A & E Stores, Inc.

A & E STORES 737 A & E Stores, Inc. and Curtis Parker and Virginia Johnson and Rafael Palacio and David Seaton. Cases 2-CA-19071-1, 2-CA-19071-2, 2-CA- 19071-3, 2-CA-19122 11 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 25 August 1983 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent and the General Counsel filed ex- ceptions, supporting briefs, and answering briefs. 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,' and conclusions, except as modified herein, 2 and to adopt the recommended Order as modified. The complaint alleged in part that the Respond- ent, by Robert Maddux and acting through David Seaton, threatened its employees with discharge be- cause they voted for the Union and thereby violat- ed Section 8(a)(1) of the Act. At all relevant times Maddux was the Respondent's general director of warehouse and distribution and Seaton was a ware- house supervisor. Seaton testified that on several occasions Maddux made statements to Seaton that ' The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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 We correct the following inadvertent errors of the judge which are in- sufficient to affect our decision In sec I he refers to the American Li- thographers Association rather than to Local 240, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in sec II,E he refers to Seaton's salary as $3 75 an hour rather than as $375 per week, in sec II,E,2, in chronicling the events surrounding Curtis Parker's discharge, the judge states that Parker did not explain where he got the information that a shipment was not ready to be loaded on a delivery truck To the contrary, Parker testified that prior to going to the loading dock area he spoke with a clerk at a second floor shipping desk and was told that the shipment was not ready and would not be loaded on the truck This fact bolsters the judge's decision concerning Parker's discharge, which we adopt 2 We agree with the judge that the Respondent violated Sec 8(a)(1) by discharging Supervisor David Seaton because of his testimony before the Board in an earlier proceeding We find It unnecessary to pass on wheth- er the discharge also violates Sec 8(a)(4) In sec II,C of his decision, the judge dismissed an allegation that the Respondent unlawfully Imposed a rule prohibiting union talk and activity In adopting this dismissal, we rely solely on the credited testimony that the Respondent's restriction was limited to a verbal admonition to an em- ployee to refrain from talking while he should have been working We do not rely on the cases cited by the judge, which Include T R W Bear- ings, 257 NLRB 442 (1981) See Our Way, Inc , 268 NLRB 394 (1983), where TRW was overruled (Member Zimmerman dissenting in relevant part ) he would fire everyone working on the Respond- ent's second floor in order to solve "this problem," a clear reference to the ongoing union organiza- tional campaign. Seaton testified that on 30 April 1982 at a meeting in a bar attended by Seaton and several second floor employees Seaton repeated Maddux's remark and also warned the employees to be careful. The judge found that Seaton conveyed Maddux's remark to the employees on his own volition with- out any authorization from Maddux. On this basis the judge concluded that the allegation of a threat by Maddux was not proved. The General Counsel has excepted to this conclusion. We find that the Respondent violated Section 8(a)(1) by Seaton's remark. There is no doubt that Seaton made the statement attributed to Maddux. As noted above Seaton was a supervisor and, while he may not have intended to threaten the employ- ees, his report that Maddux had made a clearly hostile threat reasonably tends to interfere with employee rights. Accordingly, we find these re- marks violative of Section 8(a)(1) of the Act. Contrary to our dissenting colleague, we find that, with the exception of the violations found by the judge, the Respondent did not unlawfully inter- rogate or engage in unlawful surveillance of its em- ployees.3 As set forth by the judge the Respondent devel- oped a system by which its supervisors, through questions and answers, communicated to employees the Respondent's position on the ongoing organiz- ing campaign. Absent a threat of reprisal or force or promise of a benefit, such communications are lawful pursuant to Section 8(c) of the Act. We agree with the judge that neither the specific com- munications nor the cumulative circumstances con- tain such threats or promises. We further find that the inquiries to employees regarding their reaction to the Respondent's campaign literature in these circumstances do not reasonably tend to restrain or interfere with employees' Section 7 rights. See Rossmore House, 269 NLRB 1176 (1984). Accord- ingly we find that the questioning is noncoercive and lawful. We also agree with the judge that the Respond- ent did not engage in unlawful surveillance of its employees. An attempt to learn of employees' union sentiments, as well as the formulation of an opinion concerning individuals' union sentiments, is not unlawful per se. 4 We agree with the judge that the technique employed by the Respondent was 3 In adopting the judge's dismissals we do not rely on the cases cited by the judge 4 See Tipton Electric Go, 242 NLRB 202 (1979) 272 NLRB No. 113 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not coercive Consequently despite the nature of the information learned the Respondent has not violated 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 A & E Stores Inc New York New York its officers agents successors and assigns shall take the action set forth in the Order as modi fled 1 Add the following as paragraph 1(a) and relet ter the subsequent paragraphs accordingly (a) Threatening to discharge employees who support Local 240 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America or any other labor organization 2 Substitute the attached notice for that of the administrative law judge MEMBER ZIMMERMAN dissenting in part Unlike my colleagues I would find that the Re spondent also violated Section 8(a)(1) of the Act through unlawful surveillance and unlawful inter rogations' The Respondent as found by the ad ministrative law judge engaged in a program of distnbuting literature explaining why employees should not join the Union and calling employees in for discussions about the literature on a regular basis Thus Supervisor Seaton testified that he spoke to everyone under his supervision on the second and fifth floors and reported back to higher management the information he acquired and any change he thought he detected in the way individ ual employees were going to vote Employees were questioned on a daily basis frequently in the supervisor s office The Respondent s supervisors were encouraged to try to remember as much as possible of their conversations with the employees and it was even suggested that they write the con versations down word for word if possible so that upper management might ascertain how em ployees were going to vote My colleagues in agreement with the judge conclude that the Respondent s approach to gather ing information about its employees voting senti ments did not constitute unlawful surveillance be I In all other respects I join my colleagues in disposing of the issues in this case cause it was not coercive They likewise conclude that the Respondent did not thereby engage in un lawful interrogation even though the judge specifi cally found that supervisors of the Respondent so licited the opinions of employees regarding the lit erature and with respect to at least one employee then pressed her to answer why she thought em ployees would vote for the union Given the over all circumstances of this election campaign includ ing the Respondent s unlawful discharge of a prounion employee its threats of business closure and its placement of individuals in the bargaining unit to spy and report back to management about union activities I cannot agree that the Respond ent s tactic of having its supervisors attempt to learn each individual s union sentiments was non coercive 2 The Board is continually confronted with cases involving unlawful discrimination against employ ees where the prelude to the discrimination was the employer s systematic attempt to investigate the sympathies of its employees The Board has previ ously found that there is a danger inherent in such conduct a tendency toward interference with the exercise by employees of their organizational rights In Cannon Electric Co 151 NLRB 1465 (1965) in considering an employer s similar at tempts to have supervisors learn of employee sym pathies the Board noted that this tendency to interfere with protected rights is not balanced to any extent by legitimate employer interests for in structions to supervisors to ascertain the names of union adherents constitute an attempt to obtain the kind of information which can be used by the em ployer for no purpose other than to interfere with the employees right to self organization 3 I adhere to this view and find that the Respondent s tactic of having its supervisors systematically and repeat edly attempt to elicit employee union views imper missibly interferes with and coerces employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act See generally my dissenting opinion in Rossmore House 269 NLRB 1176 (1984) My colleagues finding that the Respondent s commumca tions with the employees were lawful because they contained neither threats of reprisal nor promises of benefits Ignores the Respondent s other unlawful conduct and the Impact such conduct has on employees That no specific threat may have accompanied the supervisor s questioning of employees therefore does not end the inquiry Into the coercive nature of these interrogations 3 Cannon Electric Co supra at 1468 and cases cited therein Indeed the evidence would indicate that this is precisely how the information was used by the Respondent A & E STORES 739 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT threaten to discharge employees who support Local 240 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America or any other labor organiza tion WE WILL NOT discharge employees for activities in support of Local 240 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America or any other labor organiza tion WE WILL NOT discharge witnesses because they give testimony at hearings before the National Labor Relations Board or because of the manner in which they so testify WE WILL NOT threaten employees that A & E Stores Inc may go out of business if Local 240 International Brotherhood of Teamsters Chauf feurs Warehousemen and Helpers of America or any other labor organization became the bargain ing representative of our employees WE WILL NOT engage in surveillance of any ac tivities in which employees are engaged which are protected by Section 7 of the Act or say or do anything which would convey the impression to our employees that any such activities are subject to surveillance WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer David Seaton and Curtis Parker immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantial ly equivalent positions without prejudice to their seniority or any other rights or privileges previous ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings plus interest WE WILL expunge from our files any references to the discharges of David Seaton and Curtis Parker on 18 June 1982 and 18 August 1982 re spectively and notify them in writing that this has been done and that evidence of their unlawful dis charge will not be used as a basis for future person nel actions against them A & E STORES INC DECISION STATEMENT OF THE CASE HAROLD B LAWRENCE Administrative Law Judge These proceedings were heard at New York New York on February 28 and March 1 and 2 1983 As finally consolidated and amended the various corn plaints allege four discriminatory discharges and unfair labor practices in the nature of threats surveillance im position of onerous working conditions and interroga tons committed by A & E Stores Inc the Respondent in violation of the National Labor Relations Act (the Act)' The Respondent s answer denies all allegations of wrongdoing and statutory violation but concedes juns diction of the National Labor Relations Board in this case The parties were afforded full opportunity to be heard to call examine and cross examine witnesses and to in troduce relevant evidence Postheanng briefs have been filed on behalf of the General Counsel and on behalf of the Respondent On the entire record and based on my observation of the demeanor of the witnesses and the manner in which they gave their testimony and after consideration of the briefs submitted I make the following FINDINGS OF FACT I JURISDICTION The Respondent s answers having admitted allegations pertaining thereto there is no issue as to the Board s ju nsdiction and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 1 of the American Li ' The charges in Cases 2 CA-19071-1 and 2 CA 19071-2 were filed on August 20 1982 and the charge in Case 2-CA-19071-3 was filed on August 25 1982 they were consolidated pursuant to an order consolidat mg cases consolidated complaint and notice of hearing dated October 21 1982 Thereafter on October 29 1982 the complaint and notice of hear mg was issued in Case 2-CA-19122 which was consolidated with the other cases by order further consolidating cases in Cases 2-CA-19071-1 2-CA-19071-2 2-CA-19071-3 and 2-CA-19122 dated November 12 1982 An amended complaint and notice of hearing in Case 2-CA-19122 was issued on February 18 1983 A notice of intention to amend the complaint in Cases 2-CA-19071-1 2-CA-19071-2 2-CA-19071-3 was issued on February 23 1983 During the course of the hearing pursuant to the notice of intention to amend as well as independently thereof the General Counsel made several motions to amend the complaint which were granted 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thographers Association (the Union) is a labor organiza tion within the meaning of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES ALLEGED VIOLATIONS OTHER THAN DISCRIMINATORY DISCHARGE A Surveillance of Employees Activities by Respondent The Union began its organizational campaign in De cember 1981 or January 1982 A Stipulation for Certifi cation Upon Consent Election was entered into on Feb ruary 5 2 the election in a unit of warehouse employees was scheduled for and held on March 18 and a hearing on challenges and objections to the election was held on April 29 and 30 It is alleged that during the campaign the Respondent violated Section 8(a)(1) of the Act by engaging in sur veillance during the period from February 20 through March 1982 The instruments of this surveillance are al leged to have been Robert Maddux Jose °sari° David Seaton John Klein and David Zeitouni Robert Maddux was and is Respondent s general three tor of warehouse and distribution David Seaton was a warehouse supervisor Osano was a supervisor in charge of the loading area on the street level Klein and Zei touni were employees who came into the Respondent s employ under conditions that the General Counsel claims were suspicious A & E Stores Inc is a service company for a chain of separately incorporated stores in the women s retail ap parel business (apparel shoes bags and jewelry) It has executive offices and a warehouse at 110 Fifth Avenue New York City There is another warehouse in Brooklyn at a subsidiary known as Palomar which is an importer of women s apparel The services which A & E provides for Palomar include payroll and personnel services The Respondent introduced some evidence at the hearing to the effect that there is a certain amount of transfer of employees back and forth between A & E and Palomer in connection with Rafael Palacio s case involving one of the alleged discriminatory discharges 1 Klein and Zeitouni It is claimed that employees named John Klein and David Zeitouni attended union meetings and reported back to management Rafael Palacio places them at sev eral meetings held off the premises which were attended by personnel from the second and fifth floors including Curtis Parker and Virginia Johnson whose discharges are alleged to have resulted from their support of the Union Virginia Johnson also confirmed Klein s presence at a meeting of all second floor personnel which was held in the lunchroom at which union benefits were dis cussed She also placed Seaton at several meetings Klein and Zeitouni were men whom Maddux assigned to work in the warehouse under David Seaton though Seaton testified that he had no need for them There were daily meetings of top management for the purpose of receiving and assessing information about the 2 All dates are in 1982 except as otherwise indicated union campaign and the attitude of the employees For the most part the meetings involved Alan Ades the president Albert Erani the vice president Maddux Osano and Seaton and often the Respondent s labor counsel was present There was a fairly steady parade of certain personnel into Ades and Erani s offices with in formation Seaton testified that Maddux told him that Klein and Zeitouni had been sent to attend a union meeting for the specific purpose of reporting back on the meeting and that he Maddux had sent two other employees (Peralta and Metzger) to the same meeting for the same purpose At one of the sessions in Ades office discrepancies be tween the reports relating to which employees attended the meeting were analyzed and discussed Ades denied having asked Klein Zeitouni or any other employee to attend union meetings or to report back to him on union meetings or activities He insisted that employees came in to see him and reported to him on such matters without having been asked to do so He played down the significance of the information which he obtained in this manner but conceded that in sepa rate meetings with Klein and Zeitoum he learned who attended the meetings when they took place who spoke up what the Union was telling the employees and how the employees were responding to the Union The fact that Palacio intended to vote for the Union was learned in this manner He conceded receiving reports on at least two meetings in sessions attended by company counsel Ades professed to be unable to recall whether Klein and Zeitouni also reported to him about conversations heard around the shop or whether they reported which em ployees seemed to be more in favor of the Union than others He also professed not to know how Zeitouni who is no longer with the Company came to be hired According to Ades they listened to what the inform ants told them but carefully refrained from asking any questions having been so instructed by counsel I find this incredible especially when Ades also was able to testify We did have serious questions about the accura cy of some of the information and whether some people who might have been reporting were actually doing it for reasons that were perhaps even union moti vated Questioned about how these meetings came about Ades testified that Klein and Zeitouni would either ask to see me or Bob Maddux would come to me and say such and such person would like to discuss something with you about the Union He could not recall in each instance how the meeting came about but conceded that employees did not normally discuss union affairs with the president of the Company When he was pressed about the strangeness of such meetings he specu lated that Maddux had suggested to employees with in formation that they talk to Ades about it He claimed not to know for sure Erani s testimony was substantially to the same effect No one was asked to report on union meetings or activi ties the initiative was strictly on the part of the inform ants According to Erani Klein and Zeitouni made only one report on these matters and that occurred because they asked Maddux to arrange the meeting so they could A & E STORES 741 report on a meeting which they had attended the previ ous evening Erani insisted that he did not ask them any questions about the meeting it poured out of them unso hefted Though Erani at first denied having said anything at all to Klein and Zeitoum he modified this to an assertion that while he could not recall the conversation with them he knew that legally he had the right to listen and ask questions that were not inquisitive and he tried to conduct himself in that manner He was unable to comply with my request for an example of a noninquisi tive question but suggested that such a question might relate to inquiries to the informant as to whether they were paraphrasing statements of other persons or repeat ing them verbatim Besides conceding that he asked noninquisitive ques lions Erani conceded that the reason Klein and Zeitouni came to see him was that during the campaign with the advice of counsel Ades and Erani had let it be known that anybody who wanted to talk to management would find an open door This was not because management was pursuing its right to keep informed regarding the union campaign so that it could wage its own campaign Erani insisted that they let their availability be known because they were conducting a campaign and people might have legitimate questions which they could answer Ades and Erani would be at their service Eram made no attempt to explain why since he had not asked Maddux to have people with information about union ac twines report to him they insisted on doing so or why they came with information instead of questions Klein and Zeitoum were not the only people who came to him the two employees recruited by Maddux also reported to Erani During the course of the campaign between five and seven warehouse employees spoke to him and on advice of counsel his door was always open and he always listened He did not have to repeat what he heard to Ades because somehow Ades always seemed to be present too It was Erani s guess that these inroads on the time of the two top officers of the Company came about be cause if Maddux informed him that somebody wanted to seen him he would let Maddux know that that was all right It was unclear why Erani had to speculate about how the meetings came about when he was testifying at the same time that they were not a departure from past practice according to which his door was always open to people with problems who could not get satisfaction from Maddux In the course of the hearing four informants were identified by name Klein Zeitouni Peralta and Metzger Zeitouni was stated to be no longer employed Peralta and Metzger were not produced at the hearing Of the four only Klein testified and it must be observed that if anyone could have been reasonably expected to volunteer information on his own initiative this was the individual Klein was the son of an architect who had designed several of the A & E Stores Ades first testified that he did not know how Klein came to be hired he later testi fled that Klein s father requested that he be given a job Whereas Ades and Erani estimated the business rela tionship with Klein s father as having been of 6 or 7 years duration Klein thought it had been 10 to 12 years His father is an independent contractor but his son esti mated that percentagewise he spent maybe 10 percent of his time on A & E business Klein has worked both at the warehouse and in a store and has been employed on and off by the Respondent for several years He is pres ently the manager of one of the Respondent s stores in New Jersey having previously worked as a shoe sales man shoe department manager and assistant manager positions in which according to the Respondent s per sonnel director he would have had disciplinary authority over personnel There had been a hiatus in his employ ment at A & E but he returned in December 1981 He worked at the warehouse loading merchandise on the trucks from January to June 1982 doing work similar to that being performed by Curtis Parker Under these circumstances I find that Klein did not have supervisory authority during the critical period from February 20 through March but did have the status of an agent of the Respondent He brought back information for Eram and Ades pursuant to what was admittedly an intensive program of maintaining contact with employees for the purpose of ascertaining the manner in which they intended to vote in the impending election From this evidence which is discussed at length below I infer that he did so with the express or tacit understanding that they were seeking the mforma tion which he sought to deliver He made the reports to them because he knew they wanted the information His relationship with them was something more than that of an ordinary employee I conclude that Klein acted as an agent of the Respondent in obtaining information regard ing employees voting preferences and attitudes toward the Union and transmitting such information to Ades Erani and Maddux He testified that he attended a pree lection union meeting at the Prince George Hotel be cause somebody from the Union handed him a photo copy of a notice of the meeting on the sidewalk where they were loading the trucks He went there alone He denied having made any list of those who attended the meeting or notes about what went on in the meeting and denied having been told by any officials of the Company to go to the meeting or to attend union meetings in gen eral or to report back to them about what went on at any union meetings Nevertheless he made frequent re ports to Ades and Erani and occasionally to Maddux He testified I would approach either Bob [Maddux] or David [Seaton] and tell them that I d like to speak to you know " one of the bosses He informed them what the union representative spoke about what the sales pitch for the Union was who was there and who spoke up He testified that he advised them of these matters without having been requested to do so because they were running a campaign and he felt that this was pert' nent information He supported the company in the cam paign He also advised Ades and Erani about what people said to him what was going on what employees indicated to me about the company He could not re member specifically whom he mentioned except that he 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recalled advising Seaton that Rafael Palacio was prob ably prounion and advising either Seaton or Maddux that Curtis Parker and Virginia Johnson were prounion According to Klein Ades and Eram never responded to him They just sat back and did not speak or question him The conversations according to Klein were very short so there was no response by Eram or Ades what soever Klein thus presents a picture of walking in giving a report and neither requiring nor receiving any response—strictly a one way street Klein testified that in similar conversations which he had with Seaton and Maddux they did not say anything either These were quick conferences in which the parties usually remained standing Klein was not even sure whether anybody ever bothered to thank him for his trouble There is no evidence at all to indicate supervisory status at any time on the part of Zeitouni but like Klein he diligently relayed to Ades and Erani information re gardmg employees voting preferences and attitudes toward the Union His period of employment coincides with the union campaign For the same reasons that ex isted in Klein s case (other than the special relationship) I find that he sought information and reported back as the Respondent s agent It also should not be overlooked that even if Klein and Zeitouni originally volunteered the information on their own initiative possibly merely for the purpose of curry mg favor with the Respondent the eagerness with which Ades and Erani accepted it and encouraged Klein Zei Winn and other employees to obtain and transmit it sug gests their ratification of the practice whereby as a prac tical matter these employees became their agents for that purpose The contradictions in the testimony of Ades and Erani and their evasiveness combined with their studied adher ence to the letter of the law as expounded to them by their attorney considerably undermine the credibility of their denials of surveillance Their assiduously advertised open door policy and encouragement of reports com bined with the tenure at the warehouse of a reliable in formant like Klein who either was told at the outset what was needed or did not have to be told and which began with the union organizational campaign and ended shortly thereafter convince me that an active process of surveillance was conducted by requests to employees like Klein Zeitouni Peralta and Metzger (at least) that they report union activity 2 Maddux Palacio testified that on several occasions Maddux standing in the doorway of one of the Respondent s stores saw him talking to union people before the start of the workday and at lunchtime It was Palacio s im pression that prior to January 1982 he did not see Maddux standing there so frequently He believed Maddux was there more often after the start of the union campaign Virginia Johnson also testified that Maddux observed her conversations with the union representatives in front of the building on two or three occasions when she got off from work He happened to come out at the time that she was talking to them and looked over and saw them Unlike Palacio however she readily conceded that she had seen Maddux standing in the lobby at the hour she finished work on numerous occasions prior to the beginning of the union campaign Her testimony leaves the clear implication that his presence did not appear to her to be deliberate The General Counsel and the Respondent in their posthearing briefs debate the right of union representa tives and employees to limit the employer s observation of their activities when they conduct them on the em ployer s premises Unquestionably in such circumstances they can anticipate observation and have no cause to complain 3 This is especially so when the supposed sur veillance turns out to be no more than brief inspection by [the employer] of open union activity in front of its property 4 However that is not the real issue The issue is whether such observation by the employer is designed to coerce employees in the exercise of their rights 5 If that is the case and sudden frequency of observa tion would certainly support an inference that it was in tentional then the mere fact that it occurred in a public place would not excuse it 6 Johnson s testimony pre eludes a finding that Maddux s observations increased after the start of the union campaign There is also lack ing any evidence of effort by the Respondent to ensure that employees were aware that they were under obser vation without which awareness the observation could have no coercive effect 7 Deliberateness and coercion are not proved by a pre ponderance of the evidence I accordingly find that Mad dux s appearances at the entrance to the Respondent s premises did not constitute surveillance 3 Supervisors reports David Seaton Jose Osario and Robert Maddux clear ly had supervisory status Robert Maddux is the general director of warehouse and distribution responsible for all A & E merchandise at 110 Fifth Avenue His testimony in connection with Palacio makes it clear that his respon sibility extended to merchandise at other locations as well His duties included hiring people to fill positions as needed keeping his supervisors informed about events such as seasonal changes or buildup of work and in gen eral instructing and following up on all aspects of the movement of goods through A & E at 110 Fifth Avenue Jose Osario reports to him His disciplinary authority is amply established by the evidence adduced during the course of the hearing David Seaton was hired on April 27 1981 as a ware house supervisor His duties consisted of supervising the second floor warehouse area which received merchan 2 Porta Systems Corp 238 NLRB 192 (1978) affd 625 F 2d 399 (2d Cif 1980) Pa/by Lingerie 252 NLRB 176 (1980) 5 Badische Corp 254 NLRB 1195 (1981) 6 Scotts Wood Products 242 NLRB 1193 1196 (1979) 7 Compare Zero Corp 262 NLRB 495 (1982) enfd mem 705 F 2d 439 (1st Cir 1983) (casually observing an employee s car outside union meet mg may not be surveillance but there was nothing coincidental about him telling [the employee] that he saw her car By so doing he mistaken ly conveyed the impression that Corbin s union activities were under sur veillance and this violated Section 8(a)(1) A & E STORES 743 dise and processes it for distribution to the various stores and the fifth floor transfer area Seaton s status is also shown by the differential be tween his salary and that of the employees who worked under his supervision At the time he left he had the title of assistant warehouse manager and was earning a weekly salary of $375 and supervising employees who were earning $2 35 to $5 per hour He also according to their testimony critiqued or commented on the work of Rafael Palacio and Curtis Parker Jose Osano had charge of the loading area a street level loading area connected by elevator to the second floor of the warehouse and disciplinary authority over the men who loaded the trucks Maddux testified that he fired Parker for conduct which if it went unpunished would have undermined that authority At the outset of his testimony Jose Osano identified himself as supervisor of the warehouse and testified that he normally worked on the first floor and expressly identified himself as a su pervisor overseeing employees loading and unloading trucks and giving them orders and instructions During the testimony of Robert Maddux counsel for the Re spondent expressly referred to Osano as a supervisor 8 Virginia Johnson testified that during the period from January through March 18 she was called into Maddux s office on a daily basis for discussions about the Union This was part of a program by the Respondent in which Osano regularly distributed literature explaining why employees should not join the Union and called the em ployees in for discussions about the literature Seaton tes tified that the objective was to see if they could deter mine exactly how the employees were going to vote In compliance with instructions from management and their counsel Seaton spoke to everyone under his supervision on the second and fifth floors and reported back to Ades whatever information he acquired and any change which he thought he detected in the way certain employees were going to vote He was questioned by Ades and Erani on all these matters in daily meetings between the supervisors and top management in Ades office some times only with Ades Eram and Seaton and sometimes also with Maddux and °sari° Sometimes they were joined by the Respondent s attorney Before the cam paign Seaton had never been inside Ades office After the start of the union campaign Ades called Seaton in to find out what the employees feelings were about the Union and whether he had any knowledge about union activity The purpose of the meetings was to discuss union activity as it pertained to the various em ployees and to plot the Company s campaign strategy The supervisors were encouraged to try to remember as much as possible of their conversations with the employ ees and It was even suggested that they write the con versations down word for word if possible so that Ades and Erarn could ascertain how the employees were going to vote According to Seaton he was frequently pressed by them for information as to how he thought Rafael Palacio and Virginia Johnson were going to vote and for his opinion as to who was responsible for the Union coming in Prior to March 18 Seaton informed Maddux and then Erani Ades and their attorney that Palacio had told him that he was going to vote in favor of the Union He was asked if he thought Virginia John son would be a problem and he expressed his belief that she was in favor of the Union His opinion was backed up by Maddux and Osario who reported that they had heard the same thing The consensus was that she was a strong union supporter A consensus also developed that Curtis Parker was the ringleader and responsible for the Union being there When Seaton expressed the opinion that Parker was not the person responsible he was pressed for his opinion as to who was Seaton quoted Erani as saying during one of the meetings that he would like to fire Parker and quoted Ades as pointing out that Parker was an excellent worker Seaton accused Maddux of spying on him as well as selling that Maddux had asked an employee why Seaton was walking to the subway with certain other employ ees Seaton s testimony respecting this alleged surveillance did not go unchallenged Seaton s motives for his testi mony were impugned by Alan Ades who testified that Seaton threatened that Ades would be sorry for firing him An employer s solicitation of information from em ployees may constitute surveillance9 but I do not believe that the Respondent s conferences with its supervisors is such a case The first thing to be noted about Seaton s testimony is that it does not clearly establish whether Ades and Erani were seeking information about how employees were ex pected to vote for purposes of estimating the ultimate tally of ballots and assessing their current strength during the campaign or whether they were closely monitoring the activities of particular employees The latter conclu sion cannot be drawn simply from occasional inquiries about particular employees without something more in the nature of proof of a followup or plans to utilize the information to coerce the particular employee In the case of Palacio for example the leap from inquiry to his ultimate transfer to Brooklyn is too great to permit the distance to be bridged automatically by an inference of unlawful motive Moreover Seaton s testimony must be considered in the light of the great hostility which exist ed between him and the top management at the time of the hearing That hostility also makes more important Seaton s tes timony that he was instructed by company counsel that it was unlawful to make threats to employees to influ ence their vote in the election to engage in surveillance of employees and to ask them directly how they were going to vote or what their feelings were about the Union—and that he adhered to the instructions of the at torney and refrained from committing any of the acts listed by the attorney Maddux testified to the same effect with reference to his own activities In spite of Seaton s testimony that Maddux had confid ed to him that he had sent employees (Peralta and 8 Tr 522 9 Scott s Wood Products 242 NLRB 1193 1197 (1979) 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metzger) to observe union meetings and report back Maddux denied that he had ever asked any employees to go to union meetings or report to him on union meetings or other activities He denied ever asking employees how they were going to vote or how they felt about the Union He pointed out that he had been instructed not to commit such acts Maddux readily conceded that he had attended frequent meetings with other management people during the period from January to March 1982 at which the Respondent s campaign against the Union was discussed He also conceded that they were interested in finding out whether the employees were for or against the Union but he insisted that they wanted to do it with out asking the employees directly Employees would be invited to come in and sit down and talk and any ques nons which they had would be answered in the hope that people who were leaning toward the Union could be dissuaded The precise effect of their activities in terms of culpa bility under the Act tends to be unclear because in their reports to Ades and Erani Seaton and Maddux admitted ly made statements relaying information of the type nor mally obtained by unlawful surveillance Their reports included information respecting the manner in which particular employees were expected to vote and the extent to which particular employees were involved in activities in support of the Union " That is not howev er proof that that information actually was obtained by means of unlawful surveillance or that unlawful surveil lance had been committed The issue is whether the Re spondent followed a policy of deliberately placing em ployees activities under observation in a manner that could be deemed coercive Noncoercive information gathering by supervisors is not unlawful 11 Information gathering in order to supervise effectively is legal even if it involves tentative tabulations of expected votes by employees names 12 Soliciting information in a non coercive manner especially if only a single incident is in volved about what transpired at a union meeting or about the size of the employee turnout for the meeting is ° It is to be noted that Seaton s investigation and reports do not relate to the general voting blocks but the specific employee s votes which constitutes concerted protected activity Having supervisors or employ ees report on other employees union activities constitutes surveillance The activity is strikingly similar to that described in B L K Steel Inc 245 NLRB 1347 1352 (1979) (b) Hermann s surveillance of Campbell s union activity and the union activity of other employees through Pam Martin I find with out ment Respondent s contention that Martin s conduct was volun tary and therefore not attributable to Respondent The record is clear that Hermann encouraged Martin to call shim and inform him of the employees union activity He would ask her What s happen mg? or What s going on? He interrogated her as to how she thought the election would go with particular reference to Camp bell a swing voter He was pleased with her surveillance of union activity and told her with respect to persuading Campbell to vote against the Union to keep working on him or at a minimum that she had her work cut out for her See also Academy of Art College 241 NLRB 454 462 (1979) affd 620 F 2d 720 (9th Or 1980) and Belcher Towing Co 238 NLRB 446 (1978) modified 614 F 2d 88 (5th Or 1980) (supervisory employees told to make reports to management) 1 Didde Glaser Inc 233 NLRB 765 (1977) Tipton Electric Co 242 NLRB 202 (1979) affd 621 F 2d 890 (8th Cir 1980) i2 Didde Glaser Inc 233 NLRB 765 769 fn 8 (1977) not interrogation in violation of the Act" and taking steps to get it in a noncoercive manner would not consti tute surveillance Seaton s testimony establishes that the instructions given to the supervisors by Ades Erani and company counsel precluded use of means to get information which would have constituted unlawful surveillance Seaton ex pressly testified that he carefully adhered to those in structions In view of his lack of sympathy for the Re spondent s cause I am convinced that he refrained from surveillance if he says he did Maddux similarly testified that he obeyed instructions of company counsel and an inference that he violated those instructions may not be drawn simply and solely from his lack of sympathy for the union cause There is no preponderance of evidence establishing that he committed unlawful interrogation or surveillance in his meetings with employees On the con trary Virginia Johnson s testimony would appear to ex onerate him completely Accordingly I find that unlawful surveillance by means of interviews with employees has not been estab lished B Interrogation of Employees by Maddux and Seaton During the Period February 20-March 1982 The series of conferences which Maddux and Seaton held with the employees under their supervision during the course of the campaign gave rise not only to the al legations of surveillance but to an allegation that during the period from February 20 through March they unlaw fully interrogated employees about their union activities and sympathies The procedure which they followed during the conferences was described by Virginia John son who worked in the warehouse area on the second floor She testified that during this period she had daily conversations with either Seaton or Maddux at their in vitation in which they showed her literature relating to the union campaign and the rebuttal by the Respondent and asked her if she had any questions about the contents of this material At the hearing she produced several pieces of such literature and testified that there had been many others which she had not retained She would be asked to read it carefully and express her opinion of it She testified at first that these sessions were on a daily basis but later testified that she was called into Seaton s office two or three times a week Seaton and Maddux followed the same procedure with a number of other em ployees Seaton testified that he Maddux and Osano were each assigned to cover specific groups of employees Their function was to distribute literature explaining why the employees should not join the Union and discuss it with the employees Seaton testified that on some days he just distributed the literature on other days he also spoke to the employees Curtis Parker Virginia Johnson and Rafael Palacio among others were spoken to on al ternate occasions by(Seaton Maddux and Osano 3 Arvin Industries 226 NLRB 925 (1976) Times Publishing Co 231 NLRB 207 212 (1977) modified 576 F 2d 1107 (5th Cir 1978) Both cases stress the nature of the conversation as a single incident standing alone in the total context of circumstances A & E STORES 745 Virginia Johnson testified that immediately prior to the election Maddux asked her how she thought people on the second floor were going to vote and pressed her for an estimate when she declined to express an opinion When she then indicated her opinion that the people on the second floor, would vote for the Union he asked her if she really thought so and why they were going to vote for the Union She explained that the Union was felt to be offering more benefits and he responded with a dis sertation on the benefits offered by the Respondent and the various ways in which the Respondent had attempt ed to assist employees such as by making loans Nothing in Johnson s testimony reveals any improper interrogation on Maddux s part The requisite element of coercion is altogether lacking Johnson testified that she felt comfortable during the meetings Though she assert ed that she felt harassed her testimony makes it clear that she used that term in the sense of being annoyed and that the annoyance resulted from the receipt of let ters on an almost daily basis presenting the Respond ent s point of view In response to a question from me she testified that her reference to harassment was not to the fact that Maddux approached her but to the con stant receipt of the letters She was annoyed at mem ing the letters and that annoyance was the general reac tion among the employees She expressly stated in re sponse to a question that she did not feel intimidated However I take this into consideration as only one factor among many inasmuch as the measure of coer civeness is whether conduct tends to interfere with the free exercise of employee rights rather than whether em ployees were actually intimidated 14 Maddux flatly denied that he had ever asked employ ees how they were going to vote in the election or quer ied them about how they thought other employees would vote or how they felt about the Union He also denied having had daily conversations with Virginia Johnson in his office His denials gain considerable sup port from Seaton s testimony that he Seaton adhered to the instruction given to him at the beginning of the cam paign not to ask any questions of employees concerning their feelings about the Union or how they would vote He testified that he confined himself to asking them whether they had questions about the literature he gave them and if a conversation developed on that basis he would pursue it but never asked their opinions about the Union I find it necessary to discredit Johnson s testimony and credit that of Seaton and Maddux Johnson s testimony was characterized by repetition of set pieces of testimo ny often unresponsive to the actual questions put to her Her testimony appeared to be rehearsed rather than free and extemporaneous When asked what she told Seaton after reading the literature she responded that she had read the literature when asked if Maddux had ever called her into his office prior to the campaign to discuss nonunion matters she responded that he asked her for her opinion on how the people on the second floor were going to vote she repeated that same answer when asked 14 Gossen Co 254 NLRB 339 347 (1981) and cases therein cited McIndustries Inc 224 NLRB 1298 (1976) what she had replied to Maddux s comment that the Company had lent money to the employees In certain respects her testimony was self contradictory It also contradicted statements made by her in an affidavit fur nished to a Board investigator in which she stated that prior to March 18 no supervisor or management person except Seaton had ever said anything to her about the Union I do not credit her explanation for this gross dis crepancy which was to the effect that when she made the affidavit she felt uncomfortable and rushed by the in vestigator that she had recalled the other matters to which she testified after she got home but did not appre elate their importance to the case until it was explained by the General Counsel She could not explain satisfacto rily why she felt rushed I note further that in her testi mony she remembered her conversations on a daily basis with Seaton but could not recall the conversations which she supposedly had had with Maddux No such problems exist with respect to the testimony of Seaton and Maddux on this issue and Seaton s reli ability to the testimony of Seaton and Maddux especial ly in view of Seaton s unfriendliness to the Respondent I find that Maddux and Seaton did not put questions to Johnson which sought directly to elicit information as to how employees would vote but they did solicit the opm ions of the employees regarding the literature for and against the Union and Maddux unquestionably pressed Johnson for her opinion as to why she thought they would vote for the Union In Ohmtte Mfg Co 217 NLRB 435 (1975) it was held that inquiries of an em ployee as to how many people attended union meetings was not coercive under the particular circumstances in asmuch as they did not constitute the type of situation in which inquiries would reasonably tend to cause fear of reprisal resulting from any revelation of the identities of prounion employees The questions asked were quite general in nature rather than the kind which appear to be seeking information on which to base taking action against individual employees (217 NLRB at 439) Were they attempting to accomplish by indirection what they knew to be outlawed if done directly? 15 The impact on Johnson was not coercive and while that is not controlling as noted above it is indicative that the kind of interrogation conducted by Maddux Seaton and Osario did not tend to have a coercive impact because it was not designed to make apparent the manner in which individual employees were expected to vote and did not manifest the displeasure of the Employer at support for the Union 16 Factors such as employer hostility and the calling of employees into supervisors offices for confer ences may under some circumstances give rise to an in ference of coercion 17 but in the present case such fac In TRW United Greenfield Division 245 NLRB 1135 1139 (1979) enfd 637 F 2d 410 (5th Cir 1981) cited by the General Counsel in the postheanng brief It was held that a supervisor who called an employee Into her office a few days before an election and asked him how he felt about the union committed unlawful interrogation However in that case the supervisor s denial was expressly discredited " PPG Industries 251 NLRB 1146 (1980) 17 McIndustries Inc 224 NLRB 1298 (1976) 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tors in and of themselves afford no basis for such an in ference 18 Accordingly I find that the allegations of unlawful in terrogation have not been proved C Imposition of Rule Prohibiting Union Talk and Activity It is the contention of the General Counsel that during the period from February 20 through March Robert Maddux imposed a rule prohibiting employees from talk ing about the Union or engaging in protected concerted activity on the premises of the Respondent at any time If all that Maddux had done was to prohibit discussion of union matters and the union campaign on working time in such a manner as to make it clear that they were free to do so during mealtimes and break periods he would have been within his rights and there would have been no violation of the Act 18 It is contended however that a more far reaching restriction was imposed Parker testi fled that on March 18 1982 shortly before the election while he and Virginia Johnson were discussing union problems Maddux gave him strict and emphatic instruc tions to the effect that he was not to talk about or dis cuss the Union on the job Differing versions of the inci dent have been testified to by Parker and Johnson on one hand and Maddux on the other I accept Maddux s version of the incident unqualifiedly Parker testified initially that he and Virginia Johnson were in the lunchroom during their lunch hour discuss ing union problems and then all of a sudden Mr Maddux came down and he called me on the outside According to Parker Maddux declared that he did not like the Union and was against the Union and that he knew that Parker and Johnson were talking about the Union and that he did not want Parker talking or dis cussing the Union any more because we don t want this on the job Virginia Johnson was not a party to the alleged tirade so she could not corroborate Parker s version Her testi mony is nevertheless sufficient to call into question the 8 In Graham Architectural Products 259 NLRB 1174 (1982) modified 697 F 2d 534 (3d Cir 1983) inquiries of employees as to how they felt about the union were held to violate Sec 8(a)(1) the Board noting that the coercive import of such question is not diminished by the employee s open union support the absence of attendant threats or the fact that in terrogation was conducted in a friendly fashion However in this case there had first been an interrogation of another employee at her supervi sor s desk in which she was asked point blank whether she was for the union The subsequent inquiries of other employees therefore could only be construed to have the same meaning Conversations which are merely discussions of the advantages and disadvantages of unionism do not con stitute interrogation Howard Aero Inc 119 NLRB 1531 1533 (1958) See also Blue Flash Express 109 NLRB 591 593 (1954) The General Counsel relied on a statement in Seneca Foods Corp 244 NLRB 558 563 (1979) noting the contention of the General Counsel in that case that the employer s inquiries had a tendency to interfere with the free exercise of employee rights and were therefore unlawful How ever the finding of illegality by the administrative law Judge actually rested not on that contention but on the observation that a statement to employees which is relatively inconsequential standing alone may be construed as coercive in view of an employer s other interrogations during a union s organizational drive That decision relied on New Alaska Development Corp 441 F 2d 491 (7th Or 1971) holding of such conduct on the other employees However both cases Involve direct in (pines as to how the employees stood as to the union " T R W Bearings 257 NLRB 442 (1981) veracity of Parker s version She testified that she and Parker were sitting on a table having lunch Her testimo ny is not clear whether this was inside or outside the lunchroom Maddux came up to them and said I know what you re talking about you know II warned you about talking about the Union while you re working on the job you know while you re on the job Johnson further testified that Maddux warned Parker that if he caught him talking about the Union again he would be fired Maddux then took Parker aside over to a corner where they argued and she saw Maddux waving his hands like he was telling Mr Parker off I didn t hear what they were saying Johnson testified that they were arguing but she could not make out what they were saying The testimony of Parker and Johnson is uncertain in its location of the event itself and Johnson simultaneous ly admitted not being party to most of the conversation and contended that enough was said in her presence to establish a violation of the Act Some of it is hearsay in asmuch as she testified that on the way home she asked Parker what had happened and he said that Maddux was getting after him because he was talking about the Union on the job and she said that Maddux threatened him and told him that if he continued to talk about the Union on he job he would not have a job The limitation to work ing time is therefore conceded in the testimony adduced by the General Counsel Maddux flatly demed ever telling Parker to stop talk ing about the Union either in the lunchroom or just out side it He insisted that on occasions during the period from January through March he called Parker to task for talking about the Union when he should have been working He cited a specific instance when Parker was not at his work station at a time when he was supposed to be there Parker would be observed having meetings with groups of people about union business when he was supposed to be at his work station He was warned to discontinue that practice On March 5 1982 Parker was given a warning notice by Seaton for having absented himself from the building for about 2 hours without contacting his supervisor He was counseled This was not the first time he was coun seled regarding such absences Maddux testified that he expressly told Parker that he could carry on such activity during lunchtime or at cer tam other times which he specified but not when he was supposed to be at his work station I see no reason to doubt Maddux s testimony He testified in a credible manner Other testimony by Maddux and others establishes that the Respondent s legal counsel was advising supervi sory personnel on a fairly close basis with respect to what conduct was and was not permissible during the campaign The testimony of both Johnson and Parker to the extent that it is credible contains concessions that Maddux s concern was the conduct of union activity at times when Parker was supposed to be working On the whole record therefore I consider the evi dence insufficient to support an allegation that Maddux improperly forbade umon discussion or activity A & E STORES 747 D Threat of Business Closure It is alleged that on March 15 Maddux threatened that the business would close if the Union won the elec non Rafael Palacio Curtis Parker and Virginia Johnson all testified that Maddux made such statements to them individually out of the hearing of any other persons Pa lacio s testimony was that Maddux told him of his expen ence in dealing with several unions that none was needed at A & E Stores Inc because the Company had done many things for the employees which Palacio was not familiar with since he was a relatively new employ ee and that other companies which had been unionized had gone out of business because of excessive union de mands According to Parker on March 18 Maddux called him into his office and told him they did not need a union did not want a union and that if we get the Union here there will be a lot of people laid off and most likely close the Company down Johnson said he told her (in his office) that a lot of his friends had businesses and that they went out of business because of the Union Maddux denied absolutely the making of such state ments In assessing the credibility of the various accounts it must be observed that all four of the witnesses involved gave testimony of dubious credibility at some point in the proceedings In this particular instance I credit the testimony of Parker Palacio and Johnson who gave consistent testimony respecting statements by Maddux which could plausibly have been made by him under the circumstances of the campaign Accordingly I find that the allegation that Maddux threatened closure of the business in the event the Union became the bargaining representative of the employees had been proved by a preponderance of the evidence E Threat of Discharge by Maddux It is alleged that on April 30 1982 Maddux acting through Seaton at a tavern near the Respondent s facto ry threatened discharge of employees who supported the Union I have already credited testimony of Palacio Parker and Johnson that prior to March 18 1982 Maddux had threatened that a lot of people would be discharged and the Company would most likely close down if the Union came in However the only support for the instant allegation comes from David Seaton who quotes Maddux as having made a general threat to fire everybody on the second floor in order to solve this problem one way or the other Seaton repeated Mad dux s remark to other employees and specifically to Parker Johnson and Palacio at i a meeting held in a pub on the evening of April 30 the day on which he testified respecting the Respondent s behavior in an earlier elec tion campaign According to Seaton it is a statement that Maddux had made to him on more than one occasion Nevertheless it remains a remark made by one supervisor to another According to Seaton because of Maddux s remark he warned the employees that they should be extremely careful Seaton testified that he gave this warning to the em ployees entirely on his own volition Notwithstanding Seaton s testimony that he had voluntarily of his own volition quoted Maddux s statement to a group of em ployees later in his testimony he amended his quotation of Maddux s statement to read as follows I am going to fire everyone on the second floor and you can tell them that too When asked to repeat it he changed it again this time quoting Maddux as follows I am going to fire everyone on the second floor and you can tell them that if you want to The amendments of the quotation were developed on redirect examination by the counsel for the General Counsel and I find them untrustworthy However in this instance Maddux s denial is not so emphatic Maddux was in the hearing room during Sea ton s testimony He was asked if he recalled making the statements attributed to him In this instance I find his testimony evasive He testified that he did not recollect making the statement I would answer no to that I do not recollect When asked if it were possible that he might have done so he admitted that there was a possi Nifty that he might have said it to David Seaton and he attributed the remark to his frustration in looking for Parker whom he could not find He insisted however that he had not told Seaton that Seaton could tell the employees on the second floor that Maddux wanted to fire them It is clear to me that whether or not Maddux actually told Seaton that he would fire everybody on the second floor he never authorized Seaton to convey any such remark to the employees as a threat or otherwise This was entirely Seaton s doing as he himself testified I therefore find that the allegation that employees were threatened by Maddux with discharge on April 30 is not proved F Threats of Unspecified Reprisals It is alleged that the Respondent through Robert Maddux threatened employees with unspecified reprisals because of their union activities I find no support for this allegation in the record and accordingly it is dis missed III THE UNFAIR LABOR PRACTICES ALLEGED DISCRIMINATORY DISCHARGES A David Seaton Alternative allegations are pleaded with respect to David Seaton It is alleged that on April 30 1982 Seaton gave testimony before the Board at a hearing on chal lenges and objections to an election conducted on March 18 1982 which testimony was adverse to the Respond ent It is alternatively pleaded that he was an employee of the Respondent who was discharged because of his adverse testimony and in order to discourage employees from engaging in protected concerted activities and that his discharge was therefore a violation of Section 8(a)(3) and (1) of the Act and that he was a supervisor whose discharge thereby violated Section 8(a)(4) and (1) of the Act Seaton claims to have been discharged on June 18 1982 because of adverse testimony which he gave on Ap il 30 in an NLRB hearing on ojections to an election 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted on March 3 1982 The Respondent contends that there was not only no ill feeling toward him but that it was the Respondent s intention to promote Seaton and that Seaton himself brought about his dis charge Seaton s termination was a direct result of his refusal to honor management s request that he assume a position as a management trainee so that he could be placed as a store manager In so doing Seaton revealed strong negative sentiments about the Company and its managerial personnel He also disclosed that he would be resigning at an unspecified time in the near future 20 The Respondent notes that as a statutory supervisor Seaton owed the Respondent an elevated duty of loyalty The analysts of the facts which follows will make it clear that the Respondent s contentions are untenable and incredible and I reject them completely Seaton had been hired as a warehouse supervisor on April 27 1981 His competency as an employee and the satisfactory manner in which he performed his duties is beyond question During the course of his employment he received several raises though the Company had no system of formal review of supervisors and employees performance satisfaction with his performance had been expressed orally on a number of occasions by Erani and Maddux and Ades and Erani both testified that they wanted to promote him to a position as a store manager in conformity with his own expressed wishes Not only had the Respondent never contended at any point in these proceedings that Seaton s work performance was deficient but on the contrary It was asserted that Seaton had been dissuaded from quitting in January and in late March or early April However management s satisfaction with Seaton s im peccable work performance was subject to some reserva lions First Seaton did not hesitate to express his objec lions to some of management s practices during the course of the union campaign which began in January He characterized some of those practices as spying on employees and told Maddux he did not like being asked to do it He expressed his objection to the assignment of three employees to his area at a time when the workload did not warrant the additional personnel especially as it seemed that they were hired from the outside to pack the unit instead of being drawn from downstairs person nel as needed Seaton expressed his disagreement with management s approach to Maddux Erani and Ades Second Seaton refused to play ball with management when he received a subpoena from Local 240 to testify at the hearing on objections to an election which had been held in January 1982 Maddux asked him what his intentions were Seaton told him he would tell the truth Maddux and Osario suggested that he not make waves and not put pressure on himself Seaton suggests in his testimony that on April 30 Erani may even have attempt ed to keep him from testifying by tricking him into re turning to the office to await the call to testify Howev er he did testify and made waves big enough to rock the Respondent s boat The transcript of Seaton s testimony and the decision rendered by the Regional Director make it clear that Seaton s testimony was the major 20 Respondent s posthearing brief at 33 factor in producing a decision adverse to the Respond ent Seaton testified that his unit was packed with three unnecessary employees that when he protested to top management he was told to hide them until after the election that he was directed to punch them in and out on the timeclock the week before they actually started with the Company so as to qualify them to vote Dis crediting evidence contrary to that of Seaton the Re gional Director found that the employees had been placed on the payroll during the period for determining voter eligibility so that they could vote in the March election despite the fact that there was insufficient work for them to do 21 Challenges to the ballots which they cast were sustained It is apparent that not only did Seaton give the Re spondent s top management cause for resentment by the nature of his testimony but his complaints about the three employees to Ades Erain and Maddux became the focal point of the friction which was building between them and him They were packing the unit and playing for time He was not making it easy for them to do so and ultimately exposed their machinations A more direct route to deep unpopularity with the management can hardly be imagined Seaton testified that from and after April 30 he was shunned by them Conversations with Maddux frequent in the past became a rarity Ades and Exam insisted that their attitude toward Seaton was not affected when a store manager s position loomed on the horizon they enthusiastically offered it to him in recognition of his high quality performance Any change in attitude was strictly on Seaton s part Appar ently having testified to their enthusiam for Seaton Ades and Erani recognized that they could not inconsist ently assert that they fired Seaton for some simple dere liction of duty like refusing a promotion to store manag er They have therefore advanced the novel proposition that Seaton s unhappiness was also a factor which forced them to fire him As they both testified to this with great seriousness I shall analyze their story with the same ear nestness I will begin with Seaton s version which is basically substantiated by the testimony of Ades and Eram On June 16 which was a Wednesday Seaton was called into a meeting with Erani and Albert Ades who was a buyer for certain merchandise that was processed on the second floor Erani told Seaton that he wanted to put him in a management training program so that he could become one of the new managers The store he had in mind was one at a new location at 258 Broadway New York City There was a great urgency about this train ing would begin the following Monday and would last for 2 months Training would be in Store No 5 located at 42d Street and Madison Avenue Seaton found this unsettling He had not even accept ed the position yet and was already being told that it was imperative that he quickly move to one of the stores to begin the 2 month training program Seaton questioned whether the new store would open that soon and Erani 2i attach no significance to Seaton s testimony on cross examination that he had in fact been able to find work for these superfluous employ ees to perform A & E STORES 749 stated that everything appeared to be on schedule Erani left Albert Ades asked Seaton if he had any questions Seaton questioned him about the hours and the type of dress that would be required and Ades answered the questions However when Seaton asked him about salary Albert Ades replied that that had not been discussed among management Seaton left at that point He thought the matter over that evening and the following day advised Maddux that he could not accept the posi tion because though he appreciated the confidence the Company was placing in him under the circumstances he did not feel it would be a wise move at that time Seaton specifically mentioned that he had gone through a very awkward period since he had testified that things had changed considerably and remarkably but that he could understand the circumstances and I told him that under the circumstances I just felt that there was an element of doubt that existed both on my part and I think on the Company s part In a further conference on June 18 22 Ades asked Seaton why he had decided not to accept the position Seaton stated he appreciated the offer but that under the circumstances he could not accept the circumstances to which he referred being the awkwardness when he would say good morning to Ades and Ades would just walk away Seaton testified that he told Ades he could understand his feelings and could understand the feelings of Maddux and everyone else Seaton testified that Ades then asked him if he had any negative feelings about the Company and Seaton told him that he did specifically along the lines he just discussed Ades then stated he though Seaton should resign and Seaton refused where upon Ades said Consider yourself terminated When Seaton asked if it had anything to do with his job per formance Ades replied That s not the point here Ades repeated that Seaton was terminated Seaton re minded Ades that Maddux had repeatedly described his job performance as excellent but Ades repeated that that was not the issue and put his hand out and wished Seaton good luck On cross examination Seaton testified that one of the reasons he had rescinded his first resignation was that Erani had mentioned the possibility of his promotion to store manager He had been looking for promotional op portunities with the Company including the possibility of a promotion to store manager which would have been in line with some of his previous experiences with another employer I do not consider that any of this tes timony on cross examination in the least bit undermines Seaton s testimony Erani s discussion of the possibility of his becoming a store manager clearly took place before he testified at the NLRB hearing The crux of Seaton s testimony is that relationships changed materially after he gave that testimony On cross examination Seaton resisted any suggestion that Ades had said anything other than to ask him if he had any negative comments and as soon as he received 22 Seaton testified on cross examination that on Thursday June 17 he asked Maddux to set up another appointment with Ades and Erani which he anticipated would be held that day but it did not come about until late in the afternoon on Friday June 18 an affirmative reply from Seaton told him that under the circumstances he should resign Seaton makes the point that he was surprised that they wanted to put him into Store No 5 as a manager in training in preparation for the new store at 258 Broad way which in his opinion was 6 to 8 months away from completion (At the time of the hearing a year later it had not yet opened ) Thus there appeared to be no true urgency for him to report to Store No 5 and yet they wanted him there the following Monday His anxiety was further aroused by Albert Ades admission that there had been no pnor discussion about what Seaton s salary was to be and the matter was never discussed on June 16 17 or 18 Seaton insisted that he made no decision as to whether he would accept the position until the evening of the day on which it was offered to him and did not communi cate his decision not to accept it until he spoke to Maddux the following day He thus never accepted it and then changed his mind as Ades and Erani contend ed He doubted the sincerity of Ades and Erani in making the offer did not agree with their assertion as to when the store would be ready to open and did not think they believed it themselves It crossed his mind that the job offer might be a way of easing him out of his ware house job This fear coupled with the lack of any guar antee that he would actually be given a managerial posi tion upon conclusion of his training period and the likeli hood that the new store would not be ready at that point in time led him to decline the offer without regard to the bona fides of the offer I credit Seaton s testimony that he refrained from asking what would happen if the Company decided not to offer him the store manager s position after he underwent the training because he be lieved that he was being railroaded out of his warehouse job into a store with a possibility of demotion Instead he asked other questions which he reasonably could have expected to have been considered by Ades and Erani prior to offering him the position It was apparent that they had not given the matter serious consideration for a matter as critical as salary had not even been discussed let alone decided Their approach substantially confirmed the validity of Seaton s suspicions Alan Ades president of A & E Stores Inc for ap proximately the last 12 years testified that in 1982 Seaton resigned twice once in January and then again in March (Seaton denied a January resignation ) The first resignation was rescinded according to Ades as a result of Ades discussion with him The second was rescinded after Albert Erani the vice president promised Seaton a position as store manager as soon as one opened up which is the reason he ,had originally been employed in the first place That appears on his job application They had a new store that was due to open in June 1982 and Albert Erani offered the manager s position to him Ades testimony that Seaton accepted the position is admittedly based on information Ades received from Erani and he learned of Seaton s supposed change of mind from Maddux According to his version of the events he met with Seaton and Maddux in his office and asked Seaton what the problem was Seaton responded 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that in view of the fact that he was going to be resigning shortly he thought it would be foolish to spend months training for the position Ades asked Seaton why he was resigning and Seaton responded that he felt awkward re mauling with the Company in view of his testimony on April 30 and the events surrounding the first NLRB hearing Ades then asked Seaton whether anybody had made him feel uncomfortable or awkward or if anything had been said to him and Seaton replied in the negative Ades testified that he then asked Seaton what his feel ings were about the Company and quoted Seaton as saying that his feelings were negative Ades asserted that Seaton reiterated the comments he had made on the oc casion of his previous resignation in January to the effect that he felt that the comptrollers of the warehouse were not good he felt that Maddux was not an effective su pervisor he did not like working with Maddux and he felt that the Company was not being run properly And he added at this meeting the additional fact that he felt awkward and uncomfortable working for the Company and he said it was a very natural thing He felt it was very natural for me to feel that way although I never expressed any such feeling to him that it was an uncom fortable and awkward position to be in working with the Company after the testimony he had given in the first NLRB hearing Ades then told Seaton that in view of his feelings he should tender his resignation right there and then which Seaton refused to do saying he would tender his resigna tion when he planned to tender his resignation which he said again would be shortly but not before Ades then stated that he should consider himself terminated as of that moment Ades testified that he told Seaton that I didn t think that it was worthwhile for him to continue with the Company because of his impending resigna tion his negative feelings about the Company and the fact that his replacement in the warehouse had already been notified In his own testimony Seaton denied having mentioned any intention of resigning and asserted that the first men tion of it was Ades suggestion to him which he had re fused I find Ades recital of these events strongly sug gestive of malice aforethought in that Ades engineered the interview to follow the scenario described in the tes timony I cannot credit his testimony that Seaton did not dispute so much whether he should resign but whether he should resign at that conference or several days there after I especially find incredible Ades testimony that the meeting ended with Seaton making veiled threats that Ades would be sorry for what he was doing generalized threats about his displeasure at not being able to resign of his own volition rather than being terminated by me The incredibility of the Respondent s version of these events is underscored by the Respondent s omission to furnish verification which should have been within its means to supply if it were available Seaton s supposed replacement in the warehouse was not brought in to tes tify Though Maddux testified he did not confirm Ades version of his forbearance and the strain placed on it by Seaton s remarks Maddux testified merely that he was present at the meeting and was in the hearing room when Alan Ades testified about the June 18 meeting When asked if Ades testimony that Seaton told him he was going to resign in the near future was his recollec non of what happened in the meeting he said definite ly He did not confirm any other aspect of Ades testi mony regarding that meeting or render his own account of the pertinent occurrences Instead his testimony dwelt on other aspects such as the undoubted fact that Seaton expressed his desire to be in a strong managerial position on occasions prior to his dismissal Maddux said he and Seaton had discussed that many times and they both had high hopes for Seaton s career as a store manager I be lieve this may well be true but it does not enhance the credibility of Ades account of the meeting at which Seaton was fired because it is the conduct of Ades and Erani which needs explaining not Seaton s The only one who could really have confirmed their account was Maddux who failed significantly to recite his own recol lection of the events Nobody explained why Seaton was invited into the store managership venture on such short notice at a time when construction was subject to signif icant delays and before critical decisions such as his salary had been made I found Albert Erani s attempt to back up Ades story equally incredible He testified that when Ades told him Seaton was quitting he abxed Seaton the reason and was presented with a number of cntical comments about the way the business was run They discussed Seaton s interest in store management Because of previous work that Seaton had done in ana lyzing conditions in one of the stores they had a lot of confidence in him In Erani s words we had developed a deep respect for him and his ability and that we felt he would be an asset to the company and we would want him to reconsider his resignation Erani testified that the conversation lasted 2 hours and Seaton changed his mind In June construction of the new store started Erani met with Seaton and Albert Ades identified as district manager or manager of store operations Eram testified that when he told Seaton that in view of the fact that a new store was opening soon they wanted to send him to Store No 1 their downtown store to be a man ager in training Seaton was very happy and delighted and he thanked me very much and said I accept the po sition They discussed a potential replacement of Seaton in the warehouse Erani then left the meeting and in structed Albert Ades to continue discussing the various aspects of the job with David Erani was emphatic that Seaton had accepted the position Erani s testimony was not as clear when asked wheth er he would characterize the position offered to Seaton as a promotion from the position that Seaton then occu pied His evasive response was to the effect that since A & E Stores is a service organization for all the stores and since the profits are produced by the stores a man ager of a key store is a very important part of the orga nization Pay scales are such according to Erani that managers get compensated far more than assistant warehouse managers with some making upwards of $40 000 However it was clear from his testimony that only a few store managers 3 or 4 out of 16 actually made $40 000 per year and some made only $275 per A & E STORES 71 week When asked if the salary of a store manager de pended to any extent on the gross business of the store he responded that it was not directly tied to the gross business of the store but was tied to our general overall evaluation of it This is a meaningless formula which was not illuminated by his ensuing explanation of it He conceded that it was generally true that the managers of the larger stores are better compensated than the manag ers of the smaller stores He asserted that they were grooming Seaton to be manager of a store that would have been one of the larger stores but instead of citing its anticipated gross income or sales he referred to the store s physical dimensions As of March 1 1983 when Erain testified the new store had not yet opened His conversation with Seaton took place in June 1982 Ac cording to Erani construction delayed the opening and the anticipated date of opening was late March 1983 He conceded that some delay was due to their own decision respecting the design of the storefront Erani conceded that this was not the first time that there had been a delay in the opening of one of their stores To these uncertainties there had to be added as a con sideration the startling fact conceded by Erani in his tes timony that Seaton was to go into management training at $3 75 an hour which was the same salary he earned as assistant warehouse manager The excuse proffered for not raising it was that he had been given a raise of $75 per week at the beginning of 1982 so it was felt to be inappropriate to give him another increase Erani finally conceded that Seaton s elevation to a managerial position in a store was not actually certain nor was it definite whether Seaton would go to a big store or a small store Erani testified that they would de termine later whether Seaton was ready to tackle the store manager s job and if so whether in a big store or a small store He thus contradicted himself as to the defi ruteness of the plans for Seaton and conceded the cor rectness of the General Counsel s contention that at best the concept was to put Seaton in the training position for as long as 4 or 5 months and then see how he did This also undermines the credibility of Erani s purported opti mism as to the new store s completion date He even tes tified that it conceivably could have taken Seaton more than 5 months to tackle a store like 258 Broadway Erani conceded that it was very difficult to assess a person s management ability because store managers manage 40 to 50 people and Seaton on the second floor of the warehouse managed only 10 people He stated So it really is something that we d have to feel out you know by experience He conceded that in June he told Seaton they would have to wait and see how Seaton did in training Erani s credibility was not restored on redirect exami nation by testimony that one of the reasons for construc tion delays was a change in the design of the store from the original design Erani testified that after much soul searching because it was a very expensive change they decided to do it because they had a very long term lease First they attempted to clean up and polish the old store front then it was decided to revamp it completely It was when it came out not looking right that they finally decided to bite the bullet and spend that kind of money and to put in the new front and that s the primary reason for this major delay They changed the entire storefront at a cost of approximately $150 000 If this is the case then Erani could not conceivably have believed that the store would be ready in 2 months Erani thus concedes that he knew when he spoke to Seaton and of fered him a job supposedly available in a couple of months that the store would not be ready at any time close to that target date On the basis of this testimony the contention that Sea ton s changes of mind and bad attitude caused his dismis sal are seen to be pretextual reasons for discharge I do not credit the testimony of Ades and Eram that Seaton did flip flops on the new appointment and told them that he was uncomfortable because of the poor management of the business and because of the deterioration of his re lationship with management While Seaton unquestion ably indicated his unhappiness with the overall situation the readiness of Ades to seize on it is noteworthy and his attempt partially to justify Seaton s discharge on the basis of it cannot be countenanced 23 I do not credit the purported assignment of another employee to fill the im pending vacancy in the warehouse resulting from Sea ton s promotion as a factor in management s decision to discharge Seaton inasmuch as it was never contended that the advancement of the employee was an irreversi ble commitment I find instead that Ades and Erani proceeded with the objective of eliminating a troublesome supervisor who had given adverse testimony in a Board proceeding The discharge of Seaton was therefore a violation of Section 8(a)(1) and (4) of the Act 24 B Curtis Parker It is alleged that Curtis Parker was discharged on August 18 1982 as a result of his union activities which were known or suspected by the Respondent Seaton ad vised top management that Curtis Parker was active in the Union and the consensus was that he was the ring leader and had been responsible for bringing the Union in On March 18 Parker acted as one of the observers of the Union advising employees when it was time for them to vote and telling them where to go to vote Seaton testified that in many conversations he had with Maddux about Parker Maddux expressed the opinion that Parker was a problem he was creating all of this havoc and wreaking havoc on the peacefulness of the operation Maddux tended to become enraged and upset at Parker s tendency to promote the Union on company time when he should have been working and hunted for him whenever he disappeared from sight Maddux was under the impression that Parker whose normal work 23 An employer cannot rely on an employee s indiscretion provoked by the employer as a basis for terminating the employment Louisiana Council No 17 AFSCME 250 NLRB 880 886 (1980) E I DuPont 263 NLRB 159 (1982) Seaton s own testimony that company counsel advised the supervt sors what was legal and they kept within the bounds he set and basically confined themselves to information gathering precludes any finding that he was discharged because he refused to commit unfair labor practices See Daniel Construction Co 244 NLRB 704 719 (1979) and Bekher Towing Co 238 NLRB 446 (1978) 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place was on the second floor was going from floor to floor on company time to talk to employees about the Union According to Seaton during the course of the campaign Maddux repeatedly told him that he would like to fire Parker Discussion of Parker was a daily oc currence The Respondent contends that he was discharged for insubordination in refusing to bring merchandise sched uled for delivery to their Vanlex store down to the load ing area when directed to do so by a supervisor Vanlex is one of the stores to which merchandise is shipped from the A & E warehouse at 110 Fifth Avenue where the merchandise is listed in the inventory and ticketed This work is done on the second floor after which the merchandise is then sent downstairs to the loading area which is at street level Vanlex and Re spondent s Store No 19 because of their particular cir cumstances require delivery to be made by a certain hour of the afternoon On the afternoon of August 16 1982 the shipment for Store No 19 left about 4 45 p m The merchandise for Vanlex remained on the second floor and was not dis patched that day There is complete disagreement with respect to the facts surrounding the readiness of the shipment to go and the reasons it did not go Palacio testified that the paper work was in his hands at 3 30 p m and he received word that the trucker was ready to take the shipment at 4 30 p m but he discovered upon examination of the papers that not all the merchandise was on the pallet On making inquiry he received contradictory information from clerical workers at Vanlex and the warehouse as to whether the shipment was going out that evening He testified that overcome by the confusion by that time I didn t bother to inquire any more At 4 40 p m he closed the gate and the elevator to the first floor Maddux testified that the fate of the Vanlex shipment had been decided by him when he got off the elevator coming from another floor in the building walked through the second floor and noticed that the Vanlex merchandise was still on the floor He looked at his watch It was between 4 45 and 5 p m He canceled the shipment He started down the stairway to the first floor to advise Osano and met Parker on the stairway huffing and puffing Parker asked him in a voice which Maddux described as being tinged with anger whether Vanlex was going that night Maddux told him that it was not going he had just canceled it When he saw Osano mo ments later he was told by Osano that Parker had re fused to bring the shipment down Jose Osano the supervisor of the loading area testi fled that Parker and another employee loaded the mer chandise for Store No 19 and then proceeded to unload another truck which was scheduled to return to Vanlex When they were about half finished Palacio stuck his head out of the second floor window and asked the driver if he was going to Vanlex the driver replied in the affirmative and Palacio said he would send down the merchandise Parker was present during this conversa lion and continued unloading the truck The merchandise for Vanlex had not come down by the time Parker fin ished unloading so Osano told him to go and get the Vanlex shipment Parker told him in the presence of the other employees that if he wanted Vanlex he should get it himself It was about 4 30 p m and °sari° had to corn plete the paperwork so that the shipment for Store No 19 could depart He therefore told Parker simply that he would speak to him the next day Parker walked away Osano reported the incident to Maddux who told him to write it up According to Osano loading time for a shipment vanes from 5 to 15 minutes depending on the amount of merchandise There is no evidence in the record respect ing the amount of merchandise due to go to Vanlex that day Parker s testimony is that between 4 30 and 5 p m °sari° asked him about Vanlex Parker told him that Vanlex wasn t going Osano s response was Vanlex is going it is supposed to be put on the truck Parker repeated Vanlex is not going Osano then said Well I tell you what Mister if you don t stay and load Vanlex and put it on the truck well I 11 see you in the morning Ill talk to you in the morning Parker said 0 K and he and two other employees who norma'iy help load and unload the trucks went into the warehouse to see Maddux Maddux was on a telephone call at his desk As soon as he finished Parker told him that Osano was de manding that they stay and load Vanlex and that he came into the warehouse to confirm with Maddux whether Vanlex was going out Maddux said it was not going out Parker asked him whether he was sure it was not going out and Maddux responded that Vanlex was not going According to Parker he then told Maddux that Osano was upset and calling him names and Mad dux s only response was Well since Vanlex is not going say there s nothing else for us to do The three men who normally quit at 445 p m then punched out I find Parker s version of the events of August 16 somewhat strange Parker testified he went over the head of the assistant warehouse supervisor Osano to check with Maddux as to whether a shipment was going and when told that it was not going asked Maddux if he were sure Parker never explained where he got the original information to the effect that the shipment was not going which fact furnished the basis for his purport ed disagreement with Osano He does not explain why he went to Maddux on the fifth floor to find out what could have been found out on the second floor It also seems strange that he would not go back to the loading area to let Osano know that his information had been confirmed with Maddux His testimony that Maddux in the days following seemed reluctant to listen to his side of the story is of course contradicted by Maddux but Parker does make one interesting point which Maddux never contradicted It is Palacio s and Parker s testimony that on August 18 after Parker was fired Maddux asked Palacio whether Vanlex had been ready to go and Palacio had told him that it was not going because the shipment was not ready This is in accord with Palacio s testimony con cerning the actual events on August 16 Maddux does not appear to have demonstrated any willingness to modify his decision in the light of the fact that Parker A & E STORES 753 apparently had been asked to perform an impossibility He proceeded as he told Palacio on the basis of Park er s insubordination without regard to the merits of the disagreement between Parker and Osano Maddux testified that he recommended Parker s termi nation based on the fact that he had in the presence of other employees refused to obey direct instructions from Osano making it impossible for Osano to function as a supervisor Maddux testified that on August 17 and 18 he met with Pagano Parker and Osano On both occasions Parker admitted that he had been asked by Osano to get the Vanlex merchandise and had failed to do so but denied telling Osano to get it himself On both occa mons Maddux asked Parker why he failed to obey Osar io s order and Parker remained silent Maddux testified that he had acted with great care to determine the facts and give Parker an opportunity to save his job but that he was compelled to recommend his termination because of the fact that this was not Parker s first misconduct and because of the fact that his insubordination took place in front of other people and thus impaired the authority of the supervisor He terminated Parker on the second day because until then it was open in his mind His decision was based primarily on the fact that Parker was instruct ed to get the merchandise and did not do so and when asked why he did not do so made no reply This testi mony by Maddux troubles me a great deal because when I asked Maddux whether he was prepared with an alternative course of action in the event Parker did give him a reason why he had not obeyed Maddux s response was evasive to the effect that if Parker had given him a reason which was sensible and logical Parker would still be working at A & E but Parker did not give him a reason despite two opportunities to do so He failed to explain how if Parker gave him a reason he expected to balance the merits of Parker s position against the assert ed necessity of preserving °sari° s authority as a super visor Furthermore Maddux simply gave Parker the op portunity to explain his refusal to obey Osano s order but never told him that if he came up with an explana lion he would not be fired 1 I believe that the explanation for the problems in Mad dux s testimony he in the fact that it is based on Parker s testimony It was literally an attempt to hoist Parker on his own petard Parker could not excuse his conduct on the ground that Vanlex was not ready to go out even though Palacio had told that to Maddux because in his testimony Parker testified that he had gone to Maddux s office to find out if it was going or not In Maddux s ver sion of the meeting in which he encountered Parker huffing and puffing on the stairs implying a state of great (and culpable) agitation Parker asked him if the shipment was going obviously unaware that Maddux had canceled it No matter whose version is accepted Parker could not base his refusal to comply with Osano s order on knowledge obtained from Maddux that the shipment had been canceled The attempt fails for two reasons First Parker insist ed that he knew the shipment was not going and told that to Osano when Osano asked him to get it He only went to Maddux to confirm that it was not going Second Parker in his testimony sharply disagrees with Maddux s version of their meetings on August 17 and 18 He denies that he sat mute when critical questions were put to him Maddux told him that he had received a complaint that Parker had given Osano back talk about Vanlex Osano and Pagano the personnel director were present Parker denied it accused Osano of calling him names and insisted that he was telling the truth Maddux asked Osano directly whether he had been given back talk and Osano responded affirmatively quoting Parker as having told him that if he wanted Vanlex to be put on the truck he should do it himself Pagano asked Parker if he had anything else to say It was at that point that he lapsed into silence They told him they would see him in the morning On Wednesday afternoon August 18 he was again called to the personnel office and according to Parker Maddux told him We have come to a deci sion that we don t need you no more Parker testified that he asked whether they were taking Osano s word for it and they said they were Osano s testimony clashes with that of Maddux in an important respect According to Osano when Maddux asked Parker if he was told to get the Vanlex shipment and if he had told Osano that if Osano wanted to get it he should get it himself Parker responded by denying both that he had been ordered (rather than asked) and that he had told Osano to get it himself He insisted he told Osano the shipment was not going If this is so then Maddux s version of the rest of what ensued which is repeated in Osano s testimony simply does not make sense They both testified that Maddux proceeded to ask Parker why if there was a Vanlex shipment he did not get it and Parker had no answer to that This patently ignores Osano s preceding testimony Osano s testimony in total tends to corroborate the Parker version of the meeting rather than the Maddux version Osano s testimony makes it clear that Parker came down to load the trucks when he was summoned and he did the work that was assigned to him unloading two trucks and loading the merchandise scheduled for dein/ ery to Store No 19 There is not the slightest hint of any friction prior to the point at which Osano claims he di rected Parker to bring down the Vanlex shipment Osar io s testimony that Palacio announced that the Vanlex shipment was ready is directly contrary to Palacio s own testimony Osano testified that other employees were around when Parker told him to get the Vanlex shipment himself but only one whose testimony is reviewed below was produced Though Osano testified that there had been other occasions when he directed employees to go up to the second floor and bring down merchandise and three other men besides Parker were on the loading platform at the time he did not ask them He offered no reasonable explanation of his failure to do so and provid ed several that were highly incredible (such as that only Parker would know where to find the material on the second floor admitting that that was no mystery and he could have told any of the other men) He offered no reasonable explanation for his failure to telephone the second floor and speak to Palacio or somebody else and have them send the merchandise down The elevator was 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the street level for fully half an hour after the time he said Palacio stuck his head out of the window but Osano insisted he was too busy with some paperwork for Store No 19 to make arrangements to bring the ma tenal down He explained his failure to telephone to the second floor by saying he would have got more action by sending Parker utterly ignoring his own testimony that Parker had Just disobeyed him and refused to go I find incredible his assertion that he could not find any means of communicating with the second floor Even without using the telephone or sending up the elevator he could still have sent up one of the three men who were by that time standing around doing nothing Though he claimed to have reported that incident to Maddux who told him to write it up there is no evi dence that he did so Instead Parker was summoned to a meeting the following day in Maddux s office where Osano gave an oral recital Osano testified that on the day following the incident he ascertained that Vanlex had in fact been ready to go it was not downstairs be cause of Palacio s failure to send it down to the street floor He offered no explanation for the failure on Pala cio s part or why he was investigating and did not testify to the time when the merchandise was actually shipped out In view of Palacio s testimony It would appear that Osano was attempting to buttress his testimony that Pa lacio leaned out of a window and called down that the shipment was ready Osano admitted he was surprised at Parker s response to his order for Parker s conduct was normally gentlemanly and courteous Osario readily admitted that at meetings with other management personnel he heard Parker referred to as one of the ringleaders of the union movement and he agreed with the assessment Therein I believe lies the explanation for his testimony The nub of the issue being whether Parker disobeyed Osano s order it was in the interest of the Respondent to bring in the workers who were present in the loading area to testify to what they saw and heard As these per sons were in the control of the Respondent the failure to do so undermines the Respondent s position rather than that of Parker The Respondent brought in only one of them Douglas Peele who appeared to me to have been rehearsed and who seemed generally to be altogether un reliable To the extent that any credence can be given to his testimony it indicates that events were highly unlike ly to have occurred in the way described by Osano Peek a warehouse worker employed to load and unload trucks testified that he was 5 feet away from Osano and Parker and heard Osano ask Parker Why don t you go get Vanlex? He immediately modified this to an order Go get Vanlex l He asserted that Parker replied If you want it go get it yourself Betraying obvious memorization of his story he continued his testi mony by asserting that as Parker walked away Osano said If you want Vanlex— He then faltered apparent ly in the realization that he was reciting incorrectly and resumed by quoting Osano as having said Okay Mister you and I are going to talk about this tomorrow this incident tomorrow Parker turned around and said Okay we will He then continued walking away Peele fixed the time of this gross disobedience at 4 30 p m but could not satisfactorily explain how he knew that that was the time when all this was happening He described Parker s tone of voice as very rude in a rowdy way sort of hard way Nevertheless he con ceded that Parker is a mild mannered polite person who got along well with most of his coworkers who did what Seaton and Osano asked him to do was a calm person who got his job done and significantly stayed late to finish his work when that was necessary All of these attributes are at sharp variance with the conduct described by Osano Peele and Maddux Peele testified with more assurance on other points He testified that Osano having been turned down by Parker did not ask either him or another employee who was present named Scotty to go and get the merchan dise Peele stated that had they been asked they would have brought it down and loaded it on a truck Peele normally works on the second floor with Parker and Pa lacio and goes down to load and unload trucks each day Part of his job upstairs is to move boxes around includ ing the Vanlex merchandise His testimony clearly indi cates that he would have no difficulty finding the Vanlex merchandise and getting it downstairs if it had been ready to go and if Osano really wanted it Peele also testified significantly that Osano s request to Parker was a departure from normal procedure Peele had never been sent upstairs to get merchandise and in fact nobody ever sends anyone upstairs because Palacio or someone else upstairs always sends it down on the el evator Peele testified to yet another interesting point When the merchandise is delayed coming down they usually wait for it Parker Peele and Scotty had all remained late on occasion to finish loading a truck Peele s testimony enhances the doubts which I have about Osario s testimony Osario had to have been aware of the special deadline for deliveries to Vanlex and to Store No 19 his own testimony shows what a sweat he was in about getting the merchandise off to Store No 19 He had to have known when he asked Parker to get the Vanlex merchandise that it probably was not down stairs because it was not ready to go and he had to have known that it was already too late to send it His testi mony that Palacio said it was ready to go is contradicted by Palacio himself It also flies in the face of some inter esting testimony by Maddux which tends to show that they both knew Vanlex was not ready to go When in the course of his testimony Maddux had stated that he had looked at his watch and saw that it was too late for the Vanlex shipment to go out he also made what seemed to me at the time an altogether gratu itous and irrelevant comment to the effect that at the same time he observed that the shipment for Store No 19 had gone The significance of his remark becomes clear in the light of Palacio s testimony that when Parker and he went up to the fifth floor to see Maddux after Parker was fired and Palacio explained to Maddux that Vanlex had not gone out because the clerk had told Pa lacio it was not going Maddux s immediate response was to ask him about something else entirely Maddus asked A & E STORES 755 him why there had been a delay in getting out the mer chandise for Store No 19 It was only after some discus sion about that matter that Maddux took any interest in discussing Parker This non sequitur indicates that man agement had been aware of a significant delay in the movement of merchandise off the second floor on the afternoon in question If that is the case as I believe it to be then I suspect that if Osario did order Parker to go and get the Vanlex merchandise he could not really have expected to see it come down to the street level in time to go to Vanlex It seems more plausible to me that everybody knew the shipment could not go and the con versation at the loading area took place as Parker testi fled it did I am convinced that the reasons advanced by the Re spondent for the discharge of Parker are pretextual My finding in this regard requires that I draw an inference that the discharge was inspired by a purpose in violation of the Act Such an inference is also supported by the abundant evidence of Maddux s hostility to Parker be cause of his union activity the consensus among manage ment that Parker was the ringleader of the union activi ty the imputation of highly uncharacteristic conduct to Parker on the afternoon in question and Parker s denials Accordingly I find that Curtis Parker was discharged on August 18 1982 in violation of Section 8(a)(3) and (1) of the Act C Rafael Palaczo It is alleged that on August 24 1982 Rafael Palacio was transferred from his job at the warehouse at 110 Fifth Avenue where he worked under David Seaton to an undesirable warehouse location in Brooklyn because he had engaged in protected concerted activity His res ignation on February 17 1983 is alleged to constitute a constructive discharge since he quit because of allegedly undesirable working conditions Palacio began working for A & E in April 1981 He worked in the warehouse on the second floor under Sea ton s supervision listing shoes handbags and other mer chandise as it came in The processing work which he performed involved inventorying the shoes counting them to make sure they were all in the boxes listing style and color posting the data so the shoe buyer could make distribution making out tickets labeling the shoes and the boxes and getting them ready for shipment While he was there he was the only one doing this work He apparently did it satisfactorily earning compli ments from Seaton and two raises Maddux characterized him to the personnel director as an excellent employee The job to which he was transferred was considerably different He now dealt with merchandise which stayed in the box and which he never saw His time was spent carrying boxes around labeling boxes putting them on a jack and moving them to the point at which the shipping personnel took them over He estimated that he actually worked about 2 hours each day He testified that if he had a book with him he would read it during the re mainder of the day The hardship claimed to have been worked on Palacio by this transfer allegedly resulted from the increased travel time from home (he lived in the Bronx New York) increased travel time to school which he was at tending at a location not far from the New York ware house (travel time to and from Brooklyn was 45 min utes) carfare to get to school and lack of heat in the Brooklyn warehouse The increased travel from Brook lyn to school deprived him of time he had formerly had at the conclusion of the workday which was 4 45 p m in New York to eat dinner and complete homework as signments The Brooklyn warehouse was cold and mad equately heated throughout the winter There appears to be no doubt that the Respondent had knowledge of union activity by Palacio early in 1982 Palacio signed a union card and attended every meeting the Union held including meetings at which John Klein and David Zeitouni were present He was observed by Maddux meeting with union representatives in front of the Fifth Avenue premises Before the election on March 18 he told Maddux he was going to vote for the Union He acted as an observer for the Union at the election The question is whether the transfer has been proved to have been prompted by Palacio s union activity After Seaton left the Company he told Palacio that there was a connection between his transfer and his union activi ties Despite the fact that Seaton testified at length during the hearing he said nothing which would support this contention To find a violation in this situation I must infer a connection between Palacio s union support and his activities and the transfer either from the timing of the two circumstances taking into account the Re spondent s other violations or by rejecting the Respond ent s stated reason for the transfer I can do neither Palacio testified that he told Maddux he was quitting because of the inconvenience to his school studies and because of the unhealthy conditions in the Brooklyn warehouse and stated these as his reasons' in his written notice to the Company However disadvantage to Pala cio by reason of his transfer to Brooklyn is not some thing to be assumed but must be proved Palacio s own testimony raises doubts about it Palacio s contention that study time was reduced because he had to travel a great er distance rings hollow in the face of his contention that the job to which he was transferred was menial and he had nothing to do most of the day That should have greatly increased his study time He left promptly at 5 p m and there was never overtime so he got to school on time Maddux denies having considered or even having been aware of the logistics at the time he asked Palacio to go to Brooklyn The contention of hardship at the Brooklyn location is one which I view with great skepticism there being no record of any such complaints having been made by Palacio or by anybody else during the period in question The existence of such horrific conditions would seem to be a matter of easy objective proof but we are left to rely on Palacio s lengthy subjec tive and interested account He wholly fails to explain his endurance of such conditions through mid February (I do not credit his assertion that he remained in order to support the Union ) Moreover though Palacio spoke to Maddux three times in September 1982 about getting back to New York he never brought the matter up again during the remainder of his employment from the end of 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 1982 through mid February 1983 I am con vinced that his reason for resignation was his problems with his school work rather than any problem with working conditions in Brooklyn Maddux testified that at the time of his resignation Palacio told him that in the preceding year he had failed in one of his subjects and that he wanted to devote more time to school in the cur rent year and that was the reason he was resigning He never requested the transfer back to Manhattan and did not say anything about working conditions in the Brook lyn warehouse According to Maddux he did not say anything at all about company conditions instead they had a pleasant conversation regarding his school subjects and the fact that Maddux s daughter was also interested in art While this testimony sounds strange in the light of what Palacio wrote in his resignation I cannot ignore Palacio s failure to rebut Maddux s testimony in this regard The Respondent argued that the application form for employment with A & E stores contains a specific state ment on the form which Palacio conceded that as a condition of his employment he agreed to be subject to transfer to other stores from time to time as the Compa ny might deem necessary I am not impressed with this transparently technical and irrevelant defense Assuming that in the normal course of events the Company moves employees around the question is whether the Respond ent transferred Palacio to an inconvenient location as a punitive measure for his union activity or to deter activi ties by him or others which are protected by Section 7 of the Act The question is not whether the Respondent exercised a legal right with respect to its employees but whether it took steps designed to curb his union activi ties Nevertheless in view of Palacio s making a point about being moved to the Palomar payroll cognizance should be taken of the fact that a more telling point in the Respondent s favor is the fact that Palacio was not the only employee transferred to Brooklyn from Manhat tan The Respondent contends that Palacio was only one of a number of employees who were transferred from Manhattan to the Brooklyn location and notes that not all of them were union supporters especially one who did substantially the same work in Brooklyn that Palacio did in the same area of the warehouse A satisfactory ex planation was made in each instance in which a trans ferred employee subsequently left the Brooklyn ware house Testimony was adduced to the effect that these transfers were made in order to staff the location with reliable personnel following the discharge of Brooklyn personnel who had been accused of committing theft Of the original Brooklyn personnel only one remained while Palacio was there As Palacio was not transferred until 5 months after the election in March and then only after the incidents in Brooklyn the Respondent s story sounds plausible 25 5 The Respondent also offered Into evidence a list of the 29 persons including Palacio who were transferred interstore or between the office and store locations between 1977 and December 20 1982 The list was received Into evidence as R Exh 6 subject to furnishing of verification data to the General Counsel s c er the close of the hearing On May 16 There is no proof that Maddux kept Palacio in Brook lyn in order to isolate him or punish him for his union activity or in order to discourage such activity among the employees generally The Respondent made a con vincing case for the original transfer and there was msuf ficient evidence either way to justify any determination respecting the motivation for keeping the status quo thereafter Palacio testified that when originally asked by Maddux to go to Brooklyn he had protested that it would interfere with his school but assented when Maddux stated that the change in assignment would be temporary and would be for a period of only 2 or 3 weeks He also testified that when he requested reassign ment back to Manhattan Maddux told him that they were still having problems with shipments and paper and that he needed him there In his own testimony Maddux asserted that he said it would be on a temporary basis but did not commit himself on the amount of time Ac cording to Maddux Palacio agreed readily and made no protest I accept Maddux s version of these conversations for if Maddux did make the statements Palacio attributed to him Palacio would have had to recognize immediately the discrepancies between Maddux s statements and the type of menial work he testified he was doing at the Brooklyn warehouse Even if some credence were given to Palacio s conten lions respecting the working conditions none of the evi dence seems to connect his discharge with his union ac tivities The fact that they were known to the Respond ent by observation and from Palacio s own statements gives rise at most to a suspicion and suspicious circum stances are not enough by themselfves to permit an infer ence that an employer has unlawfully forced an employ ee to resign 26 I therefore find that it has not been established by a preponderance of the evidence that Palacio was trans ferred to and kept in the Brooklyn warehouse in viola ton of the Act or that his resignation constituted a dis charge compelled by intolerable working conditions im posed in violation of the Act or otherwise 27 1983 the General Counsel moved to strike the exhibit from the record by reason of inaccuracies and failure of the Respondent to furnish the sup porting data On May 20 1983 I suggested that the Respondent s counsel contact the General Counsel and attempt to stipulate with respect to the facts concerned failing which I would rule on the submissions of both sides On May 23 1983 the Respondent s counsel submitted a response to the motion which argued that the motion to strike was untimely and did not otherwise address the issues The existence of inaccuracies in the ex tuba appears to be conceded The motion to strike the exhibit is granted The information contained therein has played no part in my determina tion of the issues It is to be noted that unlike the other evidence respect ing the transfers of personnel to Palomar the former Exh 6 contained no details respecting the various transfers 26 Caddell Burns Mfg Co 222 NLRB 488 (1976) enfd mem 551 F 2d 299 (D C Cir 1976) 21 The General Counsel cites Stage Deli & Theatre Lounge 238 NLRB 276 (1978) for the proposition that imposition of more onerous working conditions for union activists may be a violation But in Stage Deli pres sure was applied directly and almost consistently throughout the working day in the same place as compared with Palacio s transfer after which he was left alone to work read study or do whatever he wanted Palacio s situation was not comparable to that found in a number of other transfer cases In St Joseph Hospital East 236 NLRB 1450 (1978) Continued A & E STORES 757 D Virginia Johnson It is alleged that Virginia Johnson was wrongfully dis charged on August 12 1982 She was a ticketer in the warehouse working under Seaton who testified that she was a good worker and a fast worker There is little question that the Respondent had knowleged that she en gaged in union activity She attended a union meeting which was also attended by John Klein and David Zei touni who were performing surveillance for manage ment Curtis Parker discussed union affairs with her right in front of the building in which the offices were located and had a discussion with a group of employees includ mg her in the middle of an afternoon during the cam paign while they were supposed to be working From January through March 1982 she attended union meet ings at the Prince George Hotel which were attended by a number of other employees She places David Seaton at some of these meetings She also participated in a lunchroom meeting attended by everybody from the first and second floors including the receptionist at which Rafael Palacio Curtis Parker and she herself expressed proumon sentiments On August 10 1982 Virginia John son became involved in an altercation with Joyce Lloyd who was responsible for checking the purses of people leaving work Lloyd is stationed at the end of the hall way where the warehouse employees clock out at the end of the shift She inspects handbags and other con tamers being taken out of the premises as a security func tion If Johnson s testimony is to be believed the alterca tion started because she offered to submit a food bag from MacDonald s for inspection Food bags were not supposed to be submitted for inspection but Johnson as serts that she did not hear Lloyd say that Lloyd angrily rejected the food bag whereupon a physical brawl start ed which was broken up by other personnel Johnson ac cused Lloyd of loudly cursing at her but could not re member her exact words Johnson carefully avoided stat ing who began the physical altercation She testified that Lloyd started to look for something in her purse where upon Johnson decided that whatever Lloyd had in her purse Johnson had in her handbag as well at which remark Lloyd jumped up and we both started arguing and cursing According to Johnson she jumped up as though she wanted to jump on me and fight me you the discrimmatee was isolated from the employees thus curbing union ac tivity by change of shift and job Discrimination was obvious because of offer of choice of assignments to two other employees but not to the dis cnminatee Rexart Color & Chemical Co 246 NLRB 240 243 (1979) em phasizes failure to return discrumnatee after other employees could have replaced him in position to which he was transferred (Here the argu ment is that Respondent needed someone It could trust ) But a new driver who replaced discnminatee had an accident record Furthermore evidence was on record that a representative of management remarked that he hoped the chscnnunatee would quit and if he did not some excuse would be found to fire him It was clear that the discnnunatee s permanent transfer was part of a plan designed to harass him and force him to quit Palacio s case is not comparable In Daniel Construction Co 244 NLRB 704 718 (1979) no explanation was offered for the transfer In C Markus Hardware 243 NLRB 903 916 (1979) bitterness disgust and disquietude caused by the onerous work ing conditions imposed were found I did not credit Palacio s testi mony in this regard In John Dory Boat Works 229 NLRB 844 850 (1977) affirmative dis charge by the employer was found to have occurred know Though Johnson testified that there was a desk between the two of them the two male employees who separated them testified that there was nothing between them According to the Respondent s witnesses the officers and personnel of the Respondent concerned with main taming order and discipline conducted an investigation and determined that Johnson had initiated the incident and was entirely at fault Johnson quoted Mary Ann Pagano the personnel director as having told her that Maddux wanted her fired because he could not tolerate the type of behavior that went on in the hallway Our concern in this proceeding is not with the fairness or correctness of their determination We are concerned however with the degree to which they made a sincere attempt to place the fault insofar as the failure on their part to make a sincere attempt to do so would suggest that the stated reason for discharging Johnson was not the actual reason In the present case while there may be some basis for criticism of the method of investigation it is clear that such investigation that was conducted disclosed adequate grounds for concluding that Johnson had started a brawl in an area exposed to customers and other visitors to the premises Johnson admitted to Pagano that she had mis understood the inspection requirements and thought that all bags including filthy food bags were to be presented for inspection However Pagano herself had witnessed a portion of the incident and heard Johnson threaten Lloyd She heard a loud angry conversation with most of the noise coming from Johnson She saw Lloyd with her back against the wall and Johnson waving her arms All the observers and persons involved recalled that Lloyd was trying to back off while Johnson remained in a threatening stance Michael Kuhr the assistant control ler and Albert Ades broke it up with Kuhr getting be tween the two women It was Johnson who had to be restrained not Lloyd Kuhr testified that he left a conference in his office to investigate a very loud commotion When he opened the door to the reception area he observed Johnson moving her hands and threatening an assault on Lloyd in a loud voice Lloyd was backing away and Johnson was moving forward with her hands in movement Kuhr ran to where they were and got in between them He grabbed hold of Johnson and was surprised to find that though she was smaller than he was she was so angry that she was able to push him back Johnsonl was angry to the point that it just gave her so much power that she was forcing me back and I m taller than her He feared for his own safety The incident ended when Albert Ades one of the principals came over and or dered Johnson to leave the premises Nobody had to re strain Lloyd Pagano in investigating the incident spoke to Kuhr and to Ann Malloy the receptionist She then advised Maddux of the results of her investigation She did not speak to Johnson about it until she called Johnson in on August 12 to fire her Pagano testified that the reason for this seemingly one sided investigation was that she heard nothing which would have indicated any fault on 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd s part and when she fired Johnson Johnson of fered no excuses but only wanted to know if Lloyd were being discharged also It may also be noted that Pagano had personally observed a portion of the inci dent The reason for my comment that the investigation is subject to some criticism is that the information obtained from Malloy was interpreted by Pagano as indicating that she had heard nothing on the part of Lloyd which would have indicated that Lloyd had either started the altercation or done anything to provoke it Actually however Malloy told Pagano she was not paying atten lion and did not know what had happened at the begin ning of the incident because people leaving work are normally noisy and she paid no attention Furthermore I cannot see what harm could have been done by giving Johnson a chance to tell her side before the discharge interview Nevertheless Pagano felt and I think properly that Johnson had had ample opportunity to present her side of the story if there was one She never stated to Pagano (and never testified at the hearing) that she was provoked or threatened by Lloyd or had any reason for her violent reaction to Lloyd In short she offered no defense which would have justified the suspicion that the circumstances were other than as reported by the other personnel whom Pagano had interviewed The failure to consult an employee accused of wrongdoing or other witnesses or even to investigate does not give rise to any inference adverse to the employer when the facts are already clearly established 28 This is the state of the evidence with respect to John son There is not a scintilla of evidence to connect her discharge with her attendance at union meetings or any other concerted protected activities As a matter of fact her activity in that regard appears to have been minimal consisting merely of attending meetings which had also been attended by other employees She was not one of the leaders of the organizational campaign I find no evi dence suggesting that because she spoke up for the Union at one meeting she was thereafter singled out as a target of management Accordingly I do not find that Johnson was dis charged in violation of the Act 29 28 Marsh Furniture Co 230 NLRB 580 (1977) 29 I regard the General Counsel s reliance on Syncro Corp 234 NLRB 550 (1978) reversed 591 F 2d 922 (5th Or 1979) and Pilgrim Foods 234 NLRB 136 (1977) modified 591 F 2d 110 (1st Cir 1978) as mistaken In Syncro the Board expressed grave doubts about the seriousness of the threat supposedly made by the discharged employee against another em ployee In Pilgrim Foods the Board found disparately harsh discipline for a minor transgression In the present case an employee Johnson who was not a leading union activist had a history of at least one prior threat of violence and committed a major transgression as attested to not only by the facts themselves but also by the persuasive fact of denial of unem ployment Insurance benefits to her because her conduct was deemed the cause of her loss of employment (R Exh 5) Even had she engaged in union activity that would not have required the Respondent to overlook serious misconduct on his part Guardian Ambulance Service 228 NLRB 509 510 (1981) enfd 666 F 2d 238 (5th Cir 1982) Johnson s discharge is valid even if the Respondent welcomed the opportunity to discharge her for whatever union sympathy she had disclosed Klate Holt Co 161 NLRB 1606 (1966) Imperial Bedding Co 224 NLRB 1560 1564 (1976) IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The violations of the Act herein found to have been committed by the Respondent have a close intimate and substantial relationship to trade traffic and commerce and among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 The Respondent A & E Stores Inc is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Local 240 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of employees protected con certed activities during the period from February 20 1982 through the month of March 1982 through John Klein and David Zeitouni 4 The Respondent violated Section 8(a)(1) of the Act by threatening through Robert Maddux that the Re spondent might go out of business in the event that the Union became the bargaining representative of the em ployees 5 The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Curtis Parker on August 18 1982 and thereafter refusing to reinstate him because of his activities in support of Local 240 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America 6 The Respondent violated Section 8(a)(4) and (1) of the Act by discharging David Seaton on June 18 1982 and thereafter refusing to reinstate him because of tests mony adverse to the Respondent which he gave at a hearing before the National Labor Relations Board on April 30 1982 7 The above described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 8 The Respondent did not engage in any unfair labor practices other than those enumerated above THE REMEDY Having found that the Respondent engaged in unfair labor practices I recommend that the Respondent be di rected to cease and desist therefrom and take certain af firmative action to effectuate the policies of the Act I recommend that the Respondent be directed to offer David Seaton and Curtis Parker immediate and full rein statement to their former positions or if those positions are no longer available to substantially equivalent posi tions without prejudice to their seniority or other bene fits and privileges I further recommend that the Re spondent be directed to make them whole for any loss of earnings which they may have suffered by reason of their discharge with backpay to be computed in the manner prescribed in F W Woolworth Co 90 NLRB A & E STORES 759 289 (1950) with interest thereon to be computed in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) and Isis Plumbing Co 138 NLRB 716 (1962) In addition I will recommend that the Respondent be re quired to expunge from its records any references to the unlawful discharges of David Seaton and Curtis Parker and provide them with written notice of such expunction and inform them that the Respondent s unlawful conduct will not be used as a basis for further personnel actions concerning them On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3° ORDER The Respondent A & E Stores Inc New York New York its officers agents successors and assigns shall 1 Cease and desist from (a) Discharging employees for engaging in protected concerted activities (b) Discharging employees because they give testimo ny at hearings before the National Labor Relations Board or because of the manner in which they so testify (c) Threatening that A & E Stores Inc may go out of business if Local 240 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America or any other labor organization became the bargaining representative of the employees (d) Engaging in surveillance of any activities in which employees are engaged which are protected by Section 7 of the Act or saying or doing anything which would convey the impression to its employees that any such ac tivities are subject to surveillance (e) In any like or related manner interfering with re straining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act 3 ° 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 2 Take the following affirmative action designed to ef fecuate the policies of the Act (a) Offer David Seaton and Curtis Parker immediate and full reinstatement to their former jobs or if those jobs are no longer available to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnmgs and other benefits in the manner set forth in the section of this decision entitled The Remedy (b) Expunge from its files any references to the dis charges of David Seaton and Curtis Parker on June 18 1982 and August 18 1982 respectively and notify them in writing that this has been done and that evidence of their unlawful discharge will not be used as a basis for future personnel actions against them (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due (d) Post at its office and warehouse at 110 Fifth Avenue New York New York copies of the attached notice marked Appendix 31 Copies of the notice on forms provided by the Regional Director for Region 2 after being signed by the Respondent s authorized repre sentative 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 materi al (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 31 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 bona' 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