Village Thrift Store

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Veteran's Thrift Stores, Inc. d/b/a Village Thrift Store and United Food and Commercial Work- ers Union, Local 27. Case 5-CA-14965 28 September 1983 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 23 August 1983 Administrative Law Judge William L Schmidt issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings,2 and conclusions and to adopt the recommended Order as modified The complaint alleges that the Respondent vio- lated Section 8(a)(1) by telling its employees in No- vember 1982, shortly after the Union filed its peti- tion, that wages would be "frozen" pending resolu- tion of the union matter and that to provide in- creases at that time would look like "bribery" The complaint also alleges that the Respondent violated Section 8(a)(1) by announcing its first all-inclusive wage increase in January 1983, after the instant charge was filed and the election was indefinitely postponed The judge considered these allegations together and found that the announcement of the first all-inclusive wage increase shortly after the postponement of the scheduled election, coupled with the November statement that the wages were "frozen" until the union matter was settled, con- veyed the impression that the union activity justi- fied freezing wages and that suspended union activ- ity justified ending any wage freeze He concluded that this conduct conflicted with the requirement that an employer ignore a union's presence in granting benefits during a union campaign and that the Respondent, therefore, violated Section 8(a)(1) ' The Respondent has excepted to some of the judge s credibility find 'rigs 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 2 We agree with the judge s conclusion that the Respondent unlawful ly solicited grievances at an employee meeting by asking employees if they had any questions immediately after telling the employees that they were family" and could come to the Respondent s officials with their problems In so agreeing, we particularly rely on the judge's finding that one employee's complaint about the length of lunch breaks was remedied dunng the questioning period while another employee s complaint about the issuance of a warning slip was remedied shortly after the meeting by its November freeze statement and its January wage increase announcement We agree that by announcing a general wage in- crease in January 1983 the Respondent violated Section 8(a)(1) The Respondent's president, Ray- mond Stinnett, testified that past wage increases had only been provided in a "haphazard fashion," that employees would usually be given a wage in- crease after, at most, 2 months on the job and, thereafter, about once a year General Manager Michael Tully added that increases were provided on an individual, not a group, basis and were "more or less at the discretion of the store manag- ers" The January increase, therefore, was unprece- dented in that it was the first increase that the Re- spondent had provided to all its employees simulta- neously The announcement to employees of an un- precedented and previously unplanned benefit, such as this across-the-board wage increase, while an or- ganizational effort is underway, 3 unlawfully inter- feres with the Section 7 rights of the employees 4 On this basis, we agree with the judge that the Jan- uary announcement violated Section 8(a)(1) How- ever, we do not agree that the November state- ment about wage increases was also unlawful The judge found that these statements violated Section 8(a)(1) We do not agree A grant or prom- ise of benefits made during an organizational effort will be considered unlawful unless the employer can provide an explanation, other than the organi- zational activity, for the timing of the grant or an- nouncement of such benefits Thus, the Board re- quires that an employer show by objective evi- dence that it would have made the same grant or announcement of benefits had the union not been present 5 Where, as here, the benefits at issue have been provided only in a "haphazard fashion," the employer is faced with a Hobson's choice of grant- ing the benefit with no objective evidence available to explain the timing, thereby risking allegations of unlawful interference with employees' Section 7 rights or, as the Respondent chose here, withhold- ing the benefits and still being subject to charges of unlawful conduct The Board has resolved this di- lemma by permitting employers to tell their em- ployees that those benefits previously provided in an indefinite manner will be deferred during the pendency of organizational efforts where they 3 We note that although the election had been posted because of the filing of the instant unfair labor practice charge, the petition was still pending The Respondent, therefore, was still under the obligation to adhere to its normal wage practices 4 NLRB v Exchange Parts Go, 374 U S 405, 409-410 (1964) Member Dennis finds it unnecessary here to pass on the allocation of the burden of proof in Exchange Parts cases 6 See Singer Go, 199 NLRB 1195, 1196 (1972), enfd 489 F 2d 269 (10th Cir 1973) 272 NLRB No 90 VILLAGE THRIFT STORE 573 make clear that the purpose in doing so is to avoid the appearance of interference 6 The Respondent's November statement meets these requirements Given the Respondent's indefi- nite manner of granting wage increases, General Manager Tully's assertion, in response to an em- ployee's question, that the increases would not then be provided because it would look like "bribery" was a legitimate expression of the Respondent's concern that it not give the appearance of unlawful interference in the employee's exercise of their Sec- tion 7 rights 7 We therefore find that the Respond- ent did not violate Section 8(a)(1) by announcing the withholding of its erratic individual wage in- creases Instead, the Respondent violated the Act only when it deviated from its appropriate restraint in January by announcing an unprecedented, all-in- clusive wage increase 8 AMENDED CONCLUSIONS OF LAW The Conclusions of Law shall be amended by substituting the following for paragraph 3 "3 By threatening employees that its store would be closed if the employees selected the Union, by soliciting grievances from employees in order to discourage their support for the Union, by reinstating a paid extension of the employees' lunch break in order to discourage their support for the Union, by withdrawing an employee's warning notice in order to encourage the employee to forgo supporting the Union, and by announcing an un- precedented all-inclusive pay increase, the Re- spondent has interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed them by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Veteran's Thrift Stores, Inc , d/b/a Vil- 6 II:nd Cf Centre Engineering, 253 NLRB 419, 421 (1980) 7 Singer Co, supra 8 Member Zimmerman agrees with the judge's finding that the Re- spondent s November statement cannot be viewed in isolation from the January announcement of an across the board increase He finds, as did the judge, that the November statement that wages were frozen until the union matter was settled, coupled with the announcement, 2 months later, of an unprecedented all inclusive wage increase shortly after the postponement of the election, conveyed the message that the postpone- ment of the election served to thaw the freeze" and that the earlier or- ganizational efforts justified wage freezes Further, Member Zimmerman notes that, although President Stinnett stated that wage increases were provided in a haphazard fashion ' he also testified that employees usual- ly received an Increase "after at most two months on the job and about once a year thereafter" See Gossen Co, 254 NLRB 339, 353-355 (1981), where the announced freezing of a similar Irregular but active wage in- crease program was found unlawful lage Thrift Store, Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Delete paragraphs 1(d) and 1(e) and add the following as paragraph 1(d), relettering the subse- quent paragraph "(d) Announcing an unprecedented all-inclusive wage increase to discourage support for United Food and Commercial Workers Union, Local 27" 2 Substitute the attached notice for that of the 1 administrative law judge APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT threaten to close our stores in order to frighten any of you who desire to be rep- resented by United Food and Commercial Workers Union, Local 27 WE WILL NOT solicit grievances from you to dis- courage your support for the Union WE WILL NOT grant any benefits to you or with- draw warning notices to discourage your support for the Union WE WILL NOT announce an unprecedented all-in- clusive wage increase to discourage your support for the Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act VETERAN'S THRIFT STORES, INC D/B/A VILLAGE THRIFT STORE DECISION STATEMENT OF THE CASE WILLIAM L SCHMIDT, Administrative Law Judge This matter was heard by me on March 9 and 10, 1983, 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Baltimore, Maryland The proceeding is based on a charge filed by United Food and Commercial Workers Union, Local 27 (Union) on December 10, 1982, 1 and a complaint issued on behalf of the General Counsel of the National Labor Relations Board (NLRB or Board) by the Regional Director for Region 5 of the Board on Jan- uary 24, 1983 The complaint alleges that Veteran's Thrift Stores, Inc d/b/a Village Thrift Stores (Respond- ent) violated Section 8(a)(1) of the National Labor Rela- tions Act (Act), by certain actions of its supervisors and agents and that Respondent violated Section 8(a)(1) and (3) of the Act by the layoff or termination of 13 employ- ees The Respondent filed a timely answer to the com- plaint in which It denied the alleged wrongdoing On the entire record, my observation of the demeanor of the witnesses, and my careful consideration of the postheanng briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent is a Maryland corporation with an office and places of business in Baltimore where it engages in retailing used clothing and other items During the 12 months preceding the issuance of the complaint the Respondent derived gross revenues in excess of $500,000 from its retail operations and, during the same period of time, the Respondent purchased and received at its Baltimore, Maryland facilities goods and materials valued in excess of $5000 directly from suppli- ers located outside the State of Maryland On the basis of the foregoing, I find that the Respondent is now, and has been at all material times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it would effectuate the purposes of the Act for the Board to assert jurisdiction over this labor dispute II THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union has been at all material times a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Chronology of Relevant Events and Issues The Respondent retails used clothing and other mer- chandise from five retail stores located in Baltimore, Washington, D C, and Chesapeake, Virginia The only stores directly involved here are located in Baltimore on Reistertown Road (Store No 1) and Belvedere Avenue (Store No 2) The merchandise sold through the Re- spondent's outlets is solicited from the public by repre- sentatives of local chapters of the Military Order of the Purple Heart Service Foundation (Purple Heart) The Respondent's employees collect, sort, and sell the donat- ed merchandise The Respondent and Purple Heart share the proceeds of the sales ' Where not specified, dates refer to 1982 calendar year The Respondent is owned by Raymond Stinnett, its president, who resides in Montana and who directs the corporate operations primarily by telephone The Re- spondent's day-to-day operations are directed by its three vice presidents James Stinnett, the owner's brother, who is responsible for the Respondent's Virginia store, Lee Perea, who is responsible for the Respondent's Washing- ton, D C area stores and who assists in Baltimore, and Michael Tully, who is responsible for the two Baltimore stores and who operates the corporate headquarters, also in Baltimore In Baltimore, Ed Watters is the manager of Store No 1 and Charles Jeffreys is the manager of Store No 2 James Elskoe is the assistant manager at Store No 2 The Respondent admits that all of the foregoing indi- viduals are supervisors within the meaning of the Act The Respondent's employees collect merchandise and unload the trucks at the stores onto skids, which are rack-like enclosures of approximately 108 cubic feet Em- ployees in the production area of each store sort, tag, and price the donated merchandise Floor employees, who work in the selling area, keep the floor area neat, adjust prices, and remove clothes which have been on the racks too long Clothing which Respondent is unable to sell in its retail outlets is sold as rag material In early 1982, the two Baltimore stores underwent a renovation and reorganization Perera appears to have been responsible for this process and, as a consequence, he began to divide his time between the Washington stores and the Baltimore stores In the spring of 1982, Perera instituted a 6-day sorting process at Baltimore in anticipation of increased collections by Purple Heart Be- cause Respondent also wanted to maintain a 5-day work- week, the extended sorting necessitated the hiring of sev- eral additional employees There is no evidence that the Baltimore employees have ever been represented by a labor organization However, the Union commenced an effort to organize the Respondent's employees when one of its agents met with a group of employees on August 15 On August 16, several of its agents briefly visited the Baltimore stores and distributed pamphlets and authorization cards among the employees The Union's distribution and solicitation was open and widespread Following that visit by the Union agents, there was considerable discussion among the employees about the Union Store No 2's assistant manager Elskoe appears to have learned of the Union ac- tivity and, as Belinda Curry left work that day, he asked her if she had a union pamphlet The following day, August 17, James Stinnett and Perera visited Store No 1 ostensibly for reasons other than the union activity While at the store, they conduct- ed meetings with employees to discuss unionization with them 2 A number of the allegations in the complaint con- cern statements which were made at this time On August 20, 12 of the Baltimore employees were laid off Those who asked were told that the layoff was due to a lack of work On the following day, Sadie 2 Perera and James Stinnett initially met individually with a couple of employees and then held a group meeting involving about 10 employees No one testified about the substance of the individual meetings and the complaint contains no allegation pertaining to them VILLAGE THRIFT STORE 575 Sutton, an employee at Store No 1, was discharged The Union filed an unfair labor practice charge on August 23 concerning matters which transpired during the previous week The Union filed a petition for a representation election on November 8 The parties subsequently entered into an election agreement which provided for an NLRB-con- ducted election among the Baltimore employees on De- cember 22 Thereafter, the Respondent's supervisors ad- mittedly conducted campaign meetings with employees in late November and early December On December 10, the Union filed a request to withdraw its previous unfair labor practice charge and filed the instant charge It ap- pears that many of the allegations made in the previous charge were included in the new charge The scheduled election was postponed because no request to proceed with the election was filed by the Union at the time the charge herein was filed In early January 1983, a wage increase was announced at a meeting held among the employees at Store No 1 On January 24, 1983, the General Counsel issued the instant complaint The complaint alleges that the August 20 layoffs and Sadie Sutton's discharge violated Section 8(a)(3) of the Act, and that several statements or inquir- ies, purportedly made by some of the Respondent's su- pervisors, as well as the January wage increase an- nouncement, violated Section 8(a)(1) of the Act More specifically, the issues to be resolved from the pleadings and evidence are 1 Whether Respondent violated Section 8(a)(1) by (a) Interrogating an employee at Store No 2 on August 16 about union activity, (b) threatening employ- ees at Store No 1 on August 17, that the store would be closed if the Union got in, (c) soliciting grievances from employees at Store No 1 on August 17, in order to dis- courage their support for the Union, (d) reinstating a paid extension to the employees' lunchbreak at Store No 1 on August 17, in order to discourage their support for the Union, (e) withdrawing an employee's warning notice on August 17 in order to discourage employees' support for the Union, (0 telling employees at Store No 1 in late November that pay raises were frozen because any increases would suggest Respondent was bribing the employees to get rid of the Union, (g) telling employees at Store No 1 in early December that they would have to write their names on the ballots in the National Labor Relations Board election, and (h) telling employees at Store No 1 in early January 1983, that they were getting a pay raise effective the next pay period, on January 12, 1983, in order to discourage their support for the Union, 2 Whether Respondent violated Section 8(a)(3) and (1) of the Act by (a) Laying off Rosa Allen, Glenda Carraway, Linda Carter, Belinda Curry, Angelina Davenport, Shirley Duncan, Lisa P Elliott, Gloria Foster, Cornette Golden, Lillie Kearney, Linda Moseley, Sonya Woody on August 20, and (b) discharging Sadie Sutton on August 21 B Findings and Conclusions Concerning the Alleged 8(a)(1) Conduct Occurring in August 1982 Complaint paragraph 5(d) alleges that Assistant Man- ager Elskoe interrogated employees at Store No 2 about their union sympathies on August 17 Belinda Curry, a cashier at Store No 2, testified that she received a pam- phlet from the union organizers who visited Store No 2 on the afternoon of August 16 and that she set it down by the cash register where she normally works Accord- ing to Curry, the visit by the organizers generated con- siderable discussion among the employees As Curry was leaving the store at the end of her work shift, Assistant Manager Elskoe asked her if she had a union pamphlet which he could have Although Curry told Elskoe that she did, she was unable to locate the pamphlet when she returned to the register to retrieve it for Elskoe Elskoe was called as a witness by the Respondent but no testi- mony was solicited from him concerning Curry's story No other evidence of interrogation by any of the Re- spondent's supervisors at Store No 2 was proffered I credit Curry's unrebutted testimony about Elskoe's request for a union pamphlet However, I am satisfied that Elskoe's request did not amount to unlawful interro- gation Not all inquiries directed to an employee by a su- pervisor about union matters violate the Act, only coer- ciye interrogation is proscribed NLRB v Century Broad- casting Corp, 419 F 2d 771, 780 (8th Or 1969) In decid- ing whether supervisorial inquiry is coercive, the appro- priate standard requires a determination as to whether an employee could reasonably be coerced or intimidated by the inquiry The General Counsel argues that Elskoe's request for a union pamphlet put Curry in the position of declaring whether or not she had retained the Union's distribution which, in turn, would indicate her opinion about the Union The General Counsel's anemic rationale ignores the totality of the circumstances shown to have existed at the store that afternoon and reads an unreason- able meaning into Curry's willingness or ability to produce the pamphlet The request that Curry produce the pamphlet is susceptible to a variety of inferences However, the most reasonable inference considering the openness of the organizers' activities and the volume of the employee discussion is that Elskoe was overcome by unabashed curiosity In the absence of evidence that Curry, at the time of Elskoe's request, had other reasons to be fearful of Elskoe's request, or that Elskoe had some other ulterior purpose, I find that the allegation concern- ing interrogation by Elskoe has not been proven by a preponderance of the evidence Accordingly, it will be recommended that complaint paragraph 5(d) be dis- missed The other complaint allegations which were alleged to have occurred in August relate to statements made at, or shortly after, an employee meeting which James Stinnett and Perera conducted at Store No 1 on August 17 Complaint paragraph 5(a) alleges that James Stinnett and Perera threatened employees that the store would be closed if the Union got in, paragraph 5(b) alleges that Perera solicited grievances in order to discourage sup- port for the Union, paragraph 5(c) alleges that Perera re- instated a paid extension of the lunchbreak in order to 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discourage support for the Union, and paragraph 5(e) al- leges that Watters withdrew an employee's warning notice in order to discourage support for the Union Angelina Davenport, Rosa Allen, and Sadie Sutton all said that Perera stated in the course of the August 17 meeting that if the Union came in, the store would close Allen and Sutton also recalled that Perera mentioned that two other stores—Acme and Pantry Pride—had to close because of union activity Davenport recalled that Perera made some mention of Acme but she could not recall the substance of his remarks about that firm Dav- enport said that Perera stated at the end of the meeting to remember that if they voted for the Union, "the doors of the store would be closed" According to James Stinnett, one of the employees at the August 17 meeting asked him if the store would be closed if the employees selected the Union Stinnett said that he told the employees that it would not but that he did tell the employees that they might have to close if the "economic conditions" required Stinnett claimed that Perera also stated in the course of the meeting that the store would not close if the Union came in and that if the store did close, "it would have to be for economic reasons only " Perera said he told the employees that at one time there was some discussion about closing Store No 1 but that, instead, several improvements had been made in the store Perera acknowledged that he mentioned the fact that Pantry Pride, Acme, and some A & P Stores had gone out of business and that there were unions at some of those stores However, Perera claimed that he said they were not closed because costs had gotten too high In addition, Perera said that he told the group that he had read in the Washington Post that the management at one of the supermarkets had asked the union for wage concessions "and they are out of work" Perera specifi- cally denied that he told the employees that the store would be closed if the Union were selected to represent the employees Store No 1 Manager Watters was present at the August 17 meeting Although he testified about other matters, no inquiry was made of Watters as to his recol- lection of Perera or Stinnett's remarks about closing the store It is concluded that Perera uttered the store-closing threat alleged in the complaint Perera, himself described the Union's solicitation the previous day as "a serious matter" Moreover, it is undisputed that Perera made other unlawful remarks expressing an emotional opposi- tion to the employees' need for representation 3 These general observations relating to Perera's probable state of mind lend weight to the credibility resolution which I have reached on the basis of my observations at the hearing and a careful review of the record As to credi- bility, I find Allen, Davenport, and Sutton's versions of the store-closing remarks to be more reliable Apart from the fact that Allen and Davenport, in particular, im- pressed me that they were testifying as straightforwardly and candidly as their memories would permit, their story 3 Thus, Perera told the employees that there was no need for a union because the work force was in effect, a family unit concerning Perera's store-closing remarks also remained substantially unchanged throughout the Respondent's very adroit cross-examination By contrast, the crediting of James Stinnett and Perera's version of Perera's re- marks about the store's closing potential would be ex- tremely disconcerting because Stinnett's testimony was too vague When these circumstances are considered to- gether with the fact that the Respondent made no at- tempt, whatsoever, to elicit testimony from Watters, the third supervisor present at the August 17 meeting, or ex- plain why no testimony was forthcoming from Watters on this subject, it is fair to infer not only that Watters would not corroborate Perera, but also that his testimony would have been unfavorable to the Respondent As I have credited Allen, Davenport, and Sutton's testimony on this subject, I find that the Respondent violated Sec- tion 8(a)(1) of the Act by Perera's remarks to Store No 1 employees on August 17 that the store would close if they selected the Union to represented them As there is no evidence that James Stinnett made any similar state- ment, it is recommended that portion of the complaint paragraph 5(a) which alleges that the Respondent violat- ed the Act by Stinnett's conduct be dismissed Concerning the other allegations related to the Re- spondent's August 17 conduct, Perera's testimony shows that he specifically reminded employees at the meeting that they have always been able to talk to the store man- ager or even himself about any problem which they had Allen testified that Perera asked the assembled group if they had any questions and that Perera responded to the several inquiries that followed Among the inquiries to which Perera responded was a questioned by one of the employees as to why Store No 1 employees were no longer accorded a 45-minute lunch- break Perera claimed that he was under the impression that the 45-minute lunchbreak (which he had caused to be discontinued at that store for disciplinary reasons) had been restored but acknowledged that, in any event, he informed the employees that it would be restored the fol- lowing Monday In these circumstances, it is concluded that Perera's admitted restoration of the lunchbreak time violated Section 8(a)(1) of the Act as alleged Rosa Allen testified in support of the allegation that Watters withdrew a warning notice in order to discour- age support for the Union According to Allen, she in- quired during the course of the meeting as to why she should have received a warning notice for an absence when she had returned to work with a doctor's excuse Perera told Allen that if she brought in an excuse she should not have gotten a warning slip Allen said she went to Watter's office after the meeting and asked him why he had given her a warning slip for being absent when she returned with a doctor's excuse According to Allen, Watters pulled the warning slip from his records and said, "I'll tell you what Since this is your only warning slip and you have a doctor's excuse, I will de- stroy mine" Watters told Allen to destroy hers and that would be the end of the matter Allen emphatically denied that the warning slip had been torn up before the August 17 meeting VILLAGE THRIFT STORE 577 Watters was not asked specifically whether the matter was discussed at the August 17 employee meeting Rather, Watters was asked only whether he remembered any discussion about (the warning slip) "on August 17" Watters responded "She had mentioned something about it, but it was all over with at that time" Watters recalled issuing the warning notice to Allen He claimed that he learned from the night manager after he had written the warning notice that Allen had tele- phoned to explain her absence on the particular day so he told her to forget about the warning, and that he would tear it up Watters could not remember specifical- ly when he destroyed Allen's warning notice but, pur- portedly, it was before August 17 Watters did not iden- tify the night manager nor was the night manager called to testify in support of Watter's version of this matter Both Perera and James Stinnett testified that Allen raised the warning slip matter at the August 17 meeting and asked if she was supposed to have gotten a slip for being absent after she had called in and had returned to work with a doctor's excuse Perera remarked that she should not have gotten a warning under those circum- stances but, because Allen persisted in asserting that she had, Perera claimed that he checked with Watters and was told that the slip had already been destroyed after he "was informed of her not coming to work" James Stinnett testified that Watters stated at the time that he had investigated further and had destroyed the warning slip "at a previous date The versions of the events surrounding the warning slip proffered by Respondent's witnesses are laced with vague assertions, inconsistencies, and the lack of mutual corroboration Accordingly, I find that Allen's testimony to the effect that the warning slip was not destroyed until after she raised the subject at the August 17 meet-, ing is the credible version of what transpired As the Re- spondent undertook to rectify its mistake in issuing Allen's warning only after the advent of the organizing drive, I find that Watter's action in withdrawing Allen's warning was designed to demonstrate a newly acquired beneficence in an effort to blunt the Union's appeal and that his conduct violated Section 8(a)(1) of the Act, as alleged in the complaint The express or implied solicitation of grievances at employee meetings held in response to a union organiz- ing drive carries with it the rebuttable inference that the employer is promising to correct the inequities it discov- ers as a result of its inquiries Cutting, Inc , 255 NLRB 534 (1981) With respect to the August 17 meeting, Perera remarks about the store's employees being a "family" and his emphasis on his assertion that employ- ees could come to him with their problems makes it ob- vious that Perera's inquiry as to whether the assembled employees had any "questions" was tantamount to solic- iting grievances Although Perera and James Stinnett de- clined, in effect, to make adjustments with respect to a couple of matters raised at the meeting, such action is not sufficient to rebut the inference that they were will- ing to give favorable consideration to employee prob- lems which results from the action taken on Allen's warning and the restoration of the lunchbreak Accord- ingly, I find that the Respondent unlawfully solicitated grievances at the August 17 meeting, as alleged in the complaint C Findings and Conclusions Concerning the Other 8(a)(1) Allegations Complaint paragraph 5(0 alleges that in late Novem- ber 1982, Tully told employees that pay raises were frozen because any increases would suggest Respondent was bribing its employees to get rid of the Union Com- plaint paragraph 5(h) alleges that, in early January 1983, Watters told Store No 1 employees that they would re- ceive an increase effective the following pay period These two allegations are in my judgment, closely relat- ed and, hence, they will be considered and disposed of together In support of the 5(1) allegation, Dawn Payne, a Store No 1 employee, testified that she attended a store meet- ing in November 1982, just before Thanksgiving After viewing a video tape which appears to have depicted labor organizations in an uncomplimentary manner, one of the employees asked Tully a question about pay in- creases Payne said that Tully told the employees that the employees could not have any pay increases because the Union had filed a petition "against the company" and a pay increase at that time would look like "bribery" Payne also said that Tully told the employees that their wages were frozen and that the employees would not get any raises until the union matter was settled Veronica Johnson, who is also a Store No 1 employ- ee, attended the same or a similar meeting Johnson testi- fied that Tully told employees that the Respondent "couldn't give [a pay increase] , it would look like [the Respondent] was bribing [the employees] "4 No inquiry was made of Tully concerning the "pay freeze" allegation when he was called as a witness It is also undisputed that in early January 1983, Watters an- nounced that all employees would be evaluated over the following 2-week period and would receive a pay in- crease based on that evaluation commencing the next pay period Raymond Stinnett testified that he made the decision to implement this particular pay increase He testified that, in the past, there were no set guidelines for pay increases and that pay increases had been given in a "haphazard fashion" Some employees had not received an increase in over a year and others had received raises as recently as the summer of 1982 According to Stin- nett, he was pleased with the progress and condition of both stores and he wanted to recognize the effort by the employees There is no evidence that any mention was made of either the Union or the postponed election at the time Watters announced the pay increase to the Store No 1 employees 4 On cross examination Johnson responded affirmatively to a protract ed, leading question which, in essence, sought her agreement that Tully merely explained that no pay increase could be given because it would be an unfair labor practice because it would look like the Respondent was bribing the employees I have placed no credence in Johnson's answer in view of the form of the question, her earlier narrative on direct examina Pon which closely resembled the statement Payne credibly testified about, and the lack of any testimony by Tully on this matter 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent argues that Tully's remarks about pay increases in November is an accurate statement of the law and that even if it is not, the misstatement is insuffi- cient under the doctrine of Midland National Life Insur- ance, 263 NLRB 127 (1982), to warrant setting aside an election The Respondent also argues that the January 1983 raise was deserved as some employees had not received a wage increase for over a year Where employees had re- cently received an increase, the Respondent took that into account in determining the amount of increase to give The General Counsel argues that Tully clearly at- tempted to place the blame for a wage freeze on the Union and that, by giving a wage increase shortly after the scheduled December 22 election was postponed in- definitely, Respondent only served to reinforce the notion that the Union had precluded pay increases In my judgment, the General Counsel's position is well taken The announcement of the first all-inclusive wage increase the Respondent had ever granted, shortly after the postponement of the scheduled election and against the background of a prior announcement that wages were "frozen" during the pendancy of the Union's peti- tion, would have a strong tendency to convey the mes- sage that the postponement of the election served to thaw the "freeze" and that organizational efforts justify wage freezes It is a well settled principle that in grant- ing or withholding benefits during a union organizational effort, an employer is obliged to act as though the Union is not present Great Atlantic & Pacific Tea Co, 166 NLRB 27, 29 fn 1 (1967) Here, the Respondent did pre- cisely the opposite Accordingly, I find that Tully's No- vember freeze statement and Watter's wage increase an- nouncement violated Section 8(a)(1) of the Act, as al- leged Complaint paragraph 5(g) alleges that .2erera told em- ployees at a meeting in December that they would have to write their names on the ballots at the upcoming NLRB election It is undisputed that Perera conducted a meeting to explain the voting procedures Johnson and Payne testified that, in the course of his explanation, Perera stated that the employees would have to sign their secret ballots Payne testified that Perera's state- ment didn't sound right to her so she subsequently went to the NLRB "to find out exactly how the voting would take place, the correct way Perera testified that, in the course of explaining the voting procedures, he stated that the election would be by secret ballot and that the employees "might have to sign a paper that the NLRB official has when you go in to vote" Perera claimed that he said nothing else about the ballots Although no attempt was made to secure corrobora- tion from Watters, who also attended this meeting, I am convinced, on the basis of my observation of Perera tes- tifying in this proceeding, that this allegation is the prod- uct either of the employees' misunderstanding of Perera's remarks or Perera's inability to clearly articulate the words he used Viewed objectively, the two competing versions set forth above are very similar Perera speaks with a heavy accent similar to that heard spoken by indi- viduals from the Indian subcontinent and, on occasion, it is difficult to follow his spoken words Without more substantiating evidence, I would be loathe to find that Perera's remarks about the voting procedures were de- ceptive in any fashion Even assuming that Payne and Johnson correctly understood Perera's remarks, I am convinced, after listening to Perera testify, that such a remark was more likely the result of an unintentional misstatement Even Payne's testimony indicated that she perceived his statement to be incorrect at the time of the meeting In these circumstances it will be recommended that complaint paragraph 5(g) be dismissed D Findings and Conclusions Concerning the August 20 Layoffs The General Counsel asserts that the August 20 layoff of 12 employees-5 at Store No 1 and 7 at Store No 2—was a reaction by the Respondent to the Union's or- ganizing drive in order to discourage the recent union activities 5 The complaint alleges that by this conduct the Respondent violated Section 8(a)(3) of the Act In the General Counsel's view, the evidence showing that the layoffs occurred very shortly after the organiz- ing drive began, that employees were excited about the organizing drive and engaged in widespread discussion of the Union, and that the Respondent's key managers expressed opposition to unionism, by, among other things, making certain unlawful statements, discussed above, is sufficient to merit the conclusion that a prima facie case of unlawful discrimination has been estab- lished Not surprisingly, the Respondent claims that the layoffs were the result of business necessity Respondent denies that the layoffs were motivated, in any fAiion, by considerations related to the Union's organizing drive The General Counsel asserts that the Respondent's evi- dence fails to support its position because its witnesses were inconsistent in their testimony concerning the lay- offs and its documentary evidence was woefully deficient in establishing the alleged business necessity for the la'y- offs The General Counsel argues that the failure of the Respondent's evidence to show the business necessity for the layoff is a further factor to support his position that the layoffs were unlawfully motivated Assuming arguendo that the General Counsel' evi- dence is adequate to establish a prima facie case, the de- cisive question is whether or not the evidence is suffi- cient to show the claimed business need for the layoffs Raymond Stinnett ordered the layoff and provided the overview from the Respondent's perspective Although Stinnett testified that he did not decide on the number of employees to be laid off, he did make the decision that the August 20 layoff was necessary and directed its im- plementation According to Stinnett, in the late winter or early spring of 1982, the backrooms of the Baldmore stores were remodeled and new equipment was installed About this same period of time, Purple Heart purported- ly added additional solicitation of managers to its staff As a consequence of the action taken by Purple Heart, 5 As the General Counsel did not undertake to demonstrate the union sympathies of each of the laid off employees or knowledge of those sym pathies on the Respondent's part, his theory of unlawful conduct here is limited to the notion that the layoff was utilized to scare employees ' VILLAGE THRIFT STORE 579 the Respondent anticipated that the collections in the Baltimore area would increase in the ensuing months as the solicitation managers developed an efficient staff In order to prepare itself for the anticipated increase in pro- duction, Perera instituted a system of 6-day sorting in the Baltimore stores similar to what he had done in the Washington stores However, as the level of solicitations in Baltimore were not yet sufficient to support the 6-day sorting operation, the work in Baltimore was supple- mented with collections from the Hyattsville store The documentary evidence shows that, in the winter and spring of 1982, the Respondent embarked on a sig- nificant expansion of its work force Thus, in the period from February to June 1982, the number of weekly pay- checks issued at Store No 1 increased from 23 to 32 and the number issued at Store No 2 increased from 28 to 38 Hence, in this 4-month period the Respondent's work force in Baltimore increased by 37 percent There was no similar increase of personnel in a comparable period in 1981 On the contrary, there was practically no in- crease in the number of the Respondent's personnel throughout the entire period of 1981 The number of checks issued per week in that 4-month period of 1981 was comparable, in effect, to the number of checks issued in the first week of February 1982 In the February to June period of 1982, as compared to 1981, the number of skids of merchandise collections in the Baltimore area increased by only 11 percent over the collection in the same period of 1981 And when the work transferred from Hyattsville to Baltimore is added, the total number of skids of merchandise worked on in Baltimore increased by only 16 3 percent for the compa- rable 1981-1982 periods 6 Based on the foregoing, it appears that Stinnett's ex- planation that the Respondent built up its work force in the spring of 1982 in anticipation of additional work is credible Rayomd Stinnett explained this business strategy He said the Respondent englarged its work force in order to have trained personnel on hand when Purple Heart's new solicitation managers achieved their best results Stinnett claims that there was improvement in the Balti- more collections in May but that improvement leveled off in June In view of this trend, Stinnett said that he told Perera and Tully near the end of June (when he an- ticipated being out contact with them for a 2-week period) that they should carefully monitor the Baltimore collections and, if there was a significant drop they were authorized to lay off employees Although no drastic re- duction in collections occurred during that period, Stin- nett said that he thereafter became dissatisfied with the "information we were getting from Purple Heart the work loads had still not developed as we expect- ed and we were still supplementing the two Baltimore stores with merchandise from Washington" In the latter part of July, Stinnett told Perera and Tully that the 6-day sorting operations could not continue at Baltimore 6 In the February to June 1982 period the number of merchandise skids transferred from Hyattsville to Baltimore was 84 as compared to 30 in 1981 without a significant improvement in the Baltimore col- lections Stinnett's testimony is supported by Respondent's busi- ness records Those records reflect that the first 6 weeks of the 1982-third quarter, the collections in Baltimore de- creased from those in the last 6 weeks of the 1982-second quarter by 58-3/4 skids, or approximately 10 skids per week They also show that Baltimore collections were heavily supplemented by overflow collections from the Hyattsville store In fact, in the first 6 weeks of the 1982- third quarter, the amount of merchandise transferred from Hyattsville was at the highest level by far of any 6- week period over the 112-week period shown by the summaries in evidence In addition, other summaries show that the sales in Baltimore were decreasing Thus, the total sales in the last 6 weeks of the 1982-second quarter were $186,495 and the sales for the succeeding 6- week period were $183,851 According to Raymond Stinnett, the decision to layoff employees occurred somewhere between August 7 and 14 At this time, Stinnett told Perera and Tully to begin making plans to go to 5-day sorting at the Baltimore stores and to lay off any employees not needed for an operation of that size Stinnett explained that this deci- sion resulted from information received from Purple Heart that it had lost a couple of solicitation managers Stinnett said that this development made it likely that collections in Baltimore would decline for 2 to 4 months until Purple Heart retained and trained new solicitation managers With these developments, Stinnett anticipated that the Respondent's payroll cost-sales ratio, which Stinnett re- garded as a critical indicator of a store's profitability, would become even more unfavorable Stinnett testified that profitable operations required that this ratio be kept at 28 percent or below and that where this ratio exceed- ed 28 percent, the store manager's quarterly bonus was reduced by an amount necessary to make the ratio equal 28 percent In Stinnett's view, the payroll cost-sales ratio in July and early August was at an intolerable level The Respondent's records show that this ratio exceeded 28 percent at both Baltimore stores every week between the third week in June 1982, and the first week of September 1982, except the week ending July 4 at Store No 1, and the weeks ending July 4 and August 8 at Store No 2 During the week ending August 1, the ratio at Store No 1 reached 49 percent and in the week ending August 22 (the week of the layoff), it was 40 percent at Store No 1 and 41 percent at Store No 2 In the 112-week period shown by the Respondent's records, the ratio reached or exceeded the 40-percent level only on one other occa- sion, namely, at Store No 1, during the week ending February 13, 1983 The payroll cost-sales ratio exceeded 28 percent at its Washington stores in only 1 week during the 112 weeks for which there are record summa- ries in evidence The General Counsel argues that the payroll cost-sales ratio shown for the August period was skewed by vaca- tion payments during that month However, that argu- ment fails to account for the fact that the ratio did not reach that level in August 1981, or in any January period 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (when vacation payments are also made) shown by the evidence Additionally, the General Counsel's argument fails to consider that, with respect to the week ending August 22, the ratio would likely have reached an all- time high if certain employees had not been sent home early on Thursday, August 19, and the layoffs had not occurred on Friday, August 20 The Respondent's business records strongly support the conclusion that there was an unprecedented deterio- ration in its operations and that the layoff was motivated by legitimate business reasons Nevertheless, the General Counsel attacks the Respondent's explanation for the August 20 layoff as unworthy of belief The General Counsel argues that Raymond Stinnett and Perera were unable to testify consistently as to the date the decision to lay employees off occurred Perera, for example, testi- fied that the decision was made in the first week of August, Stinnett, in effect, said that it was the second week The General Counsel points to other similar in- consistencies but, regardless whether the purported in- consistencies are considered individually or as a whole, his argument ignores the fact that Perera and Stinnett testified about these matters after a time lapse of approxi- mately 8 months In these circumstances, it would be un- justified to attach significant weight to their inability to recall from memory specific dates on which mental proc- esses were concluded, decisions were reached, and in- structions were transmitted by telephone The General Counsel also argues that the Respond- ent's records fail to support the claim that the layoffs were motivated by economic reasons By comparing the average weekly collections for the mid-July to mid- August 1982 period with the weekly average for a com- parable 1981 period, the General Counsel argues that the collections at Store No 1 were 37 percent higher in 1982 and that the collections at Store No 2 "were approxi- mately the same" That argument is misleading The General Counsel makes no effort to explain why the "weekly average" figure would be a useful analytical tool to either a business person's motives from a quag- mire of facts Additionally, when the General Counsel's "weekly average" analysis is applied to the Baltimore stores combined, the increase in the 1982 collections over those in 1981 is only 7 9 percent Likewise, the General Counsel argues that the sales of the mid-July to mid- August period was "appreciably higher" in 1982 than in 1981 In fact, there was a 16-percent increase in the 1982 sales However, in these and other instances, the General Counsel's analysis ignores the fact that the Respondent employed substantially more employees in 1982 than it did in 1981 Nothing in the records concerning the Re- spondent's collections or sales indicates the need for such a large increase in the Respondent's work force Howev- er, after the August 20 layoffs and Sadie's discharge (dis- cussed below), the Respondent's Baltimore work force was approximately 14 percent above that in 1981 That level appears to more closely approximate the increase in the Baltimore collections and sales The General Counsel also argues that the August 20 layoffs did not result in a comparable reduction in total hours worked This argument is correct as far as it goes However, it should also be noted that the number of hours worked during comparable periods of 1981 and 1982 is not significantly different except during that period of 1982 when the Respondent had increased its workforce The General Counsel's most forceful evidence con- cerns the inconsistent managerial conduct, after Stinnett decided to return to a 5-day sorting operation in Balti- more, by the individuals managing the stores Thus, two employees were hired by Store Manager Watters as re- placements for former employees at Store No 1 on August 11 Even more unusual is the fact that three re- placement employees were hired by Assistant Manager Elskoe at Store No 2 during the week of the layoff— two on Wednesday, August 18 and one on Thursday, August 19 Store Manager Watters explained that he was not in- formed of the decision to return to 5-day sortings and, hence, the need to layoff employees until Friday, August 13 Store Manager Jefferys testified that he too was in- formed of the impending layoff during the week ending August 15 but he was on vacation for that portion of the following week when employees were hired Although Jefferys testified generally that he gave Assistant Manag- er Elskoe instructions as to what to do and not to do before he left on vacation, Jefferys was never specifically asked if he passed along to Elskoe the information he had been given about the layoff Elskoe claims that he was unaware that a decision had been made to lay em- ployees off at the time he hired the replacement employ- ees at Store No 2 Other evidence shows that Perera and James Stinnett made inspection visits to Store No 2 prior to the layoffs during the week ending August 22 and it would be fair to infer they knew what Elskoe was up to Nevertheless, Raymond Stinnett claimed that Els- koe's action in hiring replacements was consistent with the 6-day sorting scheme but that Elskoe hired new em- ployees that week solely because he lacked information about the decision to cut back operations Linda Carter testified that when she was hired by Elskoe on Wednesday, August 18, Elskoe specifically as- sured her that the job was not a temporary position When Carter was informed on August 20 by Jefferys that she was being laid off, she said that Jefferys also told her that he had been recalled from his vacation for the purpose of laying employees off and that the action was very unusual Belinda Curry also said that Jeffreys told her that he had been recalled from vacation because of the layoff Jefferys was not asked to deny the forego- ing comments attributed to him by Carter and Curry and the Respondent made no attempt to explain their uncon- tradicted testimony Although Elskoe's explanation that he had not been told of the decision to curtail operations is consistent with his hiring action, his lack of informa- tion clearly casts considerable doubt on the Respondent's claim that it decided to curtail operations before the union drive began The Respondent asserts that the General Counsel's theory that the layoff was a tactic designed to frighten employees who might be inclined to sympathize with the Union so that they would avoid the Union and the Gen- eral Counsel's concession that it had no evidence that VILLAGE THRIFT STORE 581 particular employees were selected for layoff on the basis of their union sympathies left only one critical issue, namely, what was 'the Respondent's motive for the layoff The Respondent claims that as the decision was made before the advent of the union activity, there was no unlawful motive Contrary to the Respondent's additional assertion, there is ample evidence of union animus flowing from Perera's remarks at the August 17 meeting However, I am not convinced that the preponderance of the evi- dence here demonstrates that the limited union activity which occurred on August 16 and 18 contributed to or motivated the August 20 layoff Thus, It is undisputed that after August 20 the Respondent instituted a 5-day sorting scheme and continued this reduced operation to the time of the hearing It is also undisputed that a 5-day sorting operation requires fewer employees and that the Respondent has made no effort to rebuild its work force back to the level it was at before the August 20 layoff If the level of Baltimore collections warranted the expand- ed force which the Respondent employed in the period prior to August 20, it is likely that there would be some evidence of a surplus of sorting work, overtime hours, or shifting of work to other locations The fact that there is no such evidence supports the Respondent's claim that the layoff resulted from the overstaffing of the Baltimore stores Indeed the fact that some employees were sent home early on August 19 is indicative of the Respond- ent's inability to keep its staff busy For the foregoing reasons, the fact that Raymond Stinnett's claim that his decision to return to 5-day sorting coincided with the loss of some of Purple Heart's solicitation managers and the probability that Baltimore collections would never reach that spring's expectations is undisputed is not su- prising Although it is true that the timing of the layoffs, vis-a-vis, the start of the union organizing when coupled with the evidence of luring very close to the time of the layoffs and Perera's lawful and unlawful remarks oppos- ing unionization on August 17 suffices to make the issue concerning the August 20 layoffs very close, I find that the evidence preponderates in favor of the conclusion that the August 20 layoff was economically motivated Having so concluded, I find that the August 20 layoff did not violate the Act and, accordingly, it will be rec- ommended that the allegation be dismissed E Findings and Conclusions Concerning Sadie Sutton's Discharge The complaint alleges that Sadie Sutton was dis- charged on August 21, 1982, in violation of Section 8(a)(1) and (3) of the Act The Respondent asserts that she was discharged for cause, her failure to maintain her work area in accord with Perera's explicit instructions Sutton was employed as a floor clerk at Store No 1 from September 23, 1981, until her discharge on August 21, 1982 Among other duties, the floor clerks are peri- odically required to remove unsold clothing from the racks in accord with a color-coded tag which indicates the length of time the clothing has been out for sale Such unsold clothing is sold as rag material This task is referred to as "ragging off" In May 1982, shortly after Perera was assigned to assist in the management of the Baltimore stores, he no- ticed, in the course of a visit at Store No 1, that the clerks were throwing clothing on the floor as they ragged off and that there were a large number of empty hangers on the clothing racks Perera thought that this practice contributed to a messy appearance and he ques- tioned Norma Whittington, then the assistant manager at Store No 1, as to why she had not corrected the prac- tices Whittington, who was at that time substituting for Watters while he was absent from work with an illness, complained that she had too much paper work to do to keep watch over the floor operations Perera decided to take matters into his own hands by calling a meeting im- mediately with the floor employees in order to explain the proper ragging off procedure and the need to other- wise maintain a neat, orderly appearance around the sales floor Both Whittington and Sutton recalled the meeting which Perera conducted at this time Perera claimed that he concluded the meeting by telling em- ployees that if they did not rag off in accord with his in- structions and otherwise keep their assigned areas neat, they would be terminated Whittington recalled Perera's warning but Sutton testified that she had no recollection of Perera's warning Whittington testified that she obser- vered other employees throw rag clothing on the floor and that no one had ever been terminated for that reason Sutton said there was a later instruction to keep hanger cartons out of the customer area when the store was open after a lady tripped over one It is undisputed that, during the course of the August 17 meeting, which was prompted by the Union's organiz- ing drive, Sutton queried Perera as to why she and an- other employee did not receive a paid vacation and upon being informed that she had missed the eligibility cutoff for a vacation by a mere 3 weeks Sutton then asked if she could get a raise That, too, was denied on the ground that all employees would get a raise when the store sales increased Later that same day Sutton was present with Angelina Davenport when Davenport asked Watters' permission to conduct a meeting at work about the Union When Watters denied this request by saying that if Perera caught them doing that, they would all be in the unemployment line, Sutton remarked to Daven- port that it was useless to talk to Watters because he was "a company man" Watters, for his part, acknowledged that Sutton was corrected and stated, in effect, that he intended to do what he was told to do by his superiors Perera visited Store No 1 shortly after lunchtime on Thursday, August 19 According to Perera, the ladies' department is immediately inside the entrance to the store and, as he was walking through that department, he noticed that Sutton was ragging off Perera noticed that Sutton had a large pile of clothes on the floor and an excessive number of empty hangers on a nearby rack Perera confronted Sutton and told her to stop what she was doing immediately, go to the back room, get a sack for the clothes on the floor, and clear the empty hangers from the rack Perera then proceeded to Watter's desk and instructed him to go look at the condition of Sut- ton's area After Watters had complied and returned, 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perera told Watters that he had warned employees that they would be terminated for such action and that he wanted him to terminate Sutton Watters corroborated Perera's version of what occurred in all essential re- spects Although Sutton recalled that Perera visited the store on August 19, she denied that anything untoward occurred that day More specifically Sutton denied that she ragged off differently than other employees or that she ever threw clothes on the floor Watters did not get around to complying with Perera's instruction to discharge Sutton that day and the follow- ing day, August 20, was Sutton's normal day off When Sutton reported for work on Saturday, August 21, Wat- ters intercepted her and terminated her before she started to work At that time, Watters handed Sutton a termina- tion notice dated August 20 which recited that she was being terminated for "leaving rags off on the floor and hangers on the rack" There is no evidence that Sutton denied the allegation contained in the termination notice at the time of her termination Sutton did ask why she was being discharged, and Watters told her that he was only doing what he was told to do and that if it were up to him he would not terminate her The General Counsel argues that Sutton's version of the events of August 19 should be believed and that it should be concluded that the reasons assigned for Sut- ton's discharge are, in effect, trumped-up charges de- signed to mask the Respondent's desire to terminate Sutton because it knew she supported the Union In the alternative, the General Counsel argues that, even if it is concluded that Sutton was guilty of throwing clothes on the floor and leaving hangers on the racks, the conclu- sion that Sutton was discharged because of her known union sympathies is still warranted because other em- ployees who engaged in similar conduct were never dis- charged for that reason The General Counsel's contention that the reason ad- vanced for Sutton's discharge is a pretext is rejected Be- lieving Sutton's version of the events of August 19 would require that I conclude that Perera and Watters concocted the story about the clothing on the floor and the hangers on the racks in order to justify the termina- tion of a union supporter The improbability of that being the case should be evident where, as here, the Re- spondent could have masked Sutton's termination merely by laying her off with the 12 other employees the day before In this circumstance, the fact that Respondent as- signed a different specific reason for terminating Sutton tends to lend credence to the Respondent's claim that Sutton was terminated for the cause assigned by Perera Although it is true that Sutton did speak out at the August 17 meeting and might have been identifiable as a union supporter as a consequence of her exchange with Watters later that same day, there is no evidence that Sutton stood out in terms of her union activities or that the Respondent's supervisors harbored animus toward her in particular Indeed, Watters did not deny Sutton's assertion that he stated he would not have terminated her if it were up to him Although this remark supports the conclusion that Watters personally did not believe that Sutton's conduct merited termination, neither this nor Whittington's acknowledgement that she had ob- served others throw rag clothing on the floor support the General Counsel's assertion that this rule was discri- minatorily applied in Sutton's instance It is evident that it was necessary for Perera to prod both Watters and Whittington to maintain the store in the fashion which he desired There certainly is no evidence that Perera ever turned his back on such conduct On the contrary, he appears to have paid particular attention to the main- tenance of a neat and orderly appearing store In these circumstances, it is evident that it was Perera's attitude which counted and the fact that there is no evidence that he tolerated other employees who threw rag clothing on the floor or left an excessive number of hangers on the racks precludes the conclusion that this rule was discri- minatorily enforced in Sutton's instance I find, therefore, that the General Counsel has failed to establish that Sutton was unlawfully discharged as alleged in the com- plaint and, accordingly, it will be recommended that the allegation be dismissed IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it is recommended that the Re- spondent be ordered to cease and desist therefrom and to post the notice to employees for a period of 60 consecu- tive days in order that employees may be apprised of their rights under the Act and the Respondent's obliga- tions to remedy the unfair labor practices found above CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By threatening employees that its store would be closed if the employees selected the Union, by soliciting grievances from employees in order to discourage their support for the Union, by reinstating a paid extension of the employees' lunchbreak in order to discourage their support for the Union, by withdrawing an employee's warning notice in order to encourage the employee to forego supporting the Union, by telling employees that all pay raises were frozen because the Union had filed an election petition and that any increases would suggest that it was bribing the employees not to support the Union, and, by announcing to the employees that raises would be given after the NLRB election was postponed idenfinitely, the Respondent has interefered with, re- strained, and coerced its employees in the exercise of the VILLAGE THRIFT STORE 583 rights guaranteed to them in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 Respondent did not engage in the other unfair labor practices alleged in the complaint dated January 24, 1983 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, Veteran's Thrift Stores, Inc d/b/a Village Thrift Stores, Baltimore, Maryland, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening employees that its store will be closed if they select United Food and Commercial Workers Union, Local 27 to represent them (b) Soliciting grievances from employees in order to discourage support for United Food and Commercial Workers Union, Local 27 (c) Granting benefits to employees or voiding warning notices in order to discourage support for United Food and Commercial Workers Union, Local 27 (d) Advising employees in the manner or by any means that wages were frozen because United Food and 1 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 The General Counsel's unopposed motion to correct the record is granted and made a part of the record exhibits as G C Exh 9 Any out- standing motions inconsistent with this recommended Order are denied Commercial Workers Union, Local 27 had filed a peti- tion under Section 9 of the Act seeking to represent em- ployees (e) Advising employees that pay increases could be granted in circumstances which imply that it was be- cause an election under Section 9 of the Act was no longer scheduled (f) In any like or related manner interfering with, re- straining, or coercing employees because they choose to engage in activities on behalf of the Union 2 Take the following affirmative action in order to ef- fectuate the policies of the Act (a) Post at its Baltimore, Maryland stores, copies of the attached notice marked "Appendix " 8 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive 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 (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that those allegations of the complaint which the General Counsel failed to prove are dismissed 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 Na tional Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board"