Fast Food Merchandisers, Inc

FAST FOOD MERCHANDISERS 897 Fast Food Merchandisers, Inc and Retail Clerks Union Local 1063, AFL-CIO Cases 10-CA- 15877 10-CA-15985 and 10-CA-16861 November 29 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 31 1982 Administrative Law Judge Karl H Buschmann issued the attached decision Thereafter the Respondent filed exceptions and a supporting brief the General Counsel filed excep tions a supporting brief and a motion to strike i and the Respondent filed an answering brief to the General Counsels exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 2 and conclusions3 and to adopt the recommended Order ' The General Counsel requests the Board to strike from the Respond ent s brief in support of its exceptions Exh 2 which purports to be a copy of a collective bargaining agreement between the Respondent and the Union dated February 1 1982 The General Counsel argues that this agreement was negotiated and signed subsequent to the close of the hear ing and was neither the subject matter of the allegations of the complaint nor a part of the official record A review of the Respondent s brief reveals that Exh 2 was attached as a part of its argument that certain portions of the judge s recommended Order are no longer appropriate in light of the terms of the agreement it reached with the Union subsequent to the hearing In essence the Re spondent is arguing that its agreement with the Union constitutes changed circumstances warranting reopening the hearing Thus we view Exh 2 as a proffer of the evidence the Respondent would introduce at such a further hearing Although we find that the alleged terms of the Respondents agree ment with the Union do not constitute changed circumstances warrant ing the reopening of the hearing we note that the Respondent is entitled to make its argument and to proffer evidence in support Accordingly we deny the General Counsel s motion to strike 3 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 For the reasons stated by the judge we agree with his findings that the Respondent violated Sec 8(a)(1) by threatening employees with a loss of jobs and benefits because of their union activities and by soliciting employees grievances and promising them benefits In affirming the judge s conclusion that the Respondent lawfully elimi nated lumping (i e allowing off duty employees and other persons to unload trucks) we rely on Plant Manager Heschel s uncontroverted testi mony that the practice was being discontinued at other facilities of the Respondent as well as the factors considered by the judge In the absence of exceptions we adopt the judge s conclusion that the Respondent did not violate the Act when it discharged employee Lynne Ray Jackson and when it told its employees that the selection of the Union would put a third party between it and its employees so that they could no longer communicate with each other as modified only to the extent consistent with this Decision I The General Counsel has excepted inter alia to the judge s failure to find that the Respondent violated Section 8(a)(3) and (1) of the Act by issu ing a written reprimand to employee Cleveland Johnson for leaving work early on May 15 1980 and by reprimanding employee Bernard Gene Burke for sleeping on the job For the reasons set forth below we find merit in these exceptions Beginning in March or April 1980 Johnson worked at the Respondents LaGrange facility in the frozen food department on the second shift with employees Nathaniel Burts and Michael Win kles On May 15 1980 Johnson Burts and Win kles finished their work early cleaned their work areas and left around 9 30 p in approximately 2 1/2 hours before the end of the shift 4 Thereafter the Respondent issued a written reprimand to Johnson and discharged Burts and Winkles alleg edly for leaving work without permission The Respondent contends Johnson s less severe disci plane was based on his short tenure with the Re spondent and his unfamiliarity with plant rules Although the judge found and we affirm that the Respondent unlawfully discharged Burts and Winkles he found the Respondents reprimand of Johnson to be lawful In finding that Johnson was reprimanded lawfully the judge rejected the Gen eral Counsels argument that even though Johnson had not engaged in any union activity his repri mand was unlawful because it was an attempt by the Respondent to support its unlawful discharge of Burts and Winkles The judge rejected this argu ment solely because in finding that Burts and Win kles were unlawfully discharged he partially relied on the disparity between their discipline and that administered to Johnson for the same alleged of fense 5 We do not agree Although the Board frequently will infer an un lawful motive when it is established that a respond ent has disciplined similarly situated employees dis parately in a manner related to their exercise of union or Section 7 activity the inference is not based on any premise that the less severe discipline is necessarily lawful In each instance when it is al leged that a respondent has unlawfully disciplined 4 The employees clocked out before they left so that their early depar ture did not involve falsification of work hours 5In finding the discharges of Butts and Winkles to be unlawful the judge relied on their record of active union support the timing the se verity of the discipline the disparity between their discipline and that ad ministered to Johnson for the same alleged offense and the fact that in leaving work early Butts Winkles and Johnson were acting in accord ance with an established practice at the Respondents LaGrange facility a practice that the Respondent encouraged because it reduced its obliga tion for overtime pay 291 NLRB No 121 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an employee the motive underlying that discipline must be analyzed The judge provided no such analysis regarding Johnson s discipline It is well settled that when a respondents stated motive for its discipline of an employee is found to be false the circumstances may warrant an infer ence that the true motive is an unlawful one that the respondent desires to conceal 6 Here the Re spondent defends its discipline of Johnson on the grounds that he left work early without permis Sion As the judge found with respect to Burts and Winkles however in leaving work early John son was acting in accordance with an established practice at the Respondents LaGrange facility Therefore it is clear as with Burts and Winkles the Respondents stated motive for its discipline of Johnson i e the enforcement of plant rules is false Under these circumstances we infer that Johnson s written reprimand was motivated by some consideration that the Respondent purpose fully has failed to reveal The only motive apparent from this record is a desire to support its unlawful discharges of Burts and Winkles Accordingly we conclude that the Respondent issued the written reprimand to Johnson in order to give credence to its pretextual reasons for discharging Burts and Winkles 7 and that by this conduct the Respondent violated Section 8(a)(3) and (1) of the Act 8 Regarding the Respondents reprimand of em ployee Burke the record establishes that Burke was a union supporter and that on March 12 1980 he signed a petition authorizing the Union to repre sent him One week later Burke was among a group of second shift employees who with Union Representative Pope presented the petition to the Respondent On May 18 1980 the day Burts was discharged and Burke reprimanded, the two em ployees worked together unloading trucks and took a break for lunch at approximately 2 p in While Burke was eating his lunch Supervisor Frank Noles directed him to clear coke tanks off a truck and have the truck ready for loading when Burts returned Burke did as instructed and resuming his lunchbreak lay down on a pallet to wait for Burts Unbeknownst to Burke Heschel was in the process of discharging Burts Shortly thereafter Heschel encountered Burke lying on the pallet and accused him of sleeping on the job In ensuing discussions Burke denied sleeping but did not inform Heschel that he was on a lunchbreak He explained that he had been waiting for Burts to return and was told by Heschel that Burts had been discharged Although Heschel testified at the hearing that he did not conduct a thorough investigation of the in cident and despite Burke s denials that he was sleeping Heschel later issued him a written repri mand that states that it is Burke s last warning In fact it was the first disciplinary warning Burke had received The record further discloses that the Respondent had a policy of permitting employees to lie down during breaks More importantly whether policy or practice the Respondent ad hered to a progressive disciplinary system as evi denced by its treatment of employee Lynne Ray Jackson and the disciplinary records of other em ployees Under that system discharge would not ordinarily follow from a first warning 9 The judge found that Burke s reprimand was not unreasonable under the circumstances and therefore did not violate the Act He relied on the fact that although the Respondent permitted em ployees to lie down during breaks Burke had not informed Heschel that he was on a break The judge also deemed that Burke s union activities were not so prominent to have been singled out for disciplinary actions Contrary to the judge we find that Burke s rep rimand constitutes a violation of the Act First we are cognizant of an employers right lawfully to discipline employees for such age old infractions of plant rules as sleeping on the job However the Respondent permitted its employees to lie down during breaks and admittedly failed adequately to investigate the incident despite Burke s denials that he was sleeping Further Burke s reprimand imme diately followed Heschel s discharge of Burts and the decision to discharge Winkles which the judge found and we agree were motivated by their activ ity in support of the Union 10 In this connection we note that while Burke s union activity may not have been as prominent as that of Burts and Winkles his signing the representation petition and presenting it to the Respondent was no less visible Most significant however is that Heschel s issu 6 Shattuck Denn Mining Corp v NLRB 362 F 2d 466 470 (9th Cir 1966) 7 Far from accomplishing its goal the Respondents repnmand of Johnson provides the judge with additional but cumulative evidence of its unlawful motive for discharging Burts and Winkles See fn 5 above Clearly had the Respondent failed to discipline Johnson in any manner its motive for discharging Burts and Winkles would have been even more apparent because all three employees committed the same alleged offense That the Respondent was unsuccessful in masking its true motive cannot preclude us from finding that it attempted to do so 8 See e g Northern Telecom 233 NLRB 1374 (1977) 9 Termination records for employees Patterson Conkle and Goss spe cifically state that they received multiple verbal and at least one wntten warning before being terminated Another employee Coleman was given a last wntten warning for unexcused absence after receiving past oral and written warnings for reporting to work intoxicated and being absent due to the same The last warning notation on Burke s wntten warning is itself evidence of a progressive warning system io Winkles called in sick on May 18 and was not informed of his dis charge until he reported for work the next day We note further our added finding above that the warning given Johnson May 18 was un lawful FAST FOOD MERCHANDISERS ance of a last warning to Burke was in total dis regard of the Respondents practice of progressive discipline Burke s last warning was his first In view of the foregoing and especially the seventy of the reprimand we conclude that the Respondent further violated Section 8(a)(3) and (1) of the Act 2 The Respondent has excepted to that part of the judge s recommended Order that requires it to reestablish the third shift at its LaGrange Georgia facility and to make the affected employees whole for any loss of earnings they may have suffered as a result of the Respondents unilateral termination of the shift without notice to or consultation with the Union For the reasons that follow we agree with the judge that the Respondent was obligated to bargain with the Union concerning its decision to discon tinue the third shift and discharge unit employees on that shift however we find that a limited back pay remedy is the appropriate one under the cir cumstances i i The record reveals that the Respondent is a wholly owned subsidiary of Hardee s Food Sys tems Inc -the franchiser of Hardee s restaurants- and is engaged in the distribution of food and other products to the restaurants of Hardee chain All warehouse employees at the Respondents La Grange Georgia facility-the only one involved- are represented by the Charging Party Union and have been since May 22 1980 the effective date of the Board s retroactive certification of the Union that issued on April 7 1981 Since 1980 the Respondent has operated four dis tnbution centers to service Hardee restaurants in the southeastern United States In addition to the LaGrange facility which opened in 1978 the Re spondent operates a distribution center in Rocky Mount North Carolina which opened in 1963, Frankford Kentucky, which opened in September 1980 and Jacksonville Florida which opened in December 1980 The distribution centers make weekly deliveries to restaurants within their as signed geographical areas A restaurants proximity to a distribution center is the primary factor in de termining the distribution center to which the res taurant is assigned Each distribution center s ware house staffing requirements are determined accord ing to a formula that allots 2 5 outbound routes to each employee Prior to December 1980, the Re spondent s LaGrange facility serviced most of the Hardee restaurants located in Florida Sometime in 1979 the Respondent identified Florida as an area of future growth and formulated plans for the establishment of additional restaurants 11 See Transmanne Navigation Corp 170 NLRB 389 (1968) 899 and a central Florida distribution center In Octo ber 1980 the Respondent learned that a food stor age facility located in Jacksonville Florida was available After investigating the suitability of the facility the Respondents parent corporation ap proved a lease in December 1980 At that time it also decided to discontinue the third shift at La Grange By late December the Jacksonville facility was operational and most of the Florida restaurants then being serviced by the LaGrange facility along with some others were reassigned to the Jackson ville distribution center The Respondent hired three new employees to perform the warehouse work at the Jacksonville facility paying them the prevailing Jacksonville area wage rate for ware housemen which was somewhat higher than the LaGrange rate In all the LaGrange distribution center lost 72 restaurants 58 of them to the Jack sonville facility as a result of the broad reassign ment of restaurants implemented in association with the opening of the Jacksonville facility On December 31 1980 following this transfer of work to Florida the Respondent discontinued its third shift at LaGrange and terminated three bargaining unit warehouse employees who worked on its third shift Also terminated were 3 clerical and manage nal employees and 10 truckdrivers The Union learned of the elimination of the third shift from an employee who had been terminated Admittedly the Respondent did not notify and bar gain with the Union about the decision or the of fects of the decision to terminate the third shift at LaGrange The Respondent took the position that it had no obligation to bargain with the Union be cause its objections to the election were pending before the Board and the Union had not yet been certified Since the Board s certification of the Union in April 1981 the Respondent has engaged in bargaining with the Union However the Re spondent has never conceded that it was obligated to bargain with the Union about the shift termina tion decision On the foregoing facts the judge concluded that the Respondent was obligated to bargain with the Union over its decision to terminate the third shift at LaGrange The judge found that the Respond ent s decision was a mandatory subject of bargain ing because it concerned terms and conditions of employment and was not shown to have been inex tricably intertwined with the decision to open the Jacksonville facility We disagree with the judge s conclusion that there was no linkage between the layoffs and the opening of the Florida facility As the facts set out above indicate the elimination of the third shift was clearly a direct result of a substantial transfer 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of work (i e the warehousing and related work as sociated with the transferred restaurant accounts) from the LaGrange facility to the new facility in Florida and in lesser amounts to other facilities This finding however does not mean that the Re spondent had no obligation whatsoever to bargain over the layoffs for even if they are the result of the opening of the Florida facility and the transfer of work there the Respondent is still obligated to bargain over the layoffs as effects of those deci sions In this regard our recent decision in Litton Busi ness Systems 286 NLRB 817 (1987) is instructive In Litton the Board held that an employers deci sion to lay off 10 employees was an effect of its de cision to transfer cold type work to its other plants and convert to a strictly hot type operation at the location in question Although the conversion deci sion was not argued by the General Counsel to be a mandatory subject of bargaining we found merit in the General Counsels contention that the layoff decision as an effect of the decision to convert op erations was a mandatory subject of bargaining That finding was premised on the General Coun sel s theory that the layoff was not an inevitable or a natural consequence of the decision to con vert the plant s operations 12 Specifically the Board noted that the 10 employees could have been retrained to work hot type equipment or transferred to other plants and that 3 of the 10 em ployees had experience on machines other than cold type Thus although the layoffs were induced by a decision about which no one contended the employer was obligated to bargain, there was still clearly room for bargaining over the layoffs them selves Hence a violation was found for the refusal to bargain but the remedy ordered was the remedy customarily granted regarding layoffs that are the results of decisions relating to the scope and direc tion of business over which an employer has no bargaining obligation 13 The same latitude for bargaining existed here Some of the employees for example might have been offered the right to transfer to other shifts if openings occurred or the right to transfer to an other facility including Jacksonville 14 The possi 12 Litton supra 18 The scope of this remedy is discussed in the remedy section supra The remedy most notably its limited backpay component is generally re ferred to as the Transmarine remedy reflecting its origin in Transmar me Navigation Corp supra i4 The Respondent denied that it permits warehousemen to transfer be tween facilities but the existence of any such past rule should not pre clude the Union s seeking to bargain about changing the rule In any event we note that when the Respondents Doraville Georgia facility closed (or burned according to Respondent s attorney) it opened a new one 65 miles away and invited all Doraville employees to work at the new facility Further the Respondent did allow or order the transfer of a bility of keeping the shift in place and making single layoffs from each shift might also have been discussed Finally we find no merit to the Respondent s claim that it violated no bargaining obligation be cause the Union failed to request bargaining over the elimination of the shift and the layoffs As the judge found the Respondent did not notify the Union before it took these actions The failure to provide advance notice and an opportunity to bar gain clearly violated Section 8(a)(5) and (1) of the Act Metropolitan Teletronics Corp 279 NLRB 957 958-959 (1986) enfd 127 LRRM 2048 (2d Cir 1987) 15 Accordingly we find that the Respondent violat ed Section 8(a)(5) and (1) by failing and refusing to bargain with the Union as the exclusive representa tive of its employees concerning the termination of the third shift and that shifts employees as an effect of its decision to open the Jacksonville facile ty AMENDED CONCLUSIONS OF LAW 1 Substitute the following for Conclusion of Law 9 9 By issuing a written reprimand to Cleveland Johnson in order to give credence to its pretextual reasons for discharging Nathaniel Burts and Mi chael Winkles and by reprimanding Bernard Gene Burke the Respondent violated Section 8(a)(3) and (1) of the Act 2 Insert the following as Conclusion of Law 10 and renumber the subsequent paragraph 10 By unilaterally discontinuing its third shift without notice to or prior consultation with the Union and without affording the Union an oppor tunity to bargain over the decision to terminate the third shift unit employees as an effect of its deci sion to open a new facility the Respondent violat ed Section 8(a)(5) and (1) of the Act AMENDED REMEDY Having found that the Respondent engaged in the unfair labor practices set forth above we shall order it to cease and desist and to take certain of firmative actions that we find will effectuate the policies of the Act Specifically with regard to the 8(a)(3) and (1) violations we shall order the Respondent to LaGrange warehouseman whom it promoted to supervisor to the Rocky Mount facility 15 As we find that the termination of the third shift was bargainable we agree with the judge in accordance with Mike 0 Connor Chevrolet 209 NLRB 701 (1974) that the Respondent had a duty to bargain despite its pending objections to the Union s certification We note in any event that the Respondent filed no exceptions on this point FAST FOOD MERCHANDISERS 901 revoke its written reprimands of Cleveland John son and Bernard Gene Burke to remove from its record and files any such references and to notify Johnson and Burke in writing that this has been done and that evidence of their unlawful discipline will not be used as a basis for future personnel action against them 16 Because we have found that the elimination of the third shift and the layoff of that shift s employ ees were direct effects of the Respondents decision to open the Jacksonville facility and transfer work there-a decision that the General Counsel did not contend was subject to the mandatory bargaining obligation-we will provide a remedy different from that which the judge recommended In par ticular for the reasons set forth below we will not order the reestablishment of the third shift and the reinstatement of the affected employees with full backpay but we will as we did in Litton Business Systems supra order bargaining concerning the layoffs as effects of the work transfer decision and will provide a limited backpay remedy analogous to that set forth in Transmarine Navigation Corp supra Although it is true as our dissenting colleague notes in Litton the General Counsel specifically al leged the layoff decision as an effect of the deci Sion to convert production processes we do not believe that the absence of such an express charac terization here is critical In both cases the layoffs result from what is at least arguably an entrepre neurial decision-in Litton a conversion of produc tion processes and in this case a relocation of work from a facility in one state to a new facility in an other state-and the General Counsel has declined to argue that the decision producing the layoffs is itself a mandatory subject Of course in any given case if the General Counsel alleges-and prevails on her argument- that a decision that culminated in layoffs was un lawful either because the decision was discrimina torily motivated or because the employer was obli gated to bargain over it and failed to do so then a full backpay remedy for the layoffs is in order and further relief to restore the status quo ante may also be directed See e g Pertec Computer Corp 16 Because the judge issued his decision prior to our decision in Ster ling Sugars 261 NLRB 472 (1982) he failed to provide for the removal from the Respondent s records and files of any reference to its unlawful discharges of Nathaniel Burts and Michael Winkles Accordingly we will modify the judge s recommended Order to so provide In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be com puted 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 January 1 1987 (the effective date of the 1986 amend ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 284 NLRB 810 (1987) (obligation to bargain over relocation of work and subcontracting of work) Emerson G M Diesel Inc 258 NLRB 1242 (1981) (transfer of work was both discriminatory and un lawfully unilateral) 17 On the other hand if the General Counsel puts in issue the lawfulness of the decision that produces the layoffs and loses (i e proves neither that the employer violated Sec 8(a)(3) through discrimination nor that it violated Sec 8(a)(5) by unilateral action with respect to a mandatory subject) then the appropriate remedy for the resulting layoffs is the Transmarine of fects remedy See e g Metropolitan Teletronics Corp supra (layoffs resulting from decision to close New York City facility and relocate oper ations to Jersey City) Morco Industries 279 NLRB 762 (1986) (layoffs resulting from transfer of work to another plant) Columbia City Freight Lines 271 NLRB 12 (1984) (layoffs resulting from shutdown of two terminals and transfer of work to a third) However when as here the General Counsel fails to make any claim at all concerning the lawfulness or unlawfulness of the clearly defined management decision that produced the layoffs and it is at least arguable that the decision was not a mandatory subject of bargaining then surely the remedy com monly granted for layoffs produced by decisions proven to be unlawful is not appropriate i 8 Therefore because the General Counsel failed to argue that either the opening of the Florida facility or the transfer of work there from LaGrange was a " In Emerson G M Diesel the Board expressly disclaimed reliance on a footnote in the judge s decision that suggested in conflict with other findings that he was granting the remedy regarding the layoffs without regard to any conclusions concerning the lawfulness of the decision to transfer work 258 NLRB at 1242 fn 3 8 Were we to adopt a contrary approach then it might logically follow that we could give a remedy of reinstatement and full backpay for layoffs in a case whose facts were identical to those in Metropolitan Tele tronics supra or First National Maintenance Corp v NLRB 452 U S 666 (1981) so long as the General Counsel made no claims regarding the de cision to close a facility and transfer work or the decision to terminate a cleaning contract at a particular site but simply alleged a violation of the obligation to bargain over layoffs of employees who had formerly per formed the work at the closed facility or under the terminated cleaning contract Our dissenting colleagues argument that the layoff decision here was not sufficiently intertwined with the decision to transfer work to other facilities ignores record evidence that the substantial amounts of work transferred out of LaGrange constituted work of the kind performed by the unit employees The work was as unavailable to the employees at the LaGrange facility as it would have been had the routes simply been dis continued Concerning our dissenting colleagues statement that the par tial closing decision in First National Maintenance necessarily encom passed the decision to terminate the employees performing [the work] we note that the employer there as well as the Respondent could have bargained about the employee transfers to other locations notwithstand mg existing policies against transfers See fn 14 supra and First National Maintenance supra 452 U S at 668 Thus insofar as the linkage between layoffs and the decision that induced them is concerned we discern no significant difference between the instant case and cases like First Nation al Maintenance which the dissent acknowledges would properly be limit ed to an effects bargaining remedy 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mandatory subject of bargaining we have no basis for deciding that question and we also have no basis for granting the remedy that would be appro pnate if that issue were litigated and decided in the General Counsels favor In declining to grant such a remedy we do not contrary to our dissenting colleagues assertions take issue with the Board s remedial provisions in cases such as Lapeer Foundry & Machine 289 NLRB 952 (1988) and the other cases cited in the dissent In those cases temporary business condi tions not of the employers making prompted deci sions to lay off employees and the layoff decision was the primary decision 19 Indeed in Lapeer supra at 953-954 fn 9, we emphasized that we had no intention of changing Board law regarding the proper remedy for layoffs that were the effects of identifiable management decisions which were not shown to be mandatory subjects of bargaining such as partial closing decisions or work transfer decisions not based on factors that would bung them within the bargaining obligation under Otis Elevator Co 269 NLRB 891 (1984) In granting the Transmarme remedy we are mindful that as of the date of our decision the Re spondent and the Union have now bargained to agreement on the terms of an initial collective bar gaining agreement However part of the purpose of the limited backpay remedy here rendered is to provide a situation in which the parties bargaining position regarding the issue of effects bargaining is not entirely devoid of economic consequences for the Respondent Although some level of bargaining has been achieved after the Respondent had made the unilateral changes we are unable to conclude that it was conducted in a setting of economic con sequence for the Respondent Certainly given the Respondents argument here that it did not have to bargain it would be speculative to conclude that any bargaining encompassed whether the decision to terminate the shift and to discharge the employ ees could have been avoided 20 Thus the Respondent shall pay employees back pay at the rate of their normal wages when last in the Respondents employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of 19 In Lapeer the employer laid off employees after two of its furnaces broke down and in Rocky Mountain Hospital 289 NLRB 1370 (1988) the employer laid off fou employees following a drastic decline in the pa pent census In Adair Stand, h Corp 290 NLRB 317 (1988) and Adver tisers Mfg Co 280 NLRB 1185 (1986) enfd 823 F 2d 1086 (7th Cir 1987) the employers assertions that the unilaterally imposed layoffs were responses to adverse business conditions were not challenged 20 Litton supra its decision to discontinue third shift on its employ ees (2) a bona fide impasse in bargaining (3) the failure of the Union to request bargaining within 5 days of the Respondents notice of its desire to bar gain with the Union or (4) the subsequent failure of the Union to bargain in good faith but in no event shall the sum paid to any of these employees exceed the amount he or she would have earned as wages from December 31 1980 the date on which the Respondent discontinued the work to the time he or she secured equivalent employment else where or the date on which the Respondent shall have offered to bargain whichever occurs sooner provided however that in no event shall this sum be less than what these employees would have earned for a 2 week period at the rate of their normal wages when last in the Respondent s employ ORDER The National Labor Relations Board orders that the Respondent Fast Food Merchandisers Inc LaGrange Georgia its officers agents successors and assigns shall 1 Cease and desist from (a) Unlawfully and discriminatorily reprimanding and discharging and failing to recall any discnmin atorily discharged employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a)(1) and (3) of the Act (b) Threatening its employees with discharge or loss of benefits because of the Union (c) Soliciting its employees grievances in order to influence them in regard to the Union (d) Promising its employees benefits to influence them regarding to the Union (e) Refusing to bargain collectively with the Union over its discontinuance of the third shift at LaGrange and termination of third shift employees as effects of its decision to open the Jacksonville Florida facility (f) In any like or related manner interfering with restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer Nathaniel Burts and Michael Winkles their former positions or if such positions no longer exists substantially equivalent positions and make them whole for any loss of pay that they may have suffered by reason of Respondents dis crimination against them in accordance with the remedy section FAST FOOD MERCHANDISFRS 903 (b) Revoke the written reprimands that it issued to Cleveland Johnson and Bernard Gene Burke on May 18 1980 (c) Remove from its records and files any refer ences to its unlawful discipline of Nathaniel Burts Michael Winkles, Cleveland Johnson and Bernard Gene Burke and notify them in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future per sonnel action against them (d) On request bargain collectively with the Union over its discontinuance of the third shift and termination of unit employees affected thereby as effects of its decision to open the Jacksonville facil ity and reduce to writing any agreement reached as a result of such bargaining (e) Pay the terminated third shift employees their normal wages for the period set forth in the amended remedy section of this Decision and Order (f) Preserve and, on request make available to the Board or its agents for examination and copy ing, all payroll records social security payment records timecards personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order (g) Post at its LaGrange Georgia facility, copies of the attached notice marked Appendix 21 Copies of the notice, on forms provided by the Re gional Director for Region 10 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER CRACRAFT concurring and dissenting in part I concur with my colleagues findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees with loss of jobs and bene fits because of their union activities and by solicit ing employees grievances and promising them ben efits I concur also with their findings that the Re spondent violated Section 8(a)(3) of the Act by dis 21 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 charging employees Burts and Winkles and repn mandmg employees Johnson and Burke My disagreement with my colleagues stems from their characterization of the Respondent s bargain ing obligation regarding its decision to lay off its third shift employees and their order of limited backpay to remedy this violation My colleagues reason that the decision to lay off the third shift employees was but an effect of its decision to open the Jacksonville facility a nonmandatory subject of bargaining Thus according to my colleagues the limited backpay order traditionally given by the Board to remedy effects bargaining violations is ap propriate rather than the make whole order recom mended by the judge which is traditionally given to remedy decision bargaining violations I agree with the judge that the Respondent had an obligation to bargain with the Union over its de cision to lay off the third shift employees because the decision was definitely within the realm of the employer employee relationship and a mandatory subject of bargaining indeed The judge found contrary to the Respondents contention that this decision was not the necessary result of the deci sion to open the Jacksonville facility but rather that various options other than layoff of these em ployees could have occurred if the Respondent had bargained with the Union 1 Absent evidence that the two decisions were inextricably intertwined I would not define the layoff decision as an effect of the decision to open the Jacksonville facility with the resulting limitation of the remedy An economically motivated decision to lay off employees is by its very definition the result of business considerations including other economi cally motivated decisions made by an employer Yet the Board has customarily given a make whole remedy when the employer has failed to bargain over such a layoff decision See e g Adair Standish Corp 290 NLRB 317 (1988) Rocky Mountain Hospital 289 NLRB 1370 (1988) Lapeer Foundry & Machine 289 NLRB 952 (1988) Adver tisers Mfg Co 280 NLRB 1185 (1986) enfd 823 F 2d 1086 (7th Cir 1987) 2 The suggestion by the majority that my ap proach is dependent on the drafting of the com plaint or might have resulted in a remedy of rein ' The majority mischaractenzes the judge s finding in this regard The judge did not find that there was no linkage between the layoffs and the opening of the Florida facility but rather that the opening of the Florida facility would not abruptly and necessarily have to result in the discontinuance of the third shift 2 The case relied on by my colleagues Litton Business Systems 286 NLRB 817 (1987) is distinguishable In that case unlike the present one the General Counsel alleged the layoff decision as an effect of another management decision and the case was litigated and decided on that theory 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD statement and backpay in cases similar to First Na tional Maintenance v NLRB 452 US 666 (1981) ignores the judge s finding with which I agree that the two decisions involved in this case were not inextricably intertwined Although the Re spondent s decision to lay off employees did result from its decision to open a new facility there were various options other than the layoff of third shift employees available to the Respondent and the layoff decision was a separate decision related to but not mandated by the entrepreneurial decision Thus the layoff decision was not for bargaining purposes merely an effect of the entrepreneurial decision but was rather a decision that stood on its own and was subject to the same bargaining obliga tions as any other mandatory subject of bargaining When on the other hand the decisions are inextri cably intertwined the layoff decision is bargainable only as an effect of the entrepreneurial decision This was the case in First National Maintenance in which the employers decision to discontinue main tenance operations at the nursing home necessarily encompassed the decision to terminate the employ ees performing the maintenance services Here in contrast there was no showing that the third shift employees who were laid off were the individuals who performed the work transferred to the new fa cility in Florida The majority opinion never addresses the critical question before us of whether the Respondents de cisions were inextricably intertwined Instead my colleagues cite several cases with which I do not disagree but which do not establish a broad rule that whenever an entrepreneurial decision pro duces layoffs only a limited effects remedy is appropriate Under these circumstances I would order the Respondent to make whole the third shift employ ees laid off without notice to or bargaining with the Union APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise our employees benefits in order to influence them with regard to the Union WE WILL NOT discharge or otherwise discrimi nate against our employees because of their union activities WE WILL NOT refuse to bargain with the Union over our discontinuance of the third shift of La Grange and termination of unit employees on the third shift as effects of our decision to open the Jacksonville Florida facility WE WILL NOT unlawfully and discrimmatorily reprimand and discharge and fail to recall our dis criminatorily discharged employees or discriminate in any other manner with respect to their hire or tenure of employment or any term or condition of employment WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the exercise of the rights guaranteed them by Sec tion 7 of the Act WE WILL offer Nathaniel Burts and Michael Winkles immediate reinstatement to their former positions or if such positions no longer exist to substantially equivalent positions and WE WILL make them whole for any loss of pay they may have suffered plus interest WE WILL revoke the written reprimands that we issued to Cleveland Johnson and Bernard Gene Burke on May 18 1980 WE WILL remove from our records and files any reference to our unlawful discipline of Nathaniel Burts Michael Winkles Cleveland Johnson and Bernard Gene Burke and WE WILL notify them in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel action against them WE WILL on request bargain collectively with the Union with respect to the decision to discontin ue the third shift at LaGrange and terminate third shift employees and reduce to writing any agree ment reached as a result of such bargaining WE WILL pay the employees laid off on Decem ber 31 1980 their normal wages for a period re quired by a Decision and Order of the National Labor Relations Board The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten our employees with dis charge or loss of benefits because they support the Union WE WILL NOT solicit our employees grievances in order to influence them in regard to the Union FAST FOOD MERCHANDISERS INC Judith M Anderson Esq and W Ray Persons Esq for the General Counsel Julius M Steiner Esq and Berry F Bevacqua Esq of Philadelphia Pennsylvania and V Bruce Whitehead Esq of Rocky Mount North Carolina for the Re spondent Emory L Walden of College Park Georgia for the Charging Party FAST FOOD MERCHANDISERS 905 DECISION III THE ALLEGED UNFAIR LABOR PRACTICES STATEMENT OF THE CASE A The Facts KARL H BUSCHMANN Administrative Law Judge This case arose on the filing of several charges by the Retail Clerks Union Local 1063 AFL-CIO (the Union) against Fast Food Merchandisers Inc (the Respondent) The charge in Case 10-CA-15877 was filed on May 29 1980 and amended on June 30 1980 The charge in Case 10-CA-15985 was filed on June 30 1980 The console dated complaint issued on July 11 1980 It charged the Respondent with having violated Section 8(a)(1) and (3) of the Act (the Act) More specifically it alleged that the Respondent had threatened its employees because of their union activities that Respondent had solicited the employees grievances and promised certain benefits to cause them to reject the Union that the Respondent pro hibited its employees contrary to prior practice from unloading trucks during off duty hours that Respondent issued written warnings to employees Cleveland Johnson and Bernard Gene Burke and that Respondent dis charged employees Nathaniel Burts Michael Winkles and Lynne Ray Jackson because of their union activities Respondent s answer admitted the jurisdictional allega tions in the complaint and denied the commission by Re spondent of any unfair labor practices A hearing was held in LaGrange Georgia on Febru ary 18 and 19 1981 The General Counsel and Respond ent filed briefs on April 24 1981 and Respondent filed a reply brief on July 15 1981 pursuant to leave granted by my order of June 12 1981 On April 6 1981 the Union filed a new set of charges against the Employer in Case 10-CA-16861 and on April 29 1981 the complaint issued alleging that the Respond ent violated Section 8(a)(5) and (1) of the Act when it unilaterally discontinued the third shift Respondent denied the substantive allegations of the complaint The General Counsel filed a motion to reopen the record in Cases 10-CA-15877 and 10-CA-15985 and to console date them with Case 10-CA-16861 The motion to reopen was granted and the hearing on the additional issues was held in Atlanta on September 15 1981 The Respondent filed a brief on October 2 1981 On the entire record in this case and my observation of the demeanor of the witnesses I make the following FINDINGS OF FACT I JURISDICTION The Respondent Fast Food Merchandisers is a Colo rado corporation with offices and a place of business lo cated in LaGrange Georgia where it is engaged in the distribution of food products and restaurant supplies It is admittedly an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATIONS INVOLVED The Union Retail Clerks Union Local 1063 AFL- CIO is admittedly a labor organization within the mean ing of Section 2(5) of the Act On March 12 1980 18 of the Respondents 30 employ ees signed a petition to authorize the Union to represent them as the collective bargaining agent The Union sent the petition by certified letter on March 14 1980 to the Respondent requesting recognition (G C Exhs 2 and 4) The letter was returned as undeliverable On March 19 Union Representative Phillip Pope accompanied by the employees on the second shift went to the office of Re spondent s plant manager to deliver the petition in person Jim Vaughn the plant manager initially refused to accept the document but at Pope s insistence he ac cepted it Two days later Vaughn called a meeting of the second shift employees As recalled by one of the employees Vaughn told them (Tr 145) Mr Vaughn said he didn t think we needed a union if we had any problems that we could come to him and talk to him about it and if we got a union that it would put another man or another party in be tween us which we couldn t communicate with each other and if we had any problems he asked if we didn t want to talk to him about it then we could talk to him after the meeting was over that his door was always open On May 20 1980 management held another meeting with the employees Joe Myers Respondents wage and salary administrator told the assembled employees the following (Tr 150) Mr Myers said that he didn t think we needed a union that if we had any problems that we could talk with them because if we got a union it would put another party or another man in the picture and we couldn t communicate And he said I would also like to remind y all that if you have signed a union petition you can still vote no Pursuant to the Regional Directors Decision and Di rection of Election dated April 24 1980 an election was held on May 22 1980 Of the approximately 30 eligible voters 14 cast valid votes for 10 cast valid votes against the Union and 5 ballots were challenged Following the filing of objections by both sides the Regional Director conducted an investigation of the issues presented by the challenges and objections He issued a supplemental deci sion on July 3 1980 ordering the opening of the chal lenged ballots A hearing was held before a hearing offi cer On November 25 1980 the hearing officer filed a report and recommendation on objections By Decision and Certification of Representation dated April 7 1981 the Board certified that a majority of the valid ballots had been cast in favor of the Retail Clerks Union Local 1063 AFL-CIO as the exclusive representative of all employees in the following unit All warehouse employees and spotters employed at Employers LaGrange Georgia facility excluding truckdrivers office clerical employees professional 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees guards and supervisors as defined in the Act Against this background Respondent stands accused of having committed several violations of the Act Threats of Loss of Jobs According to the testimony of Jerry Cofield who was employed as a warehouseman on the first shift Jim Vaughn their supervisor told the first shift employees the following during a meeting around the end of March 1980 (Tr 276) Well Jim came in and he said that the new convey or was coming and that he guaranteed that cl-ecks would be in every Wednesday and he went on to say that if the Union came in that we were going to have to start with a blank sheet of paper and negoti ate from there and he said things would not be the same Things that we didn t get fired for now we would get fired for then if the Union came in such as being out of uniform an example he gave [Emphasis added ] Respondent argues that Vaughn s statement should be disregarded because other employees who gave testimo ny concerning the March 26 meeting did not corroborate Cofield s testimony However his testimony was uncon tradicted in the record For that reason and because Co field s demeanor on the witness stand impressed me for its truthfulness I credit his testimony The question re mains whether Vaughn s statement was a threat in viola tion of Section 8(a)(1) of the Act In this regard the law is clear any statements by an employer that convey a message to the employees that they would be discharged because of their union sympathy constitute unlawful in terference of their Section 7 rights Vaughn insinuated in no uncertain terms that union adherents would lose their jobs under the pretext of minor infractions of work rules as for example being out of uniform I therefore con elude that such conduct constituted a violation of Sec tion 8(a)(1) of the Act Threats of Loss of Benefits The General Counsel has argued that Respondent on several occasions has threatened its employees with the loss of benefits For example on March 19 Jim Vaughn stated that a union would put another man or another party between them so that they could no longer com municate with each other Vice President Winslow Goins made a similar statement to employees Johnny Thacker and Jerry Cofield about a week later Joe Myers wage and salary administrator said to the second shift employees several days before the election that if the Union got in it would put another party or another man in the picture and they could not commune cate These statements did not contain any direct threats and in evaluating the overall effect of these messages I cannot find that their effect was to create an atmosphere of fear by portraying the selection of the Union as futile or as an economic hazard However when Vaughn told the assembled first shift employees sometime in March that if the Union came in that [they] were going to have to start with a blank sheet of paper and negotiate from there and said things would not be the same Respondent impliedly threatened that existing benefits were in jeopardy i Such conduct clearly interfered with the employees free choice guaranteed them by Section 7 of the Act and violated Section 8(a)(1) of the Act Solicitation of Grievances Several employees testified that Jim Vaughn assembled all second shift employees on March 19 1980 and told them that they did not need a union According to em ployee Michael Winkles he also asked what our com plaints were all about Nathaniel Burts another employ ee recalled that Vaughn asked if we had any gripes about the Company feel free to come tell him Gene Burke testified that Vaughn stated if we had any prob lems that we could come to him and talk to him about it In response the employees voiced several complaint., concerning the safety of the conveyor the timeliness of their paychecks and the availability of vending ma chines It is clear from the context of the meetings that the Respondent attempted to influence the employees prior to the election and thereby interfered with their free choice I accordingly find that Respondent violated Section 8(a)(1) of the Act Promises of Benefits The employees responded to managements solicitation of their grievances and expressed their complaints Jim Vaughn promptly promised results As the testimony of employee Winkles indicates Vaughn said the following (Tr 28-29) Well at this meeting he said Jim Vaughn said-that we had talked as far as the raises they were send ing down someone for a survey for the industrial park and they had ordered a conveyor and they had ordered some vending machines and they had worked up something as far as the trailers went and that they had got some kind of special service to get our checks down here on time Employee Cofield corroborated this testimony and re called that Vaughn stated that he guaranteed that checks would come in every Wednesday The law is clear the promise of a grant of benefits particularly when it is timed to occur during an organs zational campaign may be an unlawful interference even though the benefits are not expressly conditioned on voting against the Union Here the purpose of the prom ises was to impinge on the freedom of choice of the em ployees Again this conduct violates Section 8(a)(1) of the Act ' Cofield s testimony in this regard was uncontroverted and credible FAST FOOD MERCHANDISERS 907 The Practice of Unloading Trucks For several years the employees at the LaGrange warehouse aside from their regular duties unloaded the trucks of independent truckers or common carriers and received payment directly from the truckers of about $40 or $45 a load The Respondent not only tolerated this practice but cooperated with it For example a truck driver who had arrived at Respondents warehouse and who did not want to unload the truck himself would contact the warehouse supervisor who in turn would inform the employees that this work was available Sev eral employees testified that they did this work twice a week for about 1 1/2 hours each time Gary Heschel who had become the warehouse man ager at the end of March ordered this practice discontin ued during the middle of April 1980 However realizing that the employees were involved with an organizational campaign Heschel consulted with the legal and person nel departments at Respondents headquarters in Rocky Mount North Carolina Citing serious morale problems as well as concerns with workman s compensation and insurance problems Heschel informed the drivers that he would no longer tolerate the practice Heschel also testi feed that a potential fatigue problem prompted him to arrive at his decision It is the General Counsels position that Respondent s decision to prohibit this practice during the middle of the union campaign was not related to any of these prob lems but solely prompted by the employees union ac tivities In this regard Respondent points to the timing of the change in policy the inclusion of relatives of em ployees in this restriction the continuation of this policy on other terminals of Respondents facility and Respond ent s admission that the practice had actually benefited the Respondent To be sure the General Counsel is correct in stating that timing often permits an influence that an employ er s change of operation that coincides with a union cam paign is motivated by union animus Here however an equally plausible inference can be drawn that Respond ent tolerated the practice under Vaughn and when Hes chel assumed his duties as plant manager at the end of March and discovered the practice he decided to stop it as soon as possible for the reasons that he explained in his testimony (Tr 300) Well an employee unloads a truck and is paid by a driver approximately forty or forty five dollars It takes an hour to an hour and a half to do it possi bly two hours at most He s working in a Hardee s uniform on Hardee s dock using Hardee s equip ment beside people who are on the clock making five or six dollars an hour basically doing the same type of work Q Okay What other reasons if you know are there for the company s prohibition against this? A There are serious insurance problems with it in the form of workmen s comp in particular Q Are there any others9 A There is a fatigue problem potential fatigue problem Q Can you explain what you mean by that? A With employees who work until midnight getting up again and coming to work at 6 30 or seven working numerous hours and having to report back to work at 3 30 or four in the after noon Winslow Goins Respondents vice president also con sidered this practice to which he referred as lumping bad for the Company (Tr 338) There s series of reasons Let me preface by saying I don t like lumping as an entity regardless of who does it It s a necessary thing at times and you have it at times and it benefits the company at times but generally speaking there is no value to the compa ny It hurts the company You ve got unauthorized unsupervised people on your dock That s bad There is no effective control The supervisor is tied up doing his job supervising his employees so you have other people sometimes unnecessary people on the dock The other thing is again with un supervised people you run the risk of someone get ting hurt As an example if an employee un loads on his own time there is a fatigue factor When he punches in on our time and does the job that we have assigned to him because we give him a tough manual job if he is a warehouse man The other thing that s even more of a compli cation with an employee is insurance workmen s comp whether the employee is on our time or whether he is working as an independent contrac tor so to speak working for a driver there is a se rious question here about who pays if that person gets hurt on our dock since he is our employee Our insurance department screams at me about things like this There is a question of liability but as an example if one of our employees gets hurt on our dock and they say not our responsibility they won t litigate that they 11 pay it They 11 have to because they wont win or at least that s their opinion as stated to me The Respondents assigned reasons for prohibiting this practice appear entirely plausible and answer several of the General Counsels arguments The record does not disclose any causal connection between the employees union activity and the prohibition of the practice with the exception of an inference based on the timing of Re spondent s decision in relation to the union campaign And because of Heschel s appointment to the plant man ager s position at the LaGrange facility effective at the same time I find such an inference impermissible Ac cordingly I conclude that the record does not support a finding of violation of Section 8(a)(3) and (1) of the Act Written Warnings to Cleveland Johnson and Bernard Gene Burke Gene Burke was employed as a dockworker or ware houseman since June 18 1979 until his layoff on Decem ber 31 1980 Burke was among the 18 employees who had signed the petition for the Union on March 12 1980 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Several days later was among the second shift employees who accompanied Phillip Pope the union representative when he delivered the petition to Respondents plant manager The General Counsel has alleged that a written warning given to Burke on May 18 4 days before the union election was related to his union activities The record shows that on Sunday May 18 Burke re ported for duty at 8 a in He unloaded several trucks and about 2 p m went to lunch About 10 minutes later Su pervisor Frank Noles asked him to clean coke tanks off the truck After he had finished this task which took about 5 minutes Burke laid down on a pallet When Hes chel came by and saw Burke in this reclined position he kicked Burke on the bottom of his feet told him to wake up and go back to work Burke immediately denied being asleep and told Heschel that he was merely wait ing for Nate Burts to return from lunch and help him unload the truck Burke nevertheless got up and began to do the work In a subsequent conversation with Heschel Burke denied again that he had been asleep Nevertheless at the end of the day Heschel handed Burke a written rep nmand that stated that Burke had been sleeping The reprimand put him on notice that it constituted his last warning and that he was on probation for a year Heschel admitted in his testimony that employees were permitted to sleep or lay down during their half hour lunchbreak but he testified that Burke was not on his lunchbreak Burke on the other hand testified that he was not asleep and that he was on his lunchbreak In analyzing whether this episode provided the real basis for Respondents disciplinary action against Burke or whether it was a mere pretext I am not persuaded that Respondents action was unreasonable under the cir cumstances When Noles told Burke to clean up the coke tanks Burke gave no indication that he was on his lunch hour instead he performed the task Thereafter when Heschel saw him laying down and kicked his foot Burke did not protest that he was on his lunch hour Instead he disputed only that he was not asleep Again when Burke was asked to sign the reprimand he refused because he was not asleep on the pallet and [he] was just laying there waiting for Nate to get back In Heschel s opin ion therefore there was no doubt that Burke had been laying down when he was expected to have been work ing 2 Under these circumstances it was not unreasonable for Heschel to reprimand Burke Moreover Burke s union activities were not so prominent to have been sin gled out for disciplinary actions I therefore dismiss this allegation in this complaint Cleveland Johnson had been employed by Respondent since approximately March or April 1980 On May 18 1980 he received a written warning for leaving without permission and not following company rules On May 15 1980 Johnson and fellow employees Michael Winkles and Nathaniel Burts left work early after they had fin ished loading the trucks They had cleaned their work 2 Although Burke testified at one point that he told Heschel that he was on his lunch hour I do not credit this statement Burke testified re peatedly about the conversation with Heschel and each time he recalled only that he denied having been asleep and stating that he was merely waiting for Nate Burts to return areas changed their clothes and left at 9 30 p in which was approximately 2 1/2 hours earlier than their sched uled time According to Johnson s testimony it was his understanding that when they had finished their work they were authorized to leave Nevertheless Heschel asked him later why he had left early and gave him a written reprimand with the explanation that since he had been on the second shift for only 3 weeks he was prob ably unfamiliar with the Company s rules and regula tions However Respondent discharged Winkles and Burts for the same violation Even though Johnson had not been involved with any union activity it is the General Counsels position that the written reprimand constituted an attempt by Re spondent to support its discriminatory discharge of Burts and Winkles I disagree because I view the disparate treatment that Winkles and Burts two union supporters received for the same violation as supporting an infer ence that the discharges of Winkles and Burts were dis criminatonly motivated I therefore dismiss the allega tion that the discipline of Johnson was a violation of Sec tion 8(a)(3) and (1) of the Act The Discharges of Nathaniel Burts and Michael Winkles Nathaniel Burts had worked for Respondent as a warehouseman from May 13 1978 until May 18 1980 when he was discharged for leaving early on May 15 Burts testified that on May 18 he had worked about 5 hours when he was called into Gary Heschel s office There his supervisor Frank Noles asked him why he had left early on the previous Thursday Burts replied that he always left when he was finished with his work He explained that he had finished his work on May 15 at 9 p in that he had cleaned up the dock area placed the last manifest on the table near Frank Noles office and left from the locker out the front door Nevertheless Heschel told him that he had been suspended once before and that he would have to terminate him Michael Winkles was similarly called by Gary Heschel to come to his office on May 18 1980 Since Winkles was ill on that day he reported to Heschel s office on May 19 1980 where he was asked why he had left early on the prior Thursday May 15 1980 Winkles proceeded to explain that he had finished his job as usual that he had cleaned up and left work in accordance with the past practice when all the work was done Heschel how ever said that he could not tolerate that practice and that he was terminated According to Winkles testimony the crew had only three trailers to load on May 15 After they had loaded the trailers they cleaned up finished sweeping the area stacked the pallets and left around 9 30 p m or 2 1/2 hours before their shift ended at midnight The record is clear that the employees particularly those assigned to the freezer department often left 15 minutes to one half hour earlier Even Heschel conceded that he had investi gated the matter and that he could see the employees had left 15 minutes to a 1/2 hour early However he insisted that this practice was only tolerated if the em ployees had first checked with their supervisor The FAST FOOD MERCHANDISERS 909 record shows however that a fairly informal system de veloped whereby these employees sometimes waved as they left the plant or at other times simply assumed that their supervisor had seen them leave For example An thony Mathews a shipping and receiving clerk who used to work on the frozen crew testified as follows (Tr 127) Most of the time Frank [their supervisor] would be either at the desk or at the conveyor watching us when we d leave I would leave without permission sometimes with the group or sometimes we d wave at him and if he ever needed us for anything he d tell us In the event Vaughn had missed seeing the employees leave early he would simply record the time on the fol lowing day by asking the employees as explained by witness Mathews (Tr 131) I left early Frank would say-like if some of the other guys left early he d say has so and so left? and I d say I don t know whether he has or not So the next day when they d come in he d say What time did Nate Brooks leave last night9 He d ask me and I d say Well I left at 11 30 or what ever The employees were not paid for that time Indeed they were encouraged to leave earlier when they had finished their work to reduce the overtime pay For ex ample employee Jerry Cofield testified to overhearing a conversation between his supervisors Vaughn and Mike Terry as follows (Tr 279) Well he simply told Mr Terry that we were getting a lot of overtime too much as a matter of fact and that it would be a good idea since the frozen crew always finished at least an hour or an hour and a half before the day crew sometimes they finished a lot sooner he thought it would be a good idea if they would go ahead and leave when they finished Employees left under this system anywhere from 15 minutes to an hour or more earlier Respondent is cor rect in stating that 2 1/2 hours was relatively unprece dented The record is clear however that leaving early had developed into an established practice Respondent s conduct in summarily discharging Burts and Winkles is therefore suspect even assuming that on this occasion they had left earlier than usual Not only was the disci pline unusually severe for Winkles and Burts who were discharged but it was also disparately administered for Johnson a newly hired employee was merely repri manded for the same offense The inference in this regard is obvious Winkles and Burts had a record of active union support while John son had none Winkles for example had attended union meetings talked to fellow employees in suport of the Union signed the petition on March 12 1980 and signed a union card on April 10 1980 He also accompanied Union Representative Pope to deliver the petition to Re spondent Burts similarly had signed the petition and as sisted in delivering it to his employer He had signed a union card on May 1 1980 and was an observer during the union election He had attended union meetings Considering the foregoing as well as the timing of the discharges which occurred on May 18 and 19 1980 during the height of the union campaign and only several days prior to the union election on May 22 1980 it is clear that Respondent discriminated against the two em ployees because of their union activities in violation of Section 8(a)(3) and (1) of the Act The Discharge of Lynne Ray Jackson Lynne Ray Jackson had been employed by Respond ent since August 19 1979 as a warehouseman on the second shift On May 28 1980 he was terminated for al leged excessive absenteeism The General Counsel does not dispute Jackson s numerous absences during his em ployment For example the record indicates that during the first 6 months he was absent for more than 20 days On February 28 1980 Jackson received a written repri mand for his excessive amounts of excused and unex cused absences and warned that any further absences from work (excused or unexcused) will necessitate terms nation Thereafter on April 7 1980 he left one half day early without disciplinary action by the Employer On April 27 1980 Jackson was absent again because of a health problem On April 28 1980 he received a written suspension pending an investigation He was requested to furnish proof that he was under a physicians care On April 30 1980 Jackson was examined by a physician and given a statement that he not be required to lift more than 20 pounds He delivered the statement to Respond ent on the same day Respondents insurance company verified the medical problem On May 1 1980 Heschel informed Jackson that he would not terminate him even though he was on his last warning because the writeup was given by his predecessor and because he de served an opportunity to correct his medical problem Accordingly he received 9 days of sick pay an addition al 30 days of leave without pay and was told to report back to work as soon as he could get a release from a physician stating that he was able to work without weight restriction On May 19 1980 Jackson obtained a statement from his physician that he was able to return to work without restrictions Respondents conduct up to this point is not disputed or even challenged as improper It is the sequence of events thereafter that is the subject of controversy and that the General Counsel has argued demonstrates dis criminatory treatment of Jackson because of his union support According to the testimony of Gary Heschel and Joseph Myers Jackson appeared to them for the first time on May 22 the morning of the union election On that day they also received the physicians statement dated May 19 that certified Jackson s ability to return to work as of May 19 Because Jackson had failed to report for work on that day and several days thereafter howev er he was terminated on May 28 1980 Jackson on the other hand testified to a detailed de scription of his repeated yet unsuccessful attempts to see 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or talk to Heschel According to his testimony as soon as he had obtained his doctor s release on May 19 he went to Respondents offices to see Heschel He was told that he was out He then called twice in the afternoon and was told that Heschel was unavailable On May 20 he attempted to call Heschel and on May 21 he visited the plant site On each occasion Heschel was not avail able On May 22 according to Jackson s testimony he finally saw Heschel at the union election where he told him that he had [his] return to work slip and the [he] had been trying to get in touch with him repeatedly but was unable to do so and [he] was going to bring it in later in the day during office hours between 8 30 and 9 o clock On that day Jackson ws again unable to see Heschel so he left a photostatic copy of the doctor s statement He called on May 23 and was told by the sec retary to report for work on May 26 On May 26 when he reported for work his supervisor Noles told him that he was not scheduled for work but to report on May 28 On that day Heschel informed him that he was dis charged for absenteeism and his failure to report for work on May 19 or shortly thereafter In short Jack sons testimony would indicate that Respondent had given him the run around and was never serious about reinstating him to his former job An analysis of the record as a whole renders Jackson s account doubtful and unsupportive of the General Coun sel s theory To be sure Jackson was a union supporter who had signed the petition and a union card Respond ent may well have intended to rid itself of this employee because of his union support However Respondent could have done so at any time after Jackson s last work ing day and without giving him the medical leave of ab sence On February 28 prior to the advent of any union Jackson had received his last warning with the proviso that any further absences (excused or unexcused) would result in his termination Yet on April 7 after the em ployees including Jackson had signed the petition Jack son missed work and could simply have been terminated Again on April 27 17 days after he had signed his union card he was absent again yet Respondent placed him on extended sick leave with the intention of reinstating him Moreover Jackson s account of his attempts to be rein stated seem inplausible Once Jackson had obtained his doctor s release and experienced any difficulty in getting to see Heschel he could simply have reported to his su pervisor Frank Noles He failed to do so until several days had elapsed and Respondent decided to discharge him Finally Myers testimony strikes me as credible be cause at the time of the hearing he was leaving the employ of Respondents organization for another compa ny Accordingly I cannot find that Respondent violated Section 8(a)(3) and (1) of the Act in this respect Respondents Unilateral Termination of the Third Shift The record shows and Respondent admits that on December 31 1980 it discontinued its third shift at the LaGrange warehouse without notice to or prior consul tation with the Union The effect of the elimination of the third shift in addition to the elimination of 3 clerical and management employees and 10 drivers was the layoff of 3 warehousemen who were members of the warehousemen bargaining unit The General Counsel argues that the Employer had a duty to notify and bargain with the Union as the elected bargaining representative of the employees prior to the discontinuance of the third shift and that its failure to do so constitutes a violation of Section 8(a)(5) and (1) of the Act As a remedy the General Counsel seeks a require ment that Respondent reopen the third shift or reinstate the three employees with full backpay Respondent argues that its decision to terminate the third shift was a result of a business decision to open a distribution center in Jacksonville Florida and that no obligation over that decision existed Moreover accord ing to Respondent the Union failed to request bargaining even though it knew about the Company s decision and that in any case a make whole remedy would be puns tive The General Counsel has shown that Respondent had planned as early as April 1980 to establish a special dis tribution facility somewhere in Florida The final deci sion for a new facility in Jacksonville Florida was made in early to mid December At that time Respondent de cided to discontinue its third shift at LaGrange Georgia which resulted in the termination effective December 31 1980 of three employees who were members of the warehousemen bargaining unit Even though Respondent notified and bargained with Teamsters Local 528 which represented the Company s truckdrivers prior to the im plementation of the new facility Respondent failed to do so with the Retail Clerks Union Local 1063 AFL-CIO Respondents reason for its failure to notify and bargain with the Retail Clerks was stated by Bruce Whitehead the Company s legal counsel as follows (Tr 442) Well it was a dilemma that we were in frankly the decision-of course the Union had not been certi fled but we had reasonable grounds to believe that they would not he certified at that point There were objections to the election which have been-a hearing had been ordered and held on In this regard the record show that the union petition was filed on March 18 1980 Pursuant to a Decision and Direction of Election issued on April 24 1980 an elec tion was conducted on May 22 1980 The tally of ballots showed that out of 30 eligible voters 14 cast valid votes for and 10 cast valid votes against the Union There were five challenged ballots and no void ballots On May 29 1980 the Union filed objections and on May 30 1980 Respondent filed objections An investigation on challenges and objections was conducted that resulted in a decision to open certain of the challenged ballots A hearing on the Respondents objections was held on No vember 13 1980 The decision by a hearing officer issued on November 25 1980 The decision recommended that a certification of representation issue On April 7 1981 actual certification issued by the Board The General Counsel relies on 0 Connor Chevrolet 209 NLRB 701 (1974) in which [t]he Board has long held that absent compelling economic considerations for doing so an employer acts at its peril in making changes FAST FOOD MERCHANDISERS 911 in terms and conditions of employment dunng the period that objections to an election are pending and the final determination has not yet been made And where the final determination on the objections results in the certifi cation of a representative the Board has held the em ployer to have violated Section 8(a)(5) and (1) for having made such unilateral changes Respondent argues that the Union waived its right to demand bargaining by failing to request Respondent to do so and that the record shows that no refusal oc curred since the union failed to ever request bargaining To be sure the Union was informed on December 31 1980 by one of the employees that he was terminated The Union s only response was the filing of charges on April 7 1981 in this case Negotiations between the Company and the Union did not take place until after the Board s certification of the Union Nevertheless it is clear that the Company failed officially to notify the Union of its decision to discontinue the third shift Its position was simply that until final certification the Union was not the representative for the employees Under these circumstances it would have been futile for the Union to request bargaining Moreover the decision to terminate the shift had already been implemented at the time the Union unofficially ascertained what had oc curred In short the Union was simply faced with an ac complished fact I therefore conclude that Respondent cannot hide behind the Union s conduct in hopes of avoiding its legal obligation Respondent next submits that the decision to open the Jacksonville facility ws unrelated to labor costs but was based solely on considerations of mileage that its trucks had to travel It further submits that the Company s action was based on elements wholly outside the em ployment relationships of Respondents with its La Grange employees and therefore peculiarly not suscep table [sic] to resolution within the collective bargaining frame work Even accepting Respondents argument that the Jacksonville Florida facility was necessary and that its operation necessarily resulted in the termination of the third shift Respondent ignored a number of possi bilities The three employees could have been offered a transfer to a different shift or in accordance with senior ity be placed on a recall register Some of them might have been willing to transfer to different locations These suggestions and others could have been the subject of bargaining between the parties Furthermore Respond ent s reliance on case law dealing with plant closures or partial closures is totally misplaced in the instant situa tion Not only did the LaGrange facility remain a viable operation but its undertaking in Jacksonville Florida actually amounted to an expansion due to an increased volume of business It is therefore clear that the discon tinuance of the third shift was definitely within the realm of the employer employee relationship and a mandatory subject of bargaining indeed This is particularly so here since Respondent freely concedes that it had known for some years that a Florida distribution center would be a necessity (R Br at 17 ) Moreover the record is less than convincing that the establishment of the Florida facility would abruptly and necessarily have to result in the discontinuance of the third shift Whatever the interrelationship between these facilities may have been any change in the LaGrange operation could have been accomplished gradually or by attrition of personnel and certainly with less drastic impact on the three employees In lieu of second guess ing the situation from hindsight at this point this is the very topic that the parties should have resolved through bargaining Respondents final argument that a make whole remedy would be punitive in view of the uncertainty of the Union s certification ignores well established case law See Clements Wire & Mfg Co 257 NLRB 206 (1981) In conclusion Respondent has failed to point to any justification for its failure to bargain with the Union Respondent violated Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 The Respondent Fast Food Merchandisers Inc is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union Retail Clerks Union Local 1063 AFL- CIO is and has been a labor organization within the meaning of Section 2(5) of the Act 3 The Union became the bargaining representative for Respondents employees in the following bargaining unit All warehouse employees and spotters employed at Employers LaGrange Georgia facility excluding truckdrivers office clerical employees professional employees guards and supervisors as defined in the Act 4 By threatening its employees with discharge if they supported the Union Respondent violated Section 8(a)(1) of the Act 5 By threatening its employees with the loss of bene fits if the Union became their bargaining representative Respondent violated Section 8(a)(1) of the Act 6 By soliciting its employees grievances in order to influence its employees regarding the Union Respondent violated Section 8(a)(1) of the Act 7 By promising its employees benefits during an orga nizational campaign to influence its employees regarding the Union Respondent violated Section 8(a)(1) of the Act 8 By discharging Nathaniel Burts and Michael Win kles because of their union activities Respondent violat ed Section 8(a)(3) and (1) of the Act 9 By unilaterally and without notice to or consultation with the Union discontinuing its third shift Respondent violated Section 8(a)(5) and (1) of the Act 10 All other alleged violations have not been substan hated THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) (3) and (5) of the Act I recommend that Respondent be ordered to cease and desist from its unlawful practices I further recommend that Respondent be ordered to post an ap 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD propnate notice and take affirmative action to effectuate the policies of the Act I recommend that Respondent offer Nathaniel Burts and Michael Winkles immediate reinstatement without prejudice to their seniority rights or other privileges and that they be provided with backpay and interest thereon to be computed in the manner prescribed in F W Wool worth Co 90 NLRB 289 (1950) and Florida Steel Corp 231 NLRB 651 (1977) 3 and that they be made whole for any loss of pay or other benefits that they suffered as a result of Respondents conduct found unlawful herein Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing the third shift without notice to and bargaining with the Union I shall order Respondent to cease and desist therefrom and take certain affirmative steps I recommend restoration of the status quo ante at the Union s request as to the reinstatement of the third shift or the reinstatement of the three employees and further that Respondent make whole those employees for any loss of pay suffered by reason of Respondents unlawful conduct Backpay shall be computed in the manner set forth in F W Woolworth Co supra with interest com puted in the manner set forth in Florida Steel Corp supra4 [Recommended Order omitted from publication ] 3 See generally Isis Plumbing Co 138 NLRB 716 (1962) 1 See generally Isis Plumbing Co 138 NLRB 716 (1962)