Country Boy Markets

234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Grady Delling, Individually and Country Boy Mr. "D" Corp., d/b/a Country Boy Markets; Grady Delling Individually and Glenwood Markets, Inc. d/b/a Country Boy Markets ; and Grady Delling, Individually d/b/a Country Boy Mar- kets and United Food and Commercial Workers Union, Local 1680. Cases 16-CA-12913, 16- CA-12932, and 16-RC-8844 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 11 August 1987 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The General Counsel filed a brief in support of the judge's decision, limited exceptions, and a support- ing brief. The Respondent filed limited exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions as modified and to adopt the rec- ommended Order3 as modified. The judge found that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by discharg- ing employee Mildred Hathaway on 6 December 19864 because of her union activity and her partici- pation in Board processes. The General Counsel excepts to the judge's failure to find also that the Respondent's 12 October written reprimand to Hathaway violated Section 8(a)(1), (3), and (4) of the Act. We find merit in the General Counsel's exception. The complaint specifically alleges an 8(a)(1), (3), and (4) violation based on the 12 October written reprimand to Hathaway. The judge's factual find- ings that support this allegation are not in dispute.5 I At the hearing the judge granted the Union's motion to withdraw its objections to the election in Case 16-RC-8844 and the General Counsel's motion to amend the complaint to reflect the withdrawal Notwithstand- ing the granting of these motions, the judge failed to sever and remand Case l6-RC-8844 to the Regional Director for further appropriate action We find merit in the General Counsel's exception to this failure of the judge, and we shall sever the representation case from the proceeding and remand that case to the Regional Director 2 No exceptions were filed to the judge's recommended dismissal of the allegations concerning Phillip Williams 3 The Respondent's sole exception is addressed to the judge's inclusion of a visitatorial clause in his recommended Order, authorizing the Board to obtain discovery from the Respondent under the Federal Rules of Civil Procedure in order to monitor the Respondent's compliance with this Order We find it unnecessary to include such a clause in the Order in this case " All dates are in 1986 unless otherwise indicated 5 In its answer to the General Counsel's exceptions, the Respondent asserts that there is no substantial evidence to find an 8(a)(1), (3), and (4) Hathaway, a known union supporter, had been ef- fectively terminated early in 1986, but after filing charges with the Board she was reinstated pursuant to a Board settlement agreement. On reinstatement Hathaway became the target of a campaign to ter- minate her or harass her to induce her to quit. The judge found that Hathaway was placed in a vulnerable position subjecting her to a charge of selling intoxicating beverages to intoxicated per- sons when the Respondent placed her on a late night shift in a high crime area where beer, soft drinks, and snack food make up most of the sales. On 12 October Hathaway was called to the Re- spondent's security office and given a written repri- mand for selling beer to an intoxicated customer. Although the judge failed to draw a legal conclu- sion regarding the written reprimand, he did find that the Respondent did not have a rule prohibiting the sale of beer to intoxicated customers, had never instructed its employees of any such rule, and had never disciplined any other employee for this of- fense although other employees had sold beer to in- toxicated customers. Under these circumstances, we find that the General Counsel has established a prima facie case that the reprimand was, like Hathaway's subsequent discharge,6 unlawfully mo- tivated and, because there is no evidence showing that the Respondent would have issued the repri- mand absent her union and other protected activi- ty,7 that the Respondent violated Section 8(a)(1), (3), and (4) by giving the written reprimand to Hathaway on 12 October. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4. "4. The Respondent violated Section 8(a)(1), (3), and (4) of the Act by its 12 October written repri- mand and its 6 December discharge of its employee Mildred Hathaway because of her union activities and participation in Board processes." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Grady Delling, Individually and Country violation by the written reprimand to Hathaway but provides no further argument or specific reference to the judge's factual findings 6 Hathaway was discharged on 6 December assertedly, in part, for again selling beer to an intoxicated person The judge found these and the other asserted reasons for her discharge to be pretextual and the Re- spondent has not excepted to that finding 4 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) Limestone Apparel Corp, 255 NLRB 722 (1981) See also Taylor & Gaskin, Inc, 277 NLRB 563 at fn 2 (1985) 287 NLRB No. 24 COUNTRY BOY MARKETS Boy Mr. "D" Corp., d/b/a Country Boy Markets; Grady Delling, Individually and Glenwood Mar- kets, Inc. d/b/a Country Boy Markets; and Grady Delling, Individually d/b/a Country Boy Markets, Midwest City, Oklahoma, its officers , agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) Disciplining and discharging its employees because of their union activities or their participa- tion in Board processes." 2. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the 12 October written reprimand and the 6 December discharge of Mildred Hathaway and notify her in writing of this and that the written reprimand and the discharge will not be used against her in any manner." 3. Substitute the following for paragraph 2(f). "(f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 4. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that Case 16-RC-8844 be severed from Cases 16-CA-12913 and 16-CA- 12932 and that it be remanded to the Regional Di- rector for Region 16 for the issuance of the appro- priate certification. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD ,An Agency of the United States Government The National Labor Relations Board, has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of our employees because of their engagement in protected concerted activities or their participation in Board processes. WE WILL NOT threaten our employees that we will never sign a labor agreement with the Union if they select union representation. 235 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Mildred Hathaway immediate and full reinstatement to her former job or , if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL remove from our records and files any reference to the 12 October written reprimand and the 6 December 1986 unlawful discharge of Mil- dred Hathaway and WE WILL notify her in writing that this has been done and that evidence of such unlawful conduct will not be used in future person- nel action. GRADY DELLING, INDIVIDUALLY AND COUNTRY BOY MR . "D" CORP., D/B/A COUNTRY BOY MARKETS; GRADY DELLING , INDIVIDUALLY AND GLENWOOD MARKETS, INC. D/B/A COUNTRY BOY MARKETS; AND GRADY DELLING, INDIVIDUALLY D/B/A COUNTRY BOY MARKETS Wayne A. Rustin, Esq., for the General Counsel. Mr Charles Ellis, Esq., of Oklahoma City, Oklahoma, for the Respondent. Mr. David O 'Dens, Esq. (Lampkin, McCaffrey & Taw- water), of Oklahoma City, Oklahoma, for the Charging Party. DECISION STATEMENT OF THE CASE ` LAWRENCE W CULLEN, Administrative Law Judge. This case was heard before me at Oklahoma City, Okla- homa, on 4, 5, and 6 May 1987 pursuant to a consolidat- ed complaint filed on 15 April 1987 , by the Regional Di- rector for Region 16 of the National Labor Relations Board and is based on charges filed by the United Food and Commercial Workers Union Local 1680 (the Union) against Grady Delling, Individually and Country Boy Mr. "D" Corp . d/b/a Country Boy Markets and Grady Delling, Individually and Glenwood Markets, Inc d/b/a Country Boy Markets and Grady Delling, Individually d/b/a Country Boy Markets (the Respondents) Objec- tions to the election in Case 16 -RC-8844 were with- drawn by the Charging Party Union at the hearing. The complaint alleges that Respondent has violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act). Respondent by its answer denies the commis- sion of any violations of the Act On the entire record in this case including my observa- tion of the witnesses and after due consideration of the 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD briefs filed by the General Counsel and counsel for the Respondents, I make the following FINDINGS OF FACT' I JURISDICTION The Business of the Respondent The complaint alleges, the answer admits, and I find that Respondent Grady Delling, 'Individually and Coun- try Boy Mr. "D" Corp. d/b/a Country Boy Markets is, and has been at all times material, a corporation duly or- ganized under and existing by virtue of the laws of the State of Oklahoma, maintaining an office and place of business in Midwest City, Oklahoma, where it is engaged in the retail operation of a chain of supermarket stores, that Respondent Grady Delling, Individually and Glen- wood Markets, Inc d/b/a Country Boy Markets is now and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Oklahoma maintaining an office and place of business in Midwest City, Oklahoma, where it is engaged in the retail operation of a chain of supermarket stores; that Respondent Grady Delling, Individually d/b/a Country Boy Markets is now, and has been at all times material, a sole proprietor duly organized under and ex- isting by virtue of the laws of the State of Oklahoma, maintaining an office and place of business in Midwest City, Oklahoma, where it is engaged in the retail oper- ation of a chain of.supermarket stores. During the 12- month period prior to the filing of the complaint, each of the aforesaid businesses purchased and received at its su- permarket stores located in the State of Oklahoma goods and supplies valued in excess of $50,000 directly from sources located outside the State of Oklahoma and de- rived gross revenues in excess of $500,000 At all times material the aforesaid businesses were each an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and have been a single-inte- grated enterprise and a single employer within the mean- ing of the Act by virtue of common officers, ownership, directors, management, and supervisors, a common labor policy, common premises and facilities and having held themselves out to the public as a single-integrated enter- prise. II THE LABOR ORGANIZATION The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A Facts Mildred Hathaway had been employed at Respond- ent's store 7 in Oklahoma City, Oklahoma, since March 1985 when Respondent purchased it from Humpty Dumpty Markets. She had worked at Humpty Dumpty Markets for about 12 years where she had been a member of the Union during that time. After Respondent I All dates are in 1986 unless otherwise specified purchased Humpty Dumpty, it retained Hathaway as an employee where she continued to work in that store's bakery She testified that when the Union commenced a campaign to organize the employees in the fall of 1985, she was asked by other employees about the Union and by Wayne Dibler, Respondent's district manager, and Respondent's store manager Jeff Holmquist, as she was a known union member having been represented by the Union during much of her tenure at Humpty Dumpty and having signed a union card in the fall 1985 cam- paign. In,January 1986 she was told during her shift by Dibler that she would be transferred to another store and she protested this as it was a greater distance and she had worked in the bakery of store 7 for many years During the shift, she asked what her wages and hours would be at the new store and was told by Dibler that she had quit. She reported for work the next day but was not allowed to work and was again told by Dibler that she had quit and that he had made other arrange- ments. Hathaway also testified that in January 1986, Dis- trict Manager Wayne Dibler had called her and another employee into the backroom of store 7 and told them that Owner Grady Delling did not want a union in his stores'and would phase the stores out if a union came in. She filed charges with the Board and, pursuant to a set- tlement agreement, she and another employee, James Gibson, who had also been terminated were returned to work and she was assigned to work as a checker at store 5. Gibson died in December 1986 Former store 5 Assistant Manager Phillip Williams tes- tified that he and other employees were told by Store Manager Richard Rogers at a meeting held before the return of Hathaway and Gibson that their own hours would be reduced to make up for the hours to be worked by Hathaway and Gibson and, if they wanted more hours, they should make working unpleasant for Hathaway and Gibson so they would quit or to find a reason for discharging them Williams testified he was told by Rogers to writeup Hathaway and Gibson and to give them any dirty job he could think of toward these ends. He did assign Hathaway to mop with a large mop, and subsequently gave her a smaller mop, but was then told by Rogers to make her use the large mop Hatha- way testified the large mop hurt her back He did not write up Hathaway but continued to be encouraged to do so He did write up Gibson for failing to complete stocking (although Gibson was then off duty) and for failing to attend a meeting as trumped-up offenses in order to satisfy the directive of Rogers to do so I credit Williams' testimony as set out above which was unrebut- ted Neither Rogers nor the other employees at the meet- ing held by Rogers were called to testify. On 12 October 1986 Hathaway and Williams were both on duty. Hathaway had initially been assigned to the evening shift for the first week after her return to employment but had thereafter been reassigned to the 11 p.m. to 7 a in shift as a checker Testimony of Respond- ent's security chief Clifford Lea, Respondent's security guard Don Matthews, and Respondent's assistant store manager Kevin Clark established that the store is in a high crime rate area and that the most frequent pur- COUNTRY BOY MARKETS chases on the 11 p.m to 7 am shift are of intoxicating beverages (beer), soft drinks, and snack foods Clark also testified that there have been a number of incidents wherein customers have been apprehended by the securi- ty guard and held for the police. Security guard Matthews, an Oklahoma City police- man who works part-time as the night security guard for Respondent at store 7, testified that on 12 October 1986, he was in the security office and was watching security cameras that monitor the customers in the store. He ob- served a male customer whose clothes were in disarray and whose genitals were "practically" exposed weaving or staggering in one of the aisles and then observed the man pick up some beer and other items and proceed to the checkout counter being operated by Hathaway He also observed the man talking to other ladies with chil- dren in the line and then observed the ladies suddenly leave the line and the store He then observed Hathaway ring up the man's purchase and sell him some beer and the man then leave Matthews had approached the man at the register and smelled alcohol on his breath but did nothing He then called Hathaway and Assistant Store Manager Williams to the security office and told them that it is a felony to sell beer to an intoxicated customer in Oklahoma and read them the state statute outlining the offense Hathaway testified she had never been told not to sell beer to an intoxicated person or how to detect in- toxicated persons, but she felt that she should not sell beer to intoxicated persons but had not determined the man in this instance to be intoxicated She also testified she commenced crying and asked Matthews whether she would be arrested as she wanted to call her lawyer if this were so Matthews then issued both Hathaway and Wil- liams, the assistant manager, a written warning for, the sale of beer to an intoxicated customer. The testimony of Kevin Clark established that Matthews exercises manage- rial authority at the store on the night shift. Respondent maintains lengthy lists of offenses that may result in dis- charge after three occurrences and that are given to each employee, including one particularly for checkers on their hire. However, there is no mention of the sale of alcoholic beverages to intoxicated persons contained on the lists Moreover, none of Respondent's representatives could testify that there was any practice of telling em- ployees not to sell beer to intoxicated persons, or of warning them of possible disciplinary actions for doing so, or of any instructions that had been given to Hatha- way or other employees on how to determine whether a person was intoxicated Matthews testified that he had received special training as a police officer to learn how to determine whether a person was intoxicated Suzy Zeigler, formerly employed at Respondent's Country Boy stores 7, 6, and 5 where she became a full- time checker and of which Richard Rogers was the man- ager, testified she was never required to mop the floor as a checker She also testified that if customers did not have a check cashing card, their check had to be ap- proved by the assistant manager or store manager, and if a checker failed to obtain such approval, she could be subject to discipline She further testified that there was no policy regarding the sale of beer to customers who were intoxicated, that she had never been told by Rogers 237 or any person in security not to sell beer to a customer who was intoxicated and that she had sold beer to a cus- tomer who had been drinking. Daunya Lee, formerly employed as a checker at Coun- try Boy store 5, testified that she was never required to mop the floor She was aware of the union campaign, and attended a meeting held by Wayne Dibler, Respond- ent's district manager, in the breakroom of Respondent's store 5 on 17 November 1986. She testified that at this meeting Dibler told the employees that store owner Grady Delling and he would appreciate a "no vote" at the upcoming representation election because Delling would not sign a contract with the Union She also testi- fied that all checks must be approved at the office. She further testified that she was never informed of a policy prohibiting the sale of beer to intoxicated customers, nor had she received any training on how to identify an in- toxicated person The Respondent called Regina Stilson who is currently employed by Respondent and attended the November meeting held by Dibler. She testified that Dibler told the employees that if the Union was claiming that the Respondent would discontinue its policy of po- lygraphing employees if the Union won the election, that any changes had to be agreed to in a contract and that he (Diller) felt that Delling "would never approve the elimination of polygraphs " On 4 November Williams was collecting misplaced good merchandise, damaged merchandise, and trash in a large box and had taken it to the back room where he placed it in a baler utilized to compact trash. Williams testified that he was called to the front of the store by Hathaway for a check approval and had placed the entire box in the baler intending to return and separate it. The box with the enclosed items was later discovered by Respondent's produce manager Don Cornish, as the baler was not working and did not crush it. Respondent's employees retrieved the items from the baler and Mat- thews made, an inventory thereof including good and damaged items, which inventory was received into evi- dence. The total value of the goods was listed as $96 Se- curity Chief Clifford Lea interviewed Williams the fol- lowing evening and testified that Williams told him that he knew it was wrong at the time he put the items in the baler and apologized for it. At that time Lea terminated Williams Lea testified that Williams at no time claimed that it was an accident and that Williams called him back on two occasions after his termination and attempted to get his job back and repeated that he (Williams) was sorry for putting the items in the baler and knew he was wrong for doing it Grady Delling, the owner of Re- spondent, testified that Williams subsequently telephoned him at home in an attempt to get his job back and told Delling that he "threw some stuff in the baler," and that Williams told him he did it because "Well I was kind of mad I'd been working hard and I thought I was doing all the work So I threw it in there mad. I want to apolo- gize and I want my job back." Delling declined to over- rule Lea's decision Delling also testified that the dam- aged goods are valuable as Respondent receives full credit from their supplier for them Williams testified he signed a union card on 3 November 1986, the day before 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his termination, and that he told Gregg Downing, an as- sistant manager, on the same afternoon that he wanted the Union-in the store Downing who was subsequently an observer for the Respondent at the election and has also been promoted to manager did not testify. Emma Perron, a union organizer, also testified that Williams had signed a union card on 3 November. Williams ac-, knowledged that he had previously received written rep- rimands for leaving his key in the restroom and for leav- ing the front of the store, and for allowing employee Gibson to wear earplugs. At the hearing Williams disput- ed the amount of the items left in the baler contending it was substantially less (about $15-$20 total value). He tes- tified he was going to separate the items but was dis- tracted and forgot to do so, and that this was an honest mistake and that he told Lea that this was an honest mis- take. He denied being angry at the time he put the goods in the baler and denied having thrown the goods in the baler. At one point in recross-examination he answered "yes" to a question by Respondent's counsel "didn't you admit to Richard Rogers that you had thrown the goods in the baler?" Subsequently he denied having intentional- ly left the goods in the baler. He also denied having told Delling that he had intentionally left the goods in the baler. On 6 December 1986 Hathaway was checking and se- curity guard Matthews was in the security office observ- ing the cameras that are used to monitor the store Mat- thews testified he observed a car pull up in front of the store, partially jump the curb, and then saw a black male dressed in dark clothes with his clothes in disarray enter the store staggering and pick up some beer and then go to another area where he picked up some other items and then go to the cash register operated by Hathaway where Hathaway sold him the beer and other items Mat- thews testified he observed a bulge in the man's coat pocket while the man reached in his pants pocket for his billfold to make the purchases. Matthews testified that in his role as a police officer he knew the man previously as a subject who had been arrested. Matthews followed the man out of the store and ar- rested him following a brief struggle and discovered him to be carrying a 22 caliber pistol He was followed out- side by Assistant Manager Kevin Clark who then re- turned inside and placed the beer on Hathaway's counter. Hathaway testified she asked Clark whether the man was being arrested because she had sold him beer and that Clark replied in the negative. Matthews took the man to the rear of the store and told Clark to arm himself with a gun in the security office and to guard the man while Matthews called a special police telephone number to get expedited police service. Clark complied, and while Clark was guarding the man, Matthews ob- served Hathaway attempting to speak to Clark. Accord- ing to Hathaway, she was attempting to have a check approved, for off-duty security officer William (Don) Johnson and went back to have the check approved by Clark. Clark testified that Hathaway was inquiring whether she was in trouble because of the sale of beer to the customer, but acknowledged that she may also have asked him to approve a check. Johnson testified at the hearing that he paid for his groceries in cash. I credit Johnson's testimony in this regard. During this period Johnson, who was an acquaintance of Matthews, looked into the room where the man was being held by Clark as did another employee, stocker Vic Vining, on duty that night The man was subsequently arrested for "public drunkenness" with charges pending and according to the testimony of Lea for carrying a concealed weapon. Hathaway testified that she had earlier refused to sell beer to an individual in dark clothing and that he had gone to the other checker's line and that she subsequent- ly sold beer to a well dressed man in a three-piece suit whom she had engaged in conversation and found not to be intoxicated. She denied having sold the beer to the man arrested by Matthews Clark testified that the other employee, Vining, was then stocking and was used only as a backup checker during this shift. Hathaway was discharged by Lea that morning for having committed a second offense of selling beer to an intoxicated person and for interfering with an arrest. Clark and Matthews testified that the man in question was red eyed and unable to sit up straight. B Analysis 1 The 8(a)(1) violation I credit the testimony of Daunya Lee that District Manager Wayne Dibler, an admitted supervisor, told the employees that Delling would never sign a contract with the Union. I found her testimony explicit and convinc- ing. I do not find that it was substantially rebutted by the testimony of Stilson who testified concerning part of the conversation To the extent that there may be a conflict, I credit the testimony of Lee over that of Stilson I thus find that Respondent violated Section 8(a)(1) of the Act by Dibler's statement that Delling would never sign a contract with the Union conveying to the employees the futility of obtaining union representation. 2. The discharge of Williams I conclude that the General Counsel has not estab- lished a prima facie case that Williams was discharged as a result of his failure to harass employees Gibson and Hathaway because of their union sentiments By Wil- liams' own testimony, he did order Hathaway to mop up and he did write up the other employee, Gibson, on two occasions for trumped-up offenses I thus find that the General Counsel's case must fail in this respect. I also find that the General Counsel has not made out a prima facie case of a violation of Section 8(a)(3) by reason of Williams' discharge because of his union activities. In the instant case, Williams signed a union card and told an- other employee in a small store of his union sentiments the day prior to his termination. The timing of the union activities and the termination of Williams a day thereaf- ter by Respondent would generally present a prima facie case of a violation of Section 8(a)(3) and (1) of the Act I particularly find that Respondent's knowledge of Wil- liams' union sentiments may be inferred by reason of the knowledge of Assistant Store Manager Downing How- ever, this record shows Williams was a supervisor with the authority to, assign work and writeup (evaluate and COUNTRY BOY MARKETS discipline) employees. As a supervisor, Williams is not protected under Section 7 of the Act for his own en- gagement in union activities . I thus find that the General Counsel has failed to sustain its burden of proof that Wil- liams was a protected employee rather than a supervisor and has not established a prima facie case that his dis- charge violated Section 8(a)(3) and (1) of the Act. Assuming arguendo that the General Counsel estab- lished a prima facie case that Williams was discharged because of his failure to harrass employees Hathaway and Gibson, or because of his own union activities as a protected employee under the Act, I will proceed to evaluate Respondent's defense . I find that the testimony of Lea, Cornish, and Delling should be credited in this regard as supported by the inventory prepared by Mat- thews. I find that the amount of merchandise discovered in the baler was significant and credit Respondent's ex- hibits and testimony demonstrating its value as approxi- mately $100. In making credibility determinations I credit Lea and Delling that Williams told them he had thrown the items in the baler rather than merely made an honest mistake as he testified at the trial . I found Lea and Delling's testimony to be credible in this regard even acknowledging the background of credited testimony of Williams concerning Respondent's Store Manager Rich- ard Rogers' instructions to get rid of Hathaway and Gibson, and Respondent's intense dislike of unions and its proclivity to violate the Act, as demonstrated by Wil- liams' unrebutted testimony concerning its attempts to get rid of union supporters Gibson and Hathaway fol- lowing a Board settlement under which they were re- turned to work and the Board's decision in Country Boy Markets, 283 NLRB 122 (1987), in which the Board found violations of the Act by Respondent. In assessing Williams' testimony, I do not find it plausible that he would have put the box in the baler for purposes of sort- ing out the goods therein. I also noted the tendency of Williams to accept the facts in questions posed to him as to whether he "threw" the items in the baler or merely mistakingly laid them in the baler. I thus conclude that Respondent has persuasively demonstrated by the pre- ponderance of the evidence that it would have dis- charged Williams even in the absence of the alleged un- lawful reasons set out in the complaint ; Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 ( 1981); Roure Bertrand Dupont, 271 NLRB 443 ( 1984); and NLRB v. Transportation Man- agement Corp., 462 U.S. 393 ( 1983). 3. The discharge of Hathaway I find that the General Counsel has established a prima facie case of a violation of Section 8(a)(3) and (4) of the Act by Respondent's discharge of Hathaway. The evi- dence established that Hathaway was a known union member and supporter, who had been terminated previ- ously but reemployed after she filed charges with the Board as a result of a Board settlement agreement and who on her return became the target of a campaign to terminate her or harass her to induce her to quit because of her union activities, and I also find because she had filed a charge with the Board. Respondent's owner bell- ing also testified that Hathaway was running with the 239 Union. The record also establishes that the Respondent had no rule concerning the sale of intoxicating beverages to customers and had never instructed its employees con- cerning this, or given them any training concerning how to identify an intoxicated person as opposed to a person who had been drinking . Moreover, the circumstances in this case show that Hathaway was placed on a late night shift in a high crime rate area where beer, soft drinks, and snack food made up most of the sales thus leaving her most vulnerable to the charge of selling intoxicating beverages to intoxicated persons . Respondent has numer- ous rules but had no rule concerning this particular of- fense, and had never disciplined an employee for it prior to the 12 October discipline of Hathaway and Williams, although employees had sold beer to persons who had been drinking. I further found Matthews' testimony not to be credible in several respects . It is implausible to me that in the October incident he would have allowed Hathaway to sell the beer to the customer whom he de- termined to be intoxicated if his real concern were with the prevention of the sale of alcohol to intoxicated per- sons rather than with the discipline of Hathaway. I did not find credible his reasons for letting this customer purchase the beer without incident as on one occasion he stated that this person was a happy -go-lucky drunk, and on another occasion, he stated that there were other men with this man and he did not want to get suckered out of his security area, particularly in view of his admission to the General Counsel that he was right at the counter at the time of the sale on being shown his report that con- tradicted his earlier testimony that he had been observing from the security area at the time . Further, I found Mat- thews to be somewhat an argumentative witness who im- pressed me as sparring with the General Counsel rather than answering direct questions asked of him . I also do not credit Lea that he discharged Hathaway because of her sale of alcohol to an intoxicated person and I find the additional charge of interfering with an arrest given as a reason for the discharge of Hathaway was a pretext. With regard to the incident of 6 December 1986, I find that Hathaway did sell beer to the person in question and do not credit her denial thereof which I find was in part motivated by her concern of being unduly terminated as a result of Respondent's campaign against her as related to her by Williams who told her the Respondent was out to fire her. I also find that the additional charge of inter- fering with an arrest levied against Hathaway is further evidence of Respondent's seizing on a pretext in its effort to discharge her as by all accounts the most she did was ask Clark whether she would be terminated because of the sale of beer to the man being held by Clark. Under no circumstances could this inquiry have led to, or been the basis for, the charge of interfering with an arrest. I thus find that the Respondent has failed to demon- strate by the preponderance of the evidence that it would have discharged Hathaway even in the absence of her protected activities as a union supporter. Wright Line, supra; Limestone Apparel Corp., 255 NLRB 722 (1981). 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, are found to constitute unfair labor practices occurring in connection with Respondents' operations as set out in section I, above, and have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes and obstruct commerce and the free flow there- of CONCLUSIONS OF LAW 1. Grady Delling, Individually and Country Boy Mr. "D" Corp. d/b/a Country Boy Markets; Grady Delling, Individually and Glenwood Market, Inc d/b/a Country Boy Markets; and Grady Delling, Individually d/b/a Country Boy Markets, are employers within the meaning of Section 2(6) and (7) of the Act and are a single em- ployer. 2. United Food and Commercial Workers Union, Local 1680 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by the threat issued by its District Manager Wayne Dibler that Respondent's owner Grady Delling would never sign a contract with the Union if the employees chose union representation in the upcoming representation elec- tion. 4. Respondent violated Section 8(a)(3) and (4) of the Act by its harassment and discharge of its employee Mil- dred Hathaway because of her union activities and be- cause of her participation in Board processes. 5. Respondent did not violate the Act by its discharge of its employee Phillip Williams. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom, and take certain af- firmative action to effectuate the policies of the Act. The Respondent shall be ordered to offer immediate and full reinstatement to its employee Mildred Hathaway or, if her former position no longer exists, to a substantially equivalent position without prejudice to her seniority and other rights and privileges and make her whole for any loss of earnings or benefits she may have sustained as a result of its discrimination against her in accordance with the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987). See gen- erally Isis Plumbing Co., 138 NLRB 716 (1962). I further recommend a visitatorial clause as requested by the Gen- eral Counsel because of Respondent's proclivity to vio- late the Act, as demonstrated by its discrimination of Hathaway and Gibson who were returned to work fol- lowing a Board settlement agreement and in view of my review of the decision in Grady Delling, supra. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER Respondents Grady Delling, Individually and Country Boy Mr. "D" Corp. d/b/a Country Boy Markets; Grady Delling, Individually and Glenwood Markets, Inc. d/b/a Country Boy Markets; and Grady Delling, Individually d/b/a Country Boy Markets, Midwest City, Oklahoma, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening its employees that it will never sign a labor agreement with the Union if they select union rep- resentation. (b) Discharging its employees because of their union activities or their participation in Board processes. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Mildred Hathaway immediate and full re- instatement to her former position or, if it no longer exists, to a substantially equivalent position without prej- udice to her seniority or any other rights previously en- joyed. (b) Remove from its files any reference to the unlawful discharge of Mildred Hathaway and notify her in writing of this and that the discharge will not be used against her in any manner. (c) Make Mildred Hathaway whole for any loss of earnings and other benefits sustained as a result of the discrimination against her in the manner set forth in the remedy section of this decision. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (e) Post at its facilities in Midwest, Oklahoma, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 2 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 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 " COUNTRY BOY MARKETS (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply . For the purpose of deter- mining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent , its officers, agents, successors or assigns , or any other person having 241 knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably re- lated to compliance with this Order, as enforced by the Court.