Retail Clerks Union Local 455

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Union Local 455, chartered by United Food and Commercial Workers International Union, AFL-CIO' and Roy Baldit. Case 23- CA-6998 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 10, 1980, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, 2 and conclusions3 of the Administrative Law Judge and to adopt her recommended Order, as modified herein. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- ' The name of Respondent has been amended to reflect the change brought about by the merger of Retail Clerks International Union and Amalgamated Meat Cutters and Butcher Workmen of North America, on June 7, 1979. 2 Respondent has excepted to certain credibility findings by the Ad- ministrative Law Judge. It is the Board's established policy not to over- rule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. 3 In adopting the Administrative Law Judge's finding that Respondent violated Sec. 8(a)(3) by terminating Baldit, we agree with her conclusion that the circumstances surrounding the discharge-including, inter alia, the timing of the discharge and its pretextual nature-warrant drawing an inference of Respondent's knowledge of Baldit's union activity. Accord- ingly, we find it unnecessary to pass on the propriety of the Administra- tive Lasw Judge's comments concerning the possible application of the "small-plant" doctrine to the facts of this case. 4 In par. (b) of her recommended Order, the Administrative Law Judge used the board cease-and-desist language, "in any other manner." However, we have considered this case in light of the standards set forth in Hickmoll Foods, Inc., 242 NLRB 1357 (1979), and have concluded that a broad remedial order is inappropriate since it has not been shown that Respondent has a proclivity to violate that Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disre- gard for the employees' fundamental statutory rights. Accordingly, we shall modify the recommended Order by substituting the narrow injunc- tive language, "in any like or related manner" Member Jenkins would provide interest on the hackpay award in ac- cordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 252 NLRB No. 60 fled below, and hereby orders that the Respondent, Retail Clerks Union Local 455, chartered by United food and Commercial Workers Internation- al Union, AFL-CIO, Houston, Texas, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph l(b): "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT discriminatorily discharge our employees because of their known or sus- pected union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Roy Baldit immediate and full reinstatement to his former position as business agent or, if that job no longer exists, to a substantially equivalent job, without prej- udice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suf- fered as a result of the discrimination practiced against him, plus interest. RETAIL CLERKS UNION LOCAL 455, CHARTERED BY UNITED FOOD AND COMMERCIAL WORKERS INTERNA- TIONAL UNION, AFL-CIO DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10 of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), here- inafter referred to as the Act. Based on charges filed on April 3, 1978,1 a complaint was issued on June 5, pre- senting allegations that Retail Clerks Union Local 455, chartered by United Food and Commercial Workers In- ternational Union, AFL-CIO,2 hereinafter referred to as l All dates are in 1978 unless otherwise indicated 2 As amended at the hearing in accordance with the answer. 432 RETAIL CLERKS UNION LOCAL 455 meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. Respondent filed an answer denying that it committed the violations of the Act alleged. Upon due notice, the case was heard before me at Houston, Texas, on July 6 and 7. Representatives of all parties entered ap- pearances and had an opportunity to participate in the proceeding. Based on the entire record, including my observation of the witnesses, and after due consideration of briefs filed by the General Counsel and by Respondent, and of arguments presented, I make the following: FINDINGS AND CONCIUSIONS I. JURISDICTION Respondent admits, and I find, that it is a voluntary unincorporated association and a local union chartered by the Retail Clerks International Union, herein called the International, which is affiliated with the AFL-CIO. Respondent's principal office and headquarters are locat- ed in Houston, Texas, where it is engaged in the endeav- or of organizing employees of employers who are en- gaged in commerce and in industries affecting commerce within the meaning of the Act, and dealing with such employers concerning wages, hours, and working condi- tions of their employees. Respondent also admits that at all times material herein it has maintained collective-bar- gaining agreements with various such employers and, as a labor organization, it employs clerical employees, orga- nizers, and business agents. Respondent further admits, and I find, that in the course of these operations it collects dues and fees from its approximately 10,000 members and annually transmits a portion thereof in the form of a per capita tax to the International located in Washington, D.C., and that during the past calendar year, a representative period, Respondent received gross revenues in excess of $100,000 and transmitted in excess of $50,000 directly to the International office in Washington, D.C. Contrary to Respondent, I find that it is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act engaged in commerce and activities affecting commerce within the meaning of Section 2(6) and (7) of the Act.3 It. THE LABOR ORGANIZATION It is alleged in the complaint, admitted in the answer, and I find, that International Representatives Associ- ation, herein called the IRA (to avoid confusion with Respondent which is also a union) is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3 In its answer. Respondent denied that it "is engaged in business, trade, traffic, transportation, or communication within the literal meaning of Sec. 2(6) and (7) of the Act " The issue thus raised is too well settled to warrant discussion beyond citing Respondent to the Supreme Court's opinion in Office Emplovees Inlernauional Union, Local No. I v N.L.R.B., 353 US. 313 (1957). and subsequent Board cases involving unions as employers III. TH}I AII E(itI) UNFAIR ABOR P'RACTICI. A. The Issue Whether an inference of knowledge of union activity and suspicion of Roy Baldit's culpability is supported by the circumstantial evidence sufficient to warrant a find- ing that Respondent discharged Baldit, a business agent, because he joined or assisted the IRA or engaged in other concerted activities, in violation of Section 8(a)(3) and (1) of the Act. B. Uncontested Allegations It is alleged in the complaint, and admitted in the answer, that Respondent's president, Ray Wooster, and its executive assistant to the president, James Phillips, are agents of Respondent and supervisors within the mean- ing of Section 2(11) of the Act, and that on March 31, 1978, Respondent discharged Business Agent Roy Baldit. C. Credibility John P. McCauley is a business agent of Respondent who has been with that organization since its inception and who, according to Wooster, was with it when the pay was much less, stayed with it through hard times, and helped build it. I was profoundly impressed with the candid and courageous testimony of McCauley, with the awareness of events he exhibited, with the depth of his understanding, with the sense of fairness and responsibili- ty he displayed, with the sincerity and honesty conveyed by his demeanor, and with the total integrity of the man. Indeed, it is rare that I have encountered a witness as convincingly devoted to such frank disclosure of, and careful hewing to, the truth. Consequently, I credit the testimony of John McCauley in every significant respect and discredit any and all testimony that may be contra- dictory to or inconsistent with his version of events. As a contract in demeanor, Wooster displayed an atti- tude of emotional willfulness, self-righteousness and ea- gerness for self-justification on every point to a degree which so permeated his conduct as a witness that it seems apparent even in the printed record. Additionally, there are numerous internal inconsistencies in his testimo- ny as well as conflicts with statements in the affidavit he gave the Board agent shortly after the events herein. I am unable to find him a reliable witness and therefore have detailed his testimony primarily for its admissions and to reveal the use he made of his sophistication in labor relations to advance his position, in order that his purpose might be more clearly perceived. Other credibility rulings will appear where relevant and necessary. D. Background Evidence presented relevant to animus rests primarily upon the openly expressed attitude of Wooster toward the International Representatives Association (a labor or- ganization that represents the representatives employed by the International of Respondent and the organizers and business agents employed by the various local unions chartered by that International), since its initial formation 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1974. Wooster admitted that he openly and repeatedly expressed his views whenever the subject of the IRA arose, and that he made his views known to the organiz- ers and business agents on Respondent's staff, individual- ly or in groups, over this period of time up to and in- cluding the period involved herein. Accordingly, I cannot credit testimony of any business agent to the con- trary. In his testimony Wooster unhesitatingly and emo- tionally expressed his strong sentiment that the Interna- tional Representatives Association was not in the best in- terest of the Retail Clerks International, Respondent, or its membership; that he did not consider himself or his staff to be "employees" in any true sense, but rather merely members of the Retail Clerks Union; and that to join the International Representatives Association would be no different than "if I owned a company and I orga- nized against myself. You don't do it . . . and that's ex- actly what we would be doing."4 McCauley testified that at a training seminar in Boul- der, Colorado, in August 1974, when an announcement was made during a dinner inviting those present to an IRA meeting to follow, Wooster let it be known to the staff members present at his table that he disapproved of any attendance at such meeting or any contact with the IRA by any member of his staff. On that occasion Woos- ter a, nounced to those at the table that he would fire any .:presentative that attended the meeting or who had anything to do with IRA. Most of the business agents present assured him that they were not going to attend the IRA meeting. Until this occasion McCauley had not heard of IRA and began to make inquiry to others at the table about it. McCauley was advised by an associate to "just stay away from it," whereupon Wooster instructed Phillips to arrange a meeting with all of their staff for the purpose of explaining "everything" to them. Later, such a meet- ing was held in one of the hotel rooms at which Wooster told staff members to stay away from the IRA because it meant trouble for the organization, and that he felt that anybody who got involved with IRA was not for Re- spondent. Upon reassurance from staff members that they did not have anything to do with IRA, Wooster told them that anyone who did become involved would be terminated. Consistent with the foregoing, Gary Ingle, a vice president of IRA, testified that after the meeting an- nouncement at Boulder, Wooster declared to a group in the hotel lobby that if any of his business agents attended the IRA meeting he would fire them; later in the week at one of the seminar meetings Wooster stated that IRA was out to destroy the organization (Retail Clerks); and at various other times throughout the seminar Wooster was heard to make other comments expressing his vehe- ment dislike for the IRA. Ingle admitted that Wooster was not the only executive officer he heard making such statements at that conference. In contrast, Wooster 4This assertion by Wooster paraphrases an argument that was rejected and settled long ago (see Retail Clerks International Association. AFL- CIO, 153 NLRB 204, 221-225 (1965), enfd. 366 F.2d 642 (D.C. Cir. 1966), cert. denied 386 U.S. 1017 (1967)), and is presented only to show a continuing attitude of rejection by Wooster, and, therefore, Respondent of established case law and labor law principles. claimed that he spent most of his time at the Boulder conference playing cards in the rooms. I do not accept as valid the picture of a low profile Wooster attempts to paint. During the fall cleanup campaign of 1976, 5 while In- ternational representatives were present in Respondent's local territory to assist the staff, McCauley was called into Phillips' office by Respondent's recording secretary, Steve Marek. Marek asked McCauley whether he knew anything about the IRA. McCauley responded that he did not. Marek then asked McCauley whether he had signed a card. McCauley responded, "No, but I would sign one if I wanted to." Marek stated that he had to give assurances to Wooster that McCauley had not signed an IRA card. McCauley replied, "Well, I haven't, but I will sign one if I get good and ready." McCauley submitted his itinerary and left the office with Interna- tional Representative Ida Daniels. When he arrived at the first store on his itinerary he received a message to call Wooster at a phone number in San Antonio. He made the call and in the ensuing conversation Wooster asked McCauley whether he had told Marek he would sign an IRA card if he got good and ready. McCauley admitted he had so stated. Wooster then told McCauley that if he did so, Wooster would fire him. Wooster as- serted he knew --hat was best, and advised McCauley not to get involved. McCauley reiterated that he had not signed an IRA card but would if he so chose and further advised Wooster that if he decided to do so he would not only let Wooster know but would sign it in Woos- ter's presence. Wooster thanked McCauley for not having signed a card. Wooster admitted that a conversa- tion took place but recalled only that he said to McCau- ley, "John, I understand the IRA is attempting to orga- nize the guys again." Roy Baldit was an official of IRA serving as its Vice President for the South Central Division from 1975 until his employment by Respondent in early 1977. Baldit had been an organizer for Respondent for about 8 months in 1972-73, following which he was employed for 4 years on the staff of the International as a representative. Baldit was interviewed by Wooster for employment with Respondent in April 1977. At that time Wooster indicat- ed that he was looking for an experienced organizer and Baldit would be an asset, but brought up the subject of the IRA and frankly stated that in his view it would serve no purpose in a local union; that it was destroying the International; and that he was strongly opposed to it. Baldit responded that his only concern was with becom- ing employed with Respondent and "getting off the road." Baldit assured Wooster he would do the best job for Wooster that he had learned to do. Baldit was hired. Wooster testified that he knew of Baldit's past associ- ation and position with the IRA when he hired Baldit. In May 1977, Wooster and Ingle were in Dallas at the same hotel attending to separate business matters and had dinner together. Ingle was trying to contact one of Re- A "clean-up" campaign is a drive to sign up as many members as possible. It usually takes place in the fall of the year and International representatives are assigned to assist local business agents in this endeav- or. 434 RETAII. CLERKS UNION LO.()CAI. 455 spondent's business agents whom he understood had in- formation which could help in processing a grievance Ingle was handling for a discharged International repre- sentative. On this occasion Wooster asked Ingle, "Gary, when are you going to stop trying to organize my busi- ness representatives?" During this dinner, Wooster was very vocal in expressing his dislike for IRA and his con- viction that it was out to destroy the Retail Clerks orga- nization. Wooster also asserted he knew that "none of his guys would ever go against him .... If any .. . ever did, they knew what the end result would be." Wooster also claimed to have knowledge concerning the dis- charged International representative Ingle was defending and volunteered his advice that Ingle drop the matter. In mid-January 1978, after Baldit was promoted to business agent by Respondent, Ingle had another occa- sion to engage in conversation with Wooster. At that time Ingle asked Wooster how Roy Baldit was doing. Wooster replied that "Roy was doing me a good job." According to Wooster. his reply was simply "great." E. The Organizing Activiti John McCauley was taking a -week vacation March 20 through 24, 1978, during which time he originated the IRA movement among Respondent's staff. On March 23, McCauley obtained a supply of IRA authorization cards and signed one. He also talked to 9 of the 16 business agents of Respondent about signing such authorizations in an attempt to obtain a majority. On Sunday, March 26, McCauley went to the home of Business Agent Mike Woods to obtain his signature on an authorization card, and together they went to Business Agent John Powell's home for the same purpose. Powell joined them as they proceeded with their solicitation to the homes of other business agents. When they arrived at Baldit's house, McCauley had only a limited supply of blank cards left. Baldit signed a card and supplied McCauley with addi- tional cards from his IRA files. Baldit also contacted two business agents located in other cities about signing an IRA authorization card and supplied McCauley with other material and information on IRA organizing proce- dures. The three solicitors did not tell other staff mem- bers they wanted to keep their activities secret. They did decide among themselves that they were going to keep quiet until they had a majority and had decided what they wanted to do with it. In the office on Tuesday, March 28, Baldit participat- ed with other employees in discussing the desirability of holding a strategy meeting of card signers since they had obtained a majority. That evening Respondent held a membership meeting related to formulating contract de- mands for negotiations with the Eagle Discount Stores, at which Recording Secretary Steve Marek presided. During a recess of the meeting McCauley and Baldit talked with various of Respondent's business agents pres- ent and they agreed to hold an IRA strategy meeting for themse!ies on Thursday evening, March 30, at the Pizza Hut. Invited to the Pizza Hut meeting were those busi- ness agents who had signed cards and who would be in town at the appointed time. On March 29, the IRA held a meeting in Dallas for all International representatives. During the meeting Ingle's wife entered and announced to Ingle that he had "an im- portant telephone call from McCauley." International Representative, Lois Johnson, who was seated next to Ingle, immediately left the meeting. On March 30. John- son appeared at the office of Respondent at Houston. James Phillips could not remember whether he talked with Johnson shortly before, or after, he talked to Evelyn Wynn that day. Present at the March 30 Pizza Hut meeting, which started at 9 p.m. were Baldit, Jackie Cox, McCauley, Powell (who had been all day on a fishing trip with Wooster), C. B. Smith, and Mike Woods. Baldit brought to this meeting copies of several contracts between the IRA and various local unions which he distributed to those present. He also handled the attendance sheet for the group. It was observed that they now had a majority on the basis of the signed cards and the question was posed as to what approach they should take. One of the group suggested that they arrange a meeting with Woos- ter and try to work out their problems with him, pro- ceeding further only if it became necessary.s At that point Business Agent Richard Elliott arrived uninvited. 6 McCauley recalled that Elliott walked in, sat down and demanded to know "what this was about," and why he was not invited. Powell told Elliott that, for one thing, he was one of the problems concerning which they were holding the meeting. (Admittedly, Elliott fre- quently played cards with Wooster in the office.) A debate with Elliott regarding favoritism and "pet-ism" at the local followed. Finally, Elliott stated he knew that the meeting was about the IRA; that Wooster had done a lot for all of them;7 and "he" (no clarification, presum- ably Elliott) felt "this was wrong; the IRA was going to destroy the organization," a theme frequently voiced by E [lliol testified that he had not been invited but that he received an anon mous phone call by "somebody a male voice" telling him that ihere was going to be a private meeting of all "representatives" atl sme pizza place and that he "ought to attend." Elliott called the homes of Powell Smith, and Cox and, being unable to contact any one of them he set out to locale the group. Elliott drove by one pizza place but could not identify anyone he recognized through the windows or any fellow employees' automobiles. so he drove to another pizza place where he found the automobiles and then the group of employees Elliott parked his car and joined the group where they were seated. I do not credit El- liott's testimony that he could not identify the caller or that he thought it was a political meeting the group was holding. It is simply incredible to believe that a man of his age and station would go out at that time of night, after a day's work, searching for other business agents at such an indefinite location on a tip by an unknown caller and a mere suspicion of some ague "political activity" among his fellow employees, which he. himself, labeled as not significant enough to warrant the "nervousness" and "clammishness" displayed by the group which he observed upon his arrial. I also do not credit Elliott's denial that he mentioned Wooster's name during the exchange with the other business agents This is in direct con- tradiction of the testimony of John McCauley who I have found most reliable. Nor can I give any credence to his denial that he contacted either Wooster or Phillips after the Pizza Hut meeting. This is not to hold the contrary of Elliott's testimony to be true. Such a finding must rest upon other evidence and inferences. Cf. Alvin J. Bart and Co.. Inc., 236 NI.RB 242 (1978), cited by the General Counsel. In this regard I note that Elliott was not asked whether Wooster or Phillips contacted him Elliott lives in the home adjoining that of Wooster. Whenever it is practical, they share a ride to and from the office. Wooster denied that he recei, ed a telephone call from an employee that evening but was not asked s hether he visited Elliott, whose comings and goings he could readils ,bsere 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wooster. Elliott then entered an attack upon the Interna- tional representatives as lazy people, which brought about a debate between him and Baldit. Elliott demanded an authorization card and Woods told McCauley to give him one. McCauley did so and asked Elliott to sign. Elliott refused, saying he "would let McCauley know on Monday; that Ray (Wooster) was unhappy with the situation," and "he" (no clarification, again presumably Elliott) did not feel this was best for the organization. Elliott added he was going to be here for his 20 years (obviously referring to retirement tenure). McCauley countered with a declaration that he too was going to be with the organization his 20 years. There followed an exchange between Elliott and McCauley about the use of vacation time (apparently al- luding to the fact that McCauley was organizing while taking his vacation), whereupon Elliott left the table to get a beverage. While he was away the others present decided to leave the Pizza Hut and regroup elsewhere. They then began to leave separately. From an appointed place they went to Powell's home where they telephoned fellow card signers who were out of town and decided to send Wooster a telegram advis- ing him of the organizing activity, of their majority status, and of the IRA claim of representation. The tele- gram to Wooster, drafted by Baldit, was telephoned in by McCauley from Powell's house that evening with instructions to the carrier that it was to be delivered to Wooster over the telephone by 8:30 the next morning. McCauley later received confirmation that the telegram was physically delivered at Respondent's office at 11 o'clock the next morning, but no report was received as to whether, or at what time, it was telephoned to Woos- ter. Wooster testified that he received the telegram from his secretary around 10 o'clock on the morning of March 31 and that around 11 o'clock the contents of the tele- gram were read to him personally by Gary Ingle over the telephone, at which time he questioned the IRA's- majority status and hung up the phone. Ingle testified that lie began trying to reach Wooster by telephone early on March 31. At 9:13 a.m. he was told Wooster was in the office but was in a meeting and could not be disturbed. Ingle finally reached Wooster at 10:21 at which time he asked whether Wooster had received the telegram. Wooster replied he had not. Ingle then pro- ceeded to read the telegram to Wooster, whereupon Wooster said, "I don't believe you have a majority," and hung up. 8 I find Wooster's recollection of the timing and se- quence unreliable and credit Ingle's testimony in this re- spect. Admittedly, Ingle read the telegram to Wooster on the telephone after Wooster said he had not received it. The confirmation on its delivery establishes the time as 11 a.m. I find that Wooster reversed the sequence. The testimony does not establish as a fact but does allow for the possibility that the message on the telegram was telephoned to Wooster early that morning in accordance with the instructions given. This would account for the delay in the physical delivery of the message and would 8 The Union lost a subsequent Board-conducted election. not be inconsistent with Wooster's reply to Ingle that he had not yet received the telegram. It could also explain why Ingle was told earlier that Wooster was in confer- ence and could not be disturbed at the very time Phillips was in the process of firing Baldit, and Wooster was standing by in his office to concur in that action. F. The Discharge of Baldit When Baldit was hired by Wooster as an organizer in April 1977, he was assigned to work as a coordinator in charge of the efforts of a team consisting of himself and two other organizers.9 In September, Baldit received a raise. In November, Baldit was asked by Phillips wheth- er he was interested in being promoted to business agent. During December, Baldit was assigned a zone or terri- tory part of which had been handled by a Business Agent Ray Davila, who had resigned, and the rest en- compassing a territory previously handled by Mike Woods. The latter introduced Baldit to some of the union stewards in that area. This zone covered 1,000 em- ployees in over 30 stores. Baldit was told to take care of the outstanding problems but to continue the three on- going organizing campaigns. He spent approximately one half of his time in organizing and the other half in servic- ing outstanding problems of employees in stores in his zone represented by Respondent. In early January 1978, Baldit began to function full time as a business agent and was given a raise. Baldit received no specific training in the duties of business agent, and was not given a copy of the business agents' manual, but on request received advice and infor- mation from other business agents as to what to do in given circumstances, what forms to use, and what paper- work and reports were required.°0 Baldit knew, howev- er, that his job required him to sign up new members and to take care of grievances or Respondent could incur financial responsibility. During this time Baldit was also assigned to help in various organizing activities. The record indicates there were 2 days during the week of January 20, 2 days in early February, and 6 days in mid- February during which Baldit was sent out of town on specific organizing efforts.'t Also during this period, on BD aldit testified that the team participated in seven campaigns during this period, of which four were successful, one was lost, and the Re- spondent withdrew from two because of insufficient interest after the company there enforced a no-solicitation rule causing Baldit to be arrest- ed for criminal trespass following which Respondent's counsel supplied guidelines for handbilling by the team of organizers. in McCauley testified that the standard instructions to business agents were that their primary duty was to sign up new members. If there were grievances they were to try to resolve them and avoid as many griev- ances as possible. If a business agent was having any problems he was to confer with Phillips and/or Wooster for assistance in getting them set- tled. Any call received in the office relating to a problem was pointed out to the business agent by Phillips or Wooster so that the business agent could work on that specifically and any "grievances that you don't have time for are in your file [until] you get to them." I do not consider as worthy of detail here supposed failures of per- formance or alleged oral reprimands by Phillips or Wooster while Baldit was an organizer. Clearly, Baldit's work performance was sufficiently dis- tinguished for him to have received a raise in 6 months and to be offered the advancement to business agent only 2 months later. Surely, if his work as an organizer was so reprehensible as to be considered now as a reason for discharge as a business agent. Respondent would not have Continued 436 RETAIL CLERKS UNION LOCAL 455 one occasion a senior business agent, Rayford Russell, was assigned to go to the Freeport area with Baldit 2 to help deal with some problems which were a part of a longstanding chainwide grievance caused by the Wein- garten management assigning employees out of classifica- tion. This matter grew out of a company policy institut- ed in September 1977, referred to as the "Budget Chop- per," wherein "baggers" or "sackers" were being as- signed to do the work of "stockers" and "checkers." As a result, the latter classifications were losing hours-a problem which could not be settled on a single store or single zone basis. Uncontradicted testimony indicates that Phillips had filed a general grievence on a chainwide basis covering this policy and its application. Baldit denied that there were any problems with his work about which he had occasion to sit in Wooster's office to discuss, or that Wooster ever brought any to his attention. Nor did he receive any criticism or reprimand, oral or written. There were two occasions when Phillips brought problems to his attention and instructed him in their handling. The first was when he took over the zone. Phillips told him to go to Weingartens #98 where Billie Brockett was the steward, talk to the individuals, and curb a petition being circulated to have Brockett re- moved as steward. 1 The other involved Weingartens #81 where Evelyn Wynn was steward. Phillips told Baldit to give Wynn more attention.1 4 Shortly after he arrived at the office around 9 o'clock on the morning of March 31, 1978, Baldit was summoned to Phillips' office. Baldit testified that Phillips told him there were complaints that Baldit was not doing a good job as a business agent. Phillips stated that all Baldit was interested in was a paycheck and that he, Phillips, had no alternative but to recommend the discharge of Baldit. continued to use him, taking him away from business agent duties in his zone, to help in Respondent's various organizing activities for differing lengths of time. 12 Other than this occasion, Phillips could not recall whether he had assigned another business agent to work with Baldit stating: " assign people to work with a lot of people." Other testimony reveals that Rus- sell was assigned by Phillips to work with Business Agent Arelen Carrow for a period of 2 weeks and that McCauley has similarly worked with Business agents Davila and Woods as well as going out in their place to handle problems concerning which Phillips or Wooster had re- ceived complaints. 13 Baldit went to the store and was successful in quashing the petition. He testified that he heard no more about it. Brockett, a witness called by Respondent, testified that although at first she thought Baldit was the cause of the petition and therefore had a low opinion of him, after that first month she was convinced that Baldit was doing a good job as a busi- ness agent. In fact, she asserted, he had been able to get some problems with the hours corrected and, only a week before his discharge, he was working on some other problems in the store and had done some things that were quite helpful. 14 Wynn, a witness for Respondent, testified that her troubles with Baldit occurred early in January when one of her group had a grievance to be filed and Baldit asked her for the employee's telephone number so that he could obtain the facts directly from the grievant. Wynn informed Baldit that she was the steward in that store and that she would be the one to get all the information necessary from the grievant. Nevertheless, Baldit did telephone the employee and, on the basis of information ob- tained, filed a grievance using a ground different than that Wynn would have selected. Wynn strongly disapproved of being bypassed in this fash- ion. Wooster was present in Phillips' office when the latter spoke to Baldit about Wynn and on that occasion explained to Baldit the impor- tance of keeping stewards happy. "especially those old-timers like Wynn, who could probably sway 200 votes in an election." Wooster candidly stated that his own job security depended upon pleasing the stewards Upon Baldit's inquiry as to the source of any complaints, Phillips supplied the names of four individuals: Rose Buckley, Evelyn Wynn, Roberta Singleton, and Juanita Grimes, from whom he claimed to have received com- plaints.i s Baldit wrote the names down as Phillips gave them, then responded giving the facts as he knew them relevant to each of the individuals named and the status of each matter. 6 Baldit offered to do anything that needed to be done in order to clear up any possible re- maining problem. Phillips responded that it was too late; that he was going to Wooster with a recommendation that Baldit be discharged, whereupon Phillips went into Wooster's office. About a minute later Phillips returned with Wooster. The latter announced to Baldit that he concurred with Phillips' recommendation and that Baldit was terminated. Baldit asked to talk with Wooster but Wooster refused, stating that he had nothing to say to Baldit. Wooster instructed Phillips to have Baldit's check prepared, to pick up his credit cards, to keep Respond- ent's car, and to have someone take Baldit home. Phil- lips' testimony as to what occurred at the discharge in- '" Although at first Phillips specified that he gave Baldit the names of nine particular individuals, adding "and people like that," when he was confronted with his affidavit in which he named only five allegedly com- plaining individuals in chronological time sequence. Phillips testified he had referred to records for the affidavit, and that in his testimony he was listing the names of those who had complained. He admittedly ould not remember which names he had given Baldit but stated they were the names that came to mind at the time I accept Baldit's list as the one given by Phillips at the discharge interview. i6 Baldit credibly testified that Phillips mentioned Rose Buckley to him for the first time at this meeting. The incident that he recalled with Buckley occurred when he first became a business agent. Buckley, presented as a witness by Respondent, testified that there were two incidents One occurred the first time she saw Baldit in her store. She introduced herself to Baldit and complained that he never came to the store during the early hours when she was working, then proceeded to present to him a series of questions concerning the signifi- cance of seniority in preparing work schedules under the current contract and what effect a new contract would have. Baldit was unable to answer to her satisfaction and finally advised her that anything he might say would be wrong, then walked away. At the next regular membership meeting Buckley, in the company of her steward and others, asked Baldit another series of questions on the same subject. Baldit responded that a gentleman standing nearby had a problem and was waiting to talk with him, then left without answering her questions. Buckley testified that she called Phillips and obtained information from him at which time she asked what was wrong with her business agent-he didn't seem to know anything According to Buckley, she made only one complaint to Phil- lips. She could not recall which of these incidents she reported to Phillips or when she made the complaint. She admitted she gave a statement to Phillips at his request and was sure it was before Baldit was discharged but set the time in April. April 7 was suggested to her as the date of her sta:ement and Buckley seemed to recall that she made the complaint the day before she made the statement for Phillips. Since Buckley was men- tioned to Baldit by Phillips at the discharge interview, it would appear that reference was to her call after the union meeting incident, and that her complaint was not contiguous to the date she gave her statement to Phillips. Roberta Singleton, who was present at the membership meeting en- counter between Buckley and Baldit testified that when Buckley contin- ued to press her questions with more factual detail, Baldit told her he did not make the hours, and that the gentleman standing by had a problem. Baldit invited her to join them. Buckley did not accept Baldit's invitation but instead audibly commented she could see that Baldit was not going to answer her questions. Singleton then advised Buckley and her steward that she had no claim because she had admittedly received the hours re- quired and she could only claim more hours, not better hours. on the basis of seniority under the current contract 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terview does not differ significantly from that related by Baldit, whom I credit. As executive assistant to the president, it is part of Phillips' duty to receive calls of inquiry, complaints, and messages for the business agents who are out of the office, to relay those messages to the business agent in- volved, and to followup to see that complaints are actu- ally taken care of by the business agent. Phillips asserted that each time a member from Baldit's zone called, Phil- lips "passed the message on to him." With respect to each of the "complaints" listed by Phillips in his Board affidavit, Phillips testified that he brought the matter to Baldit's attention, and that Baldit "went out" and talked with the individuals but "somehow it never did fall in line." " Phillips further testified that he gets "complaints peri- odically on the business representatives on different things." When he receives a complaint about a business agent, it is his procedure to talk with the agent who then takes care of the problem. He identified the nature of such complaints as those for not handling a member's problem in a store; for grievances not being properly processed; for failure to give proper representation; for failure to sign up new members, etc. Phillips stated that when he calls matters to the attention of the agent in- volved, that agent usually talks with the member and does what he can to "make them happy," and "if the business representative does not take care of that prob- lem, then I don't need him." When Phillips was asked ' In the affidavit Phillips stated: "On . . 1/15/78, Billy Brockett ste- ward for Weingartens #98 Houston. told me that some of the employees' hours had been reduced and that Baldit had done nothing about it Cf. supr, at fn ]3 setting forth the testimony of Brockett and Baldit con- cerning the matters involved in that early complaint, which I credit. The affidavit continues: "On 2/20/78 Bobby Singleton called Wooster and told him that Baldit was refusing to talk to the members and that Baldit was not communicating with the employees . . . . Singleton, steward at Weingartens #49, had been on a -year leave of absence for medical rea- sons. She came to Houston twice a month to see her doctor and frequent- ly visited Respondent's office. She also continued to serve her store as the steward. Singleton testified she told Phillips in mid-January that she had seen no business agent at her store since David LaBrot left her area and Phillips advised that she had a new business agent. Baldit, and that he would send Baldit with someone to answer any questions. Singleton then told the employees that Baldit was new and to be patient. Singleton related that Business Agent LaBrol called her when he came to town. picked her up and took her to the store with him to discuss problems. Singleton did see Baldit at membership meetings. However, there is no indication that she even advised Baldit of the arrangement she had made with LaBrot. Nor is there a basis for finding that LaBrot was the business agent who immediately preceded Baldit's assignment to her store. Single- ton was unaware that Baldit had visited her store until April after his dis- charge when she discovered in the files of Respondent records showing that he had successfully resolved grievances she had thought he had failed to file Phillips' affidavit reports that "On 3/28/78 Rose Buckley, steward, Kroger 109 Klute, called me and told me that she was trying to talk to Baldit and he just walked off ... " Cf. The specifics with re- spect to Baldit's encounters with Buckley detailed in fn. 16, supra. The affidavit continues: "Also the L.ocal got a complaint from Gene Dice. Weingartens # 105. Dice had a fight with the co-manager and requested that Baldit be there the next day when he reported for work but Baldit didn't show at the right time . ." No date or further information was provided concerning this matter. However, there is no indication that Baldit failed to handle the matter when he arrived. Finally, Phillips' affi- davit states, "On 3/30/78 the Local received a complaint from Evelyn Wynn, Weingartens #81. about Baldit not taking care of problems there ... " Phillips did not list the earlier difficulty which arose between Baldit and Wynn, detailed in n. 14, which was the incident Wynn and Baldit recognized as a complaint. how many complaints he had on other business agents, Phillips replied, "I have no idea." Questioned as to spe- cific business agents, Phillips testified that he had no way of knowing how many complaints he received on indi- vidual representatives. In attempting to give estimates, Phillips repeatedly used the indefinite term "some" to de- scribe quantity. He was pressed to be more specific in this respect, and Phillips replied; "Some. It could be five to a hundred for all I know. 8 I have no way of telling you," adding that he did not keep a record of "every- body that complains about somebody."' 9 Phillips testified that the immediate incident which precipitated his recommendation that Baldit's employ- ment be terminated was a complaint by Steward Wynn who visited his office around 4 o'clock on the afternoon of March 30, "complaining" about "the problem in her store" where baggers were being assigned to perform work out of classification causing a loss of hours for the checkers. 20 Baldit "had told her that-she [sic] had filed three grievances on them." Wynn was seeking informa- tion on any developments with respect to those griev- ances.2 ' According to Phillips he looked for, but could not find a record of the three grievances referred to by Wynn in Baldit's grievance file which contained his grievance activity reports-the last of which was dated March 11. Phillips did not attempt at that time to talk to Baldit about Wynn's inquiry or the absence of the activi- ty reports. Phillips testified that he "had not heard and . . was not interested in Roy's explanation. All I know was the job wasn't being done." So Phillips decided to recommend Baldit's discharge. 22 18 Ingle, who was assigned as an International representative to assist Respondent's organizers and business agents for July through September 1976, and who worked with all of them, was in Respondent's office for a sufficient period of time to observe and witness hundreds of complaint calls come in. He testified that to his observation all of these calls go through Phillips or Wooster. It is apparent from his testimony that Ingle was not attempting to differentiate between complaints, messages, and in- quiries It would also appear that Phillips did not make such a distinction either. u Contrast this testimony with that set forth in fn 15, supra. 2u This involved still another incident in the chainwide and multizone problem arising out of Weingartens' policy concerning which Phillips had filed a general grievance. Baldit testified that when he took the matter up with Wynn's store manager orally he was advised that the matter could not be resolved on a single-store basis because the manager was following company directives and because of the pending general chainwide grievance filed by Phillips on this matter. Baldit then proceed- ed to file the written grievances and explained to Wynn the theory behind his filing them on "working out of classification" grounds by the baggers rather than loss of hours for the stockers and checkers. 21 Wynn testified that she went to Phillips' office to inquire what was happening as she had not received an answer on those grievances. Her mission was not to complain about Baldit because she did not know whether it was Baldit or Weingartens who was "holding out on us." She apparently inquired about grievances naming checkers rather than bag- gers. Phillips told her he could not find the grievances but that he would take care of it. Baldit's name was never mentioned in their conversation in Phillips' office. 22 According to Phillips, before he left tht office that evening, he at- tempted to reach Wooster at the latter's home but was not successful He contacted Wooster later that evening and conveyed his recommendation that Baldit be discharged. Wooster told Phillips to think about it until morning, and if this was still Phillips' recommendation. Wooster "would consider it." I note certain variations and inconsistencies in the testimony of Phillips and Wooster concerning this conversation. which in any ver- silonl is self-serving in nature. In his affidavit Phillips related that Wooster Continued 438 RETAIL CERKS UNION LOCAL 455 With respect to Wynn's "complaint," Wynn's testimo- ny, as well as a careful reading of Phillips' testimony. re- veals that Wynn was not registering a complaint about Baldit. So far as she knew, Baldit had filed those griev- ances. Since Phillips himself had filed the chainwide gen- eral grievance with Weingartens on the matter prior to March 11, of necessity those Baldit was to have filed would merely be supportive substantiation and particu- larization of that general grievance, and Phillips should have been the first to know of any developments on that problem. While it is true that Baldit had been able to make some progress in settling similar grievances at var- ious other stores, Wynn's store manager had made it known to Baldit that he was not going to adjust his ap- plication of company directives independently.2 3 Offered by the General Counsel and received in evi- dence is Baldit's copy of his grievance activity report for the March 13-23 period. Phillips claimed never to have seen this report and that it was not in Baldit's file on March 30. Phillips admitted, however, that present in Baldit's file were itinerary reports by Baldit for March 11, 18, and 25. These revealed that Baldit had visited Weingartens #81 (Wynn's store) on March 10 and March 16, and was in the office on March 13, the date on which Baldit's copy of his March 23 grievance activi- ty report shows he filed four named grievances covering "working out of classification" for Weingartens #81. Further, Baldit's itinerary report for March 25 confirms that he was in the office on March 23, the date of the last grievance entry on his allegedly missing grievance activity report. The grievance activity report for the week ending Friday, March 18 normally would have been filed on Monday, March 21. However, the business agents were attending an out-of-town seminar which began on the 19th. When the seminar ended on the night of March 21, the business agents were instructed to use March 22 for travel and to handle their office work on March 23, the date on which Baldit prepared his report and on which he included grievance activity taken on March 23. All employees were off for March 24 which was Good Friday.2 4 Considering the fact that Wynn's visit was only an in- quiry-not a "complaint"-and the fact that Phillips un- derstood the subject matter involved and, of necessity, should have known the answer on the general situation without regard to Baldit's records, it is clear that her so- called complaint was not itself the reason for Phillips' recommendation. This explains why Phillips admittedly made no effort to contact Baldit for an answer to Wynn's inquiry. If Wynn's visit raised any question with respect to Baldit, it would have to be related to Baldit's failure to keep his grievance activity report file up to date. Phillips testified that the secretary handles all said "to think about it for a while and if he felt the same the next day to talk to him again" Wooster testified that he told Phillips "to sleep on it" and if this was still his recommendation in the morning to proceed and Wooster would concur Wooster also testified that hey did not g into any detail regarding %Wynn's complaint, nor did they discuss any other complaints Phillips may have had concerning Baldit. 21 See fn. 20, upru. 2, Thus, the report by Baldit dated March 23 actually covered work activities for the two weekly periods ending March 18 and 25, the latter ordinarily not due until March 27 typing, mailing, and filing of grievances based on instruc- tions and the reports given her by the business agent. There is no record indication that Phillips checked with her for uncompleted work. Further, the absence of a grievance activity report was never brought to Baldit's attention even at the discharge interview, and this very fact casts serious doubt upon Phillips' testimony that the report for the period with the last entry bearing the date March 23, was missing from Baldit's file, and upon his entire testimony as to the basis for his decision to recom- mend Baldit's discharge. Without deciding whether Bal- dit's report was in fact in the file, I credit Baldit and find that four Wingartens #81 grievances of March 13 were given to the secretary for preparation, mailing, and filing in accordance with normal procedure and that the report was prepared and submitted to the office by Baldit on March 23. This report reflects that he had, in fact, filed four grievances on the subject of Wynn's inquiry on March 13, consistent with his itinerary, admittedly on file in Respondent's office, reflecting that Baldit visited Weingartens #81 on March 10 and again on March 16. There is nothing in the record to support the assertion by Phillips that, unlike the situation with other business agents who also received complaints but who were able to rectify them, Baldit made an effort but "somehow it never did fall in line." On the contrary, the two early in- cidents with Wynn and Brockett, set forth supra, which occurred when Baldit was first learning to operate as a business agent and which can rightly be classified as "complaints," were handled as indicated by the uncon- tradicted testimony of the participants and there is no evidence of a revival or recurrence of those or similar difficulties, The incidents involving the four individuals mentioned to Baldit at his discharge interview similarly do not support this assertion. Admittedly, the matter re- ferred to concerning Wynn involved not the initial Janu- ary complaint but rather her inquiry concerning current grievances. a matter which had not previously been called to Baldit's attention and on which there could not have been a failure to "fall in line." All of the testimony concerning the Buckley affair, set forth above, estab- lishes that this was an old complaint about which I credit Baldit's uncontradicted testimony that Phillips had never previously called it to his attention.25 Similarly, Single- ton's testimony shows that a simple check of Respond- ent's files would have revealed to Phillips that Baldit was not only communicating with employees at Weingartens #49, but was in fact handling their grievance,2 6 albeit without the assistance of Steward Singleton who was on extended leave. As noted, there is no indication that Baldit was instructed to follow the procedure of Agent LaBrot or even knew of it. Moreover, as LaBrot is not mentioned as the business agent who immediately pre- ceded Baldit in that territory, it must be concluded that Singleton's complaint in mid-January, or even on the " In hls respect I note that in his Board affidasit gisen 11 days after the discharge. Phillips represented Buckley as the steward at Kroger #109, whereas Buckley testified that she is a member but was never the steward 26 See f 17, spra If a isiting sieward could locate such actlvity In Rcspondenl's records and conclude therefrom hat matters had "fallen in line." it I curious that Phillips showed no such interest 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 20 date set out in Phillips' affidavit referred more to Baldit's predecessor than to Baldit who was just then taking over that responsibility.2 7 Continuing along this line of inquiry as it relates to in- dividuals named in his Board affidavit, it is noted that Phillips sets the date for Buckley's complaint as March 28, 3 days before the discharge. This then could not con- ceivably be a situation wherein Baldit failed to correct a complaint presented to him by Phillips. The same is true concerning the March 30 communication of Wynn, whether it is treated as a failure to file a grievance or a failure to keep office records current. 28 The testimony of both Singleton and Brockett, set forth above, establishes that neither presented a continuing problem, and the mention of Gene Dice in the affidavit similarly, in the absence of any testimony with more particulars, appears to be an isolated instance which was handled at the time. Further there is no evidence that he was ever mentioned to Baldit as a complaint. The same is true of those indi- viduals whose names were listed by Phillips in his testi- mony 2 9 but who were not mentioned to Baldit in the discharge interview. On the basis of the foregoing, I must conclude that Baldit's handling of any complaints received from his zone did not compare unfavorably in effectiveness with that attributable to other business agents. Baldit's tenure as a business agent was a total of 3 months, which must be viewed as a learning period as he had no prior business agent experience. Wooster testified that of the 16 business agents currently employed, all but four have received oral reprimands numbering from one to more than four (also characterized as "plenty" and "many") and about half of these have also received writ- ten reprimands, suspensions, transfers of territory, or have been laid off for derelictions of duty. Baldit never received any of these types of discipline-not even an 27 Juanita Grimes, listed as a complaining member in the discharge in- terview, was not presented as a witness and her alleged complaint was not otherwise amplified in the testimony. As indicated later, she was one of the activists in the petition presented in opposition to the discharge of Baldit. I must conclude that any matter concerning her was not signifi- cant and not supportable as a reason for discharge. 28 It conceivably could be viewed as a failure on Baldit's part to defer to Wynn's judgment on the grounds to use as the basis of grievances filed in a given situation and, thereby, a repeat of the initial problem Baldit encountered with Wynn to the extent that an incidental difference be- tween them in the earlier problem was a disagreement as to the grounds on which the grievance should be filed. Thus, here Baldit filed the griev- ances on the basis of four baggers working out of classification rather than as a claim on the loss of hours of three checkers resulting from those assignments, which appears to have been the emphasis preferred by Wynn. However, there is no indication that Baldit was instructed to accede to Wynn's judgment in such matters. Moreover, Wynn does not contradict Baldit's testimony that he told her he was filing the grievances on the baggers and gave her the rationale behind his judgmental choice Further, as this was a widespread and recurring problem on which Phil- lips had filed and had pending a general grievance, and which had not been resolved but was continuing at the time of the hearing, I cannot be- lieve that there was no coordination among the various business agents and zones with Phillips as to the grounds and procedures to be used in such grievances. 29 These include Wanda Longbotham, Joan Healey, Princetna Prince, Billie Compton, and Queenie Limbrick of whom only the last named tes- tified. It is uncontradicted that her call was never brought to Baldit's at- tention, and understandably so since her complaint in January about not having seen her business agent in a long time was directed against Woods in the belief that he was still her business agent. oral reprimand, unless the training incidents previously mentioned can be classified as reprimands. And if they are to be so classified, so must the "five to a hundred" complaint calls Phillips testified he gets on other individ- ual business agents. When Baldit's record is contrasted with that of other business agents who Wooster has discharged for inad- equate job performance, the disparity of treatment is even more pronounced. Thus, John Melton was given a written letter requiring a detailed written report on work performed, on August 31, 1976; was suspended on Octo- ber 27, 1976, and was not discharged until March 19, 1977. Ernest Alanis was given warnings, was suspended in January 1972, and was not discharged until March 1973, but then was allowed to resign. Wooster had writ- ten a letter to the International complaining about dete- rioration in Charles Bonds' job performance 2 years before the actual discharge which was preceded by a written warning letter and a suspension. He also had been given a change of zone and had a senior business agent assigned to work with him to correct the situation. Wooster testified that dischargees have been permitted to return and resign if they requested to do so. The only business agent who, like Baldit, received no warning and was not allowed to resign, and who was also discharged allegedly for inadequate job performance was Jim Shel- don who was discharged in April 1977 after 1-1/2 years of employment by Respondent as a business agent. No evidence was presented to indicate what he had done or failed to do that warranted such a severe and unheralded punishment. It might just be coincidence but, I note that it was in May 1977 that Wooster confronted Ingle with the demand to know when Ingle was going to stop trying to organize his business agents. Wooster testified that he does not have the same standards for business agents like John McCauley who helped to build Respondent, or Mack Noria who was a steward and an employee organizer in the early 1960's before he became a business agent. Thus, Charles Bond, who was also an employee organizer and a steward before he became an agent, "was given chance, after chance, after chance." This, however, does not explain away the disparity of Baldit's treatment in contrast to other business agents, who were retained and assisted by Respondent, from 6 months to 2 or more years before termination action was resorted to.30 :m The record might suggest that these are not the only individuals concerning whom a complaint became insignificant Wynn admitted that over the years she had complained about more than one business agent Margie Lea, union steward of 5 years for Gerlands #6 at Dear Park testi- fied that she has complained to both Wooster and Phillips about business agents numerous times including Elliott, Davila, Duphily, and Woods. She has also complained about Wooster and Phillips to the International, then had to send a letter to protest when the International sent a friend of Wooster's to investigate her complaint. At membership meetings she has heard public complaints voiced against every business agent except McCauley and Baldit McCauley was the business agent who was always sent out "to clean up the mess made by other Business Agents." W(X)ds did not show up at her store for a period of 3 months preceding the hear- ing herein Lea was never in Baldit's zone. Another Gerlands' steward, Jimmie Warren, testified that she never complained to Wooster because he was always "gone" when she called. She did complain to Phillips about Du- Continued 440 RETAIL CLERKS UNION LOCAL 455 McCauley, who had over 10 years of experience with Respondent as a business agent, testified that he is alert to almost everything that happens throughout Respond- ent's operation and generally knows what every repre- sentative is doing. When there are complaints about a business agent he "usually hears about it and sees it," be- cause he is the representative who is usually sent out to assist that business agent. McCauley further testified that many times he has witnessed numerous complaints come in to Phillips or Wooster about individual business agents both in the office and at membership meetings. Often a member at a meeting would register a complaint to Phil- lips in McCauley's presence and Phillips would promise to and would send McCauley out to that store the next day to handle the matter. McCauley stated that during Baldit's tenure as a business agent Baldit attended every meeting, and McCauley had no knowledge that there were any problems whatsoever in Baldit's zone. Howev- er, McCauley was sent by Phillips more than once to handle problems for Baldit's predecessor, Ray Davila, and for Mike Woods who handled part of that zone before Baldit took over. McCauley always tried to re- solve any problems and would file grievances on those which remained unsettled. In the process he always tried to reassure the members that their regular business agent was a good representative but had been detained, or he would give some other excuse for the business agent. Additionally, McCauley related that in a recent member- ship meeting McCauley was present when Phillips was advised of a petition a member was circulating at her store for the purpose of getting their assigned business agent removed from their territory. McCauley assured the member in Phillips' presence that Phillips would get assistance for that business agent. As to the quality of Baldit's work which is under attack by Respondent, as noted above, some of Respond- ent's own witnesses were lauditory of Baldit. Additional- ly, Ingle, who worked with Baldit and Woods as a team of International representatives, testified that Baldit was an excellent worker and that their team was credited with a good record. The General Counsel offered other witnesses who testified to the high quality of Baldit's business agent service. Johnnie Maxwell, steward at Ger- phily who was her business agent for 18 months until he resigned in 1977 One such complaint was that Duphily swas talking only to management- bypassing the steward and employees. Another was that he w'as trying to obtain the promotion of Steward Lea to a management position in order to then have her fired Warren also complained about their current busi- ness agent, Woods. because he would never return her calls. She stated that whenever she called Woods he would be reported to he out of town, but when she then contacted Phillips. Woods as suddenly in town and on the phone. Laverne Ealy. who worked for two stores of Weingartens and was a steward. testified that when she was discharged by the man- ager of one store. her business agent, Mack Noria, promised to come out the next day but instead left town Phillips received her complaint. but then "gave her the runaround" She had to come to Respondent's office and filed her own grievance. Eventually a settlement was worked out for her. Emma Collins. Weingartens #2 steward, registered a complaint when she needed a representative and after calling the office three times for Mike Woods with no response. she called for any available business agent and was told by the secretary there was no one she could talk to Collins drove to Respondent's office and found four business agents as well as Phillips. who advised her to call him personally in future situa- tions She also complained to Phillips when Jackie Cox attempted to settle a matter b phone rather than come to the store lands #29, Freeport, testified that Baldit was "very good" he cared and was concerned for all, and all liked him-"even the boss liked him which is unusual." The union membership had dropped very low in her store and greatly improved during Baldit's period of service. Specifically, membership had fallen from 10 to 2 of the 20 store employees. After Baldit serviced the store, membership rose to 17 of the possible 20. She stated that Baldit during his 3-month tenure was in her store more times than she could remember seeing all other business agents together over the preceding 3 years.3 1 Emma Collins, steward of Weingartens #2, testified that Baldit helped her and the employees with their grievances and that she found Baldit to be the one business agent that she could call and receive a response. It was at this point in the presentation of witnesses evi- dencing the high quality of Baldit's work that, on objec- tions from Respondent as to relevancy, I ruled that these witnesses could be dispensed with and I would presume that Baldit serviced everyone in his assigned zone satis- factorily except for those who complained, since Re- spondent made no effort to learn what others thought about his service but allegedly relied solely on the com- plaints related by it. Respondent objected to this assump- tion and took exception to my ruling, but the General Counsel abided by it and presented no more witnesses of this nature. Upon reflection I am not satisfied that Re- spondent's failure to investigate gives rise to the pre- sumption that Baldit's service to everyone but the specif- ic complainers was satisfactory. On the other hand, the objection raised by Respondent went to relevancy, and I cannot say that it was sufficiently meritorious to cut off the General Counsel's line of inquiry. However, the sig- nificance of such rejected testimony in the resolution of the ultimate issues in the case is not significant, and I deem it sufficient, in order to rectify the deficiency in my ruling, to assume that other witnesses, if presented by the General Counsel, would have testified favorably con- cerning Baldit's business agent services. "i When Maxwell learned of Baldit's discharge she hurriedly circulat- ed a petition at several stores in her area and, with Juanita Grimes, the neighboring Weingartens' steward, drove the 60 miles to Respondent's office on April 3, to deliver to Phillips the petition protesting Baldit's dis- charge. The two stewards talked to Phillips. They told him they could not believe his claim of complaints about Baldit's work as he was the best business agent they had ever had in the area They insisted that Phillips give them the names and numbers of the individuals who had com- plained. Phillips told them that Baldit had never filed a grievance for an employee named Hawkins in a Lake Jackson store but did not say that Hawkins had eer complained. They then mentioned Rose Buckley, but s hen they tried to obtain specific information he kept changing the sub- ject and would never answer their questions. Because there was a meet- ing at 4 o'clock for which they had hurried their petition to Respondent's office. they gave Phillips what they had on the petition, then returned to their area and more thoroughly circulated a second petition of the same nature in the four area represented stores and submitted this much more comprehensive petition to Baldit Although Baldit did not submit this en- larged enrollment of satisfied members to Respondent. it stands as a sam- pling of ed;ution of his services which should carry some weight against the alleged complaints had Respondent been interested in an eval- uation I also note that Juanita Grimes, who Phillips had named as a complaining steward. was one of the sponsors of the petition protesting Baldit's discharge. which could explain why her alleged complaint was not substantiated by testimony. 441 DECISIONS OF NATIONAL LABOR RELATIONS HOARD G. Events Following the Discharge When Baldit left Phillips' office on March 31, he went directly to the business agents' office where he told of the events that had just transpired. Woods testified he was very upset and at about 11 o'clock that morning confronted Wooster in the parking lot inquiring of the reason for Baldit's discharge. Wooster replied that it was for not taking care of his zone and that they had several complaints on him. Woods asked Wooster whether Bal- dit's discharge had anything to do with the IRA; he told Wooster that he (Woods) had signed an IRA card and had helped other employees sign cards. There followed a 30-minute conversation in which Wooster made his views of IRA known to Woods. When Woods was asked by the General Counsel why he had volunteered infor- mation regarding his card signing activities, Woods re- plied it was "just to be up front"-he was "mad." It was clear that Woods, who was a witness for Respondent, was not candidly revealing the content of that 30-minute conversation. Wooster, after first denying, then evading, finally ad- mitted that he called a special executive board meeting3 2 on Monday, April 3, before the staff meeting scheduled for 4 p.m. on that date, even though a regular executive board meeting was to be held on Wednesday. At that special meeting he reported the Baldit discharge and the executive board "took no negative action" which he tes- tified is all that is required for approval of his action. Also on Monday morning Wooster attempted to orally reprimand McCauley while recording it on cassette tape "for insubordination with Phillips that morning," but McCauley insisted upon having an IRA or staff repre- sentative present. When Wooster refused but continued to tape the meeting, McCauley walked out of his office. Wooster testified that he tried to tape the conversation because he knew of the IRA activity. He insisted that McCauley was called in to discuss insubordination-not his IRA activities. At the staff meeting that day at 4 o'clock p.m., Woos- ter brought up the IRA and told the staff of its majority claim which he had rejected. Wooster advised the Staff that he was against the IRA; that it would destroy Re- spondent; that it was not necessary: that he wanted all to vote against it; and that in his opinion they were not "employees." Wooster warned the staff that while they were on the payroll and working for Respondent "you will carry out the decisions and directives . . . and anyone failing to do so is going to be considered as in- subordination," and those who did not follow orders would be terminated. Wooster publicly announced to the staff that he was not going to tolerate insubordination by McCauley and that when he returned from a scheduled trip the next week he was going to have that meeting with McCauley. Wooster also advised all present that he was going to be taping any conversations.3" Wooster :1 For a special executive board imeeting each member must be person- ally coniacted and this is all that is required, even foIr only a minute's notice, unless all objection is raised. :"a W)ooster testified that although he did mention "no solicitation" lie qualified it wsith the proviso that they were free to discuss IRA so long as they did not let it interferer i th heir jobs No part of the conmplaint covers unlawful application or promulgation ofr a no-solicitation rule. specifically cautioned Powell about "removing items" from the files in the IBM department (it appears that Powell had physically taken a member's checkoff card with him for the purpose of establishing its duration). During the meeting McCauley brought up questions con- cerning Baldit's discharge, which Wooster rejected, stat- ing, "I don't intend to discuss Roy's termination with you or anyone else in this staff meeting," and asserting he had made the decision to discharge Baldit and "the Executive Board had backed him up. So that was it." McCauley attempted to raise questions of Wooster such as the reason for Baldit's discharge and whether Elliott had come to his house and reported their Pizza Hut meeting the night before Baldit's discharge, but Wooster refused to answer him and would not allow McCauley to speak, even though the latter interjected his questions over the demonstrated approval of Woods, C. B. Smith, and Elliott. After the staff meeting, McCauley confronted Wooster and accused him of firing Baldit because of the IRA. McCauley told Wooster he felt this was wrong and that he would do all he could to help Baldit. He threatened to go to the membership over Wooster's discharge of Baldit, if necessary. Wooster informed McCauley that since the executive board had approved his discharge of Baldit, McCauley could be discharged under the Lan- drum-Griffin Act for insubordination if he took the matter to the union membership. FINDINGS ANI) CONCLUSIONS It is my function and responsibility, initially on behalf of the Board, to determine the weight and credibility of testimony, to appraise conflicting circumstantial evi- dence, and to draw inferences therefrom. '4 My observa- tion of the demeanor of the witnesses and those in at- tendance in the courtroom has remained detached and I have presented the facts as I find them. My perception of the atmosphere and inner workings of unions, gleaned from many years of association and in the administration of the Act has, of necessity, contributed to my under- standing of the evidence in this case. It may well be that the Board, whose responsibility it is to make the neces- sary inferences will not find therein a sufficient basis for the inferences which I draw from these facts and obser- vations. It is for this reason that I have attempted a most comprehensive dissertation of the evidence on which my inferences are drawn. Phillips points to the Wynn complaint as the catalyst for his discharge decision. As has been seen, Wynn's was Also Ithere is no allegation in the complaint regarding taping or the deital of a representative at a disciplinary conference It appears that McCauley later acceded to a conference without a representative Still later. MlcCauley approached Wooster at the urging of fellow business agents Ihat he should offer his resignation. At that tite McCauley asked wheth- er there was any way they could settle the aldit discharge case and Wooster told McCauley, "there was no way" because "I am not going to put him back to work" Wooster testified that in that consersation he wsarned McCauley on a lack of improvement imI his performance and set a future meeting date to go over McCauley's w(ork. A this. or a similar meeting, Wooster's main concern was to obtain assurance that McCauley sas not going to run against him for president of Respoident in the up- corning union election. 4 N.'L R B. . Link-Belt Co.. 311 US 54, 597 (1941). 442 RETAIL CLERKS UNION LOCAL. 455 not a complaint, but rather was an inquiry of develop- ments concerning a matter to which Phillips would be the most thoroughly and promptly informed. Since Wynn's manager had informed Baldit, when the oral grievances were presented, that he was going to adhere to company policy and any settlement would have to come through the overall grievance filed by Phillips, presumably this also was conveyed in Baldit's explana- tion to Wynn as to the basis on which he was filing the grievances. There certainly is no indication that Baldit withheld this information from Wynn. Nor is there any indication in the testimony of Wynn or Phillips that Phil- lips was, during this conference, in the least disturbed by Wynn's inquiry. Further, Baldit's name was never men- tioned in this conference. These circumstances lead me to conclude that the conference with Wynn had abso- lutely nothing to do with Baldit's discharge. That Phillips later experienced a severe reaction to something is evident from his urgent efforts to contact Wooster both before he left the office and upon his ar- rival at his home. Just what development caused this panic reaction is not revealed. Clearly, something de- scended upon Phillips outside Wynn's presence and it is reasonable to assume it took place after she left the office. Phillips did not deny that he was visited by Inter- national Representative Lois Johnson that afternoon. However, the surprise and accompanying state of confu- sion which Phillips displayed on the witness stand when he was asked by the General Counsel about this visit not only revealed that this was an element in the case about which he had not expected the General Counsel to have knowledge, but also suggests that this was an extremely significant link in the chain of events. Of course, not knowing how much the General Counsel knew, Phillips quickly took refuge behind a loss of memory. I do not believe that Johnson traveled from Dallas where she had business to Houston just to visit Respondent's office on a matter of such little significance that Phillips could not remember the hour or content of her visit. I am prepared to infer that there was something in this visit that stimu- lated Phillips into immediate action which action he frankly associated with the motivation for his recommen- dation that Baldit be discharged. If we look at Phillips' claimed reason for his decision to recommend Baldit's discharge, namely, his realization of Baldit's asserted lack of success in causing situations to "fall in line," this too is hardly the type of conclusion that would cause a man, whose main task is to soothe out complaints, to press the panic button. Aside from such incongruity, a look at Baldit's record fails to sub- stantiate this assertion by Phillips. The two incidents that took place during Baldit's first month as business agent and which might rightly be classified as complaints did "fall in line," and by the proven quality of Baldit's serv- ice at least one of the individuals involved, Brockett, was won over to an attitude of praise and trust. Similarly, when we examine the facts relating to the various lists of names given by Phillips to support his contention, as indicated supra, we find no support for Phillips' assertion of inadequacy on the part of Baldit. Moreover, Phillips' claim that those named on his affida- vit were based on records (which were not presented), when contrasted with his assertion that he had no way of knowing-and presumably no records-as to the number of complaints against other business agents, reveals an unsubstantiated assertion as to the existence of records and a self-contradiction with respect thereto, indicative of the pretextual nature of the reason given by Phillips for recommending Baldit's discharge. It also reveals a disparity in the treatment accorded Baldit in this respect vis-a-vis other business agents. Such disparity of treatment is further supported by the fact that, of the current 16 business agents, all but four have received oral repri- mands, numbering from one to more than five, also char- acterized as "plenty" and "many," and about half of these other business agents have also received written reprimands, suspensions, transfers of territory, or have been laid off, whereas Baldit has been without repri- mand, oral or written. Testimony of record, including that of Phillips, permits the conclusion that complaints from represented employ- ees were the order of business which was funneled through Phillips, and his estimate based on his own rec- ollection was that he had received from 5 to 100 com- plaints regarding other individual business agents. Yet, Phillips did not get "tired" of those other complaints whereas he could not tolerate another day of the very few complaints established with respect to Baldit. This disparity of treatment is even more glaring when you compare the steps taken to help other business agents cope with problems and to improve the quality of their performance with Phillips' declared attitude that he did not solicit Baldit's explanation of the situation or give Baldit a chance to correct it, or even give him a warn- ing, before invoking the ultimate penalty of discharge, because he was not interested in anything Baldit would have to say. Interestingly, neither was Wooster interest- ed in anything Baldit had to say.35 When you add to the clearly false reason given for the discharge, the evidence that Baldit's record was not only good for what was a learning period but was superior to the record of many who could be considered experi- enced business agents; the disparity of treatment accord- ed Baldit versus other business agents; the declared disin- terest in anything Baldit might say in his own defense: the timing of the discharge in relation to the organizing activity; the precipitateness of Baldit's discharge; the re- fusal to grant him a conference on that decision; the im- mediacy of processing his discharge on a Friday morning rather than permitting it to take effect at the end of the day which would have been the end of the workweek; 3 6 the refusal to permit or tolerate any defense of Baldit by other employees; the maneuver by Wooster of calling a special executive board meeting to foreclose other em- ployees from internally challenging the discharge of Baldit; and later the announced intractability with re- spect to the unacceptability of Baldit's reinstatement, all add up to a glaring pretext in the reason given for the discharge. This also clearly demonstrates that the real '5 Set Florid .i'edical Center. Inc. dha Lauderdale LaAes Gencral Hospital 227 NRH 1412, 1413-14 (1977 :16 See Cruciblhe, Inc.. Dsin of Colt Industries, Inc., 228 NLRB 723. 729 (1977) 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason for the discharge was one highly charged with emotional reaction and a determination for revenge. Respondent's attitude of mind and disposition toward the Union is emphatically stated in the testimony of its chief executive officer, President Wooster, in terms that leave no doubt as to his opposition to IRA. But opposi- tion alone is not enough. We do find, however, in the background evidence and subsequent conduct of Woos- ter, amplification of the forms by means of which Re- spondent would be inclined to express such opposition. Thus, the evidence reveals an unchanging and unbending stance of animus maintained over the years, and continu- ing to the date of the hearing, which underscores the extent to which Wooster would go in furthering Re- spondent's opposition to IRA. Foremost are his threats of discharge of any employee who signed a card or so much as attended a meeting due to curiosity. Wooster's intractability in this respect is demonstrated by his obvi- ous contempt for settled legal precedent and his contin- ued publication of the rejected argument that business agents were not employees under the Act despite the well-settled court opinion to the contrary.3 7 Further, his vigilance in uncovering and attempting to prevent any IRA organizing effort, not only by direct cautioning conversations with officials of IRA but also by means of interrogation personally, and through other officials, reveal an obsessive determination to prevent Respond- ent's employees from enjoying an opportunity for a free choice. The background evidence, together with the ex- pressions of views and actions taken during the relevant period and Wooster's declaration of views given on the witness stand, establish an unwavering and continuing at- titude of contempt for, and complete disregard of, the protected Section 7 rights of employees of Respondent. The persistence of conduct rooted in this animus is further demonstrated by Wooster's continued innuendos of a need to review a lack of improvement in McCau- ley's work, implying a threat of adverse action. Such conduct, occurring in the face of all other evidence indi- cating that McCauley was, before the organizing cam- paign, Wooster's most trusted troubleshooter, and his and Phillips' emissary in soothing out ruffled feelings and handling neglected problems throughout areas assigned to other business agents, and in the absence of any evi- dence of deterioration in work performance, underscores the tenacity of Wooster's animus. On the basis of the evidence presented, I conclude that Wooster, the chief executive officer and agent of Re- spondent, was motivated in the discharge decision by an extreme and intractible animus toward the IRA, in total disregard of national labor policy, legal precedent, and the purposes for which the Act was enacted. "Although employer knowledge is an essential ingredi- ent to a finding of unlawful discrimination, such knowl- edge need not be established by direct proof, but may be inferred from circumstantial evidence. The same set of circumstances may be relied upon to support both an in- ference of knowledge and an inference of discrimina- tion."3 8 In reading the case precedent, as to the evidence '7 See fn. 4, supra. 38 Coca-Cola Borling Company of Miami. Inc., 237 NLRB 936., 944 (1978), and cases cited there. activity, particularly insofar as the small plant rule is sig- nificant, I find no clear holding that this doctrine, which unions often find so crucial in support of their charges against employers, may be applied to "field" locations. However, I believe the same closeness in functioning and opportunity of observation exists in many "field" situa- tions and in such circumstances there is no logical reason to permit artificial boundaries to limit application of a valid principle. Respondent rests its defense almost entirely on the General Counsel's alleged failure to establish that Re- spondent had direct knowledge of the union activity before Baldit's discharge, against its denial that such knowledge existed. In view of my evaluation of the credibility of Wooster and Phillips, I can assign no weight to their self-serving denials other than that appro- priately accorded a pleading in order to frame the issues. The fact that the union activists agreed to conceal their activities does not foreclose an inference of employer knowledge in a small plant situation.3 9 Moreover, the evidence presented in the case does not foreclose a find- ing that Wooster and Phillips had specific knowledge of the presence of union activity and, at least suspected Bal- dit's leadership role based in part upon his prior official position with the Union,40 before the decision to dis- charge Baldit was made. In time sequence, on March 28, there was the discus- sion in Respondent's office among business agents, in- cluding Baldit, of holding a strategy meeting of IRA card signers. This was followed on March 29 by a firm- ing up of a March 30 date, time, and place during a break at the contract-demand formulation meeting for represented employees conducted by Marek and the business agents that evening. Marek, who chaired this meeting, was not presented as a witness. Since he is an officer of Respondent, and the very one concerning whom uncontradicted testimony was presented of his prior service to Respondent in interrogating employees about their union activities at Wooster's direction and re- porting their replies, there is an inference that had he been called he would have testified adversely to Re- spondent's interest.4 ' Moreover, in view of the nature of the business agents' work, and the nature of this meeting, I find that the location, and the activity of the business agents there, constituted an extension of Respondent's office or place of business. The fact that business agents perform much of their work away from the office should not nullify the underlying rationale supporting an infer- ence of knowledge of organizational activities carried on by employees in the course of performing group work functions in the presence of officials at a work function location. 42 The presence of Respondent's recording sec- retary, in these circumstances, was tantamount to the 39 See C. S. C Oil Company, a division of Cooke United, Inc. d/b/a Ontario Gasoline d Car Wash, 228 NLRB 950, fn. 2 (1977). 40 See Riverfroni Restaurant, a Corporation trading as Riverfront Resrau- rant & Dinner Theater, 235 NLRB 319, 320 (1978). Gould. Inc., 216 NLRB 1031, 1035 (1975), enfd. 542 F.2d 1176 (6th Cir. 1976). 41 See Laredo Coca Cola Bottling Company, 141 NLRB 167 (1979). 41 Cf Lasell Junior College, 230 NLRB 1076, 1079-80 (1977). 444 RETAIL CLERKS UNION LOCAL 455 general presence of a foreman or other company official at the working site in a plant.4` In other words, I would not confine application of the small plant doctrine to the four walls of a plant, but would extend it to any group work activity carried on under official supervision and/or direction. I conclude that the small plant doctrine is applicable to the situation in the instant case. 4 4 Since numerically, 45 Respondent's operation falls within the small plant concept, and sup- portive factors are present,4 6 I find that knowledge may be inferred therefrom. The following evening International Representative Johnson departed the table at an IRA function the in- stant Ingle received the message he had an urgent call from McCauley. She showed up in Phillips' office late on the afternoon that Wynn visited Phillips, and the very evening on which the business agents had scheduled their strategy meeting. At this stage the only information Respondent would have learned from Marek's presence during the union activity of the business agents at the contract-demand meeting were the fact of that activity and the plan to hold a strategy meeting, as this was the import of the activity that evening. Since nothing in the conversation between Wynn and Phillips noticeably ex- cited Phillips, it is safe to infer that there was informa- tion in Johnson's visit that was the catalyst which placed so much urgency in Phillips' attempts to reach Wooster. The urgency of the information brought by Johnson and the limitation of the knowledge gleaned by Marek could well account for the firmness of the telephone in- struction to Elliott to attend the strategy meeting as well as for the vagueness concerning the location. Only a di- rection by an important personage of authority could ac- count for Elliott's appearance as an uninvited guest at the Pizza Hut meeting of March 30 pursuant to an urgent last minute call. Clearly Elliott was not trusted by the other business agents, not only because of his close- ness to Wooster, both in neighborly proximity and as a co-rider, but also because of his special personal relation- ship with Wooster in playing cards in the office, and what the other business agents labeled as "favoritism" and "petism." These same factors could make him a trusted informer for Respondent. Closeness in relation- ships has been found to support a conclusion of disclo- sure of knowledge of union activity. 4 7 It is unnecessary to identify who sent Elliott on his late evening mission to find and invade the business agents' meeting. One could reasonably surmise it was the result of contact with Wooster by Phillips who had been so desperately trying to reach Wooster after Johnson's visit that afternoon. I infer from the foregoing that Elliott reported to Re- spondent officials in detail what took place at the meet- ing. Since Elliott remembered Baldit as possessing docu- ments at that meeting, it would be logical for him to conclude that Baldit was playing a significant role in the 4' See Niagara Gear Corporation, 225 NLRB 122, 124-125 (1976). 44 See Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959);.4 to Z Por- rion Meats, Inc., 238 NLRB 643, 644 (1978). 4 Tom's Ford. Incorporated, 233 NLRB 23, 27 (19771. " See Self Cycle it Marine Distributor Co., Inc., 237 NLRB 75 (1978): cf Maniac Corporation and Tackett d Manning Coal Corporation, 231 NLRB 858, fn. 2 (1977), and cases cited 4 See US Soil Conditioning Company. 235 NLRB 762. 764 (1978) union activity and no doubt he dutifully reported this too. On the basis of the foregoing, including the application of the small-plant doctrine, 4 8 I infer that Respondent had knowledge of union activity by its business agents and that by the night of March 30,4 9 Respondent at least sus- pected, because of his past official position with IRA and his apparent active role at the Pizza Hut meeting, that Baldit was the instigator and cause of this union activity by its business agents. 5 0 Further, I conclude that Woos- ter had decided and so informed Phillips on the night of March 30 to discharge Baldit for such activity, and used their sophistication in labor law to devise a pretextual reason and format. This decision, and the urgency of car- rying it out, is consistent with Phillips having called Bal- dit's home on the morning of March 31, albeit unsuccess- fully, to direct him to report to the office that morning. Accordingly, I conclude and find that Respondent was motivated by an intent to retaliate against employee Roy Baldit for engaging in union activity protected by Sec- tion 7 of the Act5 ' and that Respondent, in discharging Baldit for this reason5 2 on March 31, 1978, discriminated against Baldit with respect to terms and conditions of employment in violation of Section 8(a)(3) and interfered with, restrained, and coerced its employees in violation of 8(a)(1) of the Act. On the basis of the foregoing and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Retail Clerks Union Local 455, char- tered by Retail Clerks International Union, AFL-CIO, is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, and is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Representatives Association is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging and thereafter fail- ing and refusing to reinstate Roy Baldit to his position of business agent because of his known or suspected union activity protected by Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(3) of the Act, and has inter- fered with, restrained, and coerced its employees in vio- lation of Section 8(a)(l) of the Act. ' Niagara Gear Corporation, supra. Cf. Mantac Corporation, supra. 49 Having found that knowledge of union activity and the decision to discharge Baldit preceded receipt of the demand for recognition it is un- necessary to determine whether Wooster in fact received a call convey- ing the content of the demand telegram before he stated his approval of the discharge decision recommended by Phillips 50 See cases cited in fn. 40, supra. 51 See Tama Meat Packing Corp., 230 NLRB 116, 126, 128 (1977). Also see NL.R.B. v Wal-Mart Stores Inc.. 488 F2d 114, 117 (8th Cir. 1973). and cases cited therein enforcing 201 NLRB 250 (1973). a2 It is immaterial that other business agents were in fact the ones who initiated the union activity and that Baldit's role was that of supporter, adviser. and supplier of information and materials because of his prior of- ficial identification with the IRA. Clearly these activities together with his known prior affiliation would suffice to point the finger of suspicion at him 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The activities of Respondent, set forth above, occur- ring in connection with its operations described in sec- tion I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. THE REMEDY Having found that Retail Clerks Union Local 455, chartered by Retail Clerks International Union, AFL- CIO, has engaged in, and is engaging in, certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action deemed necessary to effectuate the policies of the Act. Having found that Respondent unlawfully dis- charged Business Agent Roy Baldit in violation of Sec- tion 8(a)(3) and (1) of the Act, I shall recommend that Respondent be required to offer him immediate and full reinstatement to his former position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suf- fered by him as a result of its discrimination against him, by payment to him of money equal to that which he nor- mally would have earned, absent the unlawful discharge, with backpay and interest computed under the estab- lished standard of the Board in accordance with the for- mula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).53 Having concluded that Respondent interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, by discriminating against Roy Baldit with respect to his tenure of employ- ment because he engaged in self organizational activities in concert with other employees, which unlawful con- duct permeates the very purpose and policy of the Act and which, I have found, is representative of the con- temptuous attitude of Respondent toward the rights of its employees and toward established legal precedent under which it generally benefits, I believe these are unusual circumstances warranting a broad order. I shall therefore recommend that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their Section 7 rights. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 54 The Respondent, Retail Clerks Union Local 455, char- tered by Retail Clerks International Union, AFL-CIO, its officers, agents, and representatives, shall: 5a See, generally, Isis Plumbing & Heating Co., 138 NLRB 176 (1962) "4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the 1. Cease and desist from: (a) Discharging employees and refusing to reinstate them in order to discourage their efforts to secure union representation. (b) In any manner interfering in its employees' exercise of their rights to form, join, or assist International Repre- sentatives Association or any other labor organization, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Offer Roy Baldit immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole in the manner set forth in the Remedy section of this Decision. (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for exami- nation and copying, all records necessary to determine the amount of backpay or other payments and obliga- tions due under this Order. (c) Post at its office in Houston, Texas, and at its meet- ing halls, wherever Respondent's business is conducted, copies of the attached notice marked "Appendix."55 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken by Respondent to comply here- with. findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. "5 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 446