convinced that Kathy Burnette testified to what she honestly believed was the truth when she said she heard Asbury say this but I am just as convinced she was mistaken. Norman Sammons, Gary Trout (no relation to Jim Trout), and Loretta Sword-all witnesses to the conversation and all of whom appeared credible-denied that Asbury said this. I must conclude that Asbury said something that was misunderstood by Burnette, who was otherwise a witness with an accurate recollection. The Act was not violated by Asbury when in response to employee Joan Bertrand's request for help in getting her union authorization card back from the Union, Asbury gave her a piece of paper and an envelope and directed her to see Tom Frazure another meat depart- ment employee, who helped her compose a letter to the Union. This would be a violation of the Act if Asbury approached Bertrand, but it was she who approached Asbury. His assistance was minimal and he never fol- lowed up by asking Bertrand if she had actually mailed the letter and gotten her card back. Bertrand sent the letter requesting the return of her authorization card by certified mail return-receipt requested. When she got the receipt, which indicated receipt by the Union of her letter requesting her card back, she went to Asbury and asked if that meant she was "off the union." According to Bertrand, Asbury told her "That means that the Piggly Wiggly lawyer knows that you wrote the letter." Asbury denies he made such a statement. I credit Asbury. Bertrand was a truthful witness but must have misunderstood Asbury. It makes no sense that Asbury would say this and he impressed me as a truthful witness. Bertrand was very hard of hearing and probably misun- derstood what Asbury said to her. 7. Troy Bevins Troy Bevins, an elderly man, is an old friend of Store Manager Jim Trout and a political ally of Respondent's vice president, Claude Varney. He is also the grandfather of employee Shelia Bevins' husband and is very close to Shelia Bevins who refers to him as "papaw." Jim Trout admits he called Troy Bevins, told Troy Bevins about the union organizing campaign led by the Lucas brothers, and asked Troy Bevins to tell employee Shelia Bevins not to sign a card . Troy Bevins was ex- tremely reluctant to testify against Respondent's interests and feigned confusion on the stand. In actuality, al- though old in terms of years, Troy Bevins is still sharp as a tack. Troy Bevins admitted he called Shelia Bevins at the store and told her not to sign a union authorization card. Shelia Bevins told him she already had. Troy Bevins then called Jim Trout and told him that Shelia had already signed a card . This is the clearest possible violation of the Act. Shelia Bevins, whom I credit, says that Troy Bevins in his conversation with her went fur- ther than he admits he went and told her that Respond- 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent would never permit the Union to get in and , because she had signed a card, she might as well start looking for a job. This conversation between the two Bevins took place about 29 June 1984. On 26 October 1984 Shelia Bevins was fired. Troy Bevins was clearly acting as an agent of Respondent in telling Shelia Bevins not to sign a union authorization card and, when informed she did, telling her she would lose her job, which she did. Troy Bevins was acting at the express behest of Jim Trout. 8. President Jack Smith Because I conclude that Johnny Lucas was an employ- ee and entitled to protection under the Act and, further, because I conclude that Johnny Lucas was constructive- ly discharged for engaging in protected concerted activi- ty, I necessarily conclude that a portion of President Jack Smith's letter on 19 July 1984, during the union or- ganizing campaign, to all employees at the Pikeville store violated Section 8(a)(1) of the Act. The objectionable part of the three-page letter contained the following question and answer: Question: Will Johnny Lucas or Junior Lucas ever return to work at the Pikeville Piggly Wiggly Store? Answer: Absolutely not!!l And you have my word on that. 9. Mike Teagle, Aaron Lilly, and Frank David Mike Teagle is chief of security and is admitted by Re- spondent to be one of its supervisors and agents. Aaron Lilly, while not a supervisor of Respondent , was acting as Respondent's agent at the time of his alleged unlawful conduct. Lilly is an employee of Piggly Wiggly Mid- Mountain, a cooperative of people who own Piggly Wiggly stores to include the Pikeville store. Lilly was asked by the management of Respondent to help interro- gate Johnny Lucas and to give him a he detector test if necessary. On 18 June 1984, exactly 1 week after Johnny Lucas and 15 other employees had gone to Grundy to concer- tedly complain about working conditions at the store, Johnny Lucas was interrogated about allegations that Trout was stealing from the store , why he did not come to Grundy alone, and what union activity was afoot among Respondent's employees. The interrogation took place in a vacant office in the same shopping plaza where the Pikeville store is located. Present at Johnny Lucas' interrogation were Mike Teagle, Aaron Lilly, and Frank David, who is, as noted above, director of personnel and President Jack Smith's son-in-law. Lilly interrogated Lucas about meetings Lucas had had with other employees, and when Lucas said there had been three to five meetings, Lilly asked him if the word "union" came up. Lucas told him it had. Lilly then asked Lucas whether any union authorization cards had been signed and Lucas told him yes. Lilly pressed Lucas about which employees had attended the meeting. Lucas would not tell him. Teagle then stated to Personnel Director David, in the presence of Lucas and Lilly, that Lucas had gone with other employees to Grundy and should be fired. David, Lilly, and Teagle all admit that Lucas was questioned about meetings with other employees and about union activity by himself and others. Lilly claims he thought he could legally interrogate Lucas because Lucas was a supervisor and unprotected by the Act. As noted earlier, I find that Johnny Lucas was not a supervisor and, therefore, the questioning of Lucas in a police-station-house-like environment about protected concerted activities, i.e., meetings with fellow employees about work-related grievances and union ac- tivity, was clearly and unquestionably unlawful. C. Alleged 8(a)(3) Discharges and Letters of Reprimand 1. Discharge of Johnny Lucas Johnny Lucas was constructively discharged on 18 June 1984, which was exactly 1 week after he led a group consisting of himself and 15 other employees to Respondent's headquarters in Grundy, Virginia, where the group of 16 concertedly complained about terms and conditions of employment. Two questions must be initial- ly addressed. They are: (1) was Johnny Lucas a supervi- sor, and (2) did Johnny Lucas voluntarily quit his em- ployment with Respondent. I answer both quesitons in the negative. Pursuant to the Board's decision in Parker- Robb Chevrolet, 262 NLRB 402 (1982), if Lucas was a su- pervisor, his discharge would not be unlawful if he were discharged because he engaged in protected concerted activity. However, it would be unlawful to discharge Lucas-even if he was a supervisor-because he failed to prevent unionization. Parker-Robb Chevrolet, supra at 402; Talladega Cotton Factories, 106 NLRB 295 (1953), enfd. 213 F.2d 209, 215-216 (5th Cir. 1954). If this case is appealed to the Board, the Board may address-if it con- cludes contrary to me that Johnny Lucas was a supervi- sor-the issue of whether the constructive discharge vio- lates Section 8(a)(3) in any event because Lucas was con- structively discharged not only because of his participa- tion in protected concerted activity, but also for his fail- ure to prevent others from going to Grundy to concer- tedly complain to management about terms and condi- tions of employment. Section 2(11) of the Act provides: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment. Johnny Lucas was the produce manager. At the time of his termination there were five people in the produce department-Johnny Lucas, Jean Layne, Jerry Layne, Donnes Coleman, and a part-timer named Chris Epling. There were approximately 90 people working in the WILLIAMSON PIGGLY WIGGLY 1167 store in various departments: bakery and deli had 12 full- timers and 4 part-timers, meat department had 9 fall- timers, the front end (cashiers and courtesy clerks) had approximately 15 or 20 full-timers and approximately 20 part-timers, with the rest of the employees working in the grocery or stock department. The produce depart- ment had the fewest employees and accounted for less than 5 percent of gross sales for the store. Lucas had been produce manager for over 11 years. His duties con- sisted of unloading trucks, stocking and rotating the produce, and cleaning the produce aisle. These duties were done along with the other produce department em- ployees. As produce manager he took inventory once a week and placed orders with the three produce suppliers. In Lucas' absence, one of the produce department em- ployees placed orders. Lucas neither bargained with the suppliers about how much he paid for produce nor did he have the authority to change produce suppliers and secure produce for the store from another supplier. On an emergency basis, Lucas made small purchases of produce from local suppliers. Lucas did not set prices on produce unless produce was going bad at which time he had authority to slash the price to one-half of what it had been. Ninety percent of Lucas work time was taken up with physical tasks within the produce department similar in all respects to the physical tasks performed by the other produce department employees. The work schedule for the employees in the produce department was established by Store Manager Jim Trout. The sched- ule had been in place for a couple of years. On 8 June 1984 Lucas was advised by Trout and Produce Supervi- sor Jack Hagy that a new schedule was being put into effect. Not even Trout nor Hagy suggested that Lucas had any input whatsoever regarding this schedule change. The new schedule even set the time for lunch- breaks. Lucas had absolutely no input on setting up the new schedule nor did he have any input on previous schedules. Overtime in the department could only be ap- proved by Jim Trout and all requests for time off were routed through Trout, who decided if a person could take time off. Trout set the dates when produce depart- ment employees could be on vacation, but the personnel in the produce department would decide the weeks they would take off on a strict seniority basis. As produce manager, Lucas had no authority to hire, fire, or discipline employees. He never interviewed pro- spective employees for the produce department. The work in the department was routine and the four full-time employees were all experienced . Lucas did very little, if any, directing of other employees in carrying out their duties in the department. For the last 1-1/2 years of his employment with Re- spondent Lucas filled out evaluations periodically on the other employees in the department, but these employees were directed to speak with Store Manager Jim Trout about their evaluations after Lucas completed his portion of the form and it was Trout who made the final evalua- tion, signed the form, and forwarded it to corporate headquarters. In addition there is no evidence that Lucas' evaluation ever affected a single employee in the department. Several times Lucas recommended Donnes Coleman for a pay raise, but he did not get one. Lucas was an hourly employee and punched a timeclock like all the other employees in the produce department. While I found Johnny Lucas to be a generally credible witness, there is one area in which I cannot credit his testimony. He denied firing Dexter Addington back in 1980. I credit the testimony of Jack Hurley and Dexter Addington over that of Lucas on this one issue. Howev- er, back in 1980 when Addington was fired by Lucas, Lucas was serving as acting night manager and had addi- tional authority above and beyond that of produce man- ager. At the time he was constructively discharged and for the several years prior to that Lucas did not have the authority to fire. There was a lot of testimony on the issue of whether Lucas ever left lists of things to be done by other produce department employees when he was gone. I credit Lucas that he did not do this. However, he may have on occasion done this in the past and not remem- bered it, but he did not do it on a regular basis. Jerry Layne served as produce manager for 8 months prior to the beginning of the hearing in this case. Layne did pre- pare "to do lists." Quite probably some of the witnesses who saw "to do lists" saw them during the time after Lucas was constructively discharged. In conclusion, Lucas acted more as a leadman because he was the most experienced employee in this very small department and was not a supervisor under the statute. See Central Freight Lines, 250 NLRB 435 (1980). Lucas did make more money than the other produce depart- ment employees, but this fact and the fact that he had the title of manager does not make him a supervisor under the Act. Diaz Enterprises, 264 NLRB 156 (1983); St Alphonsus Hospital, 261 NLRB 620 (1982). Tom Fra- zure, who worked in the meat department and who no one claims is a supervisor under the Act, was better paid than Johnny Lucas.a Lucas attended department head meetings, but so did Jack Hurley who no one claims is a supervisor and so did Racine Keathley who I find (in agreement with Respondent) was not a supervisor. Lucas also attended a creative management seminar, but so did Jack Hurley. I conclude that Johnny Lucas was not a statutory su- pervisor because he lacked the authority to hire, fire, and discipline other employees necessary for supervisory status. Further, he did not responsibly direct other em- ployees, but only directed them as a leadman might. Al- though there were some indicators of supervisory status in the aggregate, I must conclude that Johnny Lucas was not a supervisor within the meaning of the Act. I further conclude that Johnny Lucas was construc- tively discharged and did not voluntarily quit his employ with Respondent. On 18 June 1984, the day Lucas re- turned from vacation and I week to the day after he led 15 other employees to Grundy, Virginia, to concertedly complain about terms and conditions of employment, Lucas met with Personnel Director David, Head of Se- curity Teagle, and lie detector operator Lilly. Among a Lucas was paid $8.75 per hour and Tom Frazure was paid $10.15 per hour. Lucas' yearly gross income from Respondent was approximately $18,200, the financial equivalent of a GS-7 (step 2) or t3S-6 (step 5) if Lucas was on the Federal payroll. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaints made by Lucas and the others in Grundy was the complaint that Store Manager Jim Trout was stealing from the store. Chris Vanover had told Smith and David in Grundy on 11 June 1984 that he had taken candy and put it in Trout's car at Trout's request. Van- over testified similarly at the hearing. On 18 June 1984 David, Teagle, and Lilly began an in- vestigation to determine whether Trout was stealing from the store. They interviewed Trout, Assistant Store Manager Allen Keathley, Bakery and Deli Manager Janet Halstead, Meat Manager Charles Asbury, Coman- ager Junior Lucas (Johnny's brother), and Johnny Lucas. The focus of their questioning was on the issue of Trout's thievery until they started questioning Junior Lucas and then the focus shifted from Trout's alleged thievery to Junior Lucas' knowledge of when and why Johnny Lucas went to Grundy. At the end of their inter- rogation of Junior Lucas they asked for and received his resignation. Respondent claims they asked for Junior Lucas' resignation because Junior had in his possession what he believed to be evidence of Trout's dishonesty, but had not brought it to the attention of higher manage- ment and, further, Junior Lucas had known of nascent union organizing activity by his brother and others and had not brought that to the attention of higher manage- ment. David concedes that if Junior Lucas had not re- signed he would have fired him. The evidence that Junior Lucas had in his possession and which he claimed showed Trout to be a thief was a check, dated 4 January 1983, in the amount of $250 payable to the order of Piggly Wiggly and written on the account of the Johns Creek Touchdown Club. The check was signed by Jim Trout and Sharon Kay Allen as officers of the club, and in the lower left hand portion of the check in the area entitled memo was the word "candy." It was Junior Lucas' contention that Trout gave store candy to the Touchdown Club to sell at high school football games for a profit and then cashed the $250 check and pocketed the money himself. When Trout had been interviewed earlier that day, he denied ever stealing anything from the store and "passed" a lie detector test administered by Aaron Lilly. Teagle, Lilly, and Trout claim that they concluded as a result thereof that Trout was honest and had not stolen anything from the store. Accordingly, they believed that Junior Lucas had evidence which he claims showed Trout to be a thief (but Trout was not) and Junior had not told them about that and should have. When Johnny Lucas was interviewed, the focus of in- quiry had shifted. Although still interested in why Johnny Lucas would say that Trout was a thief, they concentrated on other issues when interviewing him, namely, why Johnny Lucas had not come to Grundy alone, why he brought all the others with him, was there any talk of unionization among the workers, were union authorization cards being distributed, and who had singed union authorization cards. Johnny Lucas was also queried about Trout and why he thought Trout was a thief, and when did he first see or know about the check his brother Junior had kept. At a point in time a resigna- tion written out by Aaron Lilly was thrust in front of Lucas, and Lucas signed it. This was after Teagle (an ex- police officer with the Los Angeles Police Department) had said that if it were him he would fire Lucas for not telling management that a group of employees were on their way to Grundy or stopping them from going. Im- mediately before having the resignation thrust in front of him, Lucas was asked if he thought he could work with Trout and Johnny had said no. Johnny Lucas was also told that his older brother had just resigned. Lucas was also told that his future job opportunities with other em- ployees would be better if he resigned rather than be fired. There is no doubt that if Johnny Lucas had failed to sign the letter of resignation he would have been fired and Teagle and David admitted as much. Lucas was still unemployed at the time of the hearing. The reason for Lucas' discharge was because he led a group of employees to Grundy (clearly a protected con- certed activity under the Act) and because he was in- volved intimately in the early stages of a union organiz- ing campaign (also a protected concerted activity under the Act). It is inconceivable that Respondent would have fired Johnny Lucas merely because he believed (albeit inaccurately) that his older brother-a management offi- cial of Respondent-had evidence to show that another management official had stolen from the store and had not brought it to the attention of higher management. This can be demonstrated by the following: Trout was asked, after the Lucas brothers' employment with Re- spondent was terminated, what the story was regarding the $250 check. What happened next is nothing short of amazing. Trout told them that, because some members of the Johns Creek Touchdown Club were reluctant to engage in the practice of paying $250 per month under the table to the local high school football coach, those not reluctant to do so (Trout among them) would give a check in the amount of $250 per month payable to the store supposedly for candy and the coach would get the $250 in cash. This way the coach would not have to report this income to IRS. Respondent, through its offi- cials, not only accepted without question Trout's ac- count, but they never so much as even asked the coach about it or any other official of the Touchdown Club. Even more surprising, they did not even tell Trout not to do it any more, i.e., let Respondent be a party to a fraud perpetrated against the IRS. It is inconceivable that Johnny Lucas was fired be- cause he mistakenly thought his brother had evidence of thievery on Trout's part and did not report it to higher management. Rather, the only rational conclusion is that Respondent, who did not want its work force unionized, got rid of Lucas because he started the union organizing campaign. They fired him to prevent unionization and when the votes were finally counted following the elec -tion 6 months later it turned out that they were success- ful. Given the facts, even if Johnny Lucas was a supervi- sor, his involuntary termination, I submit, should be pro- hibited by the Act since intended to prevent unioniza- tion. Two further notes-the highest official of Respondent to testify was Claude Varney. Varney said of Johnny Lucas the following: "He was a real good produce man- ager" and that he had tried to interest Johnny Lucas in WILLIAMSON PIGGLY WIGGLY being promoted. it is hard to believe that they would have , gotten- rid of this young man absent his prounion . activity. Lucas was articulate and a leader . He had to go so that Respondent could avoid unionization. 2. Discharge of Willis Fields - On 24 June 1985 Willis Fields was fired by Store Man- ager Jim Trout. No reason for his termination was given to Fields at the time. Fields was a grocery clerk and had gone to Grundy, Virginia, to concertedly complain to management just 2 weeks before on 11 June 1985. These facts suggest that Fields was indeed discharged because he was with the group of 16' that went to Grundy. The General Counsel made out a prima facie case . However, Respondent came forth at the hearing with a credible and 'persuasive argument for why they let Fields go. Fields was a very new employee . He had worked for only ' 1-1/2 months prior to his discharge. He was hired shortly after a flood hit the Pikeville area , which flood resulted in Respondent's major competitor , Kroger's, having to shut down because it was, in large part, under water. For the few months that Kroger's was closed due to the flood, business was better than ever at Respond- ent's store. It was during this period of time (when Kroger's was closed) that Fields was hired. ' He was the only new employee hired. During the time when Kroger's was closed, employees from Respondent's other stores were detailed to the Pikeville store, and several of Respondent's headquarters personnel in Grundy found themselves bagging groceries and doing other jobs at the Pikeville store. When Kroger's reopened and business re- turned to normal, those persons detailed to Pikeville went back to their own stores and jobs and Fields was let go. -1 am inclined to credit Respondent's position that Fields was let go for the legitimate business reason and not because he went to Grundy or was otherwise en- gaged in protected concerted activity . I• do so, in part, because Fields was not in any way a leader of the union organizing effort. In fact, when questioned by President Smith and Personnel Director David on 11 June 1984 about why he had ' come 'to Grundy Fields really could not tell them why. In addition, this is not a situation in which Fields, was one of many people hired during the flood, but the only one let go. There is also no evidence that _ immediately following Fields' discharge someone else was- hired to do his job. Accordingly, Respondent did not violate the Act when it discharged Willis Fields. See Wright Line, 251 NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Cir 1981), cert. denied 455 U.S. 989 (1982). 1 have applied the analysis adopted by the Board in Wright Line, which the Supreme Court , approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), in reaching this conclusion. 3. Letter of reprimand to Donnes Coleman Donner Coleman was a produce department employee of Respondent for approximately 5 years. He voluntarily quit Respondent's employ in March 1985. He and Johnny Lucas had initially tried to complain to Claude Varney on 8 June 1984 about the new produce depart- ment schedule and he was among the group of 16 em- 1169 ployees who went to Grundy on 11 June 1984. Coleman signed a union authorization 'card and was prounion. The fact. that he was prounion was known to Jerry Layne who had offered him the job of assistant produce manag- er if Coleman ' gave up the Union. (See sec. III,B,5 of this decision:) I ; , ' it is alleged by the General Counsel that Coleman re- ceived a letter of reprimand on 11 August 1984 because he engaged in protected concerted activity and activity on behalf of the Unions I disagree. On 19 July 1984 Jerry Layne was'selected to succeed Johnny :Lucas as produce manager. About the time of his appointment department - heads • were given more author- ity in the area of disciplining employees . Prior to Johnny Lucas' constructive discharge and the start of the union organizing campaign'no department head-had ever issued a letter of reprimand. Beginning in mid-July department heads started to issue letters of reprimand: There is a clear 'conflict between 'Jerry Layne 's testi- mony and that of -Donnes Coleman and it could very well be the case-I am inclined to think it probably is- that Coleman should never have received the letter of reprimand in question-for leaving moldy chili peppers on the rack rather than removing them . Jerry Layne im- pressed me as a man who when given some authority would want to exercise it. He issued a letter of repri- mand to Coleman not because of Coleman's protected concerted activity, but because Layne wanted to flex his new found muscles as produce manager armed with the new authority to discipline employees in his department. Coleman says he rotated the chili pepper rack and did not see any moldy chili peppers on the rack. He did, however, see some moldy chili peppers in the cooler which surprised him. Jerry Layne claimed that after Coleman was supposed to have rotated the chili pepper rack Layne saw moldy chili peppers on the rack and gave Coleman a letter' of reprimand for his failure to remove them. Inferences that Coleman may have inad- vertently missed the moldy peppers or that someone else (another produce department- employee) put the moldy chili peppers on the rack are `as valid as - the inference that Layne -reprimanded Coleman because of Coleman's participation in protected concerted activity. 4. Discharge of Chris Vanover Chris,Vanover was fired on 4 September 1984. Van- over, a courtesy clerk, had been employed by Respond- ent since September 1981. Vanover was 1 of the group of 16 employees who went to Grundy, Virginia, to con- certedly complain about conditions at the Pikeville store. He signed a union authorization card and was prounion. He was unlawfully interrogated by Trout the day after he went to Grundy. Later in the summer he was unlaw- fully interrogated by Trout and Assistant Manager Allen Keathley, as noted above . (See sec. III,B,l, and IH,B,2, of this decision.) " Respondent issued "verbal correction notices" and "wntten correc- tion notices." Both of which, interestingly enough, are in writing. I use the term letter of reprimand,in this decision to mean any written repri- mand issued by Respondent the issuance of which is alleged to be viola- tive of the Act 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vanover was discharged, Respondent contends, be- cause he had received three written letters of reprimand and pursuant to Respondent's policy as spelled out in rule 34 of the employee handbook , which Vanover ac- knowledged receipt of on 28 November 1981. The Gen- eral Counsel contends that he was an employee with a good record and received letters of reprimand because of his participation in protected concerted activity. I agree with Respondent. No doubt Trout was glad to get rid of Vanover since Vanover was prounion and had rebuffed Trout's at- tempts to have him keep Trout posted on employee union activity, but an employee is not immune from dis- cipline just because he is prounion . Such an employee cannot be singled out for discipline, but he is not immune from discipline . Vanover received written reprimands on 2 July 1984 for standing around and not working, on 24 July 1984 for making an obscene gesture toward employ- ee William Slove, on 28 August 1984 for being late for work, and on 31 August 1984 for driving recklessly in the store parking lot. Evidence of record showed that other employees received written reprimands for similar offenses and there is no evidence that persons were not disciplined if they did the same thing Vanover was charged with doing. I note that William Slove was among the employees who went to Grundy. He was not asked about the obscene gesture incident by anyone nor were William Slove, Louie Kinny, or Wanda Justice asked about the reckless driving incident by anyone at the hearing. Both incidents were denied by Vanover. Applying the rationale enunciated in Wright Line, supra, I find that the Act was not violated when Respondent discharged Chris Vanover. 5. Letter of reprimand and discharge of Shelia Bevins Bevins was prounion and this was known to Store Manager Jim Trout in June when at Trout's behest Troy Bevins called Shelia Bevins and told her not to sign an authorization card, Shelia Bevins told him she already had, and he passed this information to Jim Trout. Respondent maintains that Bevins was discharged (like Vanover) because she had accumulated three written let- ters of reprimand. The General Counsel maintains that one of the letters of reprimand the one issued on 14 July 1984, was given illegally and in retaliation for her par- ticipation in protected concerted activity and, therefore, when she received a legitimate letter of reprimand for being short in her cash drawer in October 1984 she only had two legal letters of reprimand and should not have been fired on 26 October 1984 as she was. I agree with the General Counsel. The second letter of reprimand, dated 14 July 1984, just a few weeks after Shelia Bevins rejected overtures from Respondent to be antiunion, was issued for allegedly not following proper check cashing procedures way back on 21 April 1984. On 21 April 1984 Shelia Bevins accepted a low-num- bered check, i.e., under number 200, from someone she did not personally know and the check was drawn on an out-of-town bank. Respondent's check cashing policy re- quired that Bevins get front office approval to cash the check. Bevins, not surprisingly, had no independent recollection of that particular check and the check does not have the initials of someone from the front office which was the normal way that front office approval would be noted. Therefore, Bevins either did not get ap- proval from the front office to cash the check or some- one from the front office okayed cashing the check but failed to place their initials on the check. The check was in the amount of $84.30 and was for groceries. On 14 July 1984 Respondent gave Shelia Bevins a letter of rep- rimand for failing to get front office approval to cash the check way back on 21 April 1984. On 23 October 1984 Shelia Bevins came up $33 short in her cash drawer and received a letter of reprimand. Because this was the third letter of reprimand-the first was back in March 1984 and the second was on 14 July 1984-on 26 October 1984 Respondent terminated Bevins pursuant to rule 34 of the employee handbook. As I conclude that the second reprimand issued 14 July 1984 was given because Bevins participated in protected concerted activity, Bevins should not have been termi- nated in October because coming up short in October was only her second reprimand. It was unfair that Re- spondent dug up this old check from 3 months before as a basis for issuing Bevins a letter of reprimand. As noted above, it could very well be that front office personnel gave approval to cash the check, but failed to initial it. Further, to ask a cashier about the circumstances of cashing a check 3 months before is an impossible situa- tion. Bevins could not remember the circumstances sur- rounding the cashing of that check and it would be un- usual if she could have, considering the tremendous number of checks cashed day in and day out by cashiers in this very busy supermarket. The only reasonable infer- ence is that Respondent wanted to get rid of Bevins be- cause of her support for the Union and dug up this old check. Bevins should be reinstated and the 14 July 1984 letter of reprimand removed from her personnel file. 6. The imposition of more onerous working conditions for Jean Layne, the change in Jean Layne's work schedule, and the discharge of Jean Layne It is clear from the record in this case that Jean Layne and Jerry Layne did not get along. Jean Layne was re- sentful (and possibly justifiably so) that Jerry Layne was selected over her to succeed Johnny Lucas as produce manager.' After Jerry Layne was selected Jean Layne told him that she would not let him boss her around. As noted earlier, Johnny Lucas in directing the other employees in the produce department did not leave behind "to do lists" for the other employees telling them what to do in his absence. However, the record is clear that Jerry Layne did leave "to do lists" behind for the other employees telling them what to do in his absence. No store policy existed preventing or requiring that Jerry Layne prepare "to do list." It is alleged that the "to do lists" left behind by Jerry Layne for Jean Layne and anyone else working with her imposed working con- * The selection of Jerry Layne over Jean Layne for produce manager is not alleged to be a violation of the Act. WILLIAMSON PIGGLY WIGGLY ditions that were too onerous, i.e., there was more asked to be done than could be done in the time allotted, and that those more onerous working conditions were im- posed in retaliation for Jean Layne's support for the Union. One such "to do list" was received in evidence listing a number of chores to be done, e.g., wrapping of broccoli, traying apples, etc. There was a dispute on how long it would take to do the tasks listed with three witnesses giving their opinion on how long it would take and all three coming up with different estimates. Suffice it to say there is no evidence to suggest that the lists were prepared by Jerry Layne to discriminate against Jean Layne because of her participation in protected concerted activity. Jean Layne was not disciplined for failing to complete all the task on the "to do lists" on any given occasion, although she says Jerry Layne threatened her with discipline if she did not complete the tasks listed. Accordingly, I see no violation of the Act. I credit Jerry Layne that these "to do lists" were for anyone working in produce to do their best to complete. Jean Layne had a regular day off, i.e., Wednesday. During Thanksgiving week, as was often the case when there was a holiday during the week, employees' days off might be changed. Jerry Layne, who was given au- thority from Trout, which Johnny Lucas did not have, to assign days off for other produce department employ- ees, decided to work Jean Layne on Wednesday, which was her normal day off. The Wednesday before Thanks- giving was reasonably expected by Respondent to be a very busy day. I do not find that ordering Jean Layne to work the day before Thanksgiving was unreasonable or done to discriminate against Jean Layne because of her participation in protected concerted activity. Jean Layne never did work on the Wednesday before Thanksgiving and on the Saturday after Thanksgiving, 24 November 1984, was fired for insubordination. Rule 23 of the employee handbook provides for the penalty of dismissal for "Insubordination (refusal to perform service connected with your job as required by your department head or by management)." When Jean Layne was told she would have to work on the Wednesday before Thanksgiving, she went to Jerry Layne and told him she had a doctor's appoint- ment and could not work that day. Jerry Layne told her to come in after the doctor's appointment , which she told him was at 10 a.m. There is a dispute whether Jerry Layne said "be in by 12 :00 or don't come in" as Jean Layne contends or "come in as soon as possible after the doctor's appointment," or words to that effect which Jerry Layne contends was said. Jerry Layne's testimony makes more sense. The Wednesday before Thanksgiving was expected to be a busy day and it makes more sense if you need help to have personnel come in as soon as possible rather than not at all . I also credit Jerry Layne's testimony that Jean Layne said she was not coming in at all over Jean Layne's testimony that she never said that to Jerry Layne. I do so because she never did come in or try to come in. Jean Layne went to the doctor on Wednesday at 10 a.m. She left the doctor's office around noon and drove to her mother's house. The route from the doctor's office to her mother's house took her right by the store. I credit Kimberly Keathley who saw Jean 1171 Layne drive past the store at approximately 11:40 a.m. Jean Layne thought it was after 12 p.m., but even she believed it was only a few minutes after 12 p.m. After Jean Layne got to her mother's house she received a phone call from her sister telling her that the store had called looking for her. Jean Layne says she went to get into her car and drive to the store, but discovered that she had locked her car keys inside the car. She could not get the car opened. She never even bothered to call the store and tell them her predicament. When her husband arrived at Jean Layne's mother's house at approximately 3:30 p.m. with his keys and opened the door to Jean Layne's car, she neither went to work at that time nor called to see if the store still wanted her to come into work. The store remained open that night as it usually did until midnight. Jean Layne was fired for insubordination. She defiant- ly said she would not work that day and she did not work that day. Applying the rationale of Wright Line, supra, I conclude that Respondent did not violate the Act when it discharged Jean Layne. She was prounion and Respondent may have been privately elated to get rid of her because she was prounion, but the facts estab- lish that they had good cause for her dismissal and have convinced me by a preponderance of the evidence that even if not prounion Respondent would have discharged her anyway. She and Jerry Layne were not speaking to one another, she was jealous of him, and had previously told him she would not let him boss her around. Jean Layne admits that her medical condition and treatment that day did not render her unable to work. There is no evidence that employees who were insubordinate were not similarly treated by Respondent. Respondent could have and maybe, from a charitable point of view, should have treated her as merely someone who failed to report for work-a less severe infraction than insubordination- but they were under no legal obligation to do so. I con- clude that Respondent did not violate the Act when it discharged Jean Layne. CONCLUSIONS OF LAW 1. Respondent Williamson Piggly Wiggly, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act , and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. United Food and Commercial Workers Local 347, and United Food and Commercial Workers International Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(axl) of the Act when it interrogated employees about their union activi- ties, when it threatened employees with discharge for supporting the Union, when it threatened to close its store if the Union were selected by its employees as the agent for purposes of collective bargaining, when it cre- ated the impression that its employees' union activities were under surveillance, and when it ordered an employ- ee to take down prounion posters at places removed from the worksite. 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent violated Section 8(a)(1) and (3) of the Act when it discharged Johnny Lucas, when it issued a letter of reprimand to Shelia Bevins, and when it dis- charged Shelia Bevins. 5. Respondent did not violate the Act when it dis- charged Willis Fields, Chris Vanover, and Jean Layne or when it issued a letter of reprimand to Donnes Coleman. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Williamson Piggly Wiggly, Inc., Pi- keville, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Unlawfully interrogating employees about their union activities, threatening employees with discharge for supporting the Union, threatening to close its store if its employees selected a union as their representative for purposes of collective bargaining, creating an impression that its employees union activities are under surveillance, and ordering employees to take down prounion posters. (b) Giving letters of reprimand to employees or dis- charging employees because of their participation in pro- tected concerted activities. (c) 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) Offer Johnny Lucas and Shelia Bevins immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, 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. (b) Make Johnny Lucas and Shelia Bevins whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by payment to them of a sum of money equal to that which those em- ployees normally would have earned as wages from the date of their discharge, less net earnings, with backpay to be computed in the manner prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977) (see, gener- ally, Isis Plumbing Co., 138 NLRB 716 (1962)). (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the 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, If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 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 Pikeville facility copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized repre- sentative, 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 materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. " 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." 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT interfere with these rights given to you by law. WE WILL NOT discharge or otherwise discriminate against you because you engaged in protected concerted activity such as complaining to management about terms and conditions of employees or joining or assisting a union. WE WILL NOT unlawfully threaten or interrogate you about your participation in protected concerted activity or create the impression that we have placed such activi- ty under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Johnny Lucas and Shelia Bevins imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- WILLIAMSON PIGGLY WIGGLY sitions, without prejudice to their seniority or any other rights, or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge, less any net interim earnings, plus interest. 1173 WE WILL notify each of them that we have removed from our files any reference to their discharge and that the discharge will not be used against them in any way. WILLIAMSON PIGGLY WIGGLY, INC.