Country Boy Markets

122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Grady Delling, Individually and Country Boy Mr. "D" Corp. d/b/a Country Boy Markets; Grady felling, Individually and Glenwood Inc. d/b/a Country Boy Markets; Grady Delling, Individ- ually d/b/a Country Boy Markets and Mark Reed, Attorney. Case 16=CA-12544 27 February 1987 DECISION AND ORDER By MEMBERS JOHANSEN, STEPHENS, AND CRAC,RAFT On 24 September 1986' Administrative Law Judge Thomas D. Johnston issued the attached de- cision. The Respondents. filed exceptions and ,a sup- porting brief, and the General Counsel filed limited exceptions and a brief in support of her exceptions and of the judge's decision. 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,1 and conclusions2 and to adopt the recommended Order.3 i The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis'for re- versing the findings. Sec III,4, of the opinion refers to Store Manager Lonnie Tomlinson as female We correct this inadvertent error of the judge. We also correct the opinion to reflect the correct spelling of "perjure," and to indicate that the accurate citation of NLRB v. Transportation Management Corp. is 462 U.S 393. None of these errors affects our decision. 2 We agree with Judge Johnston that the Respondents violated Sec 8(a)(1) of the Act by discharging Store Manager Kelley because of his refusal to commit an unfair labor practice The credited testimony estab- lishes that Kelley was ordered by the Respondents to terminate the em- ployment of all employees who had signed union authorization cards After the, discharges,, Kelley was discharged for refusing to fill out termi- nation slips showing pretextual reasons for the discharges of five employ- ees who actually had been fired, on instructions from General Manager Dibler, for signing union authorization cards Although those discharges are not before us in this proceeding, on the record before us there can be no doubt that we would find them unlawful if called on to decide the issue, Thus, when Dibler instructed Kelley to prepare the termination slips, he was trying to persuade Kelley to act in furtherance of the Re- spondents' unlawful activities by preparing false documentation to sup- port the Respondents' position. In declining to go along with Dibler's re- peated requests for the termination slips, Kelley was refusing to take part any further in the Respondents' unfair labor practices. It is well settled that an employer violates the Act by discharging a supervisor for refus- ing` to' commit an unfair labor practice See Parker-Robb Chevrolet, 262 NLRB 402 (1982), enfd 711 F 2d 383 (D C. Car. 1983). Accordingly, Kelley's discharge violated Sec. 8(a)(1). s The General Counsel requests that the remedy include a visitatorial clause authorizing the Board, for compliance purposes, to obtain discov- ery from the Respondents under the Federal Rules of Civil Procedure under the supervision 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 and we deny the General Counsel's request ' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Grady Delling, Individually, Country Boy Mr. "D" Corp. and Glenwood' Inc. d/b/a Country Boy Markets, Midwest City, Oklahoma, their officers, agents, successors, and assigns, shall take the action set forth in the Order. Wayne A. Rustin, Esq., for the General Counsel. Charles W. Ellis Esq. (Lawrence, Ellis & Harmon, P.A.), of Oklahoma City, Oklahoma, for the Respondents. Mark L. Reed, Esq., of Del City, Oklahoma, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge. This case was heard at Oklahoma City, Oklahoma, on 8 through 10 July 19861 pursuant to a first amended charge filed on 29' April 19862 in Case 16-CA-112544 by Mark Reed, attorney, and a sixth consolidated com- plaints issued on 26 June. The sixth consolidated complaint, as amended, alleges Grady Delling, Individually and Country Boy Mr. "D." Corp. d/b/a Country Boy Markets; Grady Delling, Indi- vidually and Glenwood Inc. d/b/a Country Boy Mar- kets; and Grady Delling, Individually d/b/a Country Boy Markets (the Respondents) violated Section 8(a)(1) of the National Labor Relations Act (the Act), by dis- charging Store Manager Everett O.V. Kelley for refus- ing to falsify termination slips in order to establish a pre- text for terminating employees as an integral part of a pattern of conduct directed towards employees because of their union activities and other concerted, activities for the purpose of collective bargaining or mutual aid or protection. The Respondents in their answer as amended deny having violated the Act.4 The issue involved is whether the Respondents violat- ed Section 8(a)(1) of the Act by unlawfully discharging Store Manager Kelley for his refusal to commit unfair labor practices by falsifying termination slips in order-to establish a pretext for terminating employees because of their union activities. On the entire record in this case and from my observa- tions of the witnesses, and after due consideration of the i All dates referred to are in 1986 unless otherwise stated, z The original charge was filed on 20 March. s Certain other cases , including Cases 16-CA-12454, 16-C4-12476, 16--CA-12525, 16-CA-12568, 16-CA-12586,16-CA- 12617, and 16-CA- 12670, which were originally consolidated for hearing with the instant case, were settled and severed from the instant case, and another case, 16-CA-12495, was severed, the charge was withdrawn , and the case was closed 4 While the answer pleads certain affirmative defenses, they do not pertain to the instant case 283 NLRB No. 22 COUNTRY BOY MARKETS briefs filed by the General Counsel and the Respondentss I make the followings FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Grady Delling, Individually d/b/a Country Boy Mar- kets, a sole proprietor with an office and place of busi- ness located at Midwest City, Oklahoma, is engaged in the retail operation of a chain of supermarket stores. Country Boy Mr. "D" Corp., an Oklahoma corpora- tion with an office and place of business located in Mid- west City, Oklahoma d/b/a Country Boy Markets, is en- gaged in the retail operation of a chain of supermarket stores. Glenwood, Inc., an Oklahoma corporation with an office and place of business located in Midwest City, Oklahoma d/b/a Country Boy Markets, is engaged in the retail operation of a chain of supermarket stores. During the 12-month period preceding 26 June, Grady Delling, Individually, Country Boy Mr. "D" Corp. and Glenwood, Inc., d/b/a Country Boy Markets in the course of their operations each derived gross revenues in excess of $500,000 and each purchased and received goods and supplies, valued in excess of $5000, at their su- permarket stores located in the State of Oklahoma direct- ly from sources located outside the State of Oklahoma. Grady Delling, Individually, Country Boy Mr. "D" Corp., and Glenwood Inc. d/b/a Country Boy Markets are affiliated business enterprises with common officers, ownership, directors, management, and supervisors; have a common labor policy affecting employees; have common premises and facilities; hold themselves out to the public as a single integrated business enterprise; and are a single employer under the Act. Grady Delling,, Individually, Country Boy Mr. "D" Corp., and Glenwood Inc. d/b/a Country Boy Markets each separately and together are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Union, Local 1680 is a, labor organization within the meaning of Sec- tion 2(5) of'the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondents are engaged in the business of operating a chain of supermarket stores located at Midwest City, Oklahoma, and vicinity . Included among their official and supervisory personnel are Owner Grady Delling, General 'Manager over all the stores Wayne Dibler, Store Manager Lonnie Tomlinson, and former Store Manager Everett O. V. Kelley.7 The Charging Party did not submit a brief e Unless otherwise indicated the findings are based on the pleadings, admissions, stipulations, and undisputed evidence contained in the record, which I credit. 7 The four individuals are supervisors under the Act 123 Although several employees, including Tom Moran, David Link, and Donna Shields, testified Wayne Steven- son held the position of assistant store manager at store 2 under Store Manager Kelley and assigned them duties, approved schedule changes for some of them, allowed employees to leave work early, and made sure employees were doing their jobs, Wayne Stevenson described his authority over the employees as being only similar to that of the office clerical employees who worked there. Stevenson, who referred to his position as "sort of assist- ant manager" or "night manager," denied he ever hired or effectively recommended hiring employees, made the decision to fire employees, or recommended employees be fired. Store Manager Kelley, whom l credit, denied Stevenson held the title of assistant store manager, which is consistent with Stevenson's testimony, and stated when Stevenson closed up the store at night he would instruct Stevenson on what to do. Absent as here any showing Stevenson possessed the statutory indicia of a supervisor within the meaning of Section 2(11) of the Act,8 I find, contrary to the General Counsel's contention, that Stevenson was not a supervi- sor under the Act. About the latter part of 1985 the Union began an orga- nizing campaign among Respondent's employees. Some of the employees who signed union authorization cards were Tom Moran, David Ray, David Link, Donna Shields, and Sharmane Black. These employees all worked at Country Boy Markets store 2 under Store Manager Kelley. Moran signed his card on 29 December 1985 and on 5 January he accompanied Union Organizer Karen Wade to a couple of Respondents' other stores where they passed out union fliers. According to Wade while she and -Moran were at the Glenwood Store she identified herself as a union organizer to Tim Dibler9 who she believed was either the store manager or assist- ant store manager. Wade overheard Tim Dibler, who she also talked to about the Union, talking to his father Gen- eral Manager Dibler on the telephone telling him they had a union organizer in the store and that he would keep her there until Dibler arrived. Afterwards General Manager Dibler came to the store and,saw both Moran and. Wade who spoke to him. However, General Manag- er Dibler only looked at them without saying anything and they left the store, General Manager Dibler did not dispute the testimony of either Wade or Moran, which I credit regarding this incident. Besides signing a union authorization card David Link also solicited another employee at work to sign a card. The, Respondents were admittedly opposed to the Union's organizing campaign. Donna Shields stated General Manager Dibler in a meeting held with employees in Store Manager Kelley's a Sec. 2(11) of the Act defines a supervisor as a person "having author- ity, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if such authority is not of a merely rou- tine or clerical nature, but requires the use of independent judgment " 9 Tim Dibler did not testify 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD office told the employees not to talk about the union in the store. Shields, who I credit, denied this was limited to while employees were on duty. General Manager Dibler acknowledged telling employees not to talk about the Union in the store but said he told them not to do it on company time. Wayne Stevenson testified about late December 1985 or early January General Manager Dibler, during a meeting at which Dibler spoke to Stevenson and another employee with Store Manager Kelley present, mentioned there had been a bunch of cards being passed around about the Union and he did not care or want to know whether they signed them. However, Dibler said unless Owner Delling wanted to go union they were not going union. Dibler mentioned they all knew what happened to Humpty10 and Safeway was about to go out of business in Oklahoma because of the Union so unless Delling wanted to sign the bottom line they were not going union. Under cross-examination Stevenson said when Dibler made the statement Dibler was talking about sign- ing a contract. General Manager' Dibler did not deny the testimony of Wayne Stevenson or Store Manager Tomlinson and I credit their undisputed testimony along with that of Donna Shields and find Dibler made the alleged state- ments that they attributed to him. Store Manager Tomlinson testified that about the end of February, shortly after she became store manager, she was present at one of the meetings General Manager Dibler held with small groups of employees at which Dibler spoke about the Union. Tomlinson stated when one of the employees present asked if they would be ter- minated if they signed' a union card, they said sign and fmd out. Store -Manager Tomlinson, whom I credit, also stated that shortly after she became a store manager, she held a meeting with employees during which she mentioned if the store did go union they would probably end up clos- ing the -store because their store in particular probably would not be able to afford it. Tomlinson also acknowledged about the end of Febru- ary or early March when two employees asked her if the statement Tomlinson had made about closing the store if the Union -came in was true she informed them it was. According to Tomlinson she had been informed they would probably close the store down if the Union came in and she admitted passing that information on to em- ployees. B. The Discharge of Store, Manager Kelley Everett Kelley was employed by the Respondents from 22 October 1984 to 31 January and held the posi- tion of store manager of store 2. Store Manager Kelley stated he first learned about the union, organizing campaign from General Manager Dibler, who came to his store and inquired whether Kelley had any extra employees Dibler could send to the Glenwood store to, work. Dibler gave as the reason he had just fired two employees there, whose names he did 10 Humpty Dumpty was the name of another chain of food stores and some of its stores were purchased by the Respondents after they closed not mention, for signing union cards. Dibler instructed Kelley not to tell the employees the reason they were being transferred. Kelley, as a result of this conversation, transferred employee Jimmy Carr to the Glenwood store. Kelley also stated Dibler on one occasion told him that every store they found out were signing union cards, they were all going to be fired. According to Kelley in December 1985 Wayne Ste- venson informed him employees Tom Moran, David Link, David Ray, Keith Thompson, Donna Shields, and Katherine Johnson had signed union authorization cards. Later Stevenson told him Sharmane Black and a part- time employee named Brian had also signed cards. Wayne Stevenson acknowledged informing Kelley which employees had signed cards. Kelley testified that in January General Manager Dibler came to his store and inquired which employee was Tom Moran. - Dibler then asked Kelley whether he had anything on Moran he could fire him for. Kelley denied having any reason and stated Moran was one of his best employees. Dibler, who had a list of names of employees to get rid of, then instructed Kelley to fire ev- erybody who signed a union card. Dibler also told Kelley on one occasion that Oleen Dunn, who .worked in the office at store 2, had informed Owner Delling and himself about the employees who had signed union cards. General Manager Dibler denied telling Kelley he had fired employees at other stores because of the Union or telling Kelley to fire Tom Moran, Donna Shields, David Ray, or David Link. According to Dibler, as far as he knew it was Kelley who decided to let them go. I credit Kelley rather than ' Dibler, whom I discredit, and find Dibler did instruct Kelley to discharge those employees who had signed union authorization cards. Apart from my observations of the witnesses in discrediting Dibler, I fmd his testimony was contradictory and implausible. Kelley, acting on Dibler's instructions to fire those em- ployees who had signed union authorization cards, stated he personally fired Tom Moran, David Ray, and Donna Shields for signing union authorization cards. Kelley also instructed Wayne Stevenson to fire David Link and Sharmane Black for signing union authorization cards and Stevenson did. Kelley also stated that instead of firing Katherine Johnson for signing a card, he moved her to a job in the bakery because she was the sole sup- port of a large family. Wayne Stevenson acknowledged Kelley had informed him that General Manager Dibler had instructed Kelley to fire the employees who had signed union cards. Tom Moran testified he was fired by Kelley on 6 Jan- uary. The reason Kelley gave was Moran- had gotten into an argument with a checker 3 or 4 weeks -ago. When Moran denied it and told Kelley that was not the real reason he was firing him, Kelley replied all he knew was what he was being told and indicated Owner bell- ing and General Manager Dibler had told Kelley to fire Moran. David Ray testified he was fired by Kelley on 6 Janu- ary. The reason Kelley gave for firing him was the big COUNTRY BOY MARKETS 125 men, whom he did not name, were mad because , Ray did not come in to work the previous Friday. According to Ray he had been called to come in to work the previous Friday by Wayne Stevenson. However, it was his sched- uled day off and he had already made plans. On inform- ing Stevenson he could not come in' and the reason, Ste- venson told him it was okay. Ray denied he had ever been reprimanded about his work attendance. Donna Shields stated on 15 January when she reported to work Kelley informed her she had been laid off. The reason Kelley gave was he had been in, a meeting and he had to lay some employees off because business was slow. Although Kelley asked her whether she wanted to go to work in the bakery and she said she did, Kelley never contacted her. David Link testified that about 7 January, shortly after he began work, Wayne Stevenson informed Link he was going to have to let him go because he had called in sick a couple of times and he was too slow. Stevenson also said it was not his idea to let Link go. Link acknowledged he had called in sick a couple of times but denied he had been reprimanded for it or warned he would be terminated. Link also admitted that on a couple of occasions when General Manager Dibler previously managed the store Dibler had told both Wayne Stevenson and himself they needed to speed up. However, Link was not warned he would be terminated if he did not speed up. Sharmane Black stated on 15 January she was in- formed by Wayne Stevenson she was fired. The reason Stevenson gave was because Black had burned the cook- ies. Stevenson also said Store Manager Kelley had told Stevenson to fire Black. About a week and a half later Black credibly stated without denial that she called Owner Delling and in- formed him she had not signed a union card because she needed a job. Delling then asked Black whether' she was sure she had not signed a card. After Black assured Dell- ing she had not, Delling told Black he would see what he could do about getting her job back and he would contact her. Delling then asked Black if she knew who was giving out names for the people. Black denied knowing who was giving out names so the union people could contact them. Black was rehired a few days later. Both Store Manager Kelley and Wayne Stevenson, who said he acted on Kelley's instructions in firing David Link and Sharmane Black, admitted the reasons they gave to Tom Moran, David Ray, Donna Shields, David Link, and Sharman Black for firing them were false reasons and that the real reasons for their discharge were because they had signed ' union =authorization cards. Immediately following a meeting of the store manag- ers at the Tradewinds Motel, at which Respondents' at- torneys informed them how to conduct themselves during the union organizing campaign that had already started, Owner Delling and, General Manager Dibler held a separate meeting with the 'store managers„ During this second meeting Store Manager Kelley stated Delling said they were his stores and he Would run them as he wanted to and it was just like the old saying that the bas- ketball player that did not foul was not a very good player and they were going to foul a lot and carry on as usual. Store Manager Tomlinson, who attended the meet- ing, also said Delling explained what they could or could not do, during which he made a statement to the effect it was going to be like basketball players and to be a good basketball player you had to foul, and if need be he would foul. Tomlinson denied Delling was just saying they were going to be aggressive. Owner Delling acknowledged mentioning a basketball player fouling. However, Delling's version was he men- tioned even the professional basketball players foul and said while they may occasionally, but not intentionally, do it themselves, they were still going to run their stores and manage them as they knew how to manage them. According to Delling he also said they were going to play by the rules. I credit the testimony of Store Managers Kelley and Tomlinson rather than Delling concerning the statements made by Delling. Besides my observations of the wit- nesses in discrediting Delling, his testimony was both im- plausible and contrary to that of other supervisory per- sonnel of the Respondents. Store Manager Kelley testified that after the meeting ended, General Manager Dibler instructed him to fill out termination slips on the people he had fired. Kelley re- fused telling Dibler he was not going to fill them out and perjure himself in front of the National Labor Relations Board. Kelley acknowledged Dibler did not tell him what to put on the termination slips; however, he knew Dibler did not want him to put on there it was because they signed a union card. According to Kelley, prior to that time the Respond- ents did not require termination slips for discharges and he had never prepared any previously or been asked to. General Manager Dibler acknowledged instructing Kelley to prepare termination slips listing the reasons why he fired Tom Moran, David Ray, and David Link, but denied telling Kelley to falsify the information. Dibler admitted that the use of termination slips did not begin until sometime in January. This occurred on advice of counsel after a charge had been filed about the middle of January regarding Tom Moran''s discharge. About 2 days later Dibler asked Kelley in person whether he had filled the termination slips out and Kelley informed Dibler he had not. According to Kelley, every 2 or 3 days on about a dozen occasions, including both on the telephone and in person, Dibler asked him whether he had the termination slips ready whereupon' he informed Dibler he had not and said he was not going to fill them out. The last time Kelley stated he was asked for the termi- nation slips was on 30 January. On that occasion a girl from the office named' Jeannie came to the store that morning and informed ' Kelley that Dibler had sent her there to see if Kelley had filled out the termination slips and told Kelley if he had not she was supposed to call Dibler right back. Kelley told her to tell Dibler he was not going to fill them out and perjure himself in front of the National Labor Relations Board. Wayne Stevenson also stated there were several tele- phone calls from Respondents' office asking for the ter- mination slips from Kelley and, on one occasion, an 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD office girl came to the store and asked for them . Steven- son also stated Kelley had told him Dibler wanted termi- nation slips for the discharged employees but Kelley told Stevenson he did not want to write them because if the cases ever came to court he would have to perjure him- self on the stand because the letter would be a lie. General Manager Dibler acknowledged requesting Kelley on 6 to 10 occasions to deliver the termination slips to him. However, he stated Kelley always replied he did not have time or to check with Kelley in a day or two. Dibler denied Kelley ever said he was not going to furnish them until the day he discharged Kelley. To the extent the testimony of Kelley and Dibler con- flicts, I credit Kelley for reasons previously stated. On 31 January Kelley was discharged by Dibler. Kelley stated on that occasion Dibler first reminded him of a conversation they had about a month ago in which Kelley had asked Dibler whether he was going to be fired.il Dibler then said he finally remembered to ask Delling about it and Delling had said to go ahead and terminate Kelley and let them make a change. The reason Dibler gave Kelley for discharging him was poor inventory. Dibler's version of the discharge conversation was when he went out to discharge Kelley that day he first asked Kelley whether he had the termination slips. Kel- ley's response was he had them but in a safe deposit box and would produce them when the time was necessary. Dibler then said he and Owner Delling had talked and decided to make ' a change because Kelley had asked Dibler previously if he was going to be fired and had mentioned moving into a house and had heard rumors and knew he was going to get fired. I credit Kelley's version of the discharge conversation rather than Dibler, whom I have previously discredited. Following Kelley's discharge he'was replaced by Jeff Holmquist who was manager of store 7. C. Respondents' Defense General Manager Dibler testified the reasons, Store Manager Kelley were given for being discharged were because he was overstocked on inventory and operating at a loss. While these were the reasons that led to the decision Dibler stated, there were other reasons includ- ing Kelley did not come up and sack groceries when he was supposed to, he would not work in the office or run a register, and his inability as a store manager. The reasons Owner Delling gave for Kelley's dis- charge were he was continuously overbuying and was not making any progress in cutting inventory down and they just had too much excess inventory. General Manager Dibler stated that in November 1985 he and Owner Delling first talked about discharging Kelley and made the decision to do so but then decided to wait until after the holidays were over because Kel- ley's wife was ill. While Owner Delling testified he first considered discharging Kelley in October or November 11 According to Kelley about a month earlier he wanted to move into a house but first talked to Dibler to make sure -he was not going to be discharged because of a rumor he had heard about his being discharged, which Owner Delling had already denied 1985 but did not act then because Kelley's wife was -ill and the holidays were coming up he, unlike Dibler, stated he was hoping Kelley would come around and do a better job, which he denied Kelley did. Delling testified that beginning about August or Sep- tember 1985 he talked with Kelley on several occasions about Kelley's excess inventory and how much overbuy- ing Kelley was doing. According to Dibler, carrying a high inventory makes it hard to make a profit and results in damages. Dibler also stated on different occasions he counseled Kelley about his inventory. During June 1985 Dibler said the inventory was $30,000 to $35,000 too high and he in- formed Kelley that Kelley needed to cut it down. How- ever by October 1985 instead of decreasing the inventory it had increased another $30,000 for a total of $185,000. Both Delling and Dibler stated that about October 1985 they met with Kelley at which time Delling took away Kelley's right to make purchases for the store without Dibler's approval. According to Dibler after this meeting at Delling's suggestion approximately $35,000 to $40,000 worth of in- ventory at Kelley's store was then returned between 5 October 1985 and 4 January to the Flemming Company or transferred to other stores of the Respondents. Respondents' records, as indicated by a summary taken from them, reflect store 2's average weekly sales were approximately $29,147 and the inventory on hand there was approximately $155,713 on 22 June 1985; $185,587 on 5 October 1985; $142,968 on 4 January; and $134,962 in February.12 The summary also reflects the inventory for store 6, which is the only other store with comparable average weekly sales of approximately $28,335, was approximate- ly $123,290 on 5 October 1985 and $110,659 on 4 Janu- ary. However, the record does not reflect what the in- ventory was on 22 June 1985 or February. General Manager Dibler acknowledged inventory is normally higher around holidays such as Thanksgiving and Christmas in order to meet customers' demands. The Respondents presented several employees who previously worked under Store Manager Kelley., Barbara Conley, who previously managed a store for the Re- spondents, stated while she worked in the office under Kelley, Kelley would not do anything that needed to be done such as checking, carrying out groceries, taking care of the -front end, or scheduling, and caused friction among employees by telling one employee something about the other employee. Conley also described .the back room as being so full of inventory a person could hardly get through it. Jimmy Carr claimed while working under Kelley at store 2, as compared with periods he worked under other store managers there, the back stock was growing and Kelley was overordering because it was piling up in the back. Carr also said Kelley would not help out with checking, when it was needed. Carr acknowledged he had never been a store manager or ordered inventory. 1 t General Manager Dibler stated this inventory was conducted 1 Feb- ruary. COUNTRY BOY MARKETS 127 Eric Russell claimed under Manager Kelley the back room was overstocked with inventory whereas under Store Manager Holmquist it is now way down. Although Russell stated he ordered inventory for his frozen foods department, he acknowledged he did not order inventory for the entire store. Neva Moseley, who worked as assistant store manager at store 2 under several managers, including Larry Wilder, Wayne Dibler, and Kelley, stated while Kelley was manager there was a lot of stock in the back room, the shelves were stocked from the floor to the ceiling, and when trucks came in they did not have anywhere to put the stock. Under Dibler and Wilder, however, they did not get stuff in they did not need and what merchan- dise they got in it went right to the shelf or on the floor. Moseley acknowledged the store manager was the person responsible for ordering inventory for the entire store. Both Owner Delling and General Manager Dibler ad- mitted having knowledge about the Union's attempt to organize Respondents' employees and they were con- cerned and took actions to prevent it. However, Delling, on being asked whether Kelley's involvement or conduct in the union organizing drive had anything to do with his decision to discharge Kelley, responded by denying he had any knowledge of Kelley having anything to do with it in any way. Neither Delling nor Dibler specifical- ly denied that Kelley's refusal to fill out termination slips on those employees Kelley discharged for signing union authorization- cards had anything to with his discharge. Store Manager Kelley admitted he had been counseled by General Manager Dibler for carrying too high an in- ventory and Dibler wanted it down before the end of the year. However, Kelley denied his inventory was high during the latter part of December 19,85 through his dis- charge in late January, and stated in fact by 4 January it was down $40,000. Kelley also stated a lot of inventory had been taken out of his warehouse by Owner Delling and General Manager Dibler and he never saw where he had been given credit for it. Kelley denied his store was losing money on the inventory. Kelley also denied he had ever been reprimanded for his job performance or ever Warned he would be dis- charged because of a bad inventory. Besides having a charge on his behalf filed with the Board, Kelley also filed a charge with the ' Equal Em- ployment Opportunity Commission against the Respond- ents alleging his discharge was based on age discrimina- tion. D. Analysis and Conclusions The General Counsel contends the Respondents violat- ed Section 8(a)(1) of the Act by unlawfully discharging Store Manager Kelley, a supervisor under the Act, for refusing, to falsify termination slips in order to establish a pretext for terminating employees because of their union activities and in effect discharged Kelley for his refusal to commit unfair labor practices. The Respondents deny having violated the Act and assert Kelley was dis- charged for overstocking on inventory and operating at a loss, not performing his duties, and his inability as a store manager. The Respondents in their brief denied the General Counsel had proved Kelley was fired because he refused to author a false record intended for Respond- ents personnel file. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. The law is well settled that an employer violates Sec- tion 8(a)(1) of the Act by discharging a supervisor for re- fusing to commit unfair labor practices because such dis- charge interferes with the exercise of employees' Section 7 rights coupled with the need to ensure that even statu- torily excluded individuals may not be coerced into vio- lating the law. Parker-Robb Chevrolet, 262 NLRB 402, 404 (1982); and Advertiser's Mfg. Co., 280 NLRB 1185 (1986). Where motivation" for discharge is at issue in cases alleging violation of Section 8(a)(1) of the Act the Gen- eral Counsel must make a prima facie showing sufficient to support the inference that protected activity by em- ployees was a motivating factor in an employer's deci- sion to discharge -them and the employer then has the burden of showing the employees would have been dis- charged absent the protected activity. Wright Line, 251 NLRB 1083, 1089 (1980),' enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 459 U.S. 1014 (1982). Direct evidence of discriminatory motiva- tion ' is not necessary to support a f nding; of discrimina- tion and such intent may be inferred from the record as a whole. Heath International, 196 NLRB 3113 (1972). The findings supra establish that Store ' Manager Kelley, a supervisor under the Act, acting on specific in- structions from General Manager Dibler to discharge all the employees at his store who had signed union authori- zation cards, discharged employees Tom Moran, David Ray and Donna Shields and had, Wayne Stevenson dis- charge David Link and Sharmane Black all because they had signed union authorization cards. Dibler and Owner Delling had been told which employees had signed cards. Both Kelley and Stevenson orally gave those em- ployees false reasons for their, discharges in order to con- ceal'the real discriminatory reasons for discharging them. Following their discharges, which occurred during 6 through 15 January, Dibler instructed Kelley to fill out written termination slips on the employees he had dis- charged. Kelley refused, informing Dibler that he was not going to purger himself in front of the. National Labor Relations Board. While Dibler did not instruct Kelley what reasons to put on the termination slips, it was, obvious Dibler was not seeking to have the records show the employees were actually fired because they signed union authorization cards. Moreover, when Kelley told Dibler he refused because he was not going to purger himself, Dibler did not assure him he did not have to. Despite repeated requests by Dibler up until the day, before Kelley's discharge for Kelley to furnish Dibler with the termination slips for the discharged em- 13 The motivation at issue here is whether Kelley was discharged for refusing to commit unfair labor practices as contended by the General Counsel or for cause as the Respondents argue in their brief. 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees, Kelley steadfastly refused to furnish them saying he was not going to fill them out or purger himself in front of the National Labor Relations Board. It is clear that Dibler, by his demands to get Kelley, who refused to prepare falsified records to conceal the fact the Re- spondents had discharged five employees for signing union authorization cards, sought to have Kelley commit further unfair labor practices. The Respondents' claims that Kelley was discharged because of overstocking inventory and operating at a loss, not performing his duties, and his inability as a store manager are unpersuasive, not supported by the evi- dence, and are rejected . Although Kelley's store did have a high inventory and Kelley was counseled about it, Respondents' own records reflect it substantially de- creased between 5 October 1985 and 1 February. While some of the decrease was attributed to shipping and transferring stock elsewhere, this occurred before the further decrease in inventory between 4 January and 1 February. Moreover if, as Respondents assert, Kelley's right to make purchases without Dibler's approval was revoked in October' 1985 it appears from that time on Dibler was aware of and approved Kelley's actions in or- dering inventory for the store. Insofar as the other rea- sons given for Kelley's discharge are concerned no pro- bative evidence was presented to support them . The re- quired duties of a store manager for the Respondents were never fully defined and Kelley denied that his store, which Respondents' own records show had aver- age weekly earnings of approximately $29,147, was oper- ating at a loss. Based on the foregoing findings as discussed and having rejected Respondents' defense, I am persuaded and fmd the Respondents violated Section 8(a)(1) of the Act by discriminatorily discharging Store Manager Kelley, a supervisor 'under the Act, on 31 January be- cause he refused to commit unfair labor practices under the Act by preparing termination slips showing false rea- sons for the discharges of five employees who were dis- charged for signing union authorization cards . I further fmd the reasons given by the Respondents for discharg- ing Kelley were mere, pretexts to conceal the discrimina- tory reason for his discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, found to constitute unfair labor practices oc- curring in connection the operations of the Respondents described in section I, above , have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. 2. United Food and Commercial Workers Union, Local 1680 is a labor organization within the meaning of Section 2(6) and (7) of the Act. 3. By discharging Everett Kelley, a supervisor under the Act, on 31 January 1986 for refusing to commit unfair labor practices thereby interfering with the exer- cise of employees' rights under Section 7 of the Act, Re- spondents violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act . Accordingly, the Re- spondents shall be ordered to offer immediate and full re- instatement to Everett Kelley, or if that job no longer exists, to a substantially equivalent job without prejudice to his seniority and other rights and privileges and make him whole for any loss of earnings and other compensa- tions he may have suffered as a result of his discriminato- ry discharge on 31 January 1986. Backpay shall, be com- puted in accordance with the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). The Respondents shall be ordered to remove from their files any references to the discriminatory discharge of Everett Kelley herein found and to notify ' him, in writing, this has been done and evidence of their unlaw- ful conduct will not be used as a basis for future , person- nel actions against him. The General Counsel's request that the remedial order include a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure to enable it to monitor compliance with the Board's Order as enforced by the court of appeals is re- jected on the grounds the Board does not provide for discovery procedures in its proceedings and there is no showing that under the circumstances presented here such a clause is necessary. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed14 ORDER The Respondents, Grady Delling, Individually, Coun- try Boy Mr. "D" Corp., and Glenwood Inc. d/b/a Country Boy Markets, Midwest City, Oklahoma, their officers, agents, successors, and assigns, shall 1. Cease and desist from CONCLUSIONS OF LAW 1. Grady Delling, Individually, Country Boy Mr. "D" Corp., and Glenwood Inc. d/b/a Country Boy Markets are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 14 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. COUNTRY BOY MARKETS 129 (a) Discharging supervisors for refusing to commit unfair labor practices thereby interfering with the exer- cise of employees' rights under Section 7 of the Act. (b) 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 Everett Kelley immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent job without prejudice to his se- niority and other rights and privileges and make him whole for any loss of earnings and other compensations he may have suffered by reason of his discriminatory dis- charge on 31 January 1986 in the manner set forth in the remedy section of the decision. (b) Remove from their files any references to the dis- charge of Everett Kelley herein found to be unlawful and notify him, in writing, this has been done and evi- dence of their unlawful conduct will not be used as a basis for future personnel actions against him. (c) 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 backay due under the terms of this Order. (d) Post at all of their stores located at Midwest City, Oklahoma, and -vicinity copies of the attached notice marked "Appendix."15 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondents' authorized' representa- tive, shall be posted by the Respondents 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 Respondents -to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondents have taken to comply. IT IS FURTHER ORDERED that with respect to Case 16- CA-12544 the sixth consolidated complaint, as amended, is dismissed insofar as it alleges unfair labor practices not specifically found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge our supevisors for refusing to commit unfair labor practices thereby interfering with the exercise of employees' rights under Section 7 of the Act. 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 Everett O. V. Kelly immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job without prejudice to his seniority and other right's and privileges and WE WILL make him whole for any loss of earnings and other benefits he may have suffered by reason of our discrimi- nation against him, with interest. WE WILL remove from our files any references to the discharge of Everett O. V. Kelley herein found unlawful and WE WILL notify him, in writing, this has been done and evidence of our unlawful conduct will not be used as a basis for future personnel action against him. is 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." GRADY DELLING, INDIVIDUALLY, ' COUN- TRY BOY MR. "D" CORP., AND GLEN- WOOD INC. D/B/A COUNTRY BOY MAR- KETS