Food Cart Market

1016 FOOD CART MARKET Manuel and Joseph Hoffer t/a Food Cart Market and United Food and Commercial Workers Union Local 1357, a/w United Food and Com- mercial Workers International Union . Case 4- CA-14393 20 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 18 January 1985 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent' filed exceptions and a supporting brief and the General Counsel filed a brief in sup- port of the judge's decision and in opposition 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,2 and conclusions, to modify the remedy,3 and to adopt the recommended Order.4 The judge found that the Respondent violated Section 8(a)(1) of the Act by threatening to dis- charge employees for union activities, threatening to cut employees' wages and hours if the Union became their collective-bargaining representative, and interrogating an employee about union activi- ty. The judge further found that the Respondent violated Section 8(a)(3) and (1) of the Act by ter- minating or laying off employees Winifred Gaines, Barbara Lambus, and Juanita Cosby. In addition, the judge concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union as the exclusive bargaining representative of its employees at a time when the Union enjoyed majority support. To remedy the i We use the term "the Respondent" to refer collectively to the charged entity and its principals 2 The Respondent has excepted to some of the ,fudge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 8 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 4 We have revised the judge's recommended notice to conform with the recommended Order by including a provision relating to the expunc- tion remedy violations, the judge recommended that a bargain- ing order be issued. We have carefully reviewed the Respondent's exceptions and find them meritorious only with re- spect to whether employee Julio Feliciano's card should be counted in assessing the Union's majority support on 18 April 1984, the date of the Union's bargaining demand. 5 For the reasons set forth below, we reverse the judge's finding that Feli- ciano's card should be counted. As we agree with the judge, however, that the other 15 proffered au- thorization cards are valid, we adopt the judge's conclusion that the General Counsel has estab- lished the requisite majority support in the stipulat- ed appropriate unit on the critical date-i.e., 15 cards in a unit of 29 employees as of 18 April 1984. In light of our agreement with the judge's conclu- sions that the Respondent violated the Act as oth- erwise alleged, we further adopt the judge's finding that the issuance of a bargaining order is appropri- ate in this case. 1. The record establishes that Feliciano's testimo- ny is confusing, contradictory, and partially unin- telligible. Feliciano, whose native language is Span- ish but who testified in English, displayed difficulty understanding many of the questions addressed to him and evinced only a limited ability to read Eng- lish. Where cardsigners have no facility in reading the printed language on an authorization card, the Board considers evidence as to how the message on the card was translated or otherwise explained to the employee.6 On direct examination, Feliciano stated several times that he signed only one author- ization card. When shown an affidavit given to a Board agent that apparently revealed he executed two cards, Feliciano continued to insist he signed only one. Feliciano ultimately authenticated his sig- nature on two cards offered into evidence by the General Counsel, one dated "11-24" (no year indi- cated) and the other dated "3-19-84." Although Feliciano first testified that he filled out and signed the "11-24" card, he later testified that he did not know who filled out or gave him that card and could not recall anyone explaining to him what the card meant. Regarding the "3-19-84" card, Feli- ciano originally testified that he did not know who completed the card. He subsequently altered that testimony by stating that employee Caraballo gave S Although we adopt the judge's finding that Ruiz' card is valid and should be counted, we disavow the judge 's superfluous statements re- garding the improbability that Ruiz signed the card without receiving an explanation of its purpose and the unlikelihood that Caraballo would have misrepresented that purpose We rely instead on the affirmative evi- dence presented by the parties e Maximum Precision Metal Products, 236 NLRB 1417, 1425 (1978) 286 NLRB No. 95 FOOD CART MARKET 1017 him the card and filled in the blanks.7 Feliciano also testified that he did not read the cards," did not know what they meant when he signed them, and that there was no mention of the Union at the time his signatures were solicited.9 There is no evi- dence that the cards were at any time translated into Spanish for Feliciano or that their contents were explained to him. Feliciano testified, "I didn't know what it [the card] was for, but he [Caraballo] told me to sign that it was good for us [sic]." It was only after considerable prodding that Feliciano testified that he signed a union card because he was told "about a couple of benefits" and "because we wanted the Union to represent us." Given the nu- merous inconsistencies in Feliciano's testimony, and the confusing context in which portions of his testi- mony were elicited, we conclude that it is ques- tionable whether Feliciano understood the meaning and purpose of an authorization card when his sig- natures were solicited. In light of such unreliable testimony, we conclude that Feliciano's card cannot be counted towards establishing the Union's majority support. 2. Regarding the terminations of employees Gaines and Cosby, our dissenting colleague, the Chairman, would find that the General Counsel failed to prove that the Respondent had knowledge of the employees' union activities. We disagree, as explained below, and find instead that the General Counsel has established a prima facie case that Gaines' and Cosby's terminations were motivated by their activities on behalf of the Union. We also find that the judge properly discredited the nondis- criminatory grounds asserted by the Respondent as justification for the discharges and conclude that the Respondent did not establish that the dis- charges would have occurred even in the absence of the employees' union activities.10 9 We note that although Caraballo testified under subpoena for the General Counsel regarding card solicitation activities, he was not asked to corroborate Feliciano's testimony that he solicited Feliciano 's card. a Feliciano testified that he did not read the card he obtained from Caraballo "because he [Caraballo] filled out the information on it and he just told me to sign it " Feliciano further stated that he recalled telling the Board agent who took his affidavit that he did not read the cards. After reading his affidavit silently, Feliciano again testified that he did not read the cards Finally , the General Counsel asked Feliciano to read into the record the statement in his affidavit that said "I read the card before I signed it " When asked , "[I]s that what the document says?" Fe- liciano responded , "Yes I remember that " Given the context in which the final question was asked and answered, we cannot conclude that Feli- ciano in fact read the cards before he signed them It is not clear from Feliciano's ultimate response whether he recalled reading the cards or whether he simply recalled including a cei tam statement in his affidavit 9 The judge asked Feliciano whether Caraballo mentioned the Union at all while allegedly soliciting his card Feliciano responded , "No, not at all " Feliciano confirmed this response during one of several subsequent recross-examinations 10 Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F2d 899 (1st Cir 1981), cert denied 455 U S. 989 (1982), approved by the Supreme Court in NLRB v Transportation Management Corp, 462 U S 393 (1983) As set forth fully in the judge's decision, in late October 198311 Gaines and Cosby discussed the need for union representation. Gaines, a cashier in the Respondent's employ since June 1981, contact- ed a union organizer, and on 2 November Cosby, a cashier since June 1978, met with a union repre- sentative and signed an authorization card. Also on 2 November, Gaines signed an authorization card handed to her by Cosby outside the Respondent's market. Gaines thereafter arranged a union meeting at her home on 11 November, attended by six em- ployees including Gaines, Cosby, and discriminatee Lambus. The judge found that between October and her termination on 18 November, Gaines spoke with 12 employees about the Union, 8 of whom signed authorization cards. Although the record shows that Gaines communicated with some of the employees by telephone following her discharge, the record reveals that three of the cards solicited by Gaines were signed prior to her termination. Cosby, in addition to the union activities set forth above, spoke with seven employees regarding unionization (five of whom signed cards) and solic- ited an authorization card from Lambus. Our dis- senting colleague agrees that Lambus, an active union supporter, was unlawfully terminated the same day that Cosby was laid off,-Le., 19 April 1984, 1 day following the Union's demand for rec- ognition. The record is replete with evidence of union animus, a factor in the General Counsel's prima facie case, which the dissent does not dispute. For instance, within days after employees held a union meeting in one of their homes in late March 1984, Owner Joseph Hoffer unlawfully threatened to fire "anybody caught having a union meeting in their house, or anything to do with the Union." About the same time, Hoffer coercively interrogated an employee regarding his attendance at a union meet- ing and again threatened to fire employees who supported the Union. Moreover, in April 1984, Hoffer threatened to reduce wages and work hours if employees supported the Union. We are particularly persuaded by the relation- ship between the Respondent's threats and actual events at issue here. Thus, Gaines was fired the day after having had a union meeting at her home, and Cosby and Lambus were terminated the day after the Union demanded recognition. We take issue with our dissenting colleague's statement that there is no evidence that the Respondent learned of the Union's organizing campaign before its admit- ted knowledge in early 1984. We infer instead from our analysis of all the evidence that the Respond- I I All dates are 1983 unless otherwise indicated 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent indeed had knowledge of its employees' interest in the Union as early as November when Gaines was fired. To find otherwise would be to ignore pertinent evidence. For example, the Respondent has failed to explain adequately why Gaines was fired 1 week after hosting a union meeting in her home. On the contrary, the Respondent has pre- sented shifting defenses regarding Gaines' termina- tion, all of which were properly found by the judge to be mere pretext rather than grounds actu- ally relied on.12 Judging from the Respondent's obvious hostility toward the Union, it would appear that the Respondent terminated Gaines in an effort to thwart its employees' incipient organi- zational campaign by making an example of one of the initial active union supporters. The Respondent in essence admitted it fired Gaines for her union activities when it informed discriminatee Lambus on 19 April 1984 that Lambus was being laid off because she and Gaines "started this whole union thing." And there is nothing in the record to sug- gest that this remark was based on information ob- tained after Gaines' discharge. Thus, like the judge, we find that Gaines was terminated because of her union activity. Following Gaines' discharge it appears that for the next several weeks the organizational campaign was dormant. The resumption of the employees' union activities in mid-January 1984 prompted the Respondent to take further actions aimed at re- straining its employees in the exercise of their right to organize. Again, those employees most active and open in their support of the Union were target- ed, resulting in the termination/layoff of Lambus and Cosby. Our dissenting colleague does not dis- pute that Lambus was unlawfully terminated imme- diately following the Union's recognition demand, but would nevertheless find no prima facie case that Cosby's layoff the same day was unlawful. Cosby, however, was an active union supporter at all times that Gaines and Lambus were active, the three were among the most active employee orga- nizers and, in time, all were eliminated from the Respondent's employ. We find such facts establish more than the mere "suspicion" on which our dis- senting colleague claims we rely. Furthermore, we note that the judge discredited the Respondent's denial of knowledge of Cosby's union activities, noting the shifting testimony of Hoffer, the owner, about when he first had knowledge of the Union's campaign, and we note his attempt to conceal the 12 At the time of her discharge she was told she was the least senior employee, and that another employee , whom Gaines protested had less seniority, would also be released. The evidence indicates both statements were false. extent of his knowledge of the union movement and its supporters. With respect to our dissenting colleague's posi- tion that assuming the Respondent had knowledge of Cosby's union activities her termination would nonetheless be lawful in light of her repeated re- quests for a layoff, we agree with the judge that the Respondent has failed to explain why Cosby was laid off the day after the Union made its rec- ognition demand rather than on an earlier date closer to her most recent layoff request. That re- quest, the judge found, occurred about 1 month before Cosby's actual layoff. In the absence of an acceptable explanation for the timing of the Re- spondent's actions regarding Cosby, we give con- siderable weight to the fact that the only interven- ing event between Cosby's last layoff request and her actual layoff was the Union's recognition demand. In sum, we conclude, that the circumstances sur- rounding the terminations of Gaines and Cosby are sufficient to establish, through inference, that the Respondent was aware of their union activities and fired them for that reason.13 In this regard we rely particularly, as set forth above, on the extent of the union activities of Gaines, Cosby,14 and Lambus; the Respondent's evident union animus; the abrupt- ness of Gaines' termination 1 week after she hosted a union meeting in her home; and the layoff of Cosby and Lambus 1 day following the Union's demand for recognition. In inferring knowledge, we rely also on evidence establishing that the Re- spondent employed a small nonsupervisory work force of about 29 employees in a building of only 6500 square feet, and that the Respondent's enter- prise was operated informally as a "family busi- ness," with Hoffer regularly working in the store with his employees. Just as our dissenting colleague argues that there is no indication in the record that the employees' organizing activities took place openly on the Respondent's premises, there is no evidence that the employees, including Gaines and Cosby, made any effort to hide their extensive union activities, including card solicitations, from management. Finally, Hoffer, as set forth above, evidently was informed of off-premises organiza- tional activity and engaged in unlawful interroga- tion regarding the union activities of his employees. " s Cf D & D Distribution Co v NLRB, 801 F 2d 636 (3d Cir 1986), NLRB v Long Island Airport Limousine Service, 468 F 2d 292, 295 (2d Cir 1972), Glenoaks Convalescent Hospital, 273 NLRB 488, 491 (1984) 14 We disagree strongly with our dissenting colleague's characteriza- tion of Cosby's union activities as "minimal " As set forth above, Cosby was vocal in her support of the Union and actively solicited employee support FOOD CART MARKET 1019 Accordingly, we find that the General Counsel has satisfied her burden of establishing that the Re- spondent had knowledge of the union activities of discriminatees Gaines, Lambus, and Cosby and we affirm the judge's finding their discharges were un- lawful. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Manuel and Joseph Hoffer t/a Food Cart Market, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. I agree with my colleagues that the Respondent violated Section 8(a)(1) through Joseph Hoffer's various threats to and interrogation of employees. I also agree with their conclusions that employee Lambus was unlawfully discharged and that em- ployee Feliciano's authorization card should not be counted in determining whether the Union gained majority status. I cannot agree, however, with the majority's findings that the Respondent unlawfully terminated employees Gaines and Cosby. Further, because I would not include these two employees in the bargaining unit or count their authorization cards toward the Union's majority, I find that the Union has not established majority support and I dissent from the granting of a bargaining order. I Employee Gaines began working for the Re- spondent as a cashier about June 1981. In late Oc- tober 1983 Gaines and alleged discriminatee Juanita Cosby began discussing the need for union repre- sentation. Gains contacted a union organizer and on 2 November 1983 signed a union authorization card. On 11 November 1983 it union meeting was held at Gaines' house at which six employees were present. On arriving for work on 18 November 1983, Gaines was informed by Joseph Hoffer that he was going to have to let her go because work was slow. The standard used by the Board in determining whether an employer discriminated against an em- ployee because of the employee's union activities is set forth in Wright Line.2 In satisfying the burden i Gourmet Foods, 270 NLRB 578 (1984) Without the cards of Gaines and Cosby, there are only 13 cards in a unit of 27 employees Even if Cosby is included in the unit and her card counted on 18 April, the day the Union made its demand for recognition and the day before Cosby was fired, the Union would still have failed to establish majority status because there would be only 14 cards in a unit of 28 employees 8 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) of establishing a prima facie case under Wright Line, the General Counsel must show that employ- ees engaged in prounion activity, that the employer had knowledge of the activity, and that the em- ployer was hostile towards it. In the instant case, the judge, rather than applying the above stand- ards, merely recounted Gaines' union activity3 and then proceeded to analyze the Respondent's prof- fered justification for Gaines' discharge. Finding "peculiarities in the lawful reasons which Respond- ents have tendered" for the termination, the judge concluded that Gaines' discharge was unlawful. I disagree, because I believe that the General Coun- sel failed to prove an essential element of her prima facie case, i.e., knowledge. The judge made no finding that the Respondent had any direct, actual knowledge of Gaines' union activities prior to her termination. Although knowledge may be established by inference,4 I find that here there is insufficient evidence that the Re- spondent was aware prior to Gaines' termination of the existence of union meetings and authorization card solicitation or of the identity of employees leading the union campaign. In fact, no evidence was offered to rebut Hoffer's testimony that the Respondent first learned of its employees' interest in the union in early 1984. There is no indication that the employees' organizing activities took place openly on the Respondent's premises. On the con- trary, the employees' organizing activity centered on union meetings conducted at their homes. Fur- ther, the employees' union activities became most prominent in January, some 6 weeks after Gaines' discharge. Although the timing of Gaines' termina- tion may be suspicious, occurring 1 week after Gaines hosted a union meeting at her home, suspi- cion is not a substitute for proof by a preponder- ance of the evidence.5 The fact remains that the General Counsel presented no credible proof that the Respondent had knowledge of Gaines' union activity on or before 18 November, the day of her discharge.6 Accordingly, I would dismiss this com- plaint allegation. 3 In addition to the union activity outlined above , the judge found that on various dates between October and 18 November 1983, Gaines talked to 12 employees about the benefits of unionization and the need to sign authorization cards There is no evidence to support the conclusion that Gaines talked to all 12 employees before her termination A review of Gaines' testimony reveals that she conversed with some of the identified employees by telephone following her discharge 4 Cf NLRB v Link-Belt Co, 311 US 584 (1941), NLRB v Proler International Corp, 635 F2d 351, 356 (5th Cir 1981), Alumbaugh Coal Co v. NLRB, 635 F 2d 1380, 1384 (8th Cir 1980) 5 Complas Industries, 255 NLRB 1416, 1419 (1981), Leyendecker Paving, 247 NLRB 28, 35 (1980) 6 Although Hoffer indicated to employee Lambus in April 1984 that he believed she and Gaines "started this whole union thing," Hoffer's subse- quent knowledge of Gaines' union activities is irrelevant to the issue of whether the requisite knowledge existed at the time of the alleged unlaw- ful action 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cosby began working for the Respondent as a cashier in June 1978, and engaged in only minimal union activities during her tenure there. Cosby signed a union authorization card on 2 November 1983, attended the union meeting held at Gaines' house on 11 November 1983, solicited union cards in early November 1983 from Gaines and employee Lambus, and spoke with several employees about unionization. There is no evidence that any of the outlined activities were engaged in at the Respond- ent's store. Further, there is no indication that Cosby engaged in any union activities between the end of November 1983 and her layoff in April 1984. Cosby admitted requesting on several occasions in 1983 that Hoffer place her on layoff status. There is no dipute that Cosby repeated the request in 1984. In fact, the judge credited the testimony of Grocery Manager Joseph Menna that between February and April, Cosby informed Hoffer in Menna's presence that she would like to be laid off. About 1 month later, Cosby told Menna that she would be better off being laid off than working only a few hours a day. Menna, who testified that business was slow at the time, informed the Re- spondent of Cosby's comment. Meat Department Manager John Matthews, whose testimony the judge also credited, stated that about March, Cosby mentioned she wanted to be laid off for the summer.7 Cosby had previously been granted two leaves of absence on her request. On 19 April, the day after the Union requested recognition from the Respondent, Hoffer telephoned Cosby at home and informed her that he was granting her layoff re- quest. Although the timing of Cosby's layoff is suspi- cious in light of the Union's bargaining demand the previous day, as I stated above, suspicion is no sub- stitute for proof. Accordingly, I would find that the General Counsel has failed to establish that the Respondent's actions with respect to Cosby were unlawful. In particular, as with Gaines, the General Counsel failed to prove that the Respondent had knowledge of Cosby's union activities, which is an essential element of the General Counsel's prima facie case. The fact that there is no proof of actual knowledge is not in dispute. The judge inferred knowledge from her findings that Cosby engaged in the union activities outlined above and from the size of the facility, informal manner in which the Respondent's business was operated, and instances of union animus displayed by Hoffer. At no time was Hoffer's union animus directed at Cosby, how- ever, and none of Hoffer's comments revealed any ' Neither Menna nor Matthews was alleged to be a supervisor within the meaning of Sec 2(11) of the Act indication that Hoffer had any knowledge of Cosby's union involvement. More importantly, there is no evidence that Cosby's union activities occurred in the Respondent's store, or that Cosby engaged in any union activities within the 5 months preceding her layoff. Thus, I cannot agree that knowledge can be inferred from the above facts and circumstances. Assuming arguendo the existence of the requisite knowledge, my conclusion that the Respondent did not violate the Act by laying off Cosby is not al- tered. There has been no justification presented for discrediting the Respondent's claimed reliance on Cosby's repeated requests for a layoff. According- ly, in light of Cosby's minimal union activity, the remoteness in time of that activity vis-a-vis the al- leged unlawful layoff, the lack of evidence of knowledge, and Cosby's repeated requests for a layoff, I would find that the General Counsel has failed to establish that the Respondent laid off Cosby because of her union activities, and would dismiss this aspect of the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten to discharge you for your union activity. WE WILL NOT threaten to cut your wages and hours if the Union becomes your representative. WE WILL NOT coercively question you about your union meetings, support, or activities. WE WILL NOT lay off or discharge you, or other- wise discriminate against you, for supporting United Food and Commercial Workers Union Local 1357, a/w United Food and Commercial Workers International Union, or any other labor organization. FOOD CART MARKET 1021 WE WILL NOT refuse to bargain collectively and in good faith with United Food and Commercial Workers Local 1357 as the exclusive representative of our employees in the appropriate unit set forth below: All full-time and regular part-time employees; excluding guards and supervisors as defined in the Act. 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 Winifred Gaines, Barbara Lambus, and Juanita Cosby immediate and full re- instatement 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 WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to her dis- charge and that the discharge will not be used against her in any way. WE WILL recognize and, on request, bargain with United Food and Commercial Workers Local 1357 as the exclusive representative of all employ- ees in the bargaining unit described above with re- spect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. spondent violated Section 8(a)(3) and (1) of the Act by terminating three employees because they supported the United Food and Commercial Workers Union Local 1357, a/w United Food and Commercial Workers Inter- national Union (the Union). Also, the complaint alleges that a majority of Respondents' employees in an appro- priate unit designated the Union to represent them, Re- spondents' refusal to honor the Union's bargaining demand violated Section 8(a)(5) and (1) of the Act, and Respondents' alleged violations of Section 8(a)(1) and (3) call for issuance of a bargaining order. On the entire record, including the witnesses' demean- or, and after due consideration of the brief filed by coun- sel for the General Counsel (the General Counsel) and relied on by the Union, and the brief filed by Respond- ents, I make the following FINDINGS OF FACT 1. JURISDICTION Respondents are partners who operate a retail food market in Philadelphia, Pennsylvania. During the year preceding the issuance of the complaint, Respondents' gross revenues from this market exceeded $500,000, and Respondents purchased and received goods valued in excess of $2000 from points directly outside Pennsylva- nia. I find that, as Respondents admit, Respondents are engaged in commerce within the meaning of the Act, and that exercise of jurisdiction over their operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Allegedly Unlawful Termination of Winifred Gaines MANUEL AND JOSEPH HOFFER T/A FOOD CART MARKET Margarita Navarro-Rivera, Esq., for the General Counsel. Kenneth M Jarin, Esq and Richard E. Geschke, Jr. Esq., of Philadelphia, Pennsylvania, for the Respondents. Michael N. Katz, Esq., Mr. Wendell W. Young IV, and Samuel L. Spear, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge This case was heard before me in Philadelphia , Pennsylvania, on October 10 and 11 , 1984, pursuant to a charge filed on May 1 , 1984, and a complaint issued on July 30, 1984. The complaint alleges that Respondents Manuel and Joseph Hoffer t/a Food Cart Market violated Section 8(a)(1) of the National Labor Relations Act (the Act) by creating the impression that their employees ' union ac- tivities were under surveillance; by threatening to fire employees and reduce their wages and hours if they sup- ported a union; and by interrogating an employee about his union activity . The complaint further alleges that Re- Winifred Gaines began working for Respondents about June 1981 She was a food checker and a cashier. She checked customers out, made change, wrote addresses for grocery deliveries, and helped stock shelves. At the time of her termination, she was a part-time worker who worked 4 days a week and went to school 2 of those days. On (lays when she went to school, she worked from I to 4:30 p.m. The other 2 days, she worked from 1 to 6 p m. In late October 1983, Gaines and alleged discriminatee Juanita Cosby began to discuss bringing a union into Re- spondents' store. Gaines got in touch with Dorothy Ma- lampy and Wendell W. Young IV, both of them organiz- ers for the Union At Cosby's behest, Gaines signed a union card on November 2, 1983. On November 11, 1983, Malampy conducted a union meeting at Gaines' home. Employees Gaines, Cosby, Barbara Lambus (an alleged discriminatee), Scott Jones, Mary Pyfer, and Josue Caraballo were present. On vari- ous dates between late October 1983 and Gaines' termi- nation on November 18, 1983, she talked about the Union, and about signing union cards, with employees Cosby, Lambus, Juan Rivera, Raymond Johnson, Rickey Lewis, Michael Pressley, Jones, Robinson Ruiz, Eduardo 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ruiz, Josephine Morrow, Myrtle Whittemore, and Juani- ta L. Gullins (also referred to in the record as Loraine Gullen). All but the last four of these employees eventu- ally signed union cards.- On November 18, 1983, Gaines arrived at the store about 15 minutes before the scheduled 1 p.m. start of her workday. Respondent Manuel Hoffer told her that Re- spondent Joseph Hoffer (Manuel's brother) wanted to talk to her. Joseph Hoffer told her that he was going to have to let her go. She asked why. He said that work was slow. She said that she was not the last one hired. He said that she was. She said that he had hired a lot of people after her, and that Gullins, another part-time cashier who like Gaines worked afternoons only, had been hired after Gaines. He said that he was going to have to let Gullins go, too. Hoffer said that Gaines could collect unemployment compensation, and that all she had to do was to tell the unemployment compensation au- thorities that there was a work shortage. When applying for workmen's compensation, she stated on the form that she had been separated for union activities (which Joseph Hoffer had not told her) and because of a work shortage. Respondents did not oppose her application. As of late April 1984, Respondents' employees included Gullins, who so far as the record shows never engaged in any union activity. A few days after Gaines' termination, Malampy held a second union meeting at Gaines' house. The only ones who attended were Gaines, Jones, and Malampy. After Gaines' termination, she had telephone conversations about the Union with Cosby, Lambus, Pyfer, and Morrow. B. The March 1984 Union Meetings,- Alleged Interference, Restraint, and Coercion In late February 1984,' Malampy left the Union's employ. Organizer Young was given the records of the Union's program at Respondents' store. After reviewing the records and the authorization cards which the Union had already procured, Young telephoned employee Lambus, who had signed a card at the November 11, 1983, meeting at Gaines' home. Young and Lambus ar- ranged for a meeting at a Roy Rogers restaurant on March 19, 1984. This meeting was attended by Young and by employees Jones, Caraballo, Julio Feliciano, and Josef C. Grover, Sr. On March 23 or 24, a meeting was held at employee Grover's home. Present were Young, Grover, Lambus, and Jones. After this meeting, Respondent Joseph Hoffer initiated a conversation with Lambus in the meat room by saying that someone had called him on the telephone and said that she had had a union meeting at her house. She truthfully denied this. He said that anyone who was caught having a union meeting at his house, or having anything to do with the Union, would be fired automati- cally on the spot.2 i All dates hereafter are 1984 unless otherwise stated 2 My findings in this paragraph are based on Lambus' testimony, which for demeanor reasons I credit over Hoffer's denial. Hoffer testified that before her April 18 discharge he had heard reports, which he did not believe, that she was involved with the Union Cf infra fn 4 A couple of days after the meeting at Grover's house, Hoffer told Grover that Hoffer had something to talk to him about. Hoffer asked whether Grover had had a union meeting at his house. Grover untruthfully replied no. Hoffer said that one of the neighbors had called and told hirri that a union meeting had been held at Grover's house, and who had attended the meeting. Grover again untruthfully denied that a meeting had been held at his house. Hoffer asked Grover whether he had signed a card. Grover replied no, although he had in fact signed a card shortly after Christmas 1983 and another one on March 19, 1984. Hoffer said that if it was true that a meeting; had been held at Grover's house and if Lambus or Jones was there, Hoffer was going to get rid of them.3 C. The Union's Bargaining Demand On Wednesday, April 18, 1984, Union Representatives James Harrison, Roland Priest, and Young came to Re- spondents' store. Harrison asked Respondent Joseph Hoffer to recognize the Union, and said that a majority of the employees had signed authorization cards. Hoffer said that he could not recognize the Union, and that the store probably was not financially able to support a union and would eventually have to close. Harrison said, "Well, we appreciate that, we can sit down and talk about ii." Hoffer said that he did not have the time right then. Harrison requested a meeting later on. Hoffer agreed to come to the Union's office on Wednesday, April 25. All parties stipulated that on that day, April 18, the Union demanded recognition. D. The Allegedly Unlawful Termination of Juanita Cosby Before Respondents opened their store, Juanita Cosby had worked as a cashier at another store managed by Joseph Hoffer. Because he regarded her as a very effi- cient cashier, when Respondents were opening up their own store he got in touch with her and offered her a cashier's job, which she accepted. She began to work there in June 1978. Cosby signed a union card on November 2, 1983, at Malampy's behest. Cosby attended the union meeting at Gaines' house on November 11, 1983. Cosby gave out cards to Lambus and Gaines. Also, Cosby talked about the Union to these two employees, to employees Patrick Briscoe, Caraballo, and Jones (all of whom signed cards), and to employees Whittemore and Morrow (neither of whom signed a card). 3 My lindings as to this conversation are based on Grover's testimony Although Grover testified that Hoffer "always" talked with him in the back of the store, Grover's preheanng affidavit states that this March 26 conversation occurred while he was bringing the carts up front More- over, Grover, a reluctant witness who at the time of the hearing was still in Respondents' employ, testified that he had no present recollection of any reference by Hoffer to Lambus or Jones However, after reading Grover's prehearing affidavit, Grover testified that this affidavit attrib- uted to Hoffer the statement about Lambus and Jones set forth in the text, and that Hoffer "must have" made such a statement because when Grover gave his affidavit "it was fresh in my mind " For demeanor rea- sons I credit Grover, and do not accept Hoffer' s denial FOOD CART MARKET 1023 Cosby worked her usual shift on Wednesday, April 18, 1984, the day that the Union asked Joseph Hoffer for recognition. She was scheduled to work on Thursday, April 19. As she was getting ready to go to work that morning, Hoffer telephoned her and said, "[Y]ou wanted to be laid off, I am going to lay you off."' He told her that she could sign up for unemployment compensation. She did so, and told the unemployment compensation au- thorities that she had been laid off for lack of work. Re- spondents did not oppose the application, and she col- lected unemployment compensation. My findings in the foregoing paragraph are based on Cosby's testimony. Hoffer testified that "I believe" she was laid off on April 18; and that he asked her whether she still wanted to be laid off (see infra fri. 18), she said yes, and he then said, "All right, you can go down to sign up for unemployment compensation and I will okay it." Union Representative Young credibly testified that at 7:30 or 8 a.m. on the day after he and other union repre- sentatives made their oral bargaining demand, which demand was stipulated to have been made on April 18, Cosby telephoned him that Hoffer had just laid her off by telephone. In view of this testimony by Young, Re- spondents' failure to produce Cosby's time and payroll records, and demeanor considerations, I credit her testi- mony that she was not laid off until early in the morning of April 19. Also, for demeanor reasons, I credit her ver- sion of her termination interview, including her denial that she said she wanted to be laid off. E. The Allegedly Unlawful Termination of Barbara Lambus Barbara Lambus began to work for Respondents no later than March 1982. She attended the November 11, 1983 union meeting at Gaines' home, and signed a card there. In addition, she arranged for (but did not attend) the union meeting on March 19, 1984, and attended the meeting at employee Grover's house on March 24, 1984. Also, between late November 1983 and late January 1984, she distributed blank union cards to other employ- ees and urged them to sign the cards. Six employees re- turned signed cards to her. Lambus probably got more cards signed than any other employee did On April 19, 1984, Lambus reported to work at 9 a.m. Respondent Manuel Hoffer told her that Respondent Joseph Hoffer did not want her to clock in until she talked to him. Joseph Hoffer came in at noon. He and Lambus went into the produce room, which is all the way in the back of the store. He told her that he was going to have to lay her off. She asked why. He said be- cause she and "Winnie" (Gaines' first name is Winifred) had "started this whole union thing."4 Respondents' counsel stated at the outset of the hear- ing that Lambus was terminated for poor work perform- ance. However, as discussed infra, part II,F, Respondent 4 My finding in this sentence is based on Lambus' testimony Hoffer's version is rather similar . He testified that Lambus said "something" about the Union, "she said she knows who is responsible for the whole thing, but she is not going to tell me when I told hex that I was going to have to let her go, she started hollering, why and she said something that set me off, and I got a little angry, and I said, well, it is you and this Winne Gaines that started this whole thing " Joseph Hoffer told employee Grover a few days after Lambus' termination that she had been discharged be- cause Hoffer had caught her stealing some meats out the back. After Grover had so testified, Respondents' coun- sel stated that Lambus was discharged because she stole meat.5 Thereafter, Respondent Joseph Hoffer testified that Lambus' "work performance was fair, but her work performance was not what my concern was," and that he discharged her because he suspected her of stealing meat. Hoffer admitted, in effect, that when terminating Lambus, he told her that she was being terminated for starting the Union (see supra fn. 4). He testified that the reason he did not tell her that she was being terminated because he thought she had been stealing meat was that he did not want to be involved in any kind of lawsuit. Lambus had a practice of carrying with her to work a pocketbook about 12 or 14 inches long and 8 inches high.6 About mid-October 1983, Hoffer saw 12 cans of shrimp lying beside her pocketbook. He asked her what they were doing there. She said that she was going to take some of them home. He said, "okay." Ten minutes later, she told him that all the shrimp were put back on the shelf, and he could check with employee Pyfer about it. Thereafter, Hoffer told Lambus that she would have to check her pocketbook in the office. She did this for 1 day, and then resumed carrying her pocketbook as she had before. There is no evidence that she ever again re- ceived any instructions about her pocketbook. Hoffer testified that about a month later (about mid- November 1983), Respondents' meat department manag- er, who is James Matthews (not contended to be a super- visor), told Hoffer to watch Lambus because she had been buying a lot of lunchmeat, and that Hoffer agreed with Matthews that "we would try to keep some sort of a watch out for her." Joseph Hoffer went on to testify that thereafter Matthews reported that Lambus had got a lot of lunchmeat; that the cashiers told Hoffer that Lambus had not checked anything through them; and that Respondent Manuel Hoffer said that she had not asked him to put anything on her bill.7 Matthews, who was called by Respondents as a witness, testified that about January or February 1984 he told Joseph Hoffer that he thought some "shady dealings" were going on in the back room, where Lambus and other meatwrappers worked;" that Matthews mentioned no particular names; 5 More specifically, counsel gave an affirmative answer to my inquiry whether he was contending that Lambus was discharged in whole or in part because she stole meat Counsel went on to state that he believed he had previously said that poor work performance was not the complete picture, and that stealing from work is encompassed by that position. Counsel's "complete picture" reservation had been tendered in connec- tion with Cosby As noted infra, Respondent Joseph Hoffer testified that Lambus had not been discharged for poor work performance, and that she was discharged for suspected stealing 6 This finding is based on the testimony of meat department manager James Matthews, a witness called by Respondents I regard as grossly ex- aggerated Joseph Hoffer's testimony that her pocketbook was 2-1/2 feet by 4 feet ' Joseph Hoffer's testimony summarized in these two sentences was re- ceived only to show that these reports were made to him, and not to show the truth of the reports a Johnson's union card states that he was a meatwrapper Rivera's union card states that he was a meatpacker 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that Hoffer told him to keep his eyes open. Mat- thews impressed me as an honest witness. In view of his credible contradiction of Hoffer's testimony as to the date of these discussions and whether Lambus' name was mentioned, and because Respondent Joseph Hoffer's tes- timony summarized in this paragraph is uncorroborated by Respondent Manuel Hoffer (who did not testify) or any other witness, I discredit such testimony by Joseph Hoffer. Joseph Hoffer went on to testify that about a month before Lambus' April 19, 1984 termination he saw lying near her pocketbook a package of center-cut pork chops bearing a $5.16 price tag. Still according to Hoffer, he left the area, came back about 2 minutes later, and found that the package was no longer there. He went on to tes- tify that the package was not in the meat case, and that it could not have been sold because no customers were in the store. Hoffer testified on direct examination that he waited about a month, until Thursday, April 19 (the day after the Union's bargaining demand), to terminate Lambus because, "I didn't know how to go about really terminat- ing her, I wanted to catch her red-handed if it was possi- ble, but I could never seem to catch her, and I couldn't see holding onto her any longer, because I didn't know how bad the situation really was." On cross-examination, he testified that "nothing in particular" caused him to select April 19 as the discharge date; and that the fact that the Union demanded recognition on April 18 was "just coincidental, I had made up my mind several days ago to let her go." He went on to testify that he allowed her to work for these several days because he had been made aware through counsel that discharging her would cause him a problem "because of the Union affiliation," and that he "was mulling over in my mind what I should do with her . . . but I just couldn't tolerate her any more." Then, he testified that he did not retain counsel until after her discharge. F. Alleged Further Interference, Restraint, and Coercion their April 25 appointment. The letter went on to state that the Union represented a majority, requested recogni- tion as the representative of all employees except super- visors or guards, and stated that pending the scheduled April 25 meeting the Union had filed a representation pe- tition with the Board. Respondents received this letter on April 19. On April 24, the Union received a hand-car- ried letter from Respondents' counsel bearing that same date. The letter stated that "we have serious doubts" of the Union's majority, that "we will await receipt of the [representation] petition," and that Hoffer would be unable to attend the scheduled April 25 meeting. III. THE UNION'S ALLEGED MAJORITY A. The Number of Employees in the Unit The parties stipulated to the appropriateness of the unit described in detail infra in Conclusion of Law 3. The parties are in agreement as to the inclusion of 27 employees in the unit as of April 18, 1984, the date of the bargaining demand.9 Cardsigners Juanita Cosby and Winifred Gaines were admittedly in the unit before their termination. In view of my finding, supra, that Cosby was not terminated until April 19, 1984, she is included in the unit as of April 18. In view of my finding infra that Gaines was terminated in November 1983 for union activity, she, too, will be included in the unit.10Accordingly, as of the critical date the unit con- sisted of 29 employees. B. The Number of Authentic and Operative Cards Cards bearing the at least purported signatures of 16 of these 29 employees, and bearing various dates between November 2, 1983, and March 19, 1984, were received into evidence. Some of these cards, the old-style cards, read as follows: UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL 1357 Affiliated with A day or two after the termination of Lambus and Cosby, Respondent Joseph Hoffer told employee Grover that Cosby had asked to be laid off, and Hoffer had de- cided to lay her off because work was slow. Hoffer fur- ther said that he had fired Lambus because he caught her stealing some meats out the back. Hoffer went on to say that if the Union came in the employees would be cut from a full week to a half week, and their pay would be cut, "because the Union would cut them." My findings as to what was said during this conversa- tion are based on Grover's testimony. Hoffer testified that Grover asked him what would happen if the Union came in, and he replied that to the best of his knowledge Respondents would have to pay everyone a minimum wage until a contract was agreed to. For demeanor rea- sons, I credit Grover. G. Aftermath On April 18, immediately after visiting Joseph Hoffer, the Union sent him a letter, by certified mail, confirming UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION Affiliated with AFL-CIO-CLC AUTHORIZATION FOR REPRESENTATION I hereby authorize the United Food & Commer- cial Workers Union Local 1357, AFL-CIO-CLC, to represent me for the purpose of collective bar- gaining. 9 These are Patrick Briscoe, Josue Caraballo, Steven Custer, Julius Da- vidson, Sidney Eisenstem, Julio Feliciano, Josef C Grover Sr, Harlan E Grubb, Juanita L Gullins, Raymond Johnson, Scott Jones, Eugene Ko- shanowicz, Barbara Lambus, Rickey Lewis, James J Matthews, Joseph Menna, Alice Mikkelsen, Josephine Morrow, Angel Ocasio, Joseph E Pa- chella, Michael Pressley, Mary L Pyfer, Juan Rivera, Domingo Ruiz, Rob- inson Ruiz, John P Smith, Myrtle Whittemore As discussed infra, cards were signed by the 14 employees whose names are italicized i0 Justak Bros. & Co, 253 NLRB 1054, 1069 (1981), enfd . 664 F2d 1074 (7th Cir 1981) FOOD CART MARKET 1025 (Signature) (Date) 10 employees listed in the attached footnote." Of these 10, 6 (Caraballo, Cosby, Gaines, Grover, Jones, and Lambus) testified that they read and signed their cards.12 Lambus credibly testified that the remaining four (John- (Print Name) (Home Phone) son, Ocasio, Pressley, and Pyfer) read and signed their (Home Address) (City) (State) (Zip) (Employer's Name) (Address) (Hire Date) (Type Work Performed) (Department) (Hourly Rate) (Day Off) Day Shift - Night Shift -- Full Time Part Time Would you participate in an organizing commit- tee? Yes - No Others, herein called the new-style cards, read as follows: UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 1357 (Affiliated with the UFCWIU ,and the AFL-CIO) AUTHORIZATION FOR REPRESENTATION Desiring to enjoy the rights and benefits of collec- tive bargaining, I the undersigned, employee of the Firm's Name Store Address Store No. Employed As Dept. Home Address City State -- Zip Code Home Phone - Date of Hire Day-off Full-time- Part-time I understand and agree that my execution of this authorization card will enable the Union to secure recognition from my Employer as my sole and ex- clusive collective bargaining representative without the need for any election conducted by the National Labor Relations Board, or any other agency. By the execution of this card, I agree that the Union may act as my bargaining representative , and I will au- thorize it to seek recognition from my employer on the basis of my authorization card. Date (Signature of Employee) Print Name Respondent has never questioned before me that either card unambiguously designates the Union as the signato- ry's bargaining representative. Further, Respondent's posthearing brief does not question the authenticity and operative effect of the cards bearing the signatures of the cards in her presence. All 10 of these cards will be counted. Respondents' posthearing brief challenges the old-style card of Rivera, and the new-style card of Lewis, on the basis of the testimony of Lambus, who solicited both cards, that she herself filled out all the blanks in Rivera's card except for the signature, and that she herself filled out the blanks in Lewis' card calling for the name of the store, its address, and his job. Lambus testified that in her presence Rivera signed his card and Lewis read his card, filled out the rest of it, and signed it. Lambus credi- bly testified that she obtained most signed cards in Janu- ary 1984 and that Lewis inserted the January 17, 1984 date on his card. An entry on the back of the card indi- cates that Malampy received it on January 24, 1984. Al- though Lambus further testified that Rivera inserted the "11-26" date on his card, that date was entered with a pen different from that used in the signature on the card as well as from the pen used in the entries admittedly made by her, and as to both pen and character markedly resembles the "11-26" entry on the back of the card, which entry indicates that Malampy received it on that date. As previously noted, Malampy left the Union's employ in late February 1984; Lambus began to solicit cards after the union meeting on November 11, 1983; and she was discharged on April 19, 1984. Both cards are date-stamped by the Regional Office as having been re- ceived on April 23, 1984. Respondent maintains in its files a withholding form for each employee, which is supposed to be signed by that employee. Respondent makes no contention that the employee signatures on Ri- vera's and Lewis' withholding forms differ from the sig- natures on the cards authenticated by Lambus. I credit Lambus' uncontradicted testimony about Lewis' card, and her testimony about Rivera's card except for her tes- timony that the date was entered by her. Further, I find that these two cards were signed on about the dates they bear, and will count both of them. Respondents' posthearing brief challenges the new- style cards bearing the purported signatures of Custer and Briscoe, on the ground that they did not fill out 11 Caraballo, Cosby, Gaines, Grover, Johnson, Jones, Lambus, Ocasto, Pressley, Pyfer The employees whose names are italicized signed old- style cards As to all these cards, except those signed by Johnson , Ocasto, and Pressley, there is direct evidence that they were signed about the dates that they bear (November 2, 1983, to March 19, 1984) Johnson's and Ocasio's cards are dated November 25 and 24, 1983, respectively, and contain entries indicating that Union Representative Malampy re- ceived them on such dates Pressley's card is dated January 20 or 21, 1984, and contains an entry indicating that Malampy received it on Janu- ary 28, 1984 All three were solicited and authenticated by Lambus, who began her card solicitation after the union meeting on November 11, 1983, got most of her cards signed in January 1984; and was discharged on April 19, 1984 Malampy left the Union's employ in February 1984. All 10 of these cards are stamped by the Regional Office as having been received on April 23, 1984 12 Jones did not in terms testify that he read his card However, he did testify that he had filled out all the blanks and that he solicited cards from others 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their cards in the presence of the authenticating witness. Lambus credibly testified that she gave a blank card to Custer and he returned a completely filled-out new-style card to her about 2 hours later. Moreover, the purported signature on that card resembles the signature that (ac- cording to Union Representative Young's credible testi- mony) Custer affixed in his presence to a statement on April 19, 1984. Jones credibly testified that he gave a blank card to Briscoe, and that Briscoe later returned a completely filled-in new-style signed card to Jones. Re- spondent makes no claim that the signature on that card differs from the signature on Briscoe's withholding form. Both of them contain entries indicating that the Union received them a few days after the January 17, 1984 date that they bear, and both of them were date-stamped by the Regional Office on April 23, 1984. Lambus began to solicit cards after the November 11, 1983 union meeting, obtained most signed cards in January 1984, and was dis- charged on April 19, 1984. I find that the cards were re- turned to Lambus and Jones, respectively, about the date that they bear, and will count both of them. Clothing & Textile Workers v. NLRB, 419 F.2d 1207, 1209 (D.C. Cir. 1969), cert. denied 397 U.S. 988 (1970); Continental Kitchen Corp., 246 NLRB 610, 616 (1979); Photo Drive Up, 267 NLRB 329, 363 (1983); Ultra-Sonic De-Burring, Inc., 233 NLRB 1060, 1067 fn. 11 (1977), enfd. 593 F.2d 123 (9th Cir. 1979); Stride Rite Corp., 228 NLRB 224, 234-235 (1977). Respondent's posthearing brief contends that the cards signed by Feliciano should not be counted because he al- legedly did not know what they meant. Feliciano authen- ticated his own signature on two cards, an old-style card dated "11-24" and a new-style card dated "3/19/84." He testified that this second date is not in his handwriting and the "11-24" date may not be in his handwriting either. However, Union Representative Young testified that Feliciano signed a card on March 19, 1984. More- over, the card dated "3/19/84," which the Regional Office date-stamped April 23, 1984, contains on the re- verse side a notation "3/19/84, WY IV" (Young's full name is Wendell Young IV), and the card dated "11-24" is stamped, on the reverse side, "Attention: Dot Ma- lampy." Although Feliciano testified in English, his mother tongue is Spanish and he evinced only a limited ability to read English. However, he testified that he filled out these cards because employee Caraballo told him that it would be good for Feliciano to sign the card, and because he wanted the Union to represent him. A Feliciano card will be counted. World Generator Co., 242 NLRB 1295, 1309 fn. 52 (1979); Local 707, Teamsters Local 707 (Claremont Polychemical Corp.), 196 NLRB 613, 624-625 (1972). Robinson Ruiz' native language is Spanish, and there is no evidence that he can understand English. He was given an old-style card by Caraballo, whose native lan- guage is Spanish but who speaks fairly good English and can to some extent read it. Caraballo testified that he told Ruiz in Spanish that signing the card would mean that he was going to be represented by the Union, that he would get sick pay, that he might get a raise, and that he did not have to pay anything if he signed the card. Caraballo further testified that Ruiz "thought about it a little while" and then filled out and signed the card. Still according to Caraballo, he showed Ruiz what blank on the card called for his name and what blanks called for other information. In response to a question by me at the conclusion of direct examination, Caraballo testified that all the blanks on the card were physically filled in by Ruiz. After Caraballo's attention had been drawn on cross- examination to the fact that the card appears on its face to bear two different kinds of printing as well as some handwriting,1 3 Caraballo tacitly conceded that he had not seen Ruiz fill in the entire card. On the basis of this testimony by Caraballo, Respondent asks me to discredit his testimony that he translated the card to Ruiz and that Ruiz signed the card. However, Respondent does not contend that the signature on the card differs from the signature on Ruiz' withholding authorization. Moreover, it is improbable that Ruiz signed the card without receiv- ing some explanation of its purpose, nor do I perceive any reason why Caraballo would have misrepresented that purpose. Accordingly, and for demeanor reasons, I credit Caraballo's testimony as to what he told Ruiz re- garding the card. Further, I find that such statements did not render the card inoperative. Chefs Pantry, Inc., 247 NLRB 77, 79 (1980), enfd. 654 F.2d 458 (6th Cir . 1981); Windsor Industries, 265 NLRB 1009, 1020 (1982), enfd. and remanded in part 730 F.2d 860 (2d Cir. 1984). The card contains entries, which indicate that Malampy re- ceived it on November 26, 1983,14 and the Regional Office date-stamped it April 23, 1984. Ruiz' card will be counted. C. Conclusion For the foregoing reasons, I find that on the day of the Union's April 18, 1984, bargaining demand, 16 of the 29 employees in the bargaining unit had signed operative union authorization cards. IV. ANALYSIS AND CONCLUSIONS A. The Alleged Independent 8 (a)(1) Violations I agree with the General Counsel that Respondents violated Section 8(a)(1) of the Act when Respondent Joseph Hoffer told employee Lambus that anyone who was caught having a union meeting at his house, or having anything to do with the Union, would be fired automatically on the spot; and when he told employee Grover that if a meeting had been held at his home, and if Lambus or Jones were there, Hoffer was going to get rid of them.15 Also, I agree with the General Counsel 13 The handprinting in the blanks calling for Respondent's name and address and for the employee's job and department bears a marked re- semblance to similar entries on the cards of Lambus , the cards of Ocasio and Rivera, which entries she admittedly made, the first card signed by Feliciano, and the card signed by Johnson and solicited by Lambus. 14 The card is dated "11-26" in a pen and character , which markedly resemble that entry. There is no other probative evidence about who dated it is The complaint does not allege that Respondents violated the Act when Joseph Hoffer told Lambus , during her April 1984 discharge inter- view, that she and Gaines had been fired for starting the Union. FOOD CART MARKET 1027 that Respondent violated Section 8(a)(1) when Respond- ent Joseph Hoffer told Grover, in late April 1984, that the employees' wages and hours would be cut if the Union came in. In addition, I agree with the General Counsel that Respondents violated Section 8(a)(1) when Joseph Hoffer asked employee Grover whether he had had a union meeting at his house. In finding that Hoffer thereby engaged in unlawful interrogation, I note that Hoffer immediately thereafter threatened to discharge employees if they had attended such a meeting, that Grover untruthfully denied that such a meeting had been held, that Hoffer was seeking information useful for dis- crimination, that Respondents terminated employees for union activities, which included attendance at union meetings, and that such questioning served no legitimate purpose. 16 However, I do not agree with the General Counsel that Respondents, through Respondent Joseph Hoffer, gave employees Lambus and Grover the impression of surveillance. Hoffer did not imply to either of them that Respondents had asked anyone to keep an eye on the identity of employees who had union meetings at their houses or attended such meetings, or that Respondents had encouraged anyone to observe and report such em- ployee activity. Moreover, the fact that Lambus had not in fact held a union meeting at her house would likely lead her to discount the significance of alleged reports to Hoffer, which allegedly contained such inaccuracies. B. Allegedly Discriminatory Terminations Alleged discriminatees Gaines and Cosby were the two employees who first began to discuss the possibility of unionizing Respondents' store and the first two who signed union cards. Gaines was the employee who got in touch with a union organizer, and whose house accom- modated the first union meeting. All three alleged discri- minatees (Gaines, Lambus, and Cosby) attended this meeting, where Lambus signed a union card. During the following week, Gaines talked about the Union to the other two alleged discriminatees and also to 10 other em- ployees; if Respondents' work force was about the same size then (November 1983) as in April 11984, Gaines en- gaged in such discussions with more than a third of her fellow employees. She was separated one week after holding the union meeting at her house. Thereafter, Lambus successfully solicited employee signatures on about 6 union cards (more, probably, than any other employee), arranged for a union meeting, and attended another union meeting at the house of employee Grover. A few days later Respondent Joseph Hoffer ex- pressed suspicion that Lambus had held a union meeting at her house, told her that anyone holding such a meet- 16 The General Counsel's brief contends that Respondents engaged in unlawful interrogation when Joseph Hoffer asked Grover whether he had signed a union card, and impliedly asked Lambus whether she had had a union meeting at her house. However, the complaint does not allege that Respondents interrogated anyone about signing a union card Moreover, the complaint allegation of interrogation about a union meet- ing is limited to one employee, and the inclusion of this allegation in a paragraph, which is otherwise directed to allegations supported by Grover's testimony, leads me to infer that this allegation, too, involved Grover and not Lambus The 8(a)(1) allegations supported by Lambus' testimony are set forth in the preceding paragraph of the complaint ing at his house or having anything to do with the Union would be fired on the spot, and told employee Grover that Respondents would get rid of Lambus if she had at- tended a union meeting at Grover's house (as she in fact did). The day after the Union demanded recognition Re- spondent Joseph Hoffer terminated both Lambus and Cosby. At that time, he told Lambus that she was being laid off because she and Gaines had "started this whole union thing." Particularly in view of Hoffer's remarks to Lambus when terminating her, the foregoing sequence of events renders virtually inescapable the conclusion that Gaines and Lambus were terminated because of their union ac- tivity. Further support for this conclusion is provided by the peculiarities in the lawful reasons, which Respond- ents have tendered for these terminations. At the outset of the hearing, Respondents' counsel stated that Gaines was discharged because of poor work performance. However, Respondent Joseph Hoffer told cashier Gaines that she was being let go because work was slow. When she said that she was not the last one hired, he initially disputed this and then said that the junior cashier named by Gaines would also be let go, but he unexplainedly did not do so. At the hearing, he testified that Gaines was terminated because she read books or newspapers at the cash register, r 7 was discourteous to a lot of customers, and had failed to give Respondents prior notice before starting to go to school, two afternoons a week, during what had been the last hour and a half of her scheduled shift. However, he admitted that when he terminated Gaines, he did not tell her that he was not happy with her performance. In view of the nature of his alleged complaints, I do not credit his explanation that he failed to tell her about them because he was afraid of hurting her feelings. Moreover, although the record fails to show the length of the period between the time she started going to school and her termination on November 18, 1983, Hoffer's testimony makes it clear that he did not discharge her immediately after learning that she had started going to school ("I should have done something . .. to discipline her then"), notwithstanding his further testimony, in effect, that he objected to her conduct solely because it did not give Respondents enough time to make arrangements to have her work performed while she was in school. As to Lambus, if Respondents really discharged her for suspected theft and wanted to avoid a lawsuit, it is rather unlikely that Respondents would have waited for a month after the suspected theft and then told her that she was being discharged (the day after the Union's bargaining demand) because of her union activity. Moreover, Joseph Hoffer's testimonial at- tribution of part of this delay to cautioning by counsel is belied by Hoffer's admission that he did not retain coun- sel until after Lambus was discharged. I find that Re- spondents discharged Gaines and Lambus because of their union activity, and for no other reason, in violation of Section 8(a)(3) and (1) of the Act. 17 Gaines credibly testified that she had read her book while at the cash register , but not "a lot " 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As to Cosby's termination, Respondents' principal de- fense to the complaint allegations is that the record alleg- edly fails to show that Respondents knew or suspected her union activity. However, it was Cosby who gave out union cards to Lambus and Gaines, both of whom (Joseph Hoffer in effect admitted to Lambus during her termination interview) were laid off for union activity. Further, Cosby attended the union meeting held at Gaines' house a week before Gaines' termination. More- over, Respondents' entire active nonsupervisory work force consisted of only 28 employees; Hoffer ran the store (whose area is 6500 square feet) like a family busi- ness and regularly worked with the employees in the store, in an informal atmosphere; he displayed interest in the identity of union supporters; he threatened to dis- charge anyone who was caught having anything to do with the Union; at least 4 employees were on Respond- ent's premises when their signatures on union cards were successfully solicited in late November 1983; and at least 3 such signatures were successfully solicited on Respond- ents' premises in late January 1984. Also, Hoffer demon- strably sought to conceal the extent of his knowledge of the union movement and its supporters, including Cosby. Thus, although he in effect admitted to Lambus that Gaines had been terminated on November 18, 1983, for union activity, he testified before me at one point that it was not until after Christmas 1983 that he found out about union activities at Respondents' store; and later testified that even after receiving the Union's oral bar- gaining demand on April 18, 1984, he was not aware of any union activities going on. Although the July 30, 1984 complaint alleged that Cosby had been discharged for supporting the Union, Hoffer testified before me on the second day of the hearing (October 11, 1984) that he had not had any idea until the preceding day (the first day of the hearing) that she was involved in the Union. Further, when asked whether Cosby had ever said anything to him about the Union, Hoffer testified, "She never said anything to me about the Union, but she did make some snide remarks lately, to the effect that I am going to be sorry about something"; Hoffer testified that she made these "snide remarks" about a month before her layoff, and when he spoke to her about her conduct at the cash register. Furthermore, the reasons that Respondents advance for her layoff wholly fail to explain why the layoff oc- curred on Thursday, April 19, 1984, the day after the Union's bargaining demand. Hoffer testified that he laid her off because she had repeatedly asked to be laid off, Respondents had trained another employee (Gullins) to perform Cosby's duties as a cashier, and Cosby "lately had developed some very bad habits"-more specifically, reading newspapers and books at the cash register, and embarrassing Hoffer by telling him in customers' pres- ence that his efforts to help her were incompetent and useless. However, Hoffer testified that her most recent request to be laid off had been made about a month before she was laid off, 18 and that it was about the same 18 Cosby credibly testified that she asked Joseph Hoffer "maybe about two or three" times in 1983 to lay her off Grocery manager Joseph Menus (not claimed to be a supervisor) credibly testified that on a date time (that is, a month before her layoff), when he re- proached her about her cash-register conduct. Further- more, Gullins had been working as a cashier for at least 5 months before Cosby was laid off. In view of the fore- going, I discredit Hoffer's testimony that at all material times he was unaware of Cosby's union activity, t 9 con- clude that knowledge or suspicion by Respondents of her union activity played a part in Respondents' decision to lay her off,20 and find that Respondents have failed to show that she would in any event have been laid off for lawful reasons.2 i C. The Refusal to Bargain and the Requested Bargaining Order It has been found that as of April 18, 1984, the date of the Union's bargaining demand, a majority of the em- ployees in an appropriate bargaining unit had signed union authorization cards. It has also been found that on various dates between November 19, 1983, and about April 21, 1984, Respondents engaged in unfair labor practices that were calculated to procure the Union's defeat in the representation election sought by the Union's petition, of which Respondents were advised on April 19, 1984. Under these circumstances, an 8(a)(5) violation should be found and a "second-category" bar- gaining order should issue to remedy unfair labor prac- tices, which have the tendency to undermine majority strength and impede the election process, if the possibili- ty of erasing the effects of such unfair labor practices and insuring a fair labor election by the use of "tradition- al" remedies is slight and employee sentiment once ex- pressed through cards would, on balance, be better pro- tected by a bargaining order. Among the factors material in making such a determination are the extensiveness of the employer's unfair labor practices in terms of their past effect on election conditions, the likelihood of their recurrence in the future, and the likelihood that compli- ance with a remedial order would erase from the em- ployees' memories the coercive effect of the unfair labor practices sought to be so remedied.22 I conclude that between February and April 1984 she told Hoffer in Menna 's presence that she would like to be laid off Menna further credibly testified that about a month later she told Menna (who told Respondents) that she would be better off being laid off than working only a few hours a day Meat department manager Matthews credibly testified that she said about March 1984 that she would like to be laid off for the summer, but that he did not report this remark to his supervisors For demeanor reasons, I do not credit either Cosby's testimony that after 1983 she never asked to be laid off, or Joseph Hoffer's testimony that she asked "any place between 10 to 20 times" to be laid off and during their termination interview she expressed a desire to be laid off 19 See NLRB v. Walton Mfg Co, 369 U S 404, 408 (1962) 20 Alumbaugh Coal Corp v NLRB, 635 F 2d 1380, 1384-1385 (8th Cir 1980), Florida Cities Water Co, 247 NLRB 755, 756 (1980) 21 See NLRB it Transportation Management Corp, 462 U S 393 (1983). 22 NLRB Y Gissel Packing Co, 395 U S 575, 613-615 (1969), NLRB V Keystone Pretzel Bakery, 696 F 2d 257, 263-264 (3d Cir 1982) (en banc), NLRB Y. Permanent Label Corp, 657 F 2d 512, 518-521 (3d Cir 1981), cert denied 455 U S 940 (1982), NLRB Y Armcor Industries, 535 F 2d 239, 244 (3d Cir 1976), NLRB Y Garry Mfg Co, 630 F 2d 934, 945-946 (3d Cir 1980), Eastern Steel Co, 253 NLRB 1230, 1240-1241 (1981), enfd 671 F 2d 104 (3d Cir 1982), Daybreak Lodge Nursing & Home, 230 NLRB 800, 804-805 (1977), enfd 585 F 2d 79 (3d Cir 1978), J Coty Mes- senger Service, 272 NLRB 268 (1984); Marchese Metal, 270 NLRB 293, 300 (1984) FOOD CART MARKET 1029 Respondents' refusal to honor the Union's bargaining demand violated Section8(a)(5) and (1) of the Act and that a bargaining order should issue. As found above, Respondents' unfair labor practices included the discriminatory termination of the two em- ployees who began the union movement and the employ- ee who probably obtained more signed authorization cards than any other employee. These terminations had the effect of destroying the Union's majority. Discharge is about the most severe penalty that an employer can in- flict for union activity, and the coercive effect of a con- sequent sudden loss of income cannot be completely undone by Board-compelled or judicially compelled rein- statement months or years later. Accordingly, such ter- minations constitute "a most flagrant means of dissua- sion" (Eastern Steel, supra, 671 F.2d at 103), which have been described as "hallmark violations [which] will sup- port the issuance of a bargaining order unless some sig- nificant mitigating circumstances exist" (Horizon Air Serv- ices, 272 NLRB 243 (1984)). Lambus' discharge for union activity had a particularly coercive tendency because of Respondents' eventual decision to use as a pretext there- for an alleged suspicion of theft, a claim which might well prejudice a victim's entire career. Martin-Brower Co., 263 NLRB 194, 230 (1982), enfd. 711 F.2d 420 (D.C. Cir. 1983). Further, Respondents committed additional "hallmark" violations by threatening employee Lambus that anyone having anything to do with the Union would be fired automatically on the spot, and by threat- ening employee Grover that if a union meeting had been held at his house, Respondents were going to get rid of him and other employees who had attended (Horizon Air Services, supra); indeed, Grover testified that although this statement was "maybe at the time .. . out of the heat," it hung over my head about being fired. In addi- tion, Respondents unlawfully threatened that if the Union came in Respondents would cut the employees' wages and hours (the exact opposite of the employees' purpose in selecting the Union), and unlawfully interro- gated Grover, who had held a union meeting at his house, about who had attended it. The likely impact of such unfair labor practices was augmented by the fact that all of them were engaged in by Respondent Joseph Hoffer himself" and that Respondents had a relatively small work force of fewer than 30 enlployees.24 Nor have Respondents made any efforts (so far as the record shows) to counteract the coercive tendency of their un- lawful conduct. Even assuming that a Board order will deter further unlawful conduct, I think it unlikely that the coercive impact of the unlawful terminations, and of Respondents' threat to discharge anyone else who en- gaged in union activity, would be negated by a cease- and-desist order, reinstatement offers and backpay to the discriminatees many months after their terminations, and a notice to the employees that such action was taken and Respondents will in the future respect employees' organi- zational rights. Rather, such terminations, Respondents' 23 Eastern Steel, supra, 671 F 2d at 108 (3d Cir 1'982), Daybreak Lodge, supra, 585 F 2d at 82 (3d Cir 1978), Horizon Air Services, supra, 272 NLRB 243 24 Eastern Steel, supra, 671 F 2d at 108 (3d Cir 1982), J & G Wall Baking Co, 272 NLRB 1008 fn 3 (1984). threats of like further reprisals, and Respondents' threat to cut hours and wages if the Union came in, lead me to conclude that the damage to the employees' ability to ex- ercise a free choice has already been done (see Gissel, supra, 395 U.S. at 612). Accordingly, I conclude that the possibility of insuring a fair election through the use of traditional "remedies is slight, and that employee senti- ment once expressed through cards would be better pro- tected by a bargaining order than by a cease-and-desist, reinstatement/backpay, and notice-posting order alone." Respondents' bargaining obligation will be dated April 18, 1984, because by that date that Union had achieved majority status and Respondents had commenced their unfair labor practices. Justak Bros., supra, 253 NLRB 1054 fn. 3. I find unmeritorious Respondents' contention that no bargaining order can issue because the evidence fails to show whether the employees who signed union cards constituted a majority of Respondents' work force before April 18, 1984, whereas the complaint alleges that "From on or about November 11, 1983 to on or about March 19, 1984, a majority of the [unit] employees . . . designated and selected the Union as their representative for the purposes of collective bargaining."25 Respond- ents have overlooked the further complaint allegations that "the Union has been at all times since April 18, 1984, and the Union is now, the [unit] employees' exclu- sive representative"; and that the Union demanded rec- ognition on April 18, 1984. Cf. J. & G. Wall Baking Co., supra, 272 NLRB 1008. CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondents constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees; ex- cluding guards and supervisors as defined in the Act. 4. Respondents have violated Section 8(a)(1) of the Act by threatening to discharge employees for union activity, by threatening to cut employees ' wages and hours if the Union came in, and by interrogating an employee about union activity. 5. Respondents have violated Section 8 (a)(3) and (1) of the Act by terminating Winifred Gaines, Barbara Lambus, and Juanita Cosby. 6. Respondents have violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union as the exclu- sive bargaining representative of the employees in the unit described in Conclusion of Law 3. 7. The unfair labor practices described in Conclusions of Law 4, 5, and 6 affect commerce within the meaning of the Section 2(6) and (7) of the Act. 25 The dates recited in the complaint are the dates on the authorization cards 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8. Respondents have not violated the Act by creating the impression of surveillance. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that Re- spondents be required to cease and desist therefrom. Such unfair labor practices included the discriminatory termination of the two employees who started the union movement and of the employee who was most successful in obtaining signed union cards from her fellow employ- ees, further included threats to commit unfair labor prac- tices in the future, and were all committed by Regpond- ent Joseph Hoffer personally. I conclude that, unless re- strained, Respondents are likely to engage in continued and varying efforts in the future to infringe on employee rights. Accordingly, a broad order is called for. Hickmott Foods, 242 NLRB 1357 (1979). Affirmatively, Respondents will be required to offer the discriminatees immediate reinstatement to the jobs of which they were unlawfully deprived, or if such jobs no longer exist, substantially equivalent jobs, without preju- dice to their seniority and other rights and privileges previously enjoyed.26 In addition, Respondents will be required to make these employees whole for any loss of pay they may have suffered by reason of the discrimina- tion against them, less net interim earnings, to be com- puted in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977).27 Also, Respond- ents will be required to expunge from their files any ref- erence to the unlawful terminations, and notify the em- ployees that this has been done and that evidence of such unlawful actions will not be used as a basis for future personnel actions against them. Sterling Sugars, 261 NLRB 472 (1982). In addition, Respondents will be re- quired to bargain with the Union, on request, and to post appropriate notices. Because some of Respondents' em- ployees speak Spanish as a native tongue and have limit- ed ability to read English, notices are to be posted in Spanish as well as English. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 ORDER Respondents Manuel and Joseph Hoffer, t/a Food Cart Market, their officers, agents, successors, and as- signs, shall 1. Cease and desist from 28 I do not credit Lambus' disingenuous testimony that she did not know why Joseph Hoffer had instructed her to leave her pocketbook up front although other employees were permitted to keep theirs in the meat room However, she denied having taken meat or canned shrimp from Respondents without paying for it The evidence adduced by Respond- ents in support of their contention that she was discharged for suspected stealing falls far short of warranting the denial of remedial relief from her for misconduct 27 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 28 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 (a) Threatening to discharge employees for union ac- tivity. (b) Threatening to cut employees' wages and hours upon the advent of a union. (c) Interrogating employees about union activity in a manner constituting interference, restraint, or coercion. (d) Laying off or discharging employees, or otherwise discriminating with regard to employees' hire or tenure of employment or any term or condition of employment, to discourage membership in United Food and Commer- cial Workers United Food and Commercial Workers International Union Local 1357, or any other labor orga- nization. (e) Refusing to recognize and bargain with Local 1357 as the exclusive bargaining representative of the follow- ing appropriate unit of Respondents' employees: All full-time and regular part-time employees; ex- cluding guards and supervisors as defined in the Act. (f) 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 Winifred Gaines, Barbara Lambus, and Juani- ta Cosby reinstatement to the jobs of which they were unlawfully deprived or, if such jobs no longer exist, sub- stantially equivalent jobs, without prejudice to their se- niority or other rights and privileges previously enjoyed; and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this decision enti- tled "The Remedy." (b) Remove from their files any reference to the termi- nations of Gaines, Lambus, and Cosby, and notify them in writing that this has been done and that evidence of these unlawful terminations will not be used as a basis for future personnel actions against such employees. (c) On request, recognize and bargain with Local 1357 as the exclusive representative of the employees in the appropriate unit, and embody in a signed agreement any agreement reached. (d) Post at their Philadelphia, Pennsylvania facility, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondents have taken to comply. Paragraphs 5(a) and 6(c) of the complaint are dis- missed.