Clinton Food 4 Less

CLINTON FOOD 4 LESS 597 Co-Jo, Inc. d/b/a Clinton Food 4 Less and United Food and Commercial Workers Local No. 576, AFL-CIO and CLC and Linda Brooks. Cases 17-CA-12951, 17-CA-12961, 17-CA-13001, and 17-CA-13113-1 April 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 11, 1987, Administrative Law Judge Elbert D. Gadsden issued the attached deci- sion. The General Counsel and the Respondent filed exceptions and supporting briefs, and the Gen- eral Counsel filed a brief in opposition to the Re- spondent's exceptions.1 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, fmdings, 2 and conclusions to the extent consistent with this deci- sion and to adopt the recommended Order.3 The Respondent has excepted, inter alia, to the judge's finding (at sec. III,M, of his decision) that the Respondent violated the Act by asking employ- ee Linda Brooks "what [she] was wanting" with respect to the negotiations between the Respondent and the Union. The General Counsel has not op- posed this exception in his answering brief. It is undisputed that this question was directed to an open and active union adherent; indeed, Brooks was a member of the Union's negotiating commit- tee. Accordingly, we shall dismiss this allegation of the complaint. Rossmore House, 269 NLRB 1176 (1984).4 The Respondent has also excepted to the judge's order granting the Charging Party's motion to quash subpoena duces tecum and have re- turned to it subpoened records For the reasons set forth in the judge's recommended Order granting this motion, we affirm the judge's ruling. 2 The General Counsel and the Respondent excepted to some of the judge's credibility findings. The Board's established policy is not to over- rule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in- correct. 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. 3 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 U.S.C. § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 4 Member Cracraft finds it unnecessary to consider whether the Re- spondent violated Sec 8(a)(1) by mterrogatmg Brooks as any violation that might be found would be cumulative. We agree with the judge that the Respondent discharged employee Linda Brooks on August 23, 1986, 5 in violation of Section 8(a)(3) and (4) of the Act. We conclude that the reason the Respondent offered for the discharge—discourtesy to custom- ers—was a pretext for getting rid of Brooks be- cause of her union activity and testimony in this proceeding. Brooks had been employed by the Respondent for about 11 years. She had served as head check- er, had been given banking responsibilities and access to the company computers, and had partici- pated in writing and enforcing company courtesy policies. The Respondent had recognized her per- formance by selecting her to attend a club meeting and by giving her bonuses and a trip. Brooks was a leading union adherent and a member of the Union's negotiating committee. She regularly participated in, the Union's picketing and handbilling, which began April 24 after the Re- spondent withdrew recognition from the Union. On April 21, the Respondent questioned Brooks about her union interests and, on April 25, unlaw- fully changed her work assignments and those of some other employees. In April and May two customers, Mildred May- field and Pamela Corum, separately complained to management that Brooks had been rude to them, and the Respondent disciplined Broolcs. 6 At the hearing in this case in August, customer Mayfield testified that Brooks had been courteous to her since the April complaint; customer Comm testi- fied that Brooks had again been rude to her on the day she testified, August 21.7 On August 23, the Respondent called Brooks to the office shortly before her shift was to end and gave her a written notice which stated she was ter- minated because she had been disciplined previous- ly for rudeness to customers and a customer had testified that she had been rude again. In rejecting discourtesy to customers as the Re- spondent's real reason for discharging Brooks, we have considered the circumstances of the discharge against the background of Brooks' longterm satis- factory employment and the Respondent's union 5 All dates refer to 1986. 6 We adopt the Judge's finding that the Respondent did not act unlaw- fully in imposing the discipline. However, we do not agree with our dis- senting colleague that Brooks exhibited a "pattern" of inappropriate be- havior for which she was disciplined. 7 Comm u testified that the mcident of rudeness occurred on the same afternoon that she testified. As Corum would have had little opportunity to report the matter to the Respondent before testifying, we do not adopt the judge's speculation that it is probable Comm would have reported the incident to management if it had occurred. We also disavow his con- clusion that Brooks would not have repeated discourteous behavior toward a customer who had already reported her to management, for the record shows that Brooks did not know who had complained about her. 288 NLRB No. 80 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD animus and extensive unfair labor practices. The Respondent's manager unexpectedly presented Brooks with written notice of termination without questioning her earlier or at the time about wheth- er she had in fact been rude to customer Corum,8 and without obtaining her version of the matter. An employer's failure to adequately investigate an employee's alleged misconduct has been found to be an indication of discriminatory intent, and we consider the Respondent's failure to investigate Corum's complaint as an important factor in deter- mining the reason it discharged Brooks. See W. W Grainger, Inc. v. NLRB, 582 F.2d 1118 (7th Cir. 1978); Kidde, Inc., 284 NLRB 78 (1987); Firestone Textile Co„ 203 NLRB 89, 95 (1973). It is signifi- cant, too, that the Respondent accepted without in- quiry Corum's testimony that Brooks had been rude while apparently ignoring Mayfield's testimo- ny that Brooks had not been discourteous since April. Furthermore, as the judge points out, at the hearing the Respondent probed into remote events that were satisfactorily resolved at the time to show unsatisfactory conduct by Brooks. This action of the Respondent also reflects on the genu- ineness of the reasons it offers for the discharge. See Goren Printing Co., 284 NLRB 30 (1987). In the circumstances, we believe that the Respond- ent's seizing on Corum's assertions about Brooks, without any attempt to verify what happened or to obtain Brooks' account of the incident, warrants the inference that the Respondent utilized Corum's allegations as a pretext to discharge an avowed union adherent.8 8 The judge discredited Corum's testimony that Brooks was rude to her in August. 9 On March 9, 1988, the General Counsel filed a "Motion to Withdraw Cross-Exception to the Administrative Law Judge's Decision, Sever Cases, and Remand Case." In this motion, the General Counsel noted that Charging Party Linda Brooks had signed a settlement agreement with the Respondent embracing "all aspects" of her "employment" be- tween specified dates A copy of the settlement was attached. The Gen- eral Counsel requested that the Board accept withdrawal of the General Counsel's cross-exception, and sever and remand Case 17-CA-13113-1 (which pertains to Brooks) for further processing by the Regional Direc- tor in light of the settlement. Also on March 9, 1988, the Respondent filed a Motion for Withdrawal of Exceptions. In this motion, the Re- spondent, citing the settlement agreement, moves the Board to allow the withdrawal of its exceptions pertaining to Brooks and to dismiss the pro- ceeding relating to her. The parties' motions were received at a time when the case was near- ing the end of the decisional process. In these circumstances, the Board believes that the settlement question is more appropriately considered at the compliance stage of this proceeding and, therefore, denies the mo- tions to withdraw exceptions, sever, and remand. See Independent Stave Co., 287 NLRB 740 (1987). Contrary to our dissenting colleague, we do not consider that we are retreating from the principles of Independent Stave in taking this position. It is true that the Board will no longer automatically reject a settlement simply because it does not fully remedy the violation alleged, but the Board did not abandon all consideration of the reasonableness of any backpay settlement offered. Because there is insufficient information to know what employment claims besides Brooks' unfair labor practice alle- gations are included in the general release proffered as a settlement (and what the approximate value of any other such claims might be), we ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Co-Jo, Inc. d/b/a Clinton Food 4 Less, Clinton, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER JOHANSEN, dissenting in part. I agree with my colleagues except as to Brooks' discharge and settlement. The judge found that the Respondent was justified in first warning Brooks, and then suspending her, for being rude to custom- ers. One of those customers, Pamela Corum, testi- fied late in the afternoon of August 21 that at just about 4 p.m. that same day, Brooks had again been rude to her in a manner similar to Brooks' discour- teous behavior toward Corum on previous occa- sions. In response to the judge's questions, Corum detailed Brooks' behavior, but the General Counsel did not seek to recall Brooks either that day or the next to rebut Corum's testimony. The evening after Corum testified (after the hearing closed), Store Manager Gish wrote a discharge memorandum re- garding Brooks, which cited the prior discipline imposed on her and stated that the day before, Corum had testified under oath that Brooks had "continued to be rude to her [Corum], and specifi- cally identified an incident on August 21st." The next day, Gish called Brooks into his office, read her the memo, and discharged her. According to Brooks, she asked Gish if that was the reason and, after he said yes, she asked if she could have her paycheck. The judge discredited Comm and credited Brooks. He did so in large part because he did not believe Brooks would have repeated her rudeness to a customer who already complained about it and because Corum had not told the Respondent of Brooks' latest rudeness. 1 The majority properly re- jects the judge's faulty analysis of these points.2 The majority, however, does not disavow the judge's rather unusual (and fallacious) reasoning that Brooks and not Comm was telling the truth because the Respondent's antiunion animus and cannot know "whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of the litigation." Independent Stave, supra, slip op. at 11. As indicated, the General Counsel is free to consider the appropriateness of the settlement in the compliance stage in light of the principles set out in independent Stave. I note, however, that the judge also had earlier specifically discredit- ed Brooks' denial that she had been rude to customers. 2 I also reject the judge's reliance on his speculation that "A person with meager intelligence would not have indulged in such repetition CLINTON FOOD 4 LESS 599 pervasive unfair labor practices were sufficient for him to infer a discriminatory motive. The issue, however, is not whether the judge ul- timately believed all Corum's testimony. Rather, the question is whether the Respondent, in light of Brooks' exhibiting a pattern of inappropriate be- havior, for which she had already been disci- plined,5 was entitled to rely on unrebutted sworn testimony by a facially disinterested witness in a Board proceeding, to the effect that that behavior was continuing. The answer must be "yes." I emphasize that this is a narrow conclusion, on the facts in this case. But I do not believe that the Board can insist that an employer ignore unrebut- ted, sworn testimony that an employee has contin- ued a course of conduct that has already resulted in a lawful warning and suspension. I therefore dis- sent from my colleagues' contrary conclusion. On March 9, 1988, the Respondent and the Gen- eral Counsel filed motions to withdraw their re- spective exceptions on the allegations concerning Brooks. Thus, the General Counsel's motion states that a private settlement agreement executed by Brooks (the Charging Party in Case 17-CA-13113- 1) "embraces all aspects" of her employment, in- cluding the discipline and her discharge at issue in the case. The General Counsel noted that Brooks had been reinstated by the Respondent on March 18, 1987, as a checker, with the same hours and rate of pay she enjoyed at the time of her dis- charge, and that she worked continuously for the R.esponclent from that date until the Respondent sold the store to new owners on January 18, 1988. The General Counsel therefore moved that the Board permit withdrawal of exceptions, sever Brooks' case, and remand it to the Regional Direc- tor to dismiss the charge (or permit its withdrawal) based on this settlement agreement. The majority at footnote 9, supra, refuse to grant the General Counsel's motion. I cannot agree with their denial. Thus, unlike my colleagues, and notwithstanding the fact that I would dismiss the allegations con- cerning Brooks' discharge on the merits, I would grant the unopposed motions for withdrawal and dismissal, based on the parties settlement. I see no viable reason for declining to do so, and my col- 3 In addition to the judge's findings, the conclusion that Brooks' be- havior became a pattern is also supported by testimony of Karen Roskop—formerly a checker, and an original member of the Union's bar- geinmg committee. Roskop's testimony, though not alluded to by the judge, was not controverted. Roskop testified that Brooks' attitude changed within the first week after the picketing started, and that she (R.oskop) observed an immediate change in the way Brooks performed her duties: "She was checking people out, but . . . she would never be nice to them. She would throw the groceries down . . . . She would let people wait in the check stand if she was around." Roskop also testified that "[P]eople came in and complained" to her about Brooks; "They said she was being rude to them, smashing the bread." The General Counsel did not recall Brooks to rebut this testimony. - leagues in my view have advanced none. Indeed, I believe a denial of the motions here is incompatible with the principles enunciated in the Board's recent, and unanimous, decision in Independent Stave Co.4 The settlement itself5 states unequivo- cally that it "fully satisfies and solves any and all claims for potential liability" concerning Brooks' employment with the Respondent, and that it "fur- ther satisfies any and all claims for backpay and in- terest due and owing as a result of her discharge," and "completely resolves any dispute between [Brooks and the Respondent] regarding her em- ployment relationship." This language, together with the motions, leaves no doubt that the parties not only consider the settlement appropriate, but also desire dismissal of Brooks' case on that ground. I see no useful purpose to be served in de- nying their requests. Assuming that Brooks' and the General Counsel's position would eventually be upheld—not only by the judge and the Board—but also by a court of appeals, the only substantive question remaining would be the appropriate amount of backpay, if any, due to Brooks. But reli- ance on that factor was rejected by the Board in Independent Stave's overruling of Clear Haven Nursing Home.6 In any event, speculation regarding any amount of backpay that might be due here would not be an appropriate consideration in deciding whether to grant these unopposed motions. Here the Charging Party/Individual discritninatee and the Respondent have clearly agreed to be bound, the General Counsel has obviously deemed the settlement rea- sonable in light of all the circumstances, there is no suggestion of fraud, coercion, or duress, nor any indication that the Respondent has breached any previous agreements, or engaged in a history of violations of the Act. In these circumstances, it seems to me that the majority's action seriously undermines the viability of Independent Stave. Accordingly, I dissent. 4 287 NLRB 740 (1987) 5 Copies of the settlement (which provides for a substantial cash amount) signed by Brooks, and marked "Received" by the Respondent's owner, with the date, were attached to both the Respondent's and the General Counsel's motion. 6 236 NLRB 853 (1978). Stephen E. Wamser, Esq., for the General Counsel. William C. Nulton, Esq. (Shughart, Thomson & Kilroy), of Kansas City, Missouri, for the Respondent. Jerome F. X. Waterman, Esq., of Kansas City, Missouri, for the Charging Party. 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. On unfair labor practice charges filed on 23 April and 5 May 1986, by United Food and Commercial Workers Local No. 576, AFL-CIO and CLC (the Union or the Charg- ing Party), against Co-Jo, Inc. d/b/a Clinton Food 4 Less (the Respondent), an order consolidating cases, con- solidated complaint and notice of hearing was issued by the Regional Director for Region 17, on behalf of the General Counsel on 6 June 1986. In substance the consolidated complaint alleged that Respondent in various ways interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7, including canceling negotiating sessions scheduled for 11 April 1986 and withdrawing recognition of the Union as the exclusive collective-bar- gaining representative of employees on 8 April 1986, in violation of Section 8(a)(1) of the Act; that the Respond- ent discriminated against its employees by altering their work duties and threatening them with disciplinary "write-ups" because they joined, supported, or assisted the Union and engaged in protected concerted activities on behalf of themselves, and to discourage them from en- gaging in such activity, in violation of Section 8(a)(3) of the Act; and that Respondent failed and refused to bar- gain in good faith with the Union, by failing and refusing to furnish necessary information requested by the Union, failing to timely submit a contract proposal to the Union, refusing to meet with the Union at reasonable times and places for the purpose of collective bargaining, and by bargaining with a fixed mind or position not to reach an agreement with the Union, in violation of Section 8(aX1) and (5) of the Act. The Respondent filed an answer to the consolidated complaint on 17 June 1986 denying that it has engaged in any unfair labor practices as set forth in the consolidated complaint. A hearing in the above matter was held before me in Clinton, Missouri, on 18-22 August 1986. Briefs have been received from counsel for the General Counsel, counsel for the Charging Party, and counsel for the Re- spondent, respectively, which have been carefully con- sidered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION At all times material, Respondent, a corporation with an office and place of business located at 1405 East Ohio Street, Clinton, Missouri, has been engaged in the oper- ation of a retail grocery store (the store or facility). In the course and conduct of its grocery business oper- ations during the 12-month period ending 30 April 1986, Respondent purchased and received at its Clinton, Mis- souri store products, goods, and materials valued in excess of $50,000 directly from points located outside the State of Missouri. Also, in the course and conduct of its business oper- ations during the same period, Respondent derived gross revenues in excess of $500,000. The complaint alleges, the answer admits, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that United Food and Commercial Workers Local No. 576, AFL-CIO and CLC (the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information Joe Balentine is the owner of Respondent's grocery store and Bill Gish is store manager. The Respondent does not deny but acknowledges that at all times materi- al, the following named persons who have occupied the positions set forth opposite their names, on or about 23 April 1986, are agents of Respondent within the meaning of Section 2(13) of the Act: Joe Balentine—owner and Bill Gish—store manager. The Respondent admits that the following employees of Respondent constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All full-time and regular part-time employees em- ployed by Respondent at Respondent's facility in the handling or selling of merchandise or perform- ing other services instrumental thereto except bakery department employees, meat department em- ployees, office clericals, guards and supervisors as defined in the Act. Although Respondent denied in its answer that the Union is and has been the exclusive collective-bargaining representative of the employees in the above-described unit, the settlement agreement (G.C. Exh 3) clearly es- tablishes that on 9 September 1985, Respondent agreed that, on the Union's withdrawal of the representative Case 17-RC-9749, and the unfair labor practice charges in Case 17-CA-12680, Respondent would recognize the Union as the exclusive collective-bargaining representa- tive of the employees in the following unit: All full-time and regular part-time employees em- ployed by Respondent at Respondent's facility in the handling or selling of merchandise or perform- ing other services instrumental thereto except bakery department emplOyees, meat department em- ployees, office clericals, supervisors and guards as defmed in the Act. Respondent admits that at all times material, Joe Ba- lentine, owner, and Bill Gish, store manager, are supervi- sors within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act. CLINTON FOOD 4 LESS 601 Subsequent to some preliminary correspondence, Re- spondent and the union representatives met in negotia- tion sessions on 14 October and 4 December 1985, and on 18 February, 25 March, and 3 April 1986. During a telephone conversation about 7 April 1986, Respondent's negotiator, Richard Noble, informed the Union's repre- sentative, Michael Constanza, that based on a disaffection petition of employees dated 2 April 1986, Respondent was withdrawing recognition of the Union. In a letter dated 11 April 1986 from Noble to Constanza, Respond- ent confirmed its withdrawal of recognition.' B. Respondent Failed to Timely Submit Contract Proposals The complaint alleges and the General Counsel argues that Respondent failed to timely submit contract propos- als to the Union. A composite of the essentially undis- puted evidence is as follows: In a letter to Respondent dated 18 September 1985 (G.C. Exh. 4), the Union requested Respondent to fur- nish it with dates and times to begin contract negotia- tions. The Union also stated that it was necessary that it have a complete list of all employees' first and last names, dates of their hire, present hourly rate of pay, in- formation on any benefits given employees, such as vaca- tion, insurance, retirement, and paid holidays, before ne- gotiations commenced. In a written communication dated September 1985, Respondent furnished some of the information requested by the Union. Among items of re- quested information not furnished by the Respondent were information on Randy Stewart and Todd Jones, and dates and times for negotiation sessions. In a letter dated 8 October 1985, the Union informed Respondent about the specific information Respondent did not furnish and, additionally, requested information on the Company's dental insurance plan, Sunday over- time, and bonuses. It also informed Respondent the Union would submit grievances at the negotiation session scheduled for 14 October 1985. The Union did not re- ceive a written response to its 8 October letter to Re- . spondent. The parties first met in bargaining sessions on 14 Octo- ber 1985, at which time the Union presented Respondent a contract proposal. Respondent did not submit a con- tract proposal at that time but its negotiator, Richard Noble, advised the Union that it would have a contract proposal at the next negotiation session secheduled for 4 December 1985. When the parties met on 4 December, Noble informed the Union he was unable to present a contract proposal because his law offices had moved during the Thanksgiving weekend, office records were still packed in boxes, and the office not completely orga- nized. Consequently, he said he could not find Respond- ent's unfinished contract proposal. He suggested cancel- ing the meeting but Union Representative Constanza re- jected the idea, and the parties remained in Noble's new offices and talked about employee grievances. Respond- ent made no response to the Union's 14 October contract proposal during this meeting, but expressed the following general concepts about what Respondent wanted its con- The facts set forth above are not m conflict in the record. tract proposal to contain: A profit-sharing plan, without Respondent specifying the minimum contribution level, and a health insurance plan without specific details. No wage increase was proposed for any employees, and Noble did not agree with the Union's proposed insurance coverage. The Union (Constanza) was demanding resolution of the economic factors. Noble promised to get the Re- spondent's proposed contract to the Union soon and Constanza called Noble about the contract proposal on several occasions subsequent to the 4 December 1985 meeting. Noble told him he had not had the time to get with Balentine, but that he would. Finally, Noble agreed to have Respondent's proposal on 3 January 1986, and Constanza went to his office to get it but there was no proposal. Noble then told Constanza he would have it 10 January 1986. He asked Constanza for the 20/10 health insurance plan and Constanza said he would get it to him Noble, however did not receive the health insur- ance plan until 25 March 1986. After revising Respondent's contract proposal, Noble presented the proposal to the Union (Constanza) on 10 January 1986. Respondent's proposal did not contain any specific wage increase for any of its employees but, rather, promised periodic review and evaluation of em- ployees' performance. Constanza spent considerable time talking about the union campaign for the election of offi- cers, and a runoff campaign between himself and one Cindy Nance. Noble acknowledged there was no agree- ment on the extent of coverage of the Union's health in- surance plan. Although he proposed a profit-sharing plan, it was without any specifics on minimum contribu- tion levels. The proposal did not contain any specifics on care coverage, profit sharing, or wage increases. Under these circumstances the Union said it had nothing of sub- stance to take back to the employees. Constanza contin- ued to request that the parties resolve the economic fac- tors first. The Union (Constanza) and the Respondent (Noble and Store Manager Bill Gish) met for negotiations on 18 February 1986. They discussed Respondent's proposal but no information was furnished on the health and wel- fare plan or on hours worked by Randy Stewart and Todd Jones. The parties tried to agree on a wage in- crease, but Gish said he was planning to draw up a profit-sharing plan, but it was not ready at this time. The parties did not agree on any economic proposals. Gish informed Constanza that he would like to promote Keith Dalton to a comanager, and Constanza said, Dalton is nothing but a "piss ant stocker" and he will always be a "piss ant stocker." Constanza denied he made such a statement, but I was persuaded by his demeanor and the frustrations he demonstrated he was experiencing from his lack of success in trying to negotiate a contract with Respondent, that he did make the statement. The parties discussed reducing the insurance age from 21 to 19 to pick up the young employees. Respondent insisted that Jones and Stewart were not in the unit. At the 25 March negotiating session, Constanza brought a copy of the Union's 20-10 CD health and wel- fare plan (G.C. Exh. 11) and presented it to Noble. Al- 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD though they discussed health and welfare insurance, the dispute on Randy Stewart and Todd Jones continued, and they had a problem about Randy Carroll, who had always worked 40 hours but whose work hours were re- duced below 40. Constanza asked Gish why, and Gish said the work in produce had declined from $5000 to $4000. Carroll disputed this estimation, and telephonic clarification with Balentine established that the store's produce had not declined and was still at $5000. Con- stanza reminded Noble that he had still not furnished the Union with a copy of the Company's proposal on profit sharing, as he had previously promised. Noble promised to have both the insurance and profit-sharing plans at the next bargaining session. Respondent made no proposal but insisted on the next meeting being held in Kansas City as opposed to Clinton, Missouri, as the Union had requested. They agreed to meet 3 April 1986 in Noble's office in Kansas City. When the parties met at the 3 April 1986 bargaining session, the Respondent (Noble) for the first time offered a proposal for a contract for 1 year, a wage proposal of 25 cents per hour across-the-board for all employees, except Armstrong, a 10-cent-per-hour increase for Linda Brooks, and no increase for Jones and Stewart because Respondent did not consider them a part of the unit. Constanza vocalized his anger. Respondent said it wanted a profit-sharing plan and it desired some kind of health and welfare insurance. However, when Constanza asked for the specifics or copy of the plan, Noble said he did not have them. The parties agreed to meet again on 11 April, but about 8 April, Noble called Constanza and informed him that Balentine had received a petition from the employ- ees withdrawing their support of the Union. In a letter to the Union dated 8 April 1986, Noble con- firmed the employees petition of disaffection, and ad- vised the Union that Respondent was withdrawing rec- ognition of the Union as the exclusive collective-bargain- ing representative of its employees. Noble testified that a few days before 8 April, Balen- tine had called him and asked him "what would happen if a petition were gotten up and the employees requested they no longer wanted to be represented by the Union." Noble said he told Balentine that would stop negotia- tions, and because Balentine actually had the petition, he informed Constanza that there would be no further nego- tiations 11 April, as scheduled. Conclusion A deliberative review of the above evidence of Re- spondent's bargaining posture reveals, without equivoca- tion, that Respondent was slow in presenting contract proposals. When the parties met for the first bargaining session 14 October 1985, the Union presented a contract proposal containing economic factors. Respondent did not present a contract proposal and it did not agree to the Union's proposal. During the bargaining interim, 14 October 1985 and 2 April 1986, Respondent talked in generalities, and not in specifics, about the economics of wage increases, insur- ance coverage, and health and welfare benefits. Respond- ent either made no response to, or rejected the Union's economic proposals. Although the Respondent presented Union Representative Constanza a contract proposal on 10 January 1986, it is particularly noted that Respond- ent's proposal was devoid of any specific economic fac- tors. Constanza expressed anger because he said he had nothing to take back to the employees. A proposal without economic specificity is, for all practical purposes, a proposal without meaningful bar- gaining substance, or it can constitute no proposal at all. When the parties met in bargaining session on 18 Febru- ary and 25 March 1986, Respondent still did not present a more meaningful proposal by supplying specifics to its general economic declarations. When the parties met in bargaining session on 3 April 1986, it was the first time since 14 October 1985 that the Respondent ever presented a contract proposal with eco- nomic specifics on wage increases. However, Respond- ent's wage proposal was so low, as compared with the Union's wage proposal, that it may reasonably be in- ferred that Respondent knew it would be rejected by the Union, as indeed it was. Moreover, Respondent's belated 3 April economic proposal was made so close to its 7 April announcement that its employees had in fact sub- mitted a disaffection petition, that it may also be reason- ably inferred that Respondent's proposal was not pre- sented in good faith because Respondent knew about the petition. When all the above discussed evidence and in- ferences are considered, along with the additional evi- dence of Respondent's bad-faith bargaining conduct, infra, I conclude and fmd that Respondent did fail and refuse to bargain in good faith by refusing to timely submit a contract proposal, in violation of Section 8(a)(1) and (5) of the Act. Henry M Hald High School Assn., 213 NLRB 463, 474-475 (1974). C. Respondent's Refusal to Meet and Bargain at Reasonable Times and Places The consolidated complaint also alleges that Respond- ent refused to meet and bargain at reasonable times and places with the Union, in violation of the Act. The evidence clearly shows that the Union (Con- stanza) always took the initiative to obtain a bargaining schedule and that it generally accommodated the bar- gaining date most convenient for the Respondent's nego- tiator, Noble. The undisputed evidence of record shows that during the period 14 October 1985 and 2 April 1986, Respondent acknowledged that it refused to meet for ne- gotiations in Clinton, Missouri, or at a location half the distance between Clinton and Kansas City, Missouri, be- cause Respondent would not pay its attorney-negotiator for the time spent away from his office in Kansas City. Clinton, Missouri, is approximately 78 miles, or a 1- hour-and-45-minute to 2-hour drive by automobile to Kansas City. Consequently, the Union's bargaining com- mittee traveled by automobile to Kansas City for all the bargaining sessions held on 14 October and 4 December 1985, and 18 February, 25 March, and 3 April 1986. The language of Section- 8(a)(5) of the Act, as well as the Board and court's interpretations of it, conceive the obli- gation to bargain as a two-way street, where each party is to meet the other, part of the way, in establishing a CLINTON FOOD 4 LESS 603 time and place to bargain. In the instant case, the evi- dence is clear that Respondent did not assume any initia- tive in establishing a reasonable time and place to meet and bargain with the Union. Respondent placed the onus and inconvenience of travel and expenses for travel, completely on the members of the union negotiating committee, at the financial convenience and physical comfort of itself (negotiator Noble). Respondent also left the concern and the initiative for scheduling negotiation sessions to the Union, and generally did not initiate a schedule for bargaining on its own. In Gulf Concrete Co., 165 NLRB 627, 630-632 (1967), the employer insisted on meeting in Corpus Christi in- stead of Victoria, Texas, where the bargaining unit was located. The Board held that such insistence and refusal on the part of the employer to meet anywhere other than Corpus Christi violated Section 8(a)(1) and (5) of the Act. Under the circumstances in the instant case I conclude and find that the Respondent, very much like the em- ployer in Gulf Concrete, refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act. Gulf Concrete Co., supra; Semperit Pacific, Inc., 237 NLRB 478, 488 (1978); Tower Books, 273 NLRB 671, 672 (1984). I further conclude and find on the foregoing evidence that by the failure of Respondent to take any initiative to schedule bargaining sessions, and its insistence that all the sessions be held in Kansas City, Respondent did fail and refuse to meet and bargain with the Union at reason- able times and places; and that such conduct constitutes a refusal to bargain in good faith, in violation of Section 8(a)(1) and (5) of the Act. Milgo Industrial, Inc., 229 NLRB 25, 31 (1977). D. Respondent Bargained with a Fixed Mind or Position The complaint alleged that Respondent bargained with a fixed mind or position, and therefore not in good faith, in violation of Section 8(a)(5) and (1) of the Act. In support of the above allegations, counsel for the General Counsel presented testimony by Stephen B. Millin, Esq., former practicing associate of Respondent's attorney-negotiator, Richard Noble, Esq. Pursuant to subpoena, Millin testified that in 1983 Noble requested him to represent Constanza in a legal dispute, and there- after asked him, as a "personal favor would you put aside whatever else you are doing, so that you can sit down and talk to Constanza, because he is getting emo- tionally wrought over your putting him off." Noble told him either "Joe Balentine or another management person will not give Mike Constanza a contract and Constanza knows that." The conversation continued as follows: And I said, "What do you mean?" And he said, "I've talked to Mike about this. He is not going to get a contract in Clinton and what you ought to tell him to do is back off, somebody else to handle it." Mr. Millin said he told Mr. Constanza what Mr. Noble said. On another occasion in late November 1985, Millin said that while he was having a telephone conversation with Noble, Constanza entered his office and he permit- ted Constanza and Noble to talk to each other on the telephone. He overheard Constanza trying to arrange a meeting with Noble and Noble was apparently trying to put off where and when they could meet. Millin further testified that on 27 June 1986 he had lunch with Noble, during which time Noble told him Constanza had called up an employee of Responden4-and represented himself as Noble. Noble told him he had told Constanza he hoped Constanza would win in Clinton; and that his client (Balentine) "was the meanest prick he'd ever known." However, Noble denied ever having made such statements to Millin, or that he had any con- versation with Millin about Respondent. Noble also denied he told Constanza that Balentine did not want the Union or a contract and would not sign a contract be- cause of his religious convictions.2 After Respondent withdrew recognition of the Union about 7 and 8 April 1986, the essentially undisputed evi- dence shows that Respondent (Balentine) told cashier Linda Brooks there would be no negotiations and there would be no Union in the store because the Union no longer enjoyed majority status. Balentine acknowledged that on 12 April 1986 he asked Brooks what did she hope to gain by supporting the Union. He further ac- knowledged that on 21 April 1986, he told Jana Harrison he did not think he needed the intervention of a third party to help him run his business; that he could run it 2 In the above regard, I credit essentially all Willi's testimony and dis- credit Noble's denials, not only because I was persuaded by the demean- or of each witness that MiIhn was telling the truth and Noble was not truthful in denying the embarrassing revelation by Noble, but also be- cause I was further persuaded that MiBin's testimony was truthful in that it is supported by the following circumstantial evidence. I Previously established evidence and findings of Respondent's failure to timely submit a contract proposal and its failure to make any meaningful movement in its bargaining posture between 14 Oc- tober and 2 April, under topic B, and Respondent's refusal to meet and bargain at reasonable times and places under topic C, all clearly tend to support MiIlm's testimony of the statements attributed to Noble 2. Man and Noble are not only licensed practicing attorneys but were also formerly law partners or associates in the same law firm, and still appear to maintain some collegial relations Man probably would never have voluntarily testified about the statements attrib- uted to Noble if he had not previously related them to Constanza and was not now testifying pursuant to subpoena by the General Counsel Under such circumstances, I find it difficult to conceive Maim appeanng and giving such adverse testimony against his legal colleague's legal and professional interest, in the absence of any es- tablished adverse motive for doing so 3. The prior well established findings of Noble's failure to take some of the initiative to schedule bargaining sessions, his refusal to meet for such sessions in Clinton, as well as the lapse of time in es- tablishing such sessions all tend to support the credibility of Wines testimony that Noble did tell Man Respondent did not want the Union or a contract; that Noble wished Constanza would win the dispute with Respondent, and probably out of frustration in defend- ing Respondent's desire not to have the Union or a contract, Noble probably did make the disparaging remark about the client. More- over, I find It difficult to conceive MIIlin responding to a subpoena only to relate such a fabrication against his professional colleague if It were not m fact true. 4 Additional evidence and findings of Respondent's antiunion con- duct, infra, further supports the credibility of MIBin's testimony. 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD much better without such assistance. However, Balentine denied he told Brooks on 26 April that he did not care how long she stayed on the picket line, "You'll never get a contract," or that he told Harrison and Brooks "If the courts or Board made him negotiate, he would never sign a contract."3 Conclusions I therefore conclude and find that the foregoing cred- ited evidence amply establishes that Respondent bar- gained with the Union with a fixed mind and position and, therefore, failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(1) and (5) of the Act. E. Respondent Refused to Provide Requested Information The consolidated complaint alleged that Respondent has refused to provide certain information requested by the Union. The documentary evidence establishes that in a letter dated 18 September 1985 (G.C. Exh 4), the Union requested Respondent to provide it with certain information regarding the employees because such infor- mation was necessary for the Union to prepare for con- tract negotiations. In a September 1985 letter, the Re- spondent provided the Union with some of the requested information, but failed to include information on two specific employees and economic and employment data on other employees. In another letter dated 8 October 1985, the Union requested the current addresses and tele- phone numbers of all bargaining unit employees and a copy of Respondent's insurance plan. Respondent failed to provide the Union with either. The record shows that when Constanza asked Noble for the addresses and telephone numbers of the unit em- ployees at the 14 October negotiation session, that Noble said the bargaining committee "could look them up," and that Respondent had provided the Union with the Excel- sior list. However, there had been no union election or Excelsior list of employees. In fact Noble testified that addresses of unit employees were not an issue in negotia- tions. Respondent's manager, William Gish, acknowl- edged that Constanza asked for the hire dates of Stewart and Jones during the 25 March negotiating sessions, and he told Constanza he did not know the dates. Noble ac- knowledged Respondent did not provide the Union with those dates at neither the 25 October 1985 or the 3 April 1986 negotiation sessions. Constanza testified without dispute that during the 14 October negotiating session, he requested the amount of bonuses the Respondent had paid to unit employees. Re- spondent did not deny that Balentine told Constanza it 3 I credit Brooks' and Harrison's account that Balentine said, "You'll never get a contract," and "If the courts and the Board made him negoti- ate, he would never sign a contract." I credit their versions not only be- cause I was persuaded by their demeanor that they were telling the truth, but also because I perceived Balenhne as a decent and fine American busmess man, but one who is adamantly opposed to this Union, and he was determined to do all he could to defeat it. In doing so, I was per- suaded by his demeanor and the record, which is replete with evidence supporting the Respondent's antiunion disposition, as well as the credibil- ity resolution here made, that he violated the Act in the process. was none of his business. The Union never received the latter requested information. The law has been long established that an employer has the general obligation to provide information that is needed by the bargaining representative for the proper performance of its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). It is undisputable that a primary func- tion of a bargaining representative (the Union) of em- ployees is to negotiate a contract on their behalf. Further amplifying the obligation of an employer to provide information to a bargaining representative, the Supreme Court has held that an employer has a duty under the Act to supply, on request, such information that is probably relevant, in fact, relevant, necessary, and useful to a union's effective and intelligent evaluation in determining whether to process employee grievances. NLRB v. Acme Industrial Co., 385 U.S. 432, 438 (1967). Accordingly, I find the Union's request for economic data on employees, the current addresses and telephone numbers of all bargaining unit employees, a copy of Re- spondent's insurance plan, its profit-sharing plan, the hire date of two employees, and the amount of bonuses Re- spondent had paid to unit employees all appear probably relevant, in fact relevant, necessary, and useful to the Union in preparing to negotiate a contract and process employee grievances with Respondent. Truit Mfg., supra; Acme Industrial, supra; Southwestern Bell Telephone Co., 247 NLRB 171, 173 (1980); Imperial Tile Co., 227 NLRB 1751, 1754 (1977); Henry M Hold High School Assn., 213 NLRB at 474-475. Consequently, Respondent's refusal to furnish the re- quested information constitutes a refusal to bargain in good faith, in violation of Section 8(a)(1) and (5) of the Act. F. Supervisory Status of Keith Dalton Counsel for the General Counsel contends that Keith Dalton was a supervisor for Respondent during January- April 1986, but Respondent maintains Dalton was not a supervisor at that time. In support of the General Counsel's contention, former employee Kati L. Steinert, Jana Harrison, and Linda Brooks, Respondent's employees for 11 years, testified pursuant to subpoena that in September 1985, Keith Dalton was stocker but later became more like their su- pervisor; that Dalton commenced performing more and more checker work, assigning them (checkers) to duties (cleaning the office and under the registers), giving them breaks, making change for them, threatening to write them up for violating store policy, telling them when they could leave early or to stay late, putting informa- tion into the computer to which only management had access, carrying store keys, and opening and closing the store when other managers were not there. Linda Brooks testified that Store Manager Gish told her that Keith Dalton and Kurt Loman, an acknowledged supervisor were, her supervisors, and for her to treat them as such. Keith Dalton testified he has been employed by Re- spondent for 4 years, that his job title has never changed, and that his job duties have not changed since 2 April 1986. He denied that he performs numerous supervisory CLINTON FOOD 4 LESS 605 duties and acknowledged that he closes the store 3 days a week, when management is not on duty from 5 until 9 p.m. He locks the doors and puts up the registers. Store Manager Gish acknowledged Dalton served as acting manager every third Sunday and works with him- self and Assistant Manager Kurt Loman on an every third Sunday rotation basis. Employee Lisa Blackaby tes- tified she perceives Dalton as the manager when she works on Sundays. Dalton is salaried and reports only his overtime on timecards. All other employees report their work on timecards. Dalton said all breaks are nor- mally taken at 7 p.m. and employees do not ask him to take a break, or to leave early. On a few occasions when he told employees to stay late, Dalton said he was com- plying with orders from management. He denied he told anyone to distribute company handbills, but acknowl- edged he called Gish and asked him what should he do about Kari Steinert talking to customers about the Union. Gish told him to tell Steinert she should not talk about the Union on store time, and he so informed Stein- ert. Conclusion Although Dalton, as well as Respondent, denies Dalton is a supervisor, or that he performs supervisory functions, the credited evidence established that Dalton is solely in charge of the store 3 evenings a week and on every third Sunday. I think it's absurd to believe that Respondent would allow its store to open for business 3 evenings a week and every third Sunday without a man- ager. In fact when I consider that employees perceived Dalton as a supervisor; that he is salaried as other admit- ted managers, and earns more than any other store em- ployees; that he has store keys and he puts information into management's computers; that he assigns cleaning duties to cashier employees and inquires of management what he should do about employees talking about the Union to customers; I am persuaded that all of such evi- dence strongly infers that Dalton is a supervisor. More- over, when all of these indicia of supervisory status are considered with the essentially undisputed evidence of management's acceptance and coordinating relationship with Dalton in preparing the disaffection petition and so- liciting the signatures of employees on behalf of manage- ment, infra, I am persuaded by the record evidence as a whole, and Respondent's conduct in dealing with the Union, that Dalton was a supervisor in 1986, within the meaning of Section 2(11) of the Act. Dale Service Corp., 269 NLRB 924, 925 fn. 8 (1984). G. Disaffection Petition During the trial the consolidated complaint was amended on motion of the General Counsel to allege that a disaffection petition was sponsored by the Re- spondent. Respondent's defense for terminating the nego- tiations and withdrawing recognition of the Union on 3 April 1986 was based on its receipt of a disaffection peti- tion signed by six of its employees R. Exh. 7). In his testimony, Store Manager Gish testified that on Monday, 31 March 1986, a conversation occurred among himself, Assistant Store Manager Leman, and head clerk Dalton. During the conversation, Loman said, "That Union does not represent a majority of employees any more, isn't there anything we can do to end this and get back to work." Dalton agreed and Gish said, "Maybe a petition might do some good," and he would consult with Balentine's attorney on the matter. Keith Dalton es- sentially corroborated Gish's testimony that Loman asked whether anything could be done about the Union and Gish suggested a petition. Either Balentine, as Noble testified, or Gish, called Noble that day and talked with him about a petition. Later that afternoon, Gish told Dalton that Balentine seemed to think it was okay to go ahead with the petition. Although Gish told Dalton that management could not be involved, he suggested the language of the peti- tion to Dalton, and told him to date it. When Dalton ar- rived home that evening, he said he prepared the petition (R. Exh. 7) and dated it 2 April 1986. On the next day, he said he signed it and approached employees who ulti- mately signed it; that he told them we all know a majori- ty are against the Union; that he thought a petition would get rid of the Union, and asked them would they like to sign it. The petition read: "We do not want the Union to represent us." The following employees signed the petition: Keith Dalton, Karen Roskop, Lisa Blackaby, Todd S. Jones, Billy J. Armstrong, and Randy Stewart. Thereafter, Dalton called Gish and told him he had the signed petition and Gish said, "Okay, that's fine." Al- though Dalton said he prepared and talked to the em- ployees about the petition himself, Karen Roskop undis- putedly testified that both Dalton and Loman asked her if she wanted to sign the petition, and she said, "Yes,'" and she did in fact sign it. Employee Randy Stewart tes- tified that Dalton called him to the office on 2 April and asked him to sign the petition. Conclusion The Board has long held that an employer violates Section 8(a)(I) of the Act if it solicits, supports, or assists in the initiation, signing, or submission of a decertifica- tion or disaffection petition. Eastern States Optical Co., 275 NLRB 371 (1985); Placke Toyota, 215 NLRB 395 (1974). In the instant case, Store Manager Gish and Assistant Store Manager Loman are admitted supervisors under the Act. In this decision, Keith Dalton has been previ- ously found to have been a supervisor in April 1986. Under these circumstances, the evidence is uncontrovert- ed that Managers Loman and Gish initiated the idea of a disaffection petition when Loman stated that a majority of the employees were against the Union, and asked was there anything management could do about it. Supervi- sor Dalton agreed and Manager Gish suggested a peti- tion. Not only did Gish suggest the petition, but he suggest- ed its language and reminded Supervisor Dalton to date it. By suggesting the language and reminding Dalton to date the petition, Manager Gish was certainly assisting and supporting Dalton in the preparation of the petition. As a supervisor, Dalton carried out the ministerial task 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of physically preparing the document (R. Exh. 7), and he circulated and solicited signatures of employees, with some assistance from Manager Loman. Thereafter, Su- pervisor Dalton submitted the petition to management by calling and informing Store Manager Gish that he had it, and by placing it in management's office for them. Assuming, arguendo, that Dalton was not in fact a su- pervisor within the meaning of the Act, I nevertheless find he was certainly acting as an agent in fact on behalf of management, for the exclusive purpose of preparing, circulating, and soliciting employee signatures, and sub- mitting the petition to management. In other words, Dalton was a loyal servant and agent of management who was in on the planning, preparation, circulation, and submission of the petition. Indiana Cabinet Co., 275 NLRB 1209, 1210 (1985); Seaward International, Inc., 270 NLRB 1034, 1042 at sec. III,B,1 (1984), and Campo Slacks, Inc., 250 NLRB 420, 423-424 (1980). H. Respondent Withdrew Recognition from the Union It is uncontroverted that the settlement agreement (G.C. Exh 3) establishes that on 9 September 1985, Re- spondent agreed to recognize the Union on the Union's withdrawal of a representation case and the charges in an unfair labor practice case. The Respondent subse- quently met in a negotiation session with the Union first on 14 October 1985 and in other negotiation sessions on later dates. The Respondent defends most of the 8(a)(5) and (1) charges in this proceeding on the grounds that the Union lost majority status and Respondent had the legal right to withdraw recognition and terminate negotiations with it. As counsel for the General Counsel argues, the law is well established that if an employer voluntarily grants lawful recognition to a union, such employer becomes le- gally obligated to bargain in good faith with the union for a reasonable time during which period, the union enjoys an irrebuttable presumption of continued majority status. Talon, Inc., 269 NLRB 327, 327-32,8 (1984); San Clemente Publishing Corp., 167 NLRB 6, 8 (1967); Keller Plastics Eastern, Inc., 157 NLRB 583, 586-587 (1966). The above principles of law apply even when recogni- tion and bargaining result from private out-of-board set- tlement agreements. Ted Mansour's Market, 199 NLRB 218, 221 (1972); VPI Limousine, 276 NLRB 871, 874-875 (1985). If, however, the employer after recognizing the union fails to bargain in good faith, the running of the reasonable time period for bargaining is tolled. Cf. NLRB v. Key West Coca Cola Bottling Co., 382 F.2d 921, 923-924 (1967), where the irrebuttable presumption of a certified union's majority status was extended by reason of a lack of good-faith bargaining by the employer during the certification year. NLRB v. Burnett Construc- tion Co., 350 F.2d 57, 60 (10th Cir. 1965). In the instant case, Respondent did not bargain in good faith, but in fact bargained in bad faith by its con- duct as previously found and as follows: 1. Adamant refusal to bargain at any place other than its attorney-negotiator's office 78 miles from the employees homes and worksite. 2. Extended delays in making substantive con- tract proposals in a good-faith effort to reach an agreement. 3. Adamant refusal to provide the Union with re- quested information necessary for the Union to in- telligently and fairly negotiate a contract on behalf of employees it represented. I therefore conclude and find on the foregoing evi- dence and cited legal authority, that Respondent clearly did not bargain with the Union in good faith. Conse- quently, Respondent is now precluded from asserting that a reasonable time for bargaining has elapsed to justi- fy its withdrawal of recognition from the Union. The law under such circumstances is also clear, that a defense that a union no longer enjoys majority status, so as to justify terminating bargaining, may be raised only in a context in which the employer is free of unfair labor practices. Western Truck Services, 252 NLRB 688, 691, sec. IH,C (1980), and Chet Monez Ford, 241 NLRB 349, 350-351 (1979). Additionally, the theory for rejecting the lack of majority status defense under such circumstances is, that the employer's misconduct may well have in- duced the union's loss of majority. Eastern Washington Distributing Co., 216 NLRB 1149, 1152-1153 (1975); Franks Bros. v. NLRB, 321 U.S. 702 705-706 (1944). In the instant proceeding the Respondent's previously discussed unlawful conduct, including the participatory conduct of its managers in initiating, preparing, support- ing, assisting, and submitting a disaffection petition of employees, certainly was a real potential and probability that induced the loss of majority support for the Union. Fremont Newspapers, Inc., 179 NLRB 390, 391 (1969). Evidence that a loss of union majority might have been induced by the Respondent is the testimony of employee Randy Stewart, who expressed his despondency with the Union having failed to accomplish more within a year. Similarly, the testimony of Bill Armstrong and Keith Dalton, to the effect that they wanted to get it (the union matter) resolved, epitomizes the frustration and the relief they wanted from the stagnation in the bargaining relations, occasioned largely by the Respondent's unlaw- ful conduct. Additionally, because the disaffection petition was conceived in an atmosphere poisoned by Respondent's unfair labor practices, the petition may not serve as a foundation for withdrawal of recognition by the Re- spondent. To allow Respondent such a defense, would in effect, permit Respondent a license to benefit from its own wrongful conduct. NLRB v. Little Rock Down- towner, 414 F.2d 1084, 1091 fn. 4 (8th Cir. 1969); NLRB v. Alterman Transport Lines, 587 F.2d 212, 228, Sec. V (5th Cir. 1979); Terrell Machine Co., 173 NLRB 1480, 1482 (1969). The instant case is distinguishable from Tri-State Cul- vert Mfg., 280 NLRB 743 (1986), where the Board re- cently held that an employer's withdrawal of recognition from the union did not violate the Act. There, the em- ployer had also agreed to recognize the union pursuant to a non-Board settlement agreement. The employer, however could withdraw recognition from the union 3- 1/2 months later because the Union did not represent a CLINTON FOOD 4 LESS 607 majority of employees at the time the agreement was ex- ecuted. here, unlike there, the evidence does not estab- lish that the Union did not represent a majority of em- ployees at the time the settlement agreement was execut- ed. I. Respondent Removed Pickets from Store's Sidewalk On 3 April the Union's position was that the following employees were in the bargaining unit: Bill Armstrong, Randy Carroll, Keith Dalton, Terry Dozier, Linda Brooks, Karen Roskop, Kari Steinert, Todd Jones, Lisa Blackaby, and Randy Stewart. As previously established by the utncontroverted evi- dence of record, after Respondent made its first nonspe- cific contract proposal on 3 April 1986, the parties agreed to meet again on 11 April. However, on 9 April, Noble called Constanza and informed him that Balentine had called and advised that Respondent had received a petition from the employees withdrawing recognition from the Union, Local 576. On the evening of 24 April, the Union commenced in- formational picketing in front of Respondent's store with signs that read in part, "Please Do Not Shop At Balen- tine's Food 4 Less, 1405 Fast Ohio, Clinton, Missouri" (R. Exh. 14), and leaflets that contained the same mes- sage. (G.C. Exh. 15.) Picketing resumed at 8 a.m. on 25 April by Kari Steinert and Jana Harrison. Constanza and Union Representative Joel Morales were present. City police officers visited management at the store several times that morning. After noon, Balentine accompanied by a city police officer approached and requested pickets to leave the store's sidewalk or be arrested. Morales re- fused to leave because he said they had a right to be there. The picket line nevertheless moved about 200 feet onto the parking lot that evening, and continued picket- ing behind a yellow line painted on the surface of the lot by management and the police. The pickets also wore a "Smile sticker" (G.C. Exh. 16) on their clothing that read "We'll have a union soon. Local 576." Another sticker read, "UFCU 576, I am proud to be Union" (G.C. Exh. 17). Respondent responded with its own handbill (G.C. Exh. 18) posted on the store's window and distributed to customers by a clown outside the store. The handbill read: "The Majority of Our Employees Do Not Want To Be Represented By U.F.C.W. Local No. 576, We Re- quest Your Understanding." On 13 June the Union changed the picket signs and handbills after the Board issued a complaint, stating that a complaint had been issued against Respondent for unfair labor practices. Constanza and employees met with Balentine to try to resolve their dispute but Balen- tine told them the Union did not represent a majority of the employees. On that day, under threat of arrest, Re- spondent removed a picket from the front of the store. Respondent also had Constanza arrested when he picket- ed on the sidewalk in front of the store. Employees Linda Brooks, Terry Dozier, and former employee Randy Stewart witnessed the arrest. That evening Constanza returned to the store and saw Terry Dozier picketing 200 feet away from the store be- cause an attorney and Balentine had ordered him to leave or be arrested. With a camera Balentine took a pic- ture of Dozier picketing in front of the store. Conclusion In an effort to justify its removal of pickets from the store's sidewalk, Respondent claimed a property interest in the sidewalk and parking lot in front of its store, which is located in a shopping center. Respondent also contends the Union waived its statutory right to picket on the sidewalk. In evaluating Respondent's claimed property interest, an examination of its written lease (G.C. Exh. 22, p. 1, par. 2) Food Town Stores, Inc., reveals that on 29 April 1981, 17,500 square feet of a shopping center building was leased to Respondent, "Together with the right to the use of, in comnion with other tenants of the shopping center, the parking areas, entrances, and exists, drives, service drives, sidewalks and other common facilities and appurtenances in the shopping center." In a further effort to claim a specific property interest in the sidewalk and a designated section of the parking lot, Respondent presented the testimony of Carl Fish- man, owner of the shopping center and lessor of the Re- spondent. Fishman testified that in April 1986 Balentine called him, expressed concern about pickets on the park- ing lot, and requested the exclusive use of a part of the parking lot not to be used by other merchants. Fishman said he granted Respondent's request and that the ar- rangement has not been withdrawn or confirmed in writ- ing. Nor was the oral, telephonic agreement to modify their written lease ever reduced to writing. Counsel for the General Counsel argues that the Re- spondent has failed to establish a bonafide property inter- est in the sidewalk and parking lot, and by failing to do so, it is precluded from relying on the balancing test, of accommodating Section 7 rights to picket, against private property rights, as enunciated in Hudgens v. NLRJ3, 424 U.S. 507, 521-522 (1976), and Giant Food Markets, 241 NLRB 727, 728 (1979). In construing and applying Hudgens in Giant Food Markets, supra, the Board held that "where . . . the in- tended audience [of the pickets] is not readily identifiable until the audience attempts to enter the store, such other means of communication cannot be considered reasona- ble in relation to their possible effectiveness. . . . [R]equiring that any picketing or handbilling be conduct- ed off the private property, at entrances to the parking lot 250 feet or more from the store entrance . . . would too greatly dilute the Union's message for it to be mean- ingful." In the instant case, the picketing by Respondent's em- ployees was not addressed to a readily identifiable audi- ence until that audience (prospective grocery customers) attempted to enter Respondent's store. Other means of the Union communicating its Section 7 rights activity cannot be considered reasonable in terms of effectiveness under the circumstances. Thus, Respondent's demand that the employees leave the sidewalk and retreat to a location 200 feet away on the parking lot, where prospective patrons of Respond- ent would not be attracted by the pickets' message, 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would render the message virtually meaningless. This conclusion is especially true because prospective patrons of other merchants in the shopping center enter, park, and exit the same common parking lot. Giant Food Mar- kets, supra. Additionally, requiring the pickets to picket on the parking lot 200 feet away from the Respondent's store, would subject them to the risk of being enmeshed with the customers of other merchants within the shopping center with which the Union has no dispute. Seattle-First National Bank v. NLRB, 651 F.2d 1272, 1276 (9th Cir. 1980). Respondent's claimed property interest in the sidewalk and designated portion of the parking lot was established only a day after the picketing commenced. It was ar- ranged only after Respondent became annoyed by the picketing, and even then, only by oral telephonic com- munication for no additional consideration, in an effort to circumvent the law and defeat the exercise of the stat- utory rights of the employees to picket. Respondent's threatening demand that the employees remove them- selves from the sidewalk is therefore a sham designed to circumvent the letter and spirit of the Act, in violation of Section 8(a)(1) of the Act. The sham-claimed property interest by Respondent makes it clear that Respondent's, legal argument and the cases cited in support of it, are distinguishable from and not applicable to the facts as found in the instant case. Giant Food Markets, supra. Respondent also violated Section 8(a)(1) of the Act by causing the arrest of Union Representative Michael Con- stanza. Giant Food Markets, supra. Because the arrest was executed in the presence of Respondent's employees, it automatically interfered with, restrained, and coerced the employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. Tuscola Truckers' Home, 233 NLRB 679, 685 (sec. II,D,2) (1977). Respondent claims the Union waived its right to picket on the sidewalk adjacent to the front of the store, by Clinton City Attorney Gary Culvar's letter descrip- tion that an agreement was entered into between the Union and Respondent's attorney, Richard Noble, on 25 April 1986. According to Culvar's letter, he agreed to withhold serving warrants for arrest for trespass on the pickets because the Union and Respondent's attorney (Noble), had agreed the pickets would remain behind the yellow line that he, Culvar , painted on the surface of the parking lot 200 feet away from the sidewalk, on the con- dition that the warrants would not be served. Culvar's letter is not signed by Noble or Union Attor- ney Waterman. Nor does the letter appear to embrace an entire agreement between the parties. That is, that the ar- rangement was temporarily entered into pending the Union's establishing its legal right to picket on the side- walks, by filing a charge and having a complaint issued by the Board. When a complaint was in fact issued 6 June 1986, the Union resumed picketing on the sidewalk. Under the above circumstances, I find, as counsel for the General Counsel argues, the incomplete description of the arrangement between the Union and the Respond- ent could hardly serve as an agreement on a waiver by the Union of a statutory right to picket on the sidewalks. Not only is the arrangement inadequately described to constitute an agreement, but I do not find the written language or its oral supplementation sufficient to consti- tute a clear and unmistakable intent on the part of the Union to relinquish its statutory right to engage in lawful picketing on the sidewalk. Gem City Ready Mix Co., 270 NLRB 1260, 1261 (1984). In fact, since the warrants for arrest would have been illegally served, it would appear that any consideration for which the Union temporarily agreed to forego picketing on the sidewalk, is void and unenforceable as a waiver of the Union's right to so picket. J. Altering Employees' Work Duties The evidence of record is uncontroverted that on the evening of 24 April 1986, Linda Brooks, Jana Harrison, and Kari Steinert picketed and handbilled on the side- walk in front of Respondent's store. They were observed by Store Manager Bill Gish. The next morning (25 April) Kari Steinert and Jana Harrison picketed and handbilled on the sidewalk in front of Respondent's store. They were again observed by Store Manager Bill Gish. When Linda Brooks, an employee of Respondent for 11 years reported for work on the morning of 25 April, Store Owner Balentine relieved her of the keys to the office and told her he would have to keep them for the duration of the "goings on outside." Brooks also was no longer allowed to get change out of the office for the registers. Nor was she permitted to continue to prepare food assistance vouchers, make price changes, handle bad checks, have acess to management's computer, charge customer duties, or pick up bank bags. Brooks was assigned to work on Sundays, which she had previ- ously worked only in emergency situations. Respondent's explanation for changing Brooks' duties was to prevent her from having access to its sales volume amounts, since she was participating in the pick- eting. Balentine testified, however, that the daily sales records were kept in the inner office to which Brooks did not have access. Brooks would have access to some of the records if she were preparing sales records in the outer office, but those records would be put into the file cabinet in the inner office. Based on this evidence it ap- pears that Brooks generally did not have access to actual sales volume amounts, but she did see some sales volume amounts, or she was close enough to make an assessment of sales amounts on some occasions. Similarly, on 25 April, Supervisors Dalton, Gish, and Balentine directed picket Kari Steinert to put away stock, which duty she does not generally perform. It took her 5 hours to put stock away. Steinert was sched- uled to be called second or first for checker duty, but in- stead, Karen Roskop, Lisa Blackaby, and Melody Balen- tine were checkers. After the stock was put away, Stein- ert was told to clean the back room. She did the clean- ing although her normal duties did not include cleaning the back room. Keith Dalton and Terry Dozier normally perform that task. She had helped clean the back room on only one other occasion, when a bag of flour had burst and she assisted Supervisor Kurt Loman in clean- ing it up. When Steinert attempted to carry a magazine CLINTON FOOD 4 LESS 609 outside to a customer who had left it, and when she at- tempted to push a cart outside the store as she would normally do, Manager Gish stopped her and did it him- self. On the next working day, 27 April, Store Manager Gish told Steinert to get her coat and do the inventory of ice cream in the freezer. This was the first and only time she had been assigned to work in the freezer. That duty was normally performed by a stocker or a manager. Steinert said it took her 45 minutes to do the inventory because she would come outside when she got too cold. Store Manager Gish testified that physical inventory is due every 3 or 4 months. It was due on 26 April, and because Stewart had performed 90 percent of the inven- tory and had to proceed to his other duties, he assigned Steinert to complete the inventory because she was only pulling boxes. He said she completed the job in 15 to 25 minutes, after asking him if she could wheel out the carts because it was cold in the freezer. He said, "Yes." Assist- ant Manager Loman is in charge of the freezer and bakery personnel is in charge of the ice cream, and Karen Raskop would sometimes assist them. When Jana Harrison reported to work at 4 p.m. on 25 April, she was informed by Karen Roskop that Harrison was not to check, but she nevertheless went ahead and checked. At 4:30 p.m., Gish ordered her to stock with Steinert for 2 hours. Normally, Harrison does not stock and had never stocked for 2 hours. Although she was stocking, Balentine, Karen Roskop, and Lisa Blackaby were checking for 2 to 2-1/2 hours. Store Manager Gish, further testified that a large truck of stock arrived on 25 April and Loman was on vaca- tion. Being shorthanded, he said he assigned Jana Harri- son, Kari Steinert, and Karen Roskop to assist Linda Brooks, Keith Dalton, Dozier, and Blackaby stocking be- cause he had more checkers on hand than he needed. Conclusion Owner Balentine's explanation for relieving Linda Brooks of the keys to the office appears reasonable for management under the circumstances. However, when I consider Respondent having taken the keys from Brooks and prohibiting her from making price changes, handling bad checks, charging customer duties, and assigning her more Sunday work, and that all of such changes in work assignments were given to Brooks the next morning after Respondent observed Brooks and other employees pick- eting in front of its store, I have misgivings that Re- spondent's explanation for relieving Brooks of her usual responsibilities was the real and truthful reason for changing her work assignments. I therefore discredit Owner Balentine's explanation for the changed assign- ments. When I further consider the above evidence along with the evidence that Respondent assigned checker Kari Steinert to put away stock, clean the back room, and for the first time, to take inventory in the freezer, I am not persuaded by the Respondent's explanation for the assignments. Additionally, when I consider Respond- ent's assigmnent of checker Jana Harrison to stock while checkers Roskop, Blackaby, and Mrs. Balentine checked; and that all of these different assignments were made to - the same three employees (Brooks, Steinert, and Harri- son), whom Respondent had observed picketing Re- spondent an evening or two earlier. I am fully persuaded by these factors and the demeanor of the witnesses (in- cluding Balentine), that Respondent instituted these changes in their work assignments because of their pick- eting and support for the Union. The law is well established that an employer who as- signs employees to more onerous working conditions and duties in retaliation for the employees engaging in union activities violates Section 8(a)(1) and (3) of the Act. Frenchy's K & T & Earl's News Stand, 247 NLRB 1212, 1213 at par. 2 (1980). Because the evidence is clear that Respondent in the instant case assigned employees Brooks, Steinert, and Harrison to different if not onerous working conditions because they engaged in picketing and other activities on behalf of the Union, it is also clear that Respondent has violated Section 8(a)(1) and (3) of the Act. Frenchy's K & T, supra. K. Respondent Disciplines Employees At approximately 5 p.m. on 27 April, checker Kari Steinert was called to the office where Store Manager Gish showed her a copy of one of Respondent's printed handbills (G.C. Exh 18), which read in pertinent part as follows: "The Majority Of Our Employees Do Not Want To Be Represented By" the Union. The word "Not" in the handbill was blotted out, and Gish asked Steinert if she did it. She denied she altered the handbill or had knowingly passed out any handbills so altered, but that she was merely removing them from behind the register and distributing them to customers, as Respond- ent (Balentine, Loman, and Dalton) had instructed her. Gish told Steinert she was written up and that she had her union friends to blame for doing this to her. He also told her if she wanted to press it, the customer to whom she gave it would appear in court. Conclusions The General Counsel alleges and argues that Respond- ent disciplined checker Kari Steinert by issuing her a writeup on 28 April because she gave a customer one of Respondent's handbills that had been altered. The evi- dence does not establish that Steinert altered the handbill (R. Exh. 12) by blotting out the word "Not," and Re- spondent does not affirmatively argue that she did. Re- spondent does maintain, however, that Steinert distribut- ed a handbill to customer Millin knowing it was altered. Although Steinert denies she knew the handbill was al- tered, I am not persuaded by her denial. Although she may not have altered the handbill, I am persuaded by the fact that Steinert had to reach behind the register for the handbill, which she folded, placed the purchased receipt with it, and handed it to customer Millin. Because Stein- ert was a participating supporter of the picketing it is reasonable to infer from her devout support of that activ- ity that she at least knew the handbill was altered. Her knowledge of the alteration may be reasonably inferred from the fact that she folded the handbill before she gave it to the customer. The evidence does not show that Re- spondent instructed checkers to fold its handbills, and it 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is highly probable that Respondent did not instruct the checkers to do so, since its objective was to make the contents of the handbill readily readable by its custom- ers. Steinert, in all probability knew that if the handbills were not behind the register and folded when distributed to customers, a member of management may have seen them in altered form. Whether Steinert knew the handbill was altered ap- pears immaterial regarding why Respondent disciplined her by issuing her a writeup. In this regard, Steinert tes- tified, and I credit her testimony, that Manager Gish's is- suance of the writeup was accompanied by his statement that she "had her union friends to blame for doing this to her." The latter statement can only convey the union animus and hostility that Gish had for Steinert's picket- ing the store, of which fact he and all of management were fully aware. Although Manager Gish may have denied making the statement to Steinert, I was persuaded by his demeanor, as well as the evidence of Respondent's union animus and unfair labor practices, with which this record is replete, that Gish's denial would not be truth- ful. I was persuaded by the demeanor of Steinert, who has a good education, and impressed me as being mental- ly bright, reliable, and also truthful. Based on this credited evidence, I conclude and find that although Steinert was distributing an altered hand- bill to Respondent's customer, for which Respondent on this first occasion might very well have warned her not to do, Respondent supplied clear and obvious reasons for disciplining SteWert when it told her she had her union friends to blame for doing this to her. Because the record is replete with hostile and unlawful efforts of Respondent to defeat the efforts of the Union, I conclude and find that Respondent's writeup of Steinert was discriminatori- ly motivated, in violation of Section 8(a)(1) and (3) of the Act. 7-Up Bottling Co., 261 NLRB 894, 902-903 (1982). Manager Gish testified that on 25 April he had ob- served Linda Brooks jerking money from the hands of customers and slinging their groceries at them to the bagging stop. He told her to settle down and treat the customers right. Karen Roskop, who was opposed to the Union, testified she observed Brooks being rude to the customers. Respondent's checkers were allowed to cash small checks for customers if the checker knew the customer. On the same day (25 April) Mildred Mayfield, a regular customer, testified she asked Brooks to cash a small check and Brooks said, "No, I'd get fired . . . You just don't know what goes on here . . . I'm with them [the pickets] out there." Mayfield also wrote a letter of her complaint to the Respondent (G.C. Exh 10) and she also testified that on other occasions other checkers had cashed her checks. When Mayfield reported the incident to Respondent, Manager Gish issued a disciplinary repri- mand to Brooks on 28 April, suspending her for 2 weeks. He cautioned her to quit talking to customers about the Union. He also told her he only warned once and if he had to speak to her again about her conduct, he would take action. Linda Brooks has been a devout supporter of the Union and she has been on the picket line every day except one day since the line was established. Pamela Corum, a regular customer of Respondent, testified that Brooks had waited on her on previous occasions and had always been courteous to her. However, she stated that after the picket line was established, she was about to enter the store and Brooks said she should not be going in there to shop. She replied, "Well Ma'm this is where I buy my groceries." Brooks said, "Well you'll be sorry," and she said, "Maybe, but I do my shopping here." The next day Comm said she purchased groceries and when checking out by Brooks, the latter was throwing her groceries down to the bagging stop and Brooks did not thank her for her patronage. Comm said she reported the incident in a note to the owner. Two or three days later, management told her they had taken care of the matter. For about five visits thereafter, Corum said Brooks was okay, but on her next visit, she was rude. She sent a note to the Respondent dated 6 May 1986 (R. Exh. 11) complaining about Brooks' conduct. Having previously warned Brooks about discourtesy to its customers, Respondent suspended Brooks on 8 May for 2 weeks. The General Counsel alleges and argues that Respondent disciplined Brooks for picketing and filing an amended charge with the Board, in viola- tion of Section 8(a)(1) and (4) of the Act. In view of the multiple unfair labor practices found to have been committed by Respondent, it is highly proba- ble and reasonable to conclude that Linda Brooks was frustrated and angry. The evidence is sufficient to rea- sonably conclude that Brooks was especially frustrated and angry on 25 April, when Respondent relieved her of several of her normal work duties. I am therefore per- suaded by these circumstances, as well as by Brooks' de- meanor as she testified, the testimony of Mayfield and Corum, that Brooks was discourteous to them. Brooks did not testify in rebuttal against their testimony. Al- though Brooks denied she was discourteous to any cus- tomers, I do not credit her denial but rather credit the testimony of management witnesses, as well as Mayfield and Corum, by whose demeanor I was persuaded were telling the truth. To find otherwise, I would have to dis- credit all of management's witnesses, including their non- employee-customer witnesses. Although I was not fully persuaded by the demeanor of Corwn, I have difficulty believing Mayfield and Comm would both take the time to appear in court to testify against Brooks in a dispute in which neither of them are involved. Accordingly, I do not fmd that Respondent disciplined Brooks on this occasion because she was involved in the picketing or because she filed an amended charge with the Board. Rather, I find that Respondent disciplined Brooks because she was discourteous to its customers, about which Brooks had been previously warned by Re- spondent. Consequently, I do not fmd that Respondent discriminatorily wrote up or suspended Brooks on 8 May because she picketed and filed an amended charge with the Board, in violation of Section 8(a)(1) and (4) of the Act, and the allegation that she did so is dismissed. CLINTON FOOD 4 LESS 611 L. Consolidated Complaint Alleges Respondent Violated Section 8(a)(1) in Several Respects 1. Respondent's owner, Balentine, acknowledged in his testimony that on 21 April, he asked Linda Brooks what did she personally want—what did she hope to gain by supporting the Union, and said he expressed his opinion on what was going on, telling her he felt the Union no longer had majority support and negotiations with the Union would end. Balentine testified that on 17 April he told Linda Brooks that on the previous day (16 April), his wife backed out their car and noted the tires were slashed, and that he, in fury, said, "My wife and children could have been harmed—there will never be a union in my store in my life time." 2. Balentine further testified that on 21 April he asked Jana Harrison why did she want the Union—what did she personally hope to gain by supporting the Union. Harrison testified she told Balentine she wanted more money and Balentine said she deserved more money, and when the Union is gone she will receive more. Balen- tine's version of the conversation, however, is that he told her "she would be getting more money except we cannot grant wage increases during negotiations.4 3. Jana Harrison testified that on 26 April Balentine asked her what did she think the picketing was going to do because he did not care how long she picketed, she would not get a contract—there would never be a union in his store. Balentine denied he told Harrison there would never be a union in his store, but said he did tell her ne- gotiations would end because the Union no longer had majority stalus.5 Conclusion The law is well settled that an employer violates Sec- tion 8(a)(1) of the Act by interrogating employees about their union membership, activities, and sympathies with- out prior assurances against reprisals of, or their union support. Sierra Hospital Foundation, 274 NLRB 427, 428 (1985). Because Balentine acknowledges he did ask Brooks about her union interest and activities and did not deny he asked Harrison the same questions, the evidence is es- sentially uncontroverted that such interrogation of both employees, without assurances against reprisals, consti- tuted unlawful interrogation in violation of Section 8(a)(1) of the Act. 4 I credit Harrison's version of the conversation not only because I was persuaded by her demeanor that she was testifying truthfully, but also, because Balentine's version of lus statement, as lawfully made, would have been one of the only lawful statements he made out of the many antiunion and unlawful conversations he held with his employees. I believe he revised his statement in Ins testimony to give it lawfulness. In other words, Balentine's version is inconsistent with the overwhelming evidence in this record of his antiunion statements and efforts to under- mine the employees' picketing and the Union. 5 Again, I do not credit Balentine's denial that he told Harrison she would not get a contract and that there would never be a union in his store because I was persuaded by his demeanor that he was not testifying truthfully, but especially so by the overwhelming evidence in this record of the antiunion and unlawful statements Balentine made to his employ- ees Moreover, I was persuaded by the demeanor of Harrison that she was testifying truthfully. Although Balentine admits he told Brooks there will never be a union in his store, he said he uttered such statement as a result of having been provoked by the vandalism practiced against his automobile (tires slashed). The evidence does not establish that Brooks had any- thing to do with the vandalism against Balentine's car. Although such an explanation by Balentine is per- ceived as reasonable, and is accepted, given the circum- stances, his denial that he made essentially the same statement to Harrison is not persuasive. The record evi- dence of Respondent's animus toward the Union is per- suasive. It appears that Balentine's utterance to Harrison was provoked as much by Harrison's picketing, as it was by the cowardly vandalism against his automobile by an unknown person. Such an utterance provoked by lawful picketing, however, does not immunize such a statement by an employer from violating Section 8(a)(1) of the Act. Consequently, I find Respondent's threatening state- ment that there will never be a union in his store was motivated by Balentine's animus towards the protective picketing of Harrison and other store employees, in vio- lation of Section 8(a)(1) of the Act. I also credit Harrison's testimony that Balentine told her she deserved more money and when the Union is gone she will receive more. I credit her statement be- cause I was persuaded by her demeanor that she was tes- tifying truthfully, and also because her account is consist- ent with all the credited evidence of record of Respond- ent's diligent efforts to undermine the efforts of the Union. Such a promise by an employer to increase wages and benefits to an employee in order to have them reject or defect from the Union as their bargaining representa- tive, violates Section 8(a)(1) of the Act. Angelica Corp., 276 NLRB 617, 623 (1985). The record shows that after telling Brooks only 5 out of 19 employees wanted the Union and that Lisa Black- aby and Karen Roskop had finally realized that the Union would not be like they thought it would, Balen- tine asked Brooks what did she want. In the context of this conversation, I find Balentine's asking Brooks what did she want, constituted soliciting a grievance or com- plaint by the Respondent, on an implied promise that things would be better if she abandoned her interest and support of the Union. Such conduct by the Respondent violated Section 8(a)(1) of the Act. Cutting, Inc., 255 NLRB 534 (1981). M. Respondent Prohibited Talk About the Union Linda Brooks testified and I was persuaded by her de- meanor that she was testifying truthfully, that Store Manager Gish told her he had received complaints from fellow workers and customers that she had been treating them unfriendly. He told her to keep it (the Union) away from the store—that the little gab sessions the employees had been engaged in must cease and not to talk about nonstore business. On 26 April, Supervisor Dalton told Kari Steinert she could no longer talk about the Union to anyone inside the store or to customers, and if she did, he would issue her a writeup. Gish told Steinert she could not talk to 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD customers about the Union and if she did, she would be disciplined and written up. Similarly, Jana Harrison cre- dibly testified that on 28 April, she was told by Manager Gish that she was not to talk about anything relating to the Union or she would be written up, followed by fur- ther discipline if she continued to do so. Conclusion Because Respondent (management) ordered Brooks, Harrison, and Steinert not to talk about the Union in the store, the prohibition made no exception for breaktime, lunchtime, and time before or after work hours, and therefore it was an unduly broad prohibition rule against talking about the Union, in violation of Section 8(a)(1) of the Act. Our Way, Inc., 268 NLRB 394 (1983). Addition- ally, because Respondent's rule restricted only conversa- tions about the Union, it is discriminatory and, therefore, also violative of Section 8(a)(1) of the Act. Liberty Nurs- ing Homes, 245 NLRB 1194 (1979). N. Respondent's Interference with Board Processes The record is uncontroverted that Jana Harrison had given an affidavit to the Board in a prior case with the Respondent Under the circumstances in this case, specif- ically on 21 April, Manager Balentine told Harrison he had read her Board affidavit and knew from previous conversations that she was the one who had said those things. Manager Balentine acknowledged in his testimony that he made the latter statement to Harrison but said he had not in fact read her affidavit. Conclusion I find Balentine's technical explanation that he had not in fact read Harrison's affidavit immaterial, since he cre- ated the impression to Harrison that he had access to the contents of her statement. The Board has long held that an employer violates Section 8(a)(1) of the Act if it cre- ates such an impression with its employees because such an impression inhibits employees to provide such state- ments to the Board. North Electric Co., 225 NLRB 1114, 1116-1117 (1976). 0. Respondent Required Employees to Distribute Its Handbill The testimony of checker Kari Steinert is uncontro- vetted that on 19 April, Respondent (Manager Gish) di- rected her to distribute to each customer checking out at her register a copy of Respondent's handbill opposing the Union, or she would be disciplined for not doing so. Conclusion Although the free speech right of an employer to dis- tribute literature in opposition to the Union's position is protected under Section 8(c) of the Act, this protection does not extend to the employer exercising his manageri- al authority to compel employees, under threat of disci- pline, to distribute the employer's literature in opposition to the Union. To allow such a mandate by management would strip employees of the free exercise of their will guaranteed under Section 7 of the Act and coerce employees to act as agents of the employer. An employer who requires its employees to convey the employer's antiunion message, as here, violates Section 8(a)(1) of the Act. R. L. White Co., 262 NLRB 575, 576 (1982). Moreover, such an order by an employer amounts to such a managerial mandate that it coerces employees to act as an agent of the employer, in violation of Section 8(a)(1) of the Act. Pillowtex Corp., 234 NLRB 560 (1978). P. Respondent Prohibited Employees Wearing Union Insignia It is uncontroverted that on 25 April, Manager Gish ordered checker Kari Steinert to remove a union sticker she was wearing on her smock because it offended cus- tomers, and if she did not remove it, she would be writ- ten up. On the same day, Manager Gish ordered checker Linda Brooks to remove a union sticker she was wear- ing, or be disciplined. Also on 25 April, Manager Balen- tine ordered checker Jana Harrison to remove the union sticker she was wearing or be disciplined. The evidence is also uncontroverted that for 2 months employee Steinert had been wearing a "keep smiling" button when Manager Gish ordered her to remove the union sticker. He did not order her to remove the "keep smiling" button. Both Jana Harrison and Linda Brooks testified that they had worn similar buttons in the past without any objections from management. Respondent did not produce any evidence that customers were of- fended or that work had been interrupted in any way by employees wearing the union insignia. Conclusion The Supreme Court has long recognized the right of employees to wear union insignia without interference by the employer. Republic Aviation Corp. v. NLRB, 324 -QS. 793 (1945). Moreover, the Board has held that mere con- tact with customers is not such an interference with work performance or business to justify such a prohibi- tion of wearing union insignia, absent a showing of spe- cial circumstances. Burger King Corp., 265 NLRB 1507, 1507-1508 (1982). In the instant case, Respondent did not establish any special circumstances to justify its prohibitions against union insignias. Q. Threat of Unspecified Reprisal The uncontroverted evidence of record shows the fol- lowing: In referring to the union activity of the employees on 12 April, Balentine told Linda Brooks to settle down, quit the bickering among themselves, and if they could not, he would see that things were settled. As previously found here, Balentine told Jana Harrison on 21 April that as long as he owned the store there would be no contract and there would be no Union. On 13 June Balentine told Constanza, Jana Harrison, and Linda Brooks that he had other options to signing a contract, including selling or closing the store. The law is well settled that such statements constitute unspecific threats of reprisal against employees' union interest, in CLINTON FOOD 4 LESS 613 violation of Section 8(a)(1) of the Act. In Roskin Bros., 274 NLRB 413 (1985), the company's agent announced to employees, "we know what's going on and we're going to fix it' R. Informing an Employee She is Disciplined Because of Union Friends As previously found here, on 28 April, Manager Gish told checker Steinert she was written up for altering Re- spondent's handbill, and she could blame her union friends for doing this to her. Respondent's conduct in this regard is unlawful because an employer violates Sec- tion 8(a)(1) of the Act if it tells an employee his or her union activities are the reason for being disciplined. Woody's Truck Stops, 258 NLRB 705, 706-707 (1981). S.Declining Request for Union Representation During Disciplinary Interview On 23 April employee Randy Carroll was informed he had to take a lie detector test and he would be terminat- ed if he did not take it. Carroll requested the presence of a union representative during the test but the examiner, after inquiring of management, informed him that he could not have representation because the matter did not pertain to the Union. Carroll submitted to the test and was later fired. His discharge, however, is not an issue in this proceeding. I find, however, that the examiner, Berkland, who relayed the answer to the inquiry of man- agement, is an agent in fact of Respondent, as well as an agent within the meaning of Section 2(13) of the Act. Conclusion The courts and the Board have repeatedly held that the denial of an employee's request for the presence of a union representative during an investigatory interview that the employee reasonably believes may result in dis- ciplinary action, violates Section 8(a)(1) of the Act. NLRB v. J. Weingarten, 420 U.S. 251 (1975). T. Employer Photographs Picketer The evidence is uncontroverted that although employ- ee Terry Dozier picketed on the sidewalk in front of Re- spondent's store on 13 June, Store Owner Balentine pho- tographed Dozier. In Waco, Inc., 273 NLRB 746, 747 (1984), the Board held that an employer violates Section 8(a)(1) of the Act if it photographs unlawful picketing in the absence of proper justification. In the instant case, the lawfulness of the employees picketing is uncontroverted. Also, the record fails to show that Respondent offered any evi- dence as justification for photographing picketer Dozier. I therefore conclude and fmd that Respondent's act of photographing Dozier while picketing violated Section 8(a)(1) of the Act. Waco, Inc., supra. U.Another Complaint Issued Against Respondent During Pendency of this Decision Although a decision in the instant proceeding was pending before me, charges of unfair labor practices were filed against Respondent on 4 September 1986 by checkers Linda Brooks and Jana Harrison. Pursuant thereto, the Regional Director issued a complaint in Cases 17-CA-13113-1 and 17-CA-13113-2, respectively, on 3 October 1986 alleging in essence as follows: On or about 23 August 1986, Respondent termi- nated the employment of checkers Linda Brooks and Jana Harrison because of their membership in and activities on behalf of the Union, in violation of Section 8(a)(1) and (3) of the Act, and because they gave testimony during the investigation and hearing in the instant Board preceding, in violation of Sec- tion 8(a)(1) and (4) of the Act. Consequently, on 5 December 1986, the General Counsel moved to reopen the record, and pursuant to Board's Rules and Regulations, consolidate the complaints in Cases 17-CA-13113-1 and 17-CA- 13113-2 with cases in the instant proceeding. The General Counsel's motion was granted 10 Decem- ber 1986. However, the issues in Case 17-CA- 13113-2, involving Jana Harrison having been set- tled by the parties, was severed from 17-CA- 13113-1, and will not be litigated in this proceeding. Brooks' case (17-CA-13113-1) was heard by me in Clinton, Missouri, on 17 December 1986. Linda Brooks last testified in this original pro- ceeding on 20 August 1986 and she did not work in Respondent's store that day. While the trial was still in progress, she did work in Respondent's store from 8 a.m. to 4 p.m. on 21 August, from 8 a.m. to 5 p.m. on 22 August, and from 8 a.m. to 5 p.m. on 23 August, the day the trial in the instant proceed- ing closed. About 15 minutes before the shift ended on 23 August, however, Brooks was called to the office where she was called to the office where she was given a notice by manager Gish which advised that her employment was terminated because: 1.She received a write up for being rude to a customer 28 April. 2. She was suspended for 2 weeks on 8 May for being rude to a customer. 3. One of the same customers testified in this original proceeding that during the week of the trial, Brooks was again rude to her. In response to the testimony given by Respondent's witness, Pam Corum, in the original proceeding, Linda Brooks now testifies that she recalled waiting on custom- er Pam Comm on 21 August while this original proceed- ing was in progress. She said at that time that she greet- ed Corum, checked out her groceries, told her the total of her bill, accepted her money, and told her "Thank you." Brooks denied throwing Corum's groceries to the bagging stop, or throwing her change down, and said she always thanked Comm and had never been rude to her or to any other customer. Pam Corum did not testify in this reopened session of this proceeding. After Brooks testified concerning the prior testimony of customers Comm and Mayfield, Respondent did not confine its examination to matters concerning the testi- mony of Corum and Mayfield, but instead proceeded to question Brooks about very remote and somewhat unspe- 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cific events that occurred more than 5 years ago (prior to 1980) regarding Brooks' refusal to cash a check for a customer. However, Respondent's examination of Brooks in that regard did not establish she was rude to the cus- tomer because after she explained to management why she did not cash the check, the explanation was appar- ently accepted because the matter was dropped by man- agement without any reprimand of Brooks. Further probing into very remote matters, Respondent presented the testimony of Melody Balentine, coowner and wife of Balentine, regarding an incident with Brooks. M. Balentine testified that 6 or 7 years ago, while reprimanding Brooks about a matter, the nature of which she could not recall, Brooks hung up the telephone on her. She told Balentine about it and Brooks acknowl- edged in her testimony, that Balentine told her she was rude to his wife on the telephone, and he reminded her that M. Balentine was her boss also, and whenever she talks to her, Brooks should listen. M. Balentine said she did not write up Brooks or make a record of the inci- dent. She also noted that she had reprimanded another employee for refusing to debone a chicken for a custom- er, and that employee is still in Respondent's employ. Conclusion ki evaluating the credibility of Respondent's witnesses; as well as the merits of its defense (the discharge of Brooks for cause), I am constrained to consider the fore- going remote incidents involving Brooks' contended wrongful conduct against the backdrop of other evi- dence o,f her work history performance. In doing this, it is first noted that not only is the check incident or the telephone incident of Brooks extremely remote to her more recent (6 years) work performance history, but her entire employment history with Re- spondent tends to contradict and attribute little or no sig- nificance to them. No record was made of either incident and neither resulted in issuance of a writeup of Brooks. Further reducing the significance placed on these remote incidents by Respondent is the longstanding tenure (11 years) of Brooks and the significant responsi- bilities with which Respondent entrusted her (to make change for checkers, access to company computers and to take and bring money from the bank). The uncontro- verted evidence also shows that Brooks was head check- er and helped to write and enforce some of the courtesy policies, one of which she is charged with having violat- ed. During 11 years in Respondent's employ, she has seldom been absent, arrives at work 10 or 15 minutes before time and, at Balentine's request, accompanied him at a Rotary Club meeting in late 1984, at which members were to bring a female employee for recognition. Addi- tionally, Respondent awarded Brooks a bonus of $100 in December 1983, a bonus of $750 in June 1984, and has given her a trip for two for lodging at the Four Seasons, plus $100 spending money. Notably, she was also the leading union adherent. I therefore conclude and find on the foregoing back- ground evidence, that Respondent has not seriously warned or reprimanded Brooks for rude conduct any time before the conduct for which she was disciplined in April 1986. This brings us to the question whether Brooks commit- ted another infraction of store policy for which she had been previously disciplined in April. The only evidence on which this determination can be made is the testimo- ny of customer Pam Corum that Brooks was rude to her in August, and Brooks' denial on direct and cross-exami- nation that she was rude to Corum. In the original pro- ceeding Brooks denied she was discourteous to any cus- tomer. It is true, as Respondent argues, that Brooks was not called back to the stand to rebut the testimony of Mayfield and Corum. However, it is noted that Mayfield testified that after she reported Brooks to management, Brooks has always been courteous to her. It was only customer Corum who testified Brooks had been rude to her in August. Because Brooks had previously testified that she had not been discourteous to any customers, including cus- tomer Corum, perhaps the General Counsel did not deem it profitable to have Brooks resume the stand to again deny that she was not rude to any customers, the conflict in testimony having raised a question of credibil- ity. However, be that as it may, I do not credit the testi- mony of customer Corum that Brooks was rude to her in August or any time after she had been disciplined by Re- spondent. First, as I indicated in section III,K, the penul- timate paragraph of this decision, I was not fully per- suaded by the demeanor of Pam Corum that she was telling the full truth. This is so because I received the impression that Corum was a bit partial towards Re- spondent and was exaggerating in her testimony. She did not testify in this extended session of this proceeding. I had misgivings about the credibility of Corum's testimo- ny then and now for additional reasons. Brooks has been employed by Respondent 11 years. Although she was reprimanded in April and disciplined 8 May for being rude to customers Corum and Mayfield, she returned to work. Her return to work at least sug- gests that she either wanted or badly needed her job. Having been disciplined (suspended 2 weeks) for having been discourteous to customers, I do not believe Brooks would have returned to work and engaged in discourte- ous conduct with the same customer (Corum) who re- ported her to management, and for which report she was disciplined. A person with meager intelligence would not have indulged in such repetition and I was persuaded by the demeanor of Brooks that she was testifying truthful- ly; that she is intelligent and also appeared too much in need of her job to have been discourteous to any of Re- spondent's customers, not to mention customer Comm. Moreover, I also discredit Corm's testimony because when asked had she informed Respondent that Brooks had been rude to her in August, she said, "No." Re- spondent therefore first learned of Corum's assertion that Brooks was rude to her in August when Corum testified in the original session of this proceeding in August. If Brooks had in fact been rude to Corum again in August, it appears logical and realistic that Corum would have reported such fact to Respondent. CLINTON FOOD 4 LESS 615 Finally, I also credit Brooks' denial that she was rude to Corum because I must consider the credited record evidence as a whole. In doing so, I cannot ignore the union animus, the pervasive unfair labor practices com- mitted by Respondent, as well as the diligence of man- agement to undermine the efforts of, and rid itself of the Union. Such evidence is more than ample to infer that Respondent's discharge of Brooks was discriminatorily motivated by her membership in, and her leadership on behalf of the Union, in violation of Section 8(a)(1) and (3) of the Act; and also because she gave testimony in the investigation and hearing of this proceeding, in viola- tion of Section 8(a)(1) and (4) of the Act. I have found pervasive unfair labor practices commit- ted by the Respondent in this case. The credited record evidence seems to imply on the one hand, that Union Representative Mike Constanza was a zealous union rep- resentative who sometimes resorted to uncomplimentary tactics (misrepresenting himself as Respondent's counsel) to win over employees. He also might have made himself personally disliked by the Respondent. On the other hand, having observed the owners of Respondent, the Balentine's, testify, I perceived them as a fme, typically American young couple operating a grocery business to the best of their ability. The evidence indicates they did not want their business unionized or did not want to deal with Constanza, the union representative of their em- ployees. Their efforts to prevent unionization or to avoid dealing personally with Constanza resulted in substantial violations of the Act, perhaps due more to their lack of knowledge of the law than to any intended violation. But a violation of the Act need not be motivated by an intent, and any violation of the Act, irrespective of intent, calls for remedies prescribed by the Board and the courts. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent failed and refused to bargain in good faith in several respects with the Union, Respondent has violated Section 8(a)(1) and (5) of the Act; that having interfered with, coerced, and restrained employees in the exercise of their protected Section 7 rights in several respects, Respondent has violated Sec- tion 8(a)(1) of the Act; that having discriminated against the hire, tenure, or terms and conditions of employment of its employees by assigning them different duties or dis- charging them, Respondent has violated Section 8(a)(1) and (3) of the Act; that Respondent, having discriminat- ed against the hire, tenure, or working conditions of em- ployees because they gave a statement or testimony before the Board, has violated Section 8(a)(1) and (4) of the Act; and the recommended Order will provide that Respondent cease land desist from engaging in such un- lawful conduct; that it be ordered to recognize and, on request, bargain in good faith with United Food and Commercial Workers Local No. 576, AFL-CIO and CLC, as the exclusive collective-bargaining representa- tive of its employees in the appropriate bargaining unit; and that it make Linda Brooks whole for any loss of earnings she may have suffered within the meaning and in accord with the Board's decision in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977), 6 except as specifically modified by the wording of such recommended Order. On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. By the following acts and conduct the Respondent has violated Section 8(a)(1) and (5) of the Act: (a) Since about 24 October 1985 Respondent has failed to timely submit a contract proposal to the Union. (b) Refusal to meet and bargain with the Union at rea- sonable times and places. (c) Bargained with a fixed mind or position not to reach an agreement with the Union. (d) Since 24 October 1985 failed and refused to furnish the Union requested information. (e) About 9 April 1986 canceled a negotiation meeting scheduled for 11 April 1986 and withdrew recognition of the Union as the exclusive collective-bargaining repre- sentative of the unit. (f) By overall acts and conduct, failed and refused to bargain in good faith with the Union, as the exclusive collective-bargaining representative of its unit employees. - 2. On various dates between 12 and 28 April 1986, Re- spondent has engaged in the following acts and conduct in violation of Section 8(a)(1) of the Act. (a) Interrogated its employees concerning their union membership, activities, and sympathies. (b) Informed employees that Respondent would not bargain with the Union as their collective-bargaining rep- resentative. (c) Promised employees increased wages or benefits if they rejected the Union as their bargaining representa- tive. (d) Solicited employees' complaints and grievances and promised them increased benefits and better working conditions if they rejected the Union. (e) Prohibited employees from talking about the Union at any time while in its store and threatened them with discipline if they did so. (1) Informed an employee that it had read the affidavit that she had given to the Board. (g) Instructed employees to give or insert Respond- ent's antiunion handbills in customers' grocery sacks as they checked out customers, and threatened them with discipline if they refused to do so. (h) Prohibited employees from displaying union insig- nia while in Respondent's store, and threatened to disci- pline them if they did so. (i) Threatened employees with unspecified reprisals be- cause they formed, joined, or supported the Union. (j) Informed an employee that she was being disci- plined because of her union activities and her union-sup- porting friends. 6 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (k) Informed employees and their union representative that they could picket on the sidewalks in front of its store, and caused warrants to issue for their arrests when they did so picket. (1) Initiated, assisted, supported, solicited, and submit- ted a disaffection petition of its unit employees. (m) Refused an employee's request for union represen- tation during an interview in which the employee had reason to believe would lead to his discharge. 3. Respondent has discriminated against its employees in violation of Section 8(a)(1) and (3) of the Act by its act and conduct as follows. (a) Since about 25 April 1986, Respondent has altered the work duties of employees Linda Brooks, Kari Stein- ert, and Jana Harrison. (b) About 28 April 1986, Respondent issued a discipli- nary write-up to employee Kari Steinert. (c) On 23 August 1986, and continuing to date, Re- spondent has discriminated against employee Linda Brooks, in regard to her hire and tenure, to discourage her membership in and support of the Union. 4. Respondent has violated Section 8(a)(1) and (4) of the Act by, on 23 August 1986, discriminating against employee Linda Brooks in regard to her hire and tenure, to discourage employees from giving statements and tes- timony before the Board. 5. All the employees described below employed by the Respondent constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees em- ployed by Respondent at Respondent's facility in the handling or selling of merchandise or perform- ing other services instrumental thereto except bakery department employees, meat department em- ployees, office clericals, guards and supervisors as defined in the Act. 6. At all times material, United Food and Commercial Workers Local No. 576, AFL-CIO and CLC, has been the exclusive collective-bargaining representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 7 ORDER The Respondent, Co-Jo, Inc. d/b/a Clinton Food 4 Less, Clinton, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their union membership, activities, and sympathies. (b) Informing employees it would not bargain with the Union as their collective-bargaining representative. 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 (c) Promising employees increased wages or benefits if they reject the Union as their collective-bargaining rep- resentative, soliciting employees' complaints and griev- ances, and promising them increased benefits and better working conditions if they reject the Union. (d) Prohibiting employees from talking about the Union during any time while they are in the store, and threatening them with discipline if they do so. (e) Informing employees Respondent had read their af- fidavit or statements submitted to the Board. (t) Instructing employees to give or insert antiunion handbills in customers' grocery sacks as they check out, and threatening them with discipline if they refuse to do SO. (g) Prohibiting employees from displaying union insig- nia while in the store, and threatening to discipline them if they do. (h) Threatening employees with unspecified reprisals because they form, join, or support the Union. (i) Informing employees they are being disciplined be- cause of their union activities or their union-supporting friends. (j) Informing employees and their union representative that they cannot picket on the sidewalk in front of Re- spondent's store, and causing warrants to issue for their arrest if they do. (k) Initiating, assisting, supporting, soliciting, or sub- mitting a disaffection petition on behalf of unit employ- ees. (1) Refusing an employee's request for union represen- tation during an interview the employee has reason to believe would lead to his or her discharge. (m) Failing to timely submit contract proposals to the Union. (n) Refusing to meet and bargain with the Union at reasonable times and places. (o) Bargaining with a fixed mind or position not to reach an agreement with the Union. (p) Failing and refusing to furnish the Union requested information. (q) Failing and refusing to bargain in good faith with the Union as the exclusive collective-bargaining repre- sentative of unit employees. (r) In any manner interfering with, restraining, or co- ercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Linda Brooks whole for any loss of earnings or other benefits she has sustained as a result of the dis- crimination against her. (b) Rescind and remove from personnel files and com- pany records the discriminatory writeup issued to Kari Steinert, and notify her in writing by mail that this has been done and that the writeup will not be used against her in any way. (c) Offer Linda Brooks immediate and full reinstate- ment 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 make her whole for any loss of earnings CLINTON FOOD 4 LESS 617 and other benefits suffered as a result of the discrimina- tion against her, in the manner set forth in the remedy section of the decision. (d) On request bargain with United Food and Com- mercial Workers Local No. 576, AFL-CIO and CLC as the exclusive collective-bargaining representative of the employees in the above-described appropriate unit con- cerning terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement. (e) 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. (f) Post at Respondent's store and place of business at 1405 East Ohio Street, Clinton, Missouri, copies of the attached notice marked "Appendix." 8 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT fail and refuse to bargain in good faith with the Union by engaging in the following conduct: (a) Fail to timely submit contract proposals. (b) Refuse to meet and bargain at reasonable times and places. (c) Bargain with a fixed mind and position not to reach a position with the Union. (d) Refuse to furnish requested information to the Union. (e) Cancel negotiation sessions and withdraw rec- ognition of the Union. (f) By our overall acts fail and refuse to bargain in good faith with the Union. WE WILL NOT interfere with, coerce, or restrain our employees in the exercise of their rights guaranteed by Section 7 of the Act, by: (g) Interrogating our employees about their union membership, activities, and sympathies. (h) Telling our employees we will not bargain with the Union as their collective-bargaining repre- sentative. (i) Promising employees increased wages or bene- fits if they reject the Union as their collective-bar- gaining representative. (j) Soliciting employee complaints and grievances and promising them improved benefits. (k) Prohibiting employees from talking about the Union at any time. (1) Telling employees we have read their state- ment or affidavit they have given to the National Labor Relations Board. (m) Ordering employees to distribute antiunion handbills on our behalf, and threatening them with discipline if they refuse to do so. (n) Prohibiting employees form wearing their union insignia while at work, and threatening them with discipline if they do. (o) Threatening employees with unspecified re- prisals because they form, join, or support the Union. (p) Telling employees they are disciplined be- cause of their union activities and their union friends. (q) Informing employees they cannot picket on the sidewalk and causing issuance of warrants for their arrest when they picket on the sidewalk. (r) Initiating, assisting, supporting, soliciting, and submitting a union disaffection petition on behalf of unit employees. (s) Refusing employees' request for union repre- sentation at an interview employees have reason to believe will result in their discharge. WE WILL NOT discourage employees' membership, or support of the Union, or any other labor organization, by: (t) Issuing them a disciplinary writeup. (u) Altering their work duties. (v) Discharging them for supporting the Union. (w) Discharging them for giving a statement or affidavit to the National Labor Relations Board. 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer Linda Brooks immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice 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 retract and remove from the personnel records of Kari Steinert the disciplinary writeup that we issued to her. WE WILL, on request, bargain with United Food and Commercial Workers Local No. 576, AFL-CIO and CLC as the exclusive collective-bargaining representative of the employees in the appropriate unit described below: All full-time and regular part-time employees em- ployed by Respondent at Repondent's facility in the handling or selling of merchandise or perform- ing other services instrumental thereto except bakery department employees, meat department em- ployees, office clericals, guards and supervisors as defmed in the National Labor Relations Act as amended. All our employees are free to become, remain, or refuse to become or remain, members of United Food and Commercial Workers Local No. 576, AFL-CIO and CLC or any other labor organization. Co-Jo, INC. D/B/A CLINTON FOOD 4 Less ORDER GRANTING CHARGING PARTY'S MOTION TO QUASH AND HAVE RETURNED TO IT RECORDS SUBPOENAED BY RESPONDENT'S COUNSEL During a bench conference at the commencement of the trial in the above-captioned case on 18 August 1986, counsel for the Charging Party Union (Local 576), Jerome F. X. Waterman, informed me that Respondent had a subpoena served upon the Union at 4:30 p.m., Friday, 15 August 1986. Specifically, the subpoena was served upon Union president, Mike Boyd by Respond- ent's attorney-negotiator, Richard Noble. The subpoena, requested among other things, the personnel file of the Union's secretary-treasurer, Michael Constanza, includ- ing all written reports, complaints and comments on the conduct of Michael Constanza. President Boyd tried to contact Union attorney Waterman without success. Mr. Noble told Boyd if he surrendered a copy of the request- ed information to him (Noble), he (Boyd) would not have to come from Topeka to trial in Clinton, Missouri, on Monday, 18 August 1986, and sit all day as keeper of the records. Boyd thereupon gave copies of the subpoe- naed documents to Mr. Noble. Union counsel Waterman did not see the documents concerning Constanza until 10:30 a.m. on the morning of the trial (8-18-86), when counsel for the Respondent showed them to him. Mr. Waterman therefore moved to quash the subpoena and have the documents returned to the Union on the ground that the information therein was irrelevant to the issues in this proceeding. Mr. William C. Nulton, counsel for Respondent, objected and argued that the subpoe- naed information was relevant to the issues and impor- tant to Respondent's defense for withdrawing recogni- tion from the Union. Since I had not had an opportunity to examine the contents of the subpoenaed documents, counsel for the respective parties agreed on the record, to allow me an opportunity to examine them overnight so that I could rule on the question of relevance on the next morning (8-19-86). Having examined the subpoenaed documents over- night, I ruled the subpoenaed information irrelevant to the issues in this proceeding because none of the com- plaints or comments on Mr. Constanza's conduct came from unit employees of Respondent. All complaints and comments in the documents came from employees em- ployed by other enterprises in other cities, unrelated to the Respondent. However, this is not a situation where the Union still had its records in its possession and was opposing surrender of them by moving to quash Re- spondent's subpoena. On the contrary, counsel for Re- spondent had already obtained possession of' the records pursuant to the subpoena, and was unwilling to return them to the Union. Having ruled the substance of the subpoenaed records irrelevant to the issues in this proceeding, and not know- ing whether Respondent had copied any of them, I de- ferred ruling on quashing and requiring Respondent to return the subject of the subpoena to the Union, pending both parties submitting a brief on the question raised under these circumstances. Not only did counsel for the parties willingly concede to do so, but without objection, they agreed that I should retain possession of the subpoe- naed documents until I rule on the question. Briefs have been received from counsel for the Re- spondent and counsel for the Union, respectively, with respect to the Union's motion to quash and order to return the subpoenaed records to the Union. Both briefs have been carefully considered by me. In Brinks Inc., 281 NLRB 468 (1986), the Board re- cently addressed the propriety of a hearing officer revok- ing (quashing) a subpoena on the grounds that the sub- ject of the subpoena was irrelevant to the issues at hand. In granting the motion to revoke (quash), the Board ob- served that Section 102.66(2) of the Board's Rules and Regulations provides, in part: The Regional Director or the hearing officer, as the case may be, shall revoke the subpoena, if, in his opinion, the evidence whose production is required does not relate to any matter under investigation or in question of the proceedings, or the subpoena does not describe with sufficient particularity the evi- dence whose production is required, or if for any other reason sufficient in law the subpoena is other- wise invalid. The Board stated: CLINTON FOOD 4 LESS 619 With respect to the last-mentioned grounds for re- voking a subpoena, that is, "any other reason suffi- cient in law," the Federal Rules of Civil Procedure provide useful guidance although they are not bind- ing on this agency. Specifically, Federal Rules 45(d), and [fn. omitted] dealing with subpoenas for the production of documentary evidence, and Fed- eral Rule 26(1) [fn. omitted] dealing with subpoenas for the production of documentary evidence, and Federal Rules of Civil Procedure 26(1) [fn. omitted] and (c) [fn. omitted] regarding the scope and limits of discovery in civil cases in federal courts, should be consulted by Regional Directors and Hearing Officers when rulings on motions to revoke subpoe- nas filed under Section 102.66 of the Board's and Regulations. Rule 45(b) of the Federal Rules of Civil Procedure states inter alia, that a court may, upon motion, "quash or modify the subpoena if it is unreasonable and oppres- sive," and that • . . for good cause shown . . . may make any order which justice requires to protect the party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only upon speci- fied terms and conditions . . . (4) that certain mat- ters not be inquired into . . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way. Although the Board's analysis on procedure was refer- able to Regional Directors and hearing officers, I am persuaded that the Board would require an administra- tive law judge in an administrative proceeding to follow the same procedure. Thus, having previously found and ruled during the trial that the personnel record, including correspondence and comments in reference to Michael Constanza, is irrelevant, I now grant the Chargmg Party's motion to quash Respondent's subpoena. Respondent's subpoena is also quashed pursuant to Rule 45(b) of the Federal Rules of Civil Procedure, be- cause not only did my examination of the subject of the subpoena reveal that it is irrelevant in this proceeding, but also that it has a high probability of causing Michael Constanza (the Union) considerable annoyance, embar- rassment, and oppression. Consequently, witness Con- stanza (the Union) should be protected from such discov- ery. Additionally, as counsel for the Charging Party appro- priately noted at 27 C.J.S. Discovery § 87 at 273: A party who, under rule of court, deposits books for inspection may withdraw them after a reasona- ble time for inspection and taking copies has ex- pired. The books should be returned to the party producing them after they have been inspected, al- though they may be required on the hearing. The court may as a condition for making an order for production require an applicant to undertake not to make public the contents of the documents. It is therefore obvious that the purpose of subpoenaed documents is to apprise the court and counsel of its exist- ence and relevance to the issues in the proceeding. The subpoena does not confer property ownership of the documents or their contents in the party who compelled their production by subpoena. In the instant case, the subpoenaed documents having been reviewed by the court and counsel for the respective parties, and having been ruled irrelevant, have served their purpose. That purpose having been served, the subpoenaed records, or any copies made of them, should be returned to the Charging Party. The subject of the subpoena should be returned to the Charging Party because, I also fmd that failure to do so, would cause the Charging Party consid- erable annoyance, embarrassment, and oppression, when their contents are totally irrelevant to this proceeding. Accordingly, I am forwarding by certified mail to counsel for Respondent, all of the documents subpoenaed by the Respondent, and IT IS HEREBY ORDERED, in view of the foregoing, that Charging Party's motion be, and the same is, granted; and that Respondent's counsel is specifically ordered to return to the Charging Party forthwith, all records produced by it pursuant to the sub- poena, and if any, all copies made of them.