Horizon Foods, Inc.

1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Horizon Foods, Inc. and United Food & Commercial Workers Union, Local 1550, chartered by United Food & Commercial Workers Interna- tional Union, AFL-CIO, CLC, Petitioner. Cases 13-CA-24710, 13-CA-24749, 13-CA- 24777,13-RC-16425, and 13-RC-16566 30 June 1986 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 26 February 1986 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in response to the Respondent's exceptions. 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, I and conclusions and to adopt the recommended Order as modified. 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Horizon Foods, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of ' 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 Csr. 1951). We have carefully examined the record and find no basis for reversing the findings The General Counsel excepts to the judge's failure to include a vi sita- torial clause in the recommended Order A visitatonal clause authorizes the Board, for compliance purposes, to obtain discovery from the Re- spondent under the Federal Rules of Civil Procedure under the supervi- sion of the United States Court of Appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request We find it unnecessary to rely on Alphonso Hayden's testimony in de- termining the Respondent's motive or animus. a The judge recommended that the Board issue a narrow cease-and- desist order requiring the Respondent to cease and desist from violating the Act "in any like or related manner." However, as urged in the Gen- eral Counsel's cross-exceptions, we find the Respondent's conduct in this case egregious enough to warrant the issuance of a broad cease-and-desist order. Accordingly, we shall substitute the broad injunctive language, re- quiring the Respondent to cease and desist from violating the Act "in any other manner," for the provisions recommended by the judge. See Hick- mott Foods, 242 NLRB 1357 (1979). the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. [Direction of Second Election omitted from pub- lication.] 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. WE WILL NOT coercively interrogate our em- ployees about their union activities; threaten our employees with cuts in hours, layoffs, firings, close- downs, and other reprisals if they support United Food & Commercial Workers Union, Local 1550, chartered by United Food & Commercial Workers International Union, AFL-CIO, CLC; solicit em- ployee grievances, promise our employees wage in- creases, and, at the same time, threaten them with reprisals; ask our employees to spy on the union activities of their coworkers and report this infor- mation to us; and create the impression that union activities of our employees are under surveillance. WE WILL NOT discourage membership in the United Food & Commercial Workers Union, or any other labor organization, by discriminatorily discharging employees because of their union and protected concerted activities, or by in any like or related manner discriminating against our employ- ees with respect to their hire or tenure of employ- ment or any terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Leethaniel Hibbler, Stanton Bald- win, Deleria Rogers, and Christine Williams imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earn- ings and other benefits resulting from their dis- charge, less any net interim earnings, plus interest. HORIZON FOODS, INC. Arley Eggertsen, Esq., for the General Counsel. Narcisse Brown, Esq., for the Employer. Jairus Gilden, Esq., for the Union. 280 NLRB No. 127 HORIZON FOODS DECISION FRANK H. ITKIN, Administrative Law Judge . Unfair labor practice charges were filed by the Union in the above cases on December 14 and 20, 1984, and on Janu- ary 4 and 16, 1985 . A consolidated complaint issued on January 30, 1985. The complaint alleged, inter alia, that Respondent Employer had violated Section 8 (a)(1) and (3) of the National Labor Relations Act by coercively in- terrogating employees; promising employees benefits; threatening employees with reprisals; soliciting employ- ees to report on protected union activities; creating the impression of surveillance; soliciting employee griev- ances; and terminating and refusing to recall or reinstate employees Deleria Rogers, Christine Williams, Stanton Baldwin, and Leethaniel Hibbler . Respondent Employer denied that it had violated the Act as alleged . Thereafter, on February 1, 1985, the Board's Regional Director for Region 13 issued a supplemental decision on pending ob- jections in a related representation proceeding involving the same parties (Cases 13-RC- 16425 and 13-RC-16566). The Regional Director noted that the objections filed by the Union in the representation case essentially track the above unfair labor practice allegations (Cases 13-CA- 24710, 13-CA-24749, and 13-CA-24777) and, therefore, ordered the unfair labor practice and representation pro- ceedings consolidated for hearing and decision. Subse- quently, on October 28, 29, and 30, 1985 , hearings were held on the issues raised in Chicago, Illinois. And, on the entire record, including my observation of the demeanor of the witnesses, I make the following' FINDINGS OF FACT A. Introduction; Background Respondent Employer is admittedly an employer en- gaged in commerce and Charging Party Union is admit- tedly a labor organization as alleged . The Employer op- erates retail food stores in Chicago. During early 1984, the Union initiated an organizational campaign at the Employer's three stores in Chicago.2 On March 19, 1984, the Union filed a representation petition in Case 13-RC- 16425, seeking to represent the Employer's full-time and regular part-time store employees. (G.C. Exh. 2.) The Union, at the same time, filed unfair labor practice charges against the Employer, alleging, inter alia, the un- lawful discharges of store employees. (G.C. Exh. 3.) Ad- ditional charges were filed later. (G.C. Exhs. 4, 5, and 6.) The representation proceeding was held in abeyance pending resolution of the unfair labor practice charges. (G.C. Exh. 7.) On May 1, 1984, the Regional Director issued a complaint predicated upon the foregoing charges, alleging 8(a)(1) and (3) violations of the Act. (G.C. Exh. 8.) On August 6, 1984, the Regional Director approved a settlement agreement pertaining to the above i The General Counsel has withdrawn allegations of 8(a)(3) and (4) violations pertaining to employee Vernita Shanks because of her failure to appear at the hearings . Further, the Union, by letter dated December 17, 1985, has withdrawn its Objection 7, stating- "With regard to all out- standing objections, Local 1550 will rely on the evidence and brief of the General Counsel. 2 The three facilities were the East 79th Street store, the South State Street store; and the South Cottage Grove store 1175 charges and complaint . The agreement contains a nonad- mission clause. (G.C. Exh. 9.) On October 30, 1984, the unfair labor practice proceedings were closed on compli- ance. (G.C. Exh. 10.)3 B. Respondent Purchases a New Store; the Union Resumes its Campaign; the Employer Opposes the Union Jerry Gesiaknowski, an organizer for the Union, testi- fied that "while the representation cases were being held in abeyance" during the summer of 1984, "we still con- tinued to try to keep in contact with the employees." Gesiaknowski discovered that the Employer had sold its East 79th Street store and opened a "new store" on East 95th Street. The Union then solicited authorization cards from the employees at the "new store" (G.C. Exhs. 14- 17) and "filed another petition amending the RC petition to include that [new] store with the other two" (G.C. Exh. 11). This petition, in Case 13-RC-16566, was filed on October 25, 1984. (Ibid.) A hearing was held before the Board on the petition on November 9, 1984-the "main issue . . . was a question of whether there was enough authorization cards . . . with the three stores in- volved." The Regional Director, on December 7, 1984, issued a decision and direction of election for the three stores' "full time and regular part time employees" (G.C. Exh. 12, Cases 13-RC-16245 and 13-RC-16566).4 The Employer, in opposing the Union's organizational effort, resorted to the following conduct. Thus, Anthony Rice testified that he started working at the Employer's 95th Street store in the spring of 1984; that District Man- ager Gerry Stricher and Floor Manager or Supervisor Reynolds Hendricks met with him in the store office about November 1984; and that, in the office Stricher asked me [Rice] how long have you been working for us, and I said not too long. And he said has anybody come to you to fill out a Union card. And I said no. And he said, because [Company president] Issa [Tadros] and us, we don't want any Union in the store. . . . He said that Issa will close the doors . . . all of us would be out of a job if he closes the doors. a As the General Counsel restates in her brief (Br. 2-3), the pleadings and documents in the earlier unfair labor practice proceedings were of- fered and received into evidence here solely for background purposes The General Counsel does not seek to reopen the earlier proceedings. Further, Alfonso Hayden, a discrirmnatee in the settled unfair labor practice cases, testified in the instant proceeding with respect to earlier conduct and statements by the Employer solely as background evidence in determining motive or animus here (Tr 56-60). Hayden testified that he was discharged by the Employer on March 17, 1984; that he and co- worker Udell Hamilton were "primarily responsible in trying to organize the employees", and that, following his discharge, he was told by Com- pany President Isla Tadros that employee "Udell had told him [Tadros] how I [Hayden] had masterminded everything . how the meetings were held at my house . . bow he had fired a couple more people . . there is no way a Union could win . . he could get 100 people off the street to vote no against the Union ." and "I had stuck my neck out too far and I did not cover my ass." Hayden also recalled that a manager of Respondent Employer later " hassled" him while he was attempting to make a delivery as "an independent distributor" to one of Respondent's stores 4 The election was held on January 10, 1985. See G.C Exh. 1(1) 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, Rice recalled receiving a copy of General Counsel's Exhibit 13 with his paycheck. General Coun- sel's Exhibit 13, dated December 10, 1984, states in part: As we have stated at the store meeting, we do not want the Union and will not continue to operate with any Union. Rice, as he further testified, had attended a store meeting conducted by President Tadros about November 24, 1984. Tadros "was asking questions about complaints about the store." Rice spoke up and asked for "more hours." Another employee asked "about the pay." Tadros then asked employee Leethaniel Hibbler "if he had anything to say." Rice recalled that, at some point during this meeting, Tadros "got mad" at Hibbler and other complaining employees; Tadros admonished the employees that he was going to put all of them in the store togeth- er and give them 40 hours a week and see if they can run everything . . . if you cannot run every- thing within this week or two I give you ... you are fired. Then, Tadros added: No, I will do better than that, I will just give you all a week to find another job . . . no, better than that, just get out of my store you are all fired ... . Tadros, according to Rice, made the above statements to Hibbler and two or three other employees. Rice next recalled the following conversation with Store Manager Mussa Eldoa (Salami) shortly prior to the representation election: Mussa . . . said . . . you know we do not want a Union in the store. I said yes. And he said, because Issa is trying to pay off bills and if we have a Union he cannot pay off bills and meet Union demands. He asked me how I was voting . I told him I was voting no for the Union, because I wanted to keep my job with them. Then he said . . . to ask the other employees and see who is voting for a Union. And he said, let me know. He said he would take care of me personally. Eldoa then stated to Rice: "Issa and [Manager] Tom [Cronin] do not have anything to do with this, this is be- tween me and you."5 5 On cross-examination, Rice explained that during the store meeting of employees referred to above, Tadros "had asked about conditions in the store"; that Rice had requested "more hours", that employee Hibbler "was asking about more money and too many bosses"; that another em- ployee had "asked the same thing that Hibbler was talking about and that was money ... more money, raises ", that Tadros had "said that we will be getting raises"; that Tadros also had "told" three employees-Hibbler and two others-"they were fired' ; that Tadros and Hibbler, during the meeting, had engaged in a "loud" discussion or argument; that Hibbler had requested "a security guard in the parking lot because people would be getting hurt after dark . to protect them when they leave the store"; and that Tadros had replied - "Once you step out the door you are 11 on your own .... Stanton Baldwin testified that he started working for the Employer at the 95th Street store about March 1984; that he signed a union authorization card during Septem- ber 1984; that he attended a union meeting during early November 1984 with six to eight coworkers; and that he was called into the manager's office about November 21, 1984, where he had the following conversation: ... Stricher ... asked me [Baldwin] did I want a Union, was I for a Union. . . . And I told him yes. . . . Stricher said if we vote for the Union, did I know that Issa was going to close the store down. The Union is not for us, it is for themselves. That if we get a Union the store is going to be closed down. Stricher added: "Look at A & P and National Stores, they went out of business because of a Union." Stricher then warned: "We were both going to be out of a job if the Union comes in." Baldwin responded : "That was a chance I had to take." Baldwin, as he further testified, later attended a store meeting about November 24, 1984. Baldwin recalled this meeting, as follows: Well, first he [Tadros] asked us if we had any questions about the store. What did we dislike about the store. Several people said something and then he got into an argument with Leethaniel [Hibbler] and they got to arguing about several things. He asked us what we disliked about the store. I did not hear too many people say anything because they were afraid. So then he said, "Do not you assholes have fucking nothing to say about the store?" Then he called several people names. Then several , people answered to him. Then he said, "You all think a fucking Union is going to come in and run my fuck- ing store, but you are all full of shit. This is a free country, why do you think I am here. I run my store the way I want to run it because it is my fuck- ing business." Then he asked me how many hours I was getting and then he told-to cut his fucking hours . Then he asked Leethaniel, and had Leethaniel's hours cut. Then when I walked up to him and asked him why he was cutting my hours, because I was for the Union, and then he said, "Leave my fucking store." Baldwin telephoned Tadros on several occasions after the above meeting, and asked him [Tadros] why he was laying me off; I have been there longer than any other employees ... he just kept saying business was slow.6 s On cross-examination, Baldwin explained that, during the above store meeting, Leethamel Hibbler had complained "that there were too many bosses in the store"; that Tadros had "told [Hibbler] that he was going to make him manager"; that some employees "started to laugh"-"they were laughing about what him and Hibbler were talking about"; and that Tadros "got upset about it and so he started cursing, using foul lan- guage-he was upset." HORIZON FOODS Leethaniel Nibbler testified that he started working for the Employer at the 95th Street store about July 1984 as a "bagger"; that he signed a union authorization card during September 1984; that he also attended a union meeting with six or seven coworkers; and that he was later "called into the office" where he had the following conversation with Manager Stricher: Gerry [Stricher] was trying to start the meeting off by saying, was I familiar with the Union. I an- swered not really. He said that a Union was no good for the store because they were just starting out and they had to lay off people and cut people's hours. Stricher then cited "A & P"-they "had a Union and see what happened to them-they had to close down." Stricher warned they would lay off some people and cut hours; [they] might close down the store. Hibbler attended the store meeting about November 24, 1984. He recalled: [Tadros] started the meeting off by saying did any of the employees at 95th Street have any com- plaints. Everyone was like quiet. And he said does not anybody give him any complaints that the whole store was fired. He started off with one of the employees, to my knowledge Joseph, he asked Joseph what was his complaint. And Joseph said that he was not getting enough pay. Then he point- ed at another employee and asked Stan [Baldwin] what was his complaint. Stan said he was not get- ting enough hours or pay. . . . Mostly all the em- ployees he pointed to had the same question. He came to me and he said, "Come on Lee, I know you have some complaints." I told him that my complaint was that I was not getting paid for the three jobs, and he said, "That is a lot of bullshit." And he said that do not anybody here give him some serious answers that the whole store was fired. Then he said, he pointed back to the individ- uals he pointed to and said, "You complain about the hours and pay," he called upon Reynolds the next manager that was there, and he said , "I tell you what, you give him six hours and give the other individuals that answered his questions 12 hours." He said cannot no damn Union or president make him hire us back. Hibbler repeatedly telephoned the store for work follow- ing the above meeting . He was told "that business was kind of slow" and later informed that he had been "fired."7 ' On cross-exam nation, Nibbler explained that Tadros "was not joking" when he said, during the above meeting, that "if nobody had any complaints everybody was fired"; "no one was laughing at the time", "everyone was afraid .. of being fired"; and the last response he gave us was that we were all complaining about the hours and the pay, so, he called upon his manager and told him to cut our hours-the ones that gave him his complaint. 1177 Phaedra Mason was employed by Respondent as a cashier at the 115th Street store during July 1984. She was later transferred to the 95th Street store where she worked until February 2, 1985 . Mason testified that Dis- trict Manager Stricher had the following meeting with her at the 115th (South State) Street store during late November 1984: They called me into the office. . . . Gerry [Stricher] told me, he said that Management there did not want a Union. He asked me if I signed a Union card, and I told him no. He told me ... did I hear about about what happened at that the 79th Street store, and I told him no. Then ... he told me that if the Union got in that they would have to lay off employees and they would put their wives in the place of us, because their wives were not for the Union. . . . He told me [with reference to the 79th Street store] that there was a paper going around for a party, but it was actually for a Union. He told me that if anything came around, do not sign it. Mason observed, at the time, that other store employees were also "called in to meet Mr. Stricher." Shortly prior to the scheduled representation election (January 10, 1985), Mason was working at the 95th Street store. Mussa Eldoa was the store manager. About January 4, Eldoa had the following conversation with Mason at the store service desk, in the presence of a co- worker, He [Eldoa] asked me [Mason] if I was going to be there . . . for the election . . . the Union election. He handed me a piece of paper and it said ballot, yes, no. "No box" was marked no. He said you are going to mark no. He asked me, he said, "What are you going to mark?" I said no. And that was the end of the conversation. Mason acknowledged that she had been dismissed by the Employer on February 2, 1985, and then told by man- agement that she "could not return until [she] repaid what was taken from [her] drawer." Victor Alexander worked at the Employer's 79th Street store until July 1984. He was transferred to the 95th Street store where he worked until November 1984. He was again transferred to the 115th Street store where he worked until January 1985. Alexander testified that he signed a union authorization card on September 5, 1984, at the 95th Street store. Later, in November, Manager Stricher "called" Alexander into the office for a meeting Hibbler acknowledged that "words [were] exchanged" and "there were some obscenities." Hibbler, however, denied using "obscenities." Nibbler also recalled that one employee had complained that the store managers speak in their native language in the store. "Issa responded that is none of your damn business." Finally , Hibbler noted: He [Tadros] told the ones that gave him a complaint , to his manager, to cut their hours, and he said, better yet, he pointed to the ones that gave him a complaint, that you are fired .... Hibbler initially "thought [he] was laid off', however, he ultimately "called Mussa [Eldon, a store manager,] to verify was I just lard off or was I fired", and Eldoa "told me I was fired . . so, I picked up my check." 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, in the presence of Grocery Manager Reynolds Hen- dricks, they had the following discussion: Gerry Stricher called me in and he ... said that I hear they are trying to bring a Union into the stores. He stated that he had been checking the files, that I [Alexander] was the only one around when the Union first was before me at 79th. He said ... according to that ... he assumed that I was the one that started passing the cards out. I told him I did not know what he was talking about. Stricher told Alexander "about Jewel's and A & P, how they went out of business and that the Union did not help them." Stricher said that he could "understand why" Alexander "might want the Union because [he] had a family." Stricher asked Alexander "how much" money he was making, agreed that Alexander was "un- derpaid," and then said that "he was going to look into that for" Alexander. Stricher, at the same time, asked Al- exander "how would [he] vote." Alexander replied: "I was going to vote whatever way I think would benefit me and my family." Later that same day, as Alexander further testified, Al- exander spoke with Company President Tadros . Alexan- der was informed by an assistant store manager "that they had a guy in the office and they were asking about me [Alexander], about who was starting a Union ." Alex- ander promptly "walked into the office" and had the fol- lowing conversation: I [Alexander] asked ... why is everybody want to ask some questions about me. And Issa [Tadros] told me something about I was being evaluated. I said, I do not understand, how am I being evaluat- ed, you are asking the employees, you are not asking the managers . He told me he would talk to me [later] so I left. Tadros later met with Alexander . Alexander explained: He [Tadros] pulled me in the back room ... he said that he found out that I got the cards signed ... he said that Alphonso and Udell ... I think they were much tougher than you. He said, "I took care of them ... I am also going to take care of you." He asked me if I heard anything again. I said no, I have not heard anything about the Union. Tadros cautioned Alexander: "While I [Alexander] was employed by Horizon ... he [Tadros] looked out for me ... he also got my wife working there."Finally, Al- exander agreed to "let him [Tadros] know" when he heard "something" about the Union. Alexander also attended the 95th Street store meeting, with his coworkers, about November 24, 1984. He re- called how Tadros had "asked us did we have any ideas on how we could better the business at the store. People were giving complaints instead. Issa [Tadros] got aroused. He started using profanities towards some of the employees. After he used the profanities he was asking [the complaining employees] how many hours they were working a week ... he told Reynolds to cut them down to the minimum ... he told Lee [Nibbler] to take two weeks off and see if he could find another job out there ... he told us all to leave the store." Alexander further recalled: It was a lot of profanity ... he [Tadros] told us to get the fuck out of the store, so we all left. Alexander explained that when Tadros had said "to cut their hours," there was an "uproar," and we spoke up. You [Tadros] told us to speak up and then when we speak up you want to treat us like this here.... Roderick, Stan [Baldwin] and Lee [Nibbler] were the main three that were talking. Deleria Rogers started working for Respondent in March 1984 as a cashier. She worked at the 115th Street store until June 1984, and was then transferred to the 95th Street store. She was terminated about November 23, 1984. Rogers testified that she signed a union authori- zation card in September 1984. She also attended a union meeting with six or seven coworkers. On November 21, 1984, she was "balled into a meeting" at the 95th Street store. Present were Reynolds Hendricks and Gerry Stricher. She recalled: Gerry Stricher ... asked me was I a part of the Union. I said I was not interested in the Union, did not know anything about a Union.... Reynolds said that I was part of the Union because he had a list [with] names on it. On the list my name was on it. It was underlined and it had a check by it. He said you are a part of the Union because your name is right here on the list.... I asked him where he got the paper from, and he said, sources. On that same day, November 21, Tadros confirmed that Rogers was "going to be transferred" to the Cottage Grove store because they "needed help." A few days later, about November 23, Rogers telephoned Tadros "to talk to him about why I was being transferred." Rogers had been informed by an employee at the Cottage Grove store that "they did not need any help over there." Tadros then told Rogers to "come down to his office" about 6:30 p.m. "to meet with him." Tadros had also ar- ranged to meet with another employee, Christine Wil- liams, that same evening. Later that evening, November 23, both Rogers and Williams went to Tadros' office. They each met separate- ly with Tadros. Rogers testified: Well, Issa asked me if I had any problems in the store. I told him no, I did not. He said, well I have problems in my store and he wanted them solved. Then he asked me if I knew anything about a Union. I told him no. Then he told me that I was going to be laid off for a week until he got his problems solved in the store. He was asking me how did me and Chris [Williams] become friends, and about did I see anybody passing any groceries, or was there any funny business in the store. And I told him, not that I know of. HORIZON FOODS Thereafter, Rogers repeatedly telephoned Tadros for work and Tadros said that "he would still have to lay me off." Rogers, however, observed four or five new cashiers working at the 95th Street store.8 Christine Williams worked at the 95th Street store as a cashier. She too was questioned by Manager Stricher in the store office about November 23, 1984. Williams testi- fied: He [Stricher] asked if I knew about the Union, and I told him yes . . . he then told me that he would advise me not to go for the Union because they would be forced to close the store down. Williams was instructed on that same day to meet with Company President Tadros after work. However, before attending this meeting, she had the following encounter with Relief Manager Jimmie Ottoman: I was getting off in 15 minutes. Five I punched out, went to the lockers to get my coat. Jimmie and Jemma [an office worker] were in there talking in their native tongue. Jimmie turned around and said something that was funny to me. And I turned around and laughed. I said, "You are probably all talking about us anyway." He [Jimmie] got upset. He said, "You are not shit, you are nothing." So, I said, "You are not shit." He said, "Get out here, I do not want to see you back in the store again. And if Mussa [Eldoa] let's you come back into this store that is entirely up to him. When you go over to his office today you tell him." I said, "I am not telling him anything. If you want Issa [Tadros] to know, you have to tell him that yourself." Williams and Rogers were both scheduled to meet with Tadros that evening. Williams recalled her meeting and later events, as follows: s Rogers further testified that about Christmas time, she had contacted the store on 79th Street, which Tadros "used to own." She asked for work and was told that Tadros "would have to give [her] a recommenda- tion to work over there." She again telephoned Tadros and "asked him" for a recommendation. He said that "he would " Rogers was to work at this store for a few weeks-"it was around Christmas time and they needed a little extra help." On cross-examination, counsel for Respondent questioned Rogers about "some difficulty" at the 79th Street store. As noted above, this 79th Street store previously had been sold by Respond- ent Employer. Counsel for Respondent asserted that "Ms. Rogers had a $400 shortage while in the employ of the other store [79th Street] and she was arrested and charged with theft. My client [Respondent] learned of this [and] he did not invite her to come back because, if she was a thief at one store, he did not want her working at his store" (Tr. 173- 174). This was, assertedly, the Employer's "reason" for refusing to rehire or recall Rogers (Tr. 174). Rogers, when further questioned about her in- terim employment at the 79th Street store , explained that she was only given a half-hour break for a 10- to 12-hour workday and "they," the owner, "constantly watched" her. Consequently, she quit She explained to the employer that "because of the half an hour break . . and that I was only going to be over there a couple of weeks . ," that "was not going to do me any good " Later that same day, when Rogers returned home, she was arrested by the police. Rogers testified- They took me down to the police station and went to Court. I had to pay $100 bond. They took my fingerprints ... then they gave me a Court date. So, I went to Court, then, at Court, the man who owns the store, his wife and a couple of other of his people came to Court The [Judge] said he was throwing the case out. She denied knowing "anything about the money " The owner of the 79th Street store did not testify here. See Tr 269-270, 310-311. 1179 He [Tadros] asked if I had anything to tell him. I told him no. He asked me if I had any secrets to tell. I told him no. He then said, "Come on Chris I told you, you can talk to me. You know, talk to Issa, you know talk to me not like I am the boss, but as you are talking to one of your friends." I said, "Okay." I answered all the questions that he was asking me. So, he asked me about the incident with Jimmie and I told him as I said at first. So, after that he then began pacing the floor. Jacking his slacks up around his waist, asking me do you know how I got to where I am at now. I told him no. I worked hard for what I have. I taught myself. I do not care about anything or anybody. The only person I cared about, they're gone now. He asked me how did Deleria [Rogers] and I become friends. I told him by working together. He told me did I know that employees that became friends that one of them did something wrong that the both of them would get in trouble for. I then said no. He then asked me if my car was running yet. I said no. He told me, he said, "I tell you what, I will give you a week off." I said, "Why, I do not want a week off." He said he was going to make prepara- tions for me to have transportation for me to get back and forth to the 115th Street store. I said okay. I was then told to call him a week later. A week later would have been December 1st, I re- member because it was my birthday . I called him that day. He told me to call him back. When I called him back the secretary said he was not in. I called him two days later, it was December 3rd on Monday. When I called him then he told me he had no room for me, he did not need me anymore, plus the business was slow. Gerry Stricher is district manager for Respondent Em- ployer. He testified that he conducted "interviews" of employees at the 95th Street store during November 1984; that he had a "list of employees" with him during these interviews and would "x" their "names off"; and that these interviews were part of an "evaluation pro- gram." Elsewhere, Stricher claimed that "a couple of people had come to me and asked me what I knew about the Union" and, therefore, "in my conversations ... I explained to them what I knew about unions." Stricher generally denied coercively interrogating or threatening employees or engaging in the related conduct attributed to him by the employees in their testimony. He claimed: "I did not say anything good about [the Union] and I did not say anything bad about it." When asked if he could "recall any specifics," he asserted at one point: No, because I had talked to almost each one [and] each one had a different problem ... to tell you the truth I really could not tell you exactly ... I really could not tell you. Stricher, however, admittedly asked employees: "Do you know anything about the Union" or "Did you hear about any Union?" He admittedly spoke to the employ- 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees about unionized employers who "had to go out of business." And, Stricher acknowledged that some "inter- viewed" employees "voiced an opinion" on "how they felt, whether they were for or against the Union." Stricher nevertheless insisted that Rogers and Williams, alleged discriminatees in this proceeding , "did not give me any" statement as to their "feelings" and he denied "knowing" of their union "feelings." He similarly denied "any knowledge" of the "Union sympathies" of Baldwin and Hibbler, also discriminatees in this proceeding. Stricher also attended a meeting of employees called at the 95th Street store on November 24, 1984. He claimed that this meeting was called because "we were having problems with the stores"; we were "losing money"; there were "employee pilferages"; and the "employees were not courteous." This meeting, assertedly, did not "have anything to do with the Union." However, Tadros "wanted to know exactly what everybody's problems were"; "it was open for discussion"; and then the meet- ing "did not turn to things that could be corrected"-"it turned into more or less the protection [the employees] wanted." Stricher, when pressed for specifics, such as, "who said that," responded: "I am sorry but I do not re- member who exactly said that." Stricher generally re- called that "it started to get to be like a shouting match" and Tadros became "upset." Employees Stanton Baldwin and Leethaniel Hibbler, according to Stricher, "were the ones that kept mouthing off'-they "wanted more money." Stricher testified: Q. Did Issa [Tadros] either lay off or cut the hours of these individuals, do you have any recol- lection of that? A. No, because it was a very, very heated, all of a sudden it got not to the point of business. It got to be a personal thing. Stricher heard "obscenities" at this meeting and, as he recalled, "I believe it got to both sides."9 Issa Tadros, president and owner of Respondent, testi- fied that he held "monthly" meetings with his store em- ployees to solve any problems ; that he attended such a meeting on November 24, 1984, at the 95th Street store; that he then asked the employees, "if they have any problems, to discuss it with me"; that employee Leethan- iel Hibbler "suggested that I should have protection" for employees "on the way home" because he had been "jumped outside"; that "I suggested we all have the same problems ... I cannot be a security guard for you"; that Hibbler "got loud mouth ... he was cussing bad words"; and that "I said get the fuck out of here." Tadros recalled that some other employees then "com- plained" that "management people" speak in their ethnic or native tongue, and "I [Tadros] did not appreciate that, so I told them to get the fuck out of here too." Tadros a Elsewhere in his testimony, Stricher could not remember whether anybody was told at the November 24 meeting that "their hours were cut." When asked if employees "were told that they were laid off," he claimed, inter alia, that he "was not aware of what happened." He did not hear "everything that was said." However, Stricher, in his prehearing affidavit, had stated: Tadros was talking to four or five employees and I heard him say he was going to lay him off. asserted that employee Baldwin "was the one that was bringing up" the subject of speaking in a foreign or "funny" language, and Tadros said to Baldwin: "Get the fuck out of my store." Elsewhere, Tadros testified: "They [the employees] kept on arguing with me and I just said to my manager, to cut their hours." Finally, Tadros claimed that he did not mention the Union at this November meeting-the Union's campaign had nothing "to do with this meeting." Tadros next testified that he met with employees Rogers and Williams in his office during November 1984 ..to give Deleria Rogers a couple of weeks off' and to lay off Christine Williams. Tadros claimed that Rogers was "pretty good and she was accurate. [Rogers] and Christine Williams were friends, which did not bother [Tadros] much." Tadros recalled that he previously had told Rogers "that I [Tadros] was going to lay her off for two weeks, then transfer her to the 85th Street store ... [and] she never gave me any problem as far as being transferred." Tadros also claimed that he previously had told Williams that "her problem was with Jimmie ... it was so bad it got out of hand ... even customers heard about it." Tadros, assertedly, told both Rogers and Wil- liams at his meeting with them during November: It does not make a difference, you could become friends, you could do whatever you want, but inside the store you cannot show that much [friendship], because customers will pay attention and it will hurt our business. Elsewhere, Tadros testified that he told Williams during his meeting with her in November that he "would have a hard time solving" her "big problem" with "Jimmie." He then added: "I really had nothing against" Williams-"I think she is a good employee, but the prob- lem with Jimmie got so personal." Tadros explained that this "problem with Jimmie referred to" the fact that Wil- liams refused to perform "normal duty" assignments. However, Tadros told Williams, "to call in a week or so ... I will try to find a solution. . . " Tadros also told Williams: "as far as I am concerned I have a hard time replacing her ... I am laying her off ... if you need a good recommendation, I will give you one." Williams, in fact, did telephone Tadros after this November meeting, however, he then told her that he "could not find a solu- tion." Elsewhere, Tadros claimed: I told [Williams] to keep in touch with me the next couple of days ... but she never called again ... it was so hard to get in touch with her because she was never home. As for Rogers, Tadros claimed that Rogers "called me a week later and [he] told her by next week I will defi- nitely transfer her to 85th Street" store. Then, Tadros claimed, Rogers asked for a recommendation to work at the 79th Street store, which Tadros had sold to Bill Hadad. Tadros gave her "a good recommendation." Later, he was told by Hadad that Rogers "was short ... about $400"; they "arrested her"; they "went to court"; "she asked for a continuance"; they "went the HORIZON FOODS second time and then they just did not bother with it." Rogers, assertedly, never asked Tadros "for her job back after that." Tadros added: "I would not want to call her" when "she was short of money" at Hadad 's store. Finally, Tadros claimed that he had asked Hadad to tes- tify here and Hadad had agreed; however, Hadad could not testify because, assertedly, "his wife has never re- turned home, so he has been looking for her." On cross-examination, it was stipulated that Tadros' prehearing affidavit does not reflect an "argument be- tween Hibbler and Tadros, and Baldwin and Tadros" "or any reference to him telling them to get the fuck out of his store." The affidavit states: After the meeting, I [Tadros] laid off Stanton Bald- win and Leethaniel Hibbler. I do not have any reason for picking out two of them for lay off. Further, Tadros acknowledged training two or three .,new girls" at the 95th Street store after laying off Rogers and Williams. I credit the testimony of Hayden, Gesiaknowski, Rice, Baldwin, Hibbler, Mason, Alexander, Rogers, and Wil- liams as detailed supra. They impressed me as credible and trustworthy witnesses. Their testimony is in large part mutually corroborative of Respondent Employer's pattern of coercive and discriminatory conduct in oppos- ing the Union's organizational effort. Their testimony is also substantiated in significant part by admissions of Tadros and Stricher. On the other hand, I do not credit the testimony of Tadros and Stricher insofar as that testi- mony conflicts with the testimony of the former wit- nesses. The testimony of Tadros and Stricher was at times unclear, vague, incomplete, contradictory, and eva- sive. In sum, on this entire record, I am persuaded that the testimony of Hayden, Gesiaknowski, Rice, Baldwin, Hibbler, Mason, Alexander, Rogers, and Williams consti- tutes a more complete, reasonable, and trustworthy ac- count of this pertinent sequence of events. Discussion Section 7 of the National Labor Relations Act guaran- tees employees "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 activities for the purpose of collective bargaining or other mutual aid or protection," as well as "the right to refrain from any or all such ac- tivities." Section 8(a)(l) makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of" their Section 7 rights. Section 8(a)(3) forbids "discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encour- age or discourage membership in any labor organiza- tion." The credited evidence of record, as recited above, makes it clear that Respondent Employer-in resisting the Union's renewed organizational drive at its stores- embarked upon a widespread campaign of proscribed in- terference, restraint, coercion, and discrimination. The Union filed its second representation petition on October 25, 1984. A hearing was held before the Board on this 1181 petition on November 9, 1984. Management, in response, resorted to the following conduct. As employee Rice credibly testified, District Manager Stricher and Floor Manager Hendricks quizzed Rice in the store office whether "anybody came to you to fill out a Union card." Rice was, at the same time, warned: "We don't want any Union in the store . . . [Company President Tadros] will close the doors . . . all of us would be out of a job if he closes the doors." Store Manager Eldoa similarly interro- gated Rice, "how I was voting." Rice replied : "I told him I was voting no . . . because I wanted to keep my job." Then, Eldoa solicited Rice to "ask the other em- ployees and see who is voting for the Union ." Eldoa promised Rice: "He would take care of me personally." Rice, like his coworkers, received a letter from the Em- ployer stating : "As we have stated at the store meeting, we do not want the Union and will not continue to oper- ate with any Union." And, Rice, like his coworkers, at- tended "the store meeting" where, as discussed below, employees were summarily fired because, in response to employer questions, they spoke up and voiced their com- plaints about their working conditions. Employee Baldwin credibly recalled that he signed a union card and was interrogated by District Manager Stricher in the store office. Baldwin acknowledged to Stricher that "I want a Union." Stricher warned: "If we get a Union, the store is going to be closed down." Bald- win also attended a store meeting presided over by Com- pany President Tadros. Tadros urged the employees to speak up about "what did we dislike about the store." Employees, like Baldwin and Hibbler, spoke up, asking for, inter alia, more hours, pay raises, security outside the store, and complained about supervision. Tadros became upset. He warned the assembled employees : "You all think a fucking Union is going to come in and run my fucking store, but you are all full of shit ." Tadros then started "cutting hours" and ultimately fired employees Baldwin and Nibbler because they had voiced their com- plaints at this meeting. Employee Hibbler, as he credibly testified, signed a union card and was interrogated by District Manager Stricher. Hibbler told Stricher that he was "not really fa- miliar with the Union." Stricher warned: "They would lay off some store people and cut hours . . . they might close down the store." Hibbler, as recited above, attend- ed the store meeting where President Tadros solicited employee complaints. Hibbler spoke up and was threat- ened with a cut in hours and then fired. Tadros "said no damn Union or president make him hire us back." And, employee Mason was similarly questioned by District Manager Stricher. Mason was asked if she had signed a union card; she said "no"; and she was warned: "if the Union got in . . . they would have to lay off employees and they would put their wives in place of us because their wives were not for the Union." The employee was admonished: "Do not sign the paper going around .. . for a Union." The employee was later instructed by Manager Eldoa, in the presence of a coworker, "to mark no" on the representation ballot. Eldoa showed employ- ees a ballot with the no box marked. Eldoa then asked 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mason: "What are you going to Mark?" The employee replied: "No." Employee Alexander signed a union card. District Manager Stricher, during his interrogation of this em- ployee, stated that "he assumed that [Alexander] was the one that started passing the cards out." Alexander claimed that he "did not know what [Stricher] was talk- ing about." Stricher then agreed that Alexander was un- derpaid and promised that he was going to look into that. Stricher, at the same time, asked: "How would [Al- exander] vote"; the employee replied: "I was going to vote whatever way I think would benefit me and my family." Later, Company President Tadros also confront- ed Alexander, stating: "He [Tadros] found out that I [Al- exander] got the cards signed." Tadros threatened: "I am also going to take care of you," referring to previously discharged union supporters. Tadros cautioned: "While I [Alexander] was employed by Horizon ... he [Tadros] looked out for me ... he also got my wife working there." Then, Tadros asked the employee to let him know when he heard something about the Union. Alex- ander agreed that he would let him know. Alexander also attended the store meeting where Tadros cut hours and fired employees who, in response to management, voiced their complaints about working conditions. Employees Rogers and Williams were both cashiers and friends working at the Employer's 95th Street store. Rogers credibly recalled how Stricher and Hendricks in- terrogated her. She was then accused by management of being "part of the Union"; they had a "list of names"; her name was on the list; her name was underlined and it had a check by it; "you are a part of the Union because your name is right here on the list." Rogers asked, "where he got the paper from," and management replied: "Sources." Later, Company President Tadros questioned both employees Rogers and Williams in his office. Tadros asked Rogers about "any problems in the store"; if she "knew anything about a Union"; and "how did [Rogers] and [Williams] become friends?" Rogers was then laid off and later denied recall. Employee Williams, during her interrogation by Tadros, was asked if she "had anything to tell him." She replied: "No." Tadros asked how she and Rogers became friends. Tadros then warned: "Employees that become friends ... [when] one of them did something wrong ... both of them would get in trouble." She, too, was laid off and denied recall. Management, in the meantime, hired new cashiers at this store. Respondent's conduct clearly tended to interfere with employee Section 7 rights, in violation of Section 8(a)(1) of the Act. Employees were systematically and coercive- ly interrogated about their union activities; they were re- peatedly threatened with cuts in hours, layoffs, firings, closedowns, and other reprisals if they supported the Union; their grievances were solicited by management, they were promised wage increases and, at the same time, they were threatened with reprisals; they were asked to spy on the union activities of their coworkers and report this information to management; and they were led to believe by management that their union ac- tivities were under surveillance. Management, at the same time, in violation of Section 8(a)(3) and (1), discriminatorily laid off and fired employ- ees Hibbler, Baldwin , Rogers, and Williams in an attempt to defeat the Union. Thus, Company President Tadros urged the assembled store employees to tell him their complaints. Hibbler and Baldwin spoke up, complaining about various conditions of employment. Tadros re- sponded by deprecating the Union, by threatening to cut their hours, and then by summarily firing them. In like vein, management interrogated employee Rogers about her suspected union activities. Rogers was told by man- agement that her name was on the list of union support- ers. Later, Company President Tadros again questioned Rogers about a union and then laid her off and denied her recall. Tadros, in like vein, laid off and fired Wil- liams. Employees Rogers and Williams was both cashiers and friends. Tadros explained, "Employees that become friends [when] one of them did something wrong ... both would get in trouble." The Employer's conduct was clearly aimed at defeat- ing employee Section 7 rights, in violation of Section 8(a)(1) and (3) of the Act. Respondent Employer argues that "many of the alleged violations of Section 8(a)(1) are simply without a semblance of supportive testimo- ny." (Br. 11.) The credited evidence of record, detailed above, amply supports these allegations.10 Respondent Employer argues that the "overwhelming thrust of all the evidence is that Hibbler and Baldwin were laid off because of arguments, heated by references to Tadros' antecedents, and fanned by the laughter of bystanders." (Br. 16.) The credited evidence is to the contrary. Indeed, Company President Tadros, by his obscene and crude conduct, provoked arguments at his November 24 meeting. Employees Hibbler and Baldwin were fired at this meeting because they spoke up, in response to man- agement's inquiries, and voiced their complaints about terms and conditions of employment . Tadros, in an at- tempt to defeat the Union and because of this concerted employee conduct, deprecated the Union and fired the two employees. Hibbler and Baldwin did not engage in any unprotected misconduct at this meeting, as suggested by Tadros. Respondent Employer argues that "Rogers was laid off for a two week period ... and with Tadros' help ob- tained another job and lost that job under circumstances which ... made her an unacceptable risk" and, further, that Williams had problems." (Br. 16-17.) The credited evidence is to the contrary. Tadros regarded both Rogers and Williams as good employees. Rogers and Williams were both coercively interrogated by manage- ment. Rogers was suspected of union activities . Williams and Rogers were friends. Tadros made clear to Williams: "Employees that become friends ... [when] one of them did something wrong ... both of them would get in trouble." Rogers and Williams were fired by Tadros at the same time in order to discourage employee union ac- 10 Respondent cites variations between testimony and allegations in the consolidated complaint A reading of this record shows that the van- ations, principally pertaining to dates, are inconsequential . Further, the 8(a)(l) violations found were fully litigated by all parties to this proceed- ing HORIZON FOODS tivities. I reject as pretextual management's incredible, unsubstantiated, shifting, and inconsistent reasons for ter- minating these two employees. The Union, in its objections to the January 10, 1985 Board-conducted representation election, cites the above conduct as reason for requiring a new election. I find that the Employer, by the above acts of interference, re- straint, coercion, and discrimination during the critical preelection period, prevented the holding of a fair and free election. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, as alleged. 2. The Union is a labor organization, as alleged. 3. Respondent violated Section 8(a)(1) and (3) of the Act by coercively interrogating employees about their union activities; by threatening employees with cuts in hours, layoffs, firings, closedowns, and other reprisals if they supported the Union; by soliciting employee griev- ances, promising them wage increases , and, at the same time, threatening them with reprisals; by asking employ- ees to spy on the union activities of their coworkers and report this information to management ; by creating the impression that employee union activities were under surveillance; and by discriminatorily firing employees Hibbler, Baldwin, Rogers, and Williams because of their union and protected concerted activities. 4. The Union's objections in the consolidated represen- tation case, involving the above unlawful conduct, are sustained . The January 10, 1985 election should be set aside and a new election held. 5. The unfair labor practices found above affect com- merce as alleged. REMEDY Respondent Employer will be directed to cease and desist from engaging in the conduct found unlawful, and like or related conduct, and to post the attached notice at its Chicago stores. Further, to effectuate the purposes and policies of the Act, Respondent Employer will also be directed to offer employees Hibbler, Baldwin, Rogers, and Williams immediate and full reinstatement to their old jobs or, in the event such jobs no longer exist, to substantially equivalent jobs, and make them whole for any loss of pay they may have suffered by reason of their discharges, by payment to them of a sum of money equal to that which they would have earned but for their discharges to the date of offers of reinstatement, less their net earnings during this period, to be computed in the amount described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977).11 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 11 See, generally, his Plumbing Co., 138 NLRB 716 (1962) 12 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 1183 ORDER The Respondent, Horizon Foods, Inc., Chicago, Illi- nois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their union activities; threatening employees with cuts in hours, layoffs, firings, closedowns and other reprisals if they support the Union (United Food & Commercial Workers Union, Local 1550, Chartered By United Food & Commercial Workers International Union, AFL-CIO, CLC); soliciting employee grievances, promising em- ployees wage increases and, at the same time, threatening them with reprisals ; asking employees to spy on the union activities of their coworkers and report this infor- mation to management; and creating the impression that employee union activities are under surveillance. (b) Discouraging membership in the Union, or any other labor organization, by discriminatorily discharging employees because of their union and protected concert- ed activities, or by in any like or related manner dis- criminating against its employees with respect to their hire or tenure of employment or any terms or conditions of employment. (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 employees Hibbler, Baldwin, Rogers, and Williams 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 ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facilities in Chicago, Illinois, copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. Board and all objections to them shall be deemed waived for all pur- poses 18 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." 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the election conducted days from the date of this Order what steps the Re- on January 10, 1985, in Cases 13-RC-16425 and 13-RC- spondent has taken to comply. 16566 be set aside and a new election held.