Bi-Lo, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 12, 1967163 N.L.R.B. 1009 (N.L.R.B. 1967) Copy Citation CONCLUSIONS OF LAW BI-LO, INC. 1009 1. KONO-TV-Mission Telecasting Corporation is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 2206, AFL-CIO/CLC, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Respondent in its engineering department, including transmitter operators, control operation technicians, projectionists, audio operators, video switchers, and camera control operators, employed by the Respondent at its studio at San Antonio, Texas, and also including the employees at Respondent's transmitter site in the San Antonio vicinity, excluding all employees employed in Respondent's production department, its general office staff, announcers, office clerical employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate.for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is, and at all times since July. 20, 1965, has been, the exclusive representative of all employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, within the meaning of Section 9(a) of the Act. 5. The General Counsel has failed to establish by a fair preponderance of the evidence that the Respondent is engaging in or has engaged in unfair labor practices within the meaning of Section 8(a)(1) or (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and on the entire record in this-case, the Respondent's motion to dismiss the complaint in its entirety is granted. Bi-Lo , Inc., and Amalgamated Meat Cutters & Butcher Workmen of North America, Local 442, AFL-CIO. Case 11-CA-3007. April 12,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 22, 1966, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 163 NLRB No. 138 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Bi-Lo, Inc., Green- ville, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 1 The Respondent's exceptions to the Trial Examiner's Decision are in large part directed to his credibility resolutions We will not overrule a Trial Examiner's credibility resolutions unless a clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3). We also find no merit in the Respondent's charge of bias and prejudice on the part of the Trial Examiner. 2 Add the following immediately below the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision: Note: We will notify John C. George and Charles E. Hilton if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H. EADIE, Trial Examiner: This proceeding was held before me in Greenville, South Carolina, on August 2 through 4, 1966, on the complaint of the General Counsel and the answer of Bi-Lo, Inc., herein called the Respondent.' The complaint alleges violation of Section 8(a)(1) and (3) of the National Labor Relations act, as amended. The Respondent's answer admits the jurisdictional allegation of the complaint, but denies the commission of any unfair labor practices. After the hearing the General Counsel and the Respondent filed briefs with me. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation with offices at ' The charge was filed on April 8, 1966. An amended charge and a second amended charge were filed on April 18 and 29, 1966, respectively. The complaint issued on May 19, 1966. 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greenville, South Carolina. It operates a chain of retail food stores and is engaged in the retail sale of groceries, produce, meat, and other goods At the times material herein the Respondent operated 16 stores and had approximately 700 employees During the year ending 1965, the Respondent sold and distributed groceries, produce, meat , and other goods, the gross value of which exceeded $500,000. During the same period of time, the Respondent received goods valued in excess of $50.000 and transported them to its places of business in South Carolina directly from States of the United States other than the State of South Carolina The complaint alleges, the Respondent's amended answer admits, and I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, Local 442, AFL-CIO, herein called the Union, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A Sequence of Events, Interference, Restraint, and Coercion During the latter part of March 1966, John George, assistant market manager of Respondent's store 4, wrote to the Union in Atlanta, Georgia. A few days later he received a telephone call at the store from Roy Williams, a representative of the Union. As a result of this call, George and David Jones, also an employee in the market or meat department of store 4, that same day had lunch with Williams and Robert Johnson, business agent of the Union. They arranged for a meeting to be held on April 3 at the Holiday Inn in Greenville. On Saturday, April 2, Jones at first told George that he would not be able to attend the union meeting. Later he told George that he had changed his mind and would attend. That night George called James Crenshaw, market manager in store 14,2 and asked him to come to his home the following day. When they met on Sunday, George told him about the union meeting and asked him to attend. Crenshaw wanted to know which employees were going to be there George mentioned the names of Jones and employees William Oscar Bryant, Charles Hilton, and James Phillips. When Crenshaw agreed to attend, they arranged to meet about 3 p.m. at the Pleasantburg Shopping Center.'' At the appointed time George went to the shopping center where he met Bryant. They went to Hilton's house and picked him up. George, Bryant, and Hilton then returned to the shopping center where they met Crenshaw. When neither Jones nor Phillips appeared, the four employees left the shopping center and went to the Holiday Inn. Their meeting with the union representatives lasted about 1 hour. Neither George nor Bryant worked on April 4 as it was their day off George Tumblin, the market manager in store 4, was off from work on Tuesday, April 5 About 8 a.m the following day while Bryant was checking in, David Coker, assistant manager of store 4,4 stopped and asked him if he was "part of this union mess," saying that if he was, he (Bryant) would lose his job. Coker then said that Paul Jordan, a part-time employee in the meat department, had signed a union card and would "probably lose his job on that account "' About 10 a.m that same morning Bryant had a conversation with Tumblin Tomblin asked him if he was "a part of this union mess" and if "John George was the instigator of this." Bryant refused to answer the questions. Either before or after the above conversation, Tumblin asked employees Jordan, Grady Oxner, Larry Dillard, Clyde Simpson, and John Baldwin if they had signed union cards. Except for Jordan, all denied signing cards. Shortly after George returned from lunch on April 6, Tumblin called him to the back of the store and asked him what he knew "about this union " George admitted that he was involved in organizing the employees. Tumblin said that "the job was running smoothly" since George had come to the store, and asked him if he cared about his job. George replied that he did. Tumblin told him that if he would "squeal" about the other employees involved with him in the union campaign, he (George) would receive a raise of $5 and be made a market manager. George refused to do this. Tumblin told him that Frank Outlaw, president of Respondent, had said that he would close every store before he would let one of his stores "go union," and that he was coming down "personally" to discharge him (George). t' Shortly after the above conversation Tumblin received a telephone call He then told George that he was needed over at store 12 immediately. When George stated that he could not go to that store because he did not have his automobile with him, Tumblin replied that Jones would take him.' After George left the store, Tumblin told Bryant that John De Young, Respondent's meat supervisor, had called him, that he (Tumblin) had "to abide by the supervision", and that George "probably ... would quit" as he would have to work every night until 10 p.m. Later that same day in the presence of employee Fred Simpson, Tumblin asked Bryant if Eunice George, the wife of John George, had been "at the meeting" and if she had any part in the Union. Bryant replied that Eunice George did not have "any part whatsoever in the Union." On Wednesday, April 6, Crenshaw worked all day at store 14. About 6:30 p.m. De Young and Milton Gillespie, Respondent's director of store operations, came to the store and discharged him. Concerning the conversation, Crenshaw testified without contradiction as follows: They went straight to the back room and called me back there, and I believe Mr. Gillespie was the one that called me to come back and come in there, and I went back in the stockroom with him, and they told me that there wasn't anything personal between me and him, they just had to let me go, and Mr. Gillespie told me, I asked him why, at the time I asked him why they were going to let me go, and he didn't say, he said 2It is undisputed that market managers are supervisory employees within the meaning of the Act ' The Respondent did not have a store at the above location 4 The Respondent admits that store managers and assistant store managers are supervisory employees within the meaning of the Act Coker admitted that he asked Bryant if he had signed a union card , but denied the above statements attributed to him by Bryant Tomblin testified that he had asked Jordan if he had signed a union card and that Jordan had admitted signing one s Tumblin admitted that he had questioned George about the Union, but denied the above statements attributed to him by George ' Jones took George 's job as assistant market manager after the latter 's transfer to store 12 BI-LO, INC. something about a percentage had been bad, or something, and I said, well, how about just letting me have a job cutting meat? And he said, no, you go on home, don't say nothing to nobody, and later, Monday or Sunday, you feel free to call me any time, and if you're ready to come back and be 100 per cent BI-LO, we'll probably give you your job back. Hilton worked as a stock man at store 5. About 8:15 a.m. on April 7 Gillespie came to the store and told Hilton not to "check in" any more salesmen. After talking to James Alverson, the store manager, Gillespie left the store. Later Alverson told Hilton not to go to lunch at noon. Gillespie returned to the store about 11 a.m. with Block, another supervisor. They went to a "back room" with Alverson where they remained for about 1 hour. Alverson then left the store with them. As soon as Alverson returned to the store he told Hilton that Gillespie wanted him (Hilton) to go immediately to store 7 at Honea Path.8 When Hilton asked if the transfer would be "permanent," Alverson replied, "yes." Hilton also asked if Gillespie had mentioned anything about a wage increase or transportation money. To each question Alverson answered, "no." Hilton reported to store 7 about 2:20 p.m. that same day. About 3 p.m. on April 8 Tumblin had a conversation with Dillard and Baldwin. Tumblin told them that Jordan had signed a union card; that any employee who signed a card would lose his job; and that if anyone solicited them to sign a card, they should "report it immediately."9 During the night of April 8 Gillespie and Outlaw appeared at store 4. Outlaw talked in private with Jones "at great length." As Gillespie and Outlaw were leaving the store, Tumblin and Jones went with them. Jones returned and talked to Bryant. He told Bryant to confess to Outlaw that he had been involved with the Union, and that Outlaw would then forget about it. Jones left Bryant and joined Outlaw. He then returned to Bryant and said that he (Bryant) would have to give him an answer; and that if he would "confess," he would "not be dealt with severely." Bryant replied that he would give "no answer." Tumblin then left Outlaw and Gillespie and talked to Bryant. He told Bryant that he had "to have an answer," and that "Mr. Outlaw had vowed that he would fire anyone that had signed a union card." Bryant replied that he had not signed a card. Tumblin said that he believed him that he would "relate the message to Mr. Outlaw," and that the Union would not be mentioned to him (Bryant) again. Tumblin stated that Jordan had admitted signing a union card and would "lose his job on that account." When Bryant urged him "not to cause Jordan to lose his job" as he was "only a kid" and "could not vote on this," Tumblin answered that he had "orders from the supervision that would be carried out." When Hilton reported for work at the store in Honea Path on Monday, April 11, he was discharged by Block and Gillespie. He was not given any reason for the discharge. Gillespie told him that they had tried to locate him on Saturday but could not. In addition to the pay due him, Gillespie gave him $5 to "take care of any inconvenience about going to Honea Path." 8 The record discloses that Honea Path is about 35 miles from Greenville 0 Bryant testified that he overheard Tumblin make the above statements Dillard and Tumblin denied the remarks attributed to Tumbhn Baldwin did not appear as a witness at the hearing. Dillard , a part -time employee, testified that as he was reporting for work on Friday afternoon Tumblin asked him and Baldwin if they had signed union cards, that he (Dillard) replied that he 1011 John George had his day off on Monday. He was scheduled to start work at noon on April 12. He arrived at the store about 11:20 a.m. While he was sitting in his car in the parking lot, John Summey, a meat supervisor, De Young, Block, and Gillespie arrived in two automobiles. Summey gave George his paycheck and told him that he was discharged. He was not given a reason for the discharge. Eunice George worked in the meat department in store 11. She worked in excess of 40 hours per week. On April 9, M. E. Gentry, the market manager, cut George's hours to 21 per week. When she reported for work on April 14, she was discharged by Robert Watson, the store manager. On or about July 15 Tumblin spoke in private to Bryant. Speaking of the pending hearing herein, Tumblin asked him if he would be "for Bi-Lo or the Government." Bryant replied, "I would have to be subpoenaed to appear in Court." Tumblin then said that "other employees that had signed union cards would be dismissed." On July 22 Tumblin again spoke to Bryant in the presence of Green, Henderson, and several other employees. He told Bryant that if he testified "in behalf of the Government," he would "go to Mr. Jones' home on Sunday" and "dig up personal things" about him (Bryant). 10 Bryant quit his job the following day. The conversations, related above, between Coker, Tumblin, Bryant, and John George are based upon the credited testimony of Bryant and George. Denials and testimony to the contrary by Coker, Tumblin, Dillard, and Green are not credited. In addition to Bryant and John George, Tumblin admitted that he interrogated the other employees named above concerning the union cards. Such interrogation by Tumblin is found to be violative of Section 8(a)(1) of the Act. Coker interrogated Bryant and made threats of reprisal. Tumblin questioned both Bryant and George concerning their union activity and that of other employees, made threats of reprisal to each of them because of such activity, made a promise of benefit to George if he would inform on the adherents of the Union; and threatened Bryant with reprisal if he testified at the Board hearing. All of the above conduct is found to be violative of Section 8(a)(1) of the Act. B. Surveillance on April 3 Bryant testified that on April 3 he drove around the parking lot of the Pleasantburg Shopping Center several times looking for Crenshaw; that John George and Hilton were riding in his automobile at the time; that Hilton stated that he saw a car with Nancy Hines" in it ; that he (Bryant) looked and saw "a lady that resembled Nancy"; and that on another trip around the parking lot he saw Gillespie's automobile and told George and Hilton. Hilton testified that he saw Hines sitting in a car parked in front of a drug store at the shopping center. In this connection George was questioned and testified as follows; Q. (By Mr. Eubanks) Tell me in detail when you would not sign a card as he did not know anything about the Union, and that Tumblin said, "Well, good " 10 Tumblin and Green denied the above statement attributed to Tumblin by Bryant Henderson did not appear as a witness. Dillard, who was not identified as having been present during the conversation, also denied the remarks attributed to Tumblin " Hines is the cashier and bookkeeper at store 5 295-269 0-69-65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD came into the parking lot with Mr. Bryant and Mr. Hilton, tell me what you saw and who you saw. Be most specific about it, where everybody was sitting, and that sort of thing. A. Well, we came into the parking lot, and parked. We parked in front of the Colonial Drugstore. I believe the name of it was Colonial, and we was looking for James. These other boys didn't know what kind of automobile James drove, or had never met James, and I observed Nancy Hines, John DeYoung and Mr. Milton Gillespie. Q. Well, where was Mr. John DeYoung and where was Milton Gillespie? A. Mr. Gillespie was approximately 150 foot from the Winn-Dixie Store. Mr. DeYoung was approximately 200 or 250, somewheres in that neighborhood, to the right of that. Q. To the right of that? A. That's right, and James stopped his automobile dust a few cars from Mr. John DeYoung, and I got James and told James, let's go, and we got in Oscar's car and said, let's move out, and went from there to the Holiday Inn. Crenshaw testified during direct examination that he drove to the shopping center with his wife, and that he thought he recognized "Mr. Gillespie's car with him in it." During cross-examination Crenshaw testified that, after he returned from the union meeting, his wife told him that she saw De Young at the shopping center but was not sure; that he recognized Gillespie and his car; and that there were two lanes of cars parked between Gillespie's car and his as he drove by. Hines testified that it was possible for her to have been at the Pleasantburg Shopping Center on April 3 as she "quite frequently" went there; that she had not heard anything about a union meeting; and that she did not recall seeing Gillespie and De Young at the shopping center on a Sunday. Gillespie denied that he spied on the employees at the shopping center on April 3. He testified to the effect that he could not have Teen at the shopping center at the time in question as he was visiting his mother in Seneca at or about 2:30 p.m. De Young denied that he was at the Pleasantburg Shopping Center between 2 and 3 p.m. on April 3. He testified that at that time he was at the Greenville General Hospital. His wife, Mary De Young, testified that on April 3 she and her husband were at the hospital from 2 until 5 p.m. In view of Hines' testimony, I credit the testimony of Bryant, Hilton, and George to the effect that she was at the shopping center on April 3. Both George and Crenshaw testified that they saw Gillespie. George was the only witness who tesified that he saw De Young. As related above, Crenshaw at first testified that he only "thought" he recognized Gillespie and his car. However, Bryant testified that he saw Gillespie's car and that he so informed George and Hilton. Although George impressed me as a credible witness, it may be that he was mistaken in his identification of De Young. Since his testimony in this connection was not supported by Bryant and Hilton, I do not credit him as to De Young. I find that Gillespie was present at the shopping center and that the Respondent engaged in surveillance. The facts concerning Crenshaw's discharge on April 6 and later treatment by the Respondent confirm this conclusion. When Tumblin interrogated Bryant and George on April 6, Crenshaw was not mentioned. The evidence indicates that Jones kept the Respondent informed as to the union activity. But he was not present at the union meeting and apparently had no way of knowing about Crenshaw's involvement. As pointed out in the General Counsel's brief, the only way that the Respondent could have known about Crenshaw was through surveillance at the shopping center. Further, Gillespie admitted that about 1 week before Hilton's discharge he had heard that he was an adherent of the Union. It is difficult to understand how he got this information unless he was at the shopping center, since Hilton also was not mentioned in the conversations related above. Accordingly, I find that on April 3 the Respondent engaged in surveillance of the employees' union activity in violation of Section 8(a)(1) of the Act. C. The Transfer and Discharge of John C. George In its answer the Respondent denied that market or meat managers are supervisory employees within the meaning of the Act. Early in the hearing the Respondent amended its answer so as to admit this allegation of the complaint. As to the supervisory authority of assistant market managers , the Respondent during the hearing at first took no position . Later it contended that these employees also are supervisors within the meaning of the Act. The Respondent' s answer raised no such affirmative defense to the alleged discrimination against George. Considerable testimony was adduced on this issue. Crenshaw testified that his day off was on Tuesday; that he left instructions for his assistant on Monday "what for him to do the next day, when to cut, what to cut"; that the assistant did not have authority to hire, fire, or discipline employees; that if the assistant had any problems with the employees, he notified the store manager; that he, not the assistant , scheduled the hours of work and days off of the employees; that the assistant "actually all he was, was head meat cutter, to cut all the beef that was cut, or see that it was cut"; that he (Crenshaw) made all recommendations for wage increases in the market; and that if the assistant had an apprentice meatcutter working with him, he (Crenshaw) might at times ask the assistant about the progress of the apprentice. Bryant testified that he was an apprentice meatcutter under George; that George was "the cutting room manager" and his "instructor"; that George was in charge of the market on Tumblin's day off; that on such days it was George's responsibility to see to it that the employees performed their jobs; and that if employees wanted time off from work, permission had to be obtained from Tumblin, the store manager, or some other supervisor. John George testified that he did not have authority to hire or fire employees; that he received instructions from Tumblin on Saturday for the work to be performed on Tuesday, Tumblin's day off; that if he had any problems with employees on such day, he checked with the store manager or his assistant ; that he (George) merely carried out Tumblin's orders; that Bryant and Jones worked with him in the cutting room; that the employees in the meat department were told that he was in charge on Tumblin's day off; and that he did not have as much authority as Tumblin on such days. Eunice George testified that she worked as a meat weigher and wrapper in the market department in store 11; that M. E. Gentry and V. P. Mitchell were the manager and assistant manager , respectively, of the BI-LO, INC. 1013 market department; that she had ben told that Mitchell was in charge of the department on Gentry's day off; and that Mitchell assigned work to employees on such days. Mitchell testified that he was in charge of the market department on Gentry's day off; that he had "full charge" in the cutting room and could fire a meatcutter "if he didn't suit [him]";12 that he had never fired a meatcutter; that he did not have the authority to hire a meatcutter; that on Gentry's day off he had authority to discipline employees; and that Gentry made out the work schedule. Tumblin testified that George was in charge of the market department on his day off; that all of the employees were notified to this effect; that George had the authority to "discipline" employees; and that George had authority to direct the work of all employees in the department even when he (Tumblin) was present. Alan Page testified that he worked as a part-time employee on the counter in the market department of store 4; that George was in charge of the department on Tumblin's day off; that on such days George gave orders to employees in the market; that George "gave orders" to and "disciplined" the meatcutters; and that during Tumblin's day off, employees asked George if they wanted to get off early from work.13 Dillard testified that he worked as a counter clerk in the market department of store 4; that Tumblin told him that George was in charge of the department during his day off; that on such days George assigned work to the employees and "several times" reprimanded him and "the other boys out on the counter";'`' and that when Tumblin was present, George directed the work of employees. Concerning the assistant manager's authority, Gillespie was questioned and testified as follows: Q. Now who is in charge of the meat department in the BI-LO stores? A. The market manager and the assistant market manager. Q. What authority does the assistant market manager have? A. Well, the assistant market manager is the same thing as the assistant store manager; if you don't have one there, you have got the other; and that's the only way we could operate our business today. Q. Does he have any authority in the meat department when the meat market manager is out? A. Yes, sir. Q. And who does he have authority over? A. He has authority over all of the cutting room men; in other words, the assistant market manager is actually the cutting room boss; that is his end of it; he is foreman over the cutting room, over the meat cutters. Q. On the days that the meat market manager is on his day off, who is in charge of the meat department? A. The assistant meat market manager. Q. What sort of authority does the assistant meat market manager have? A. He would have full authority. Q. What do you mean by full authority? A. He is the manager of the market when the manager is out. Q. Does he have authority to discipline employees? A. Yes, sir. Q. To direct their work? A. Yes, sir. Q. Can he grant them time off? A. Yes, sir. Usually there is a schedule there and the manager and the assistant manager take part together in making up the schedule. Q. On the day that the meat market manager is not there, if an employee wanted to get off early, an employee in the meat department, who would he go to? A. I would say the assistant meat market manager would have authority to let him off. De Young gave substantially the same testimony in this connection as Gillespie. De Young further testified that to his knowledge "all" employees have been told that the assistant market manager is in charge of the market when the manager is not present, and that he "on occasion told some personally." It is clear from the above testimony that George was "in charge" of the market on Tumblin's day off. However, on such days he merely relayed to the employees Tumblin's orders. Respondent's witnesses testified to conclusions to the effect that assistant managers could "discipline" employees and could "exercise full authority" of the market manager. Except for the dubious testimony of Page and Dillard, these witnesses cited no examples of such authority. Indeed, the testimony of Watson indicates that the supervisory authority of the market managers themselves is limited. Under all of the circumstances I find that George was not a supervisory employee within the meaning of the Act. As related above, George was transferred to store 12 during the middle of the day on April 6. He reported there to Bobby Chapman, the market manager. Chapman first assigned him to waiting on customers at the counter, and then told him "to clean up" as Outlaw was on his way to the store. George worked until 10 p.m. that night cleaning the counters and the cutting room.15 George performed the same work on Thursday. Chapman again told him that he wanted the meat department cleaned up because Outlaw was coming to the store. George worked from 12 noon until 10 p.m. on Friday. Concerning his work and conversations with Chapman, he testified without contradiction as follows: Friday I showed up at 12 o'clock, walked in, clocked in and got ready for work, and I asked Bobby, I said, what do you want me to do? He said, hop the counter 12 Robert Watson , store manager of store 11 , testified that the market manager could "relieve [employees ] of their duties but not discharge them", and that an employee in the meat department could not be discharged without his approval. Tumblin testified that he had authority to discharge employees "under certain circumstances", and that he had in fact discharged at least one employee 13 During cross - examination Page testified that Tuesday was his day off, that "occasionally" he worked on Tuesday, that he had never seen George discharge, lay off, or send an employee to the store manager for improperly performing work, and that on one occasion George told him "to speed up and get on the job " " During cross -examination Dillard testified to the effect that Tuesday was his day off, and that on Tuesday afternoon after school he usually spent "maybe two or three hours" visiting in the cutting room 15 George's hours at store 4 were from 8 a.m until 7 p in on Tuesday and Wednesday, until 7 30 p in on Thursday, and until 8 30 p in on Friday and Saturday. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right now, and I hopped the counter . After the dinner hour was over with , I asked Bobby, I said, Now, do you want me to cut some meat ? Which I had picked up a boning knife, they needed some boning done there; he said, no , he said, George , the same situation, Mr. Outlaw 's coming again , and I want you to clean up. Which he then got me the bucket of water and the brush and the sponge , and I continued cleaning up. I asked Bobby Chapman, I said, what is this here? He said, well, I was informed to make you janitor, and that he didn't like it, but it was his duty, and he was carrying his duty out, which I accepted. George worked on Saturday. He noticed that his name was not on the work schedule. He asked Chapman, if he was supposed to work at store 12 the following week. Chapman told him that he should report for work at noon on Tuesday. As related above, Hilton was discharged at the beginning of the work day on April 11. George was off from work that day. Together they visited store 4 about 2 p.m.'° Hilton talked to employees James Phillips and Dale Cross and got them to sign union cards. After Hilton had talked to these employees for a few minutes, Coker walked up to him and said, "Mr. Gillespie said he doesn't want you in the store." George went to the cutting room and talked to Tumblin. Concerning the incident involving George, Tumblin was questioned and testified credibly as follows: Q. Will you tell us what happened on that Monday afternoon? A. Well, I was in the cutting room, and he appeared in the cutting room, and he come around the counter, and he said, "Hello"; and he said, "I'm drunk"; and he said, "This is the first time you have seen me drunk." I said, "Yes, it is, George." "I haven't seen you before." He said, "Well, I Just wanted to come in here and show you. You see my block over there?" I said , "Yes." He said, "Well, I will be back on it; just leave it for me," and I think he said two to six weeks; I don't remember how many weeks he said; but that's what he said. And I laughed; I didn't throw him out; I didn't have to; I Just sort of rooted him on out. Q. He walked out voluntarily, didn't he? A. Yes, sir. Q. Did you say anything to him after that? A. No, sir. As related above, George was discharged when he reported for work on April 12. The check presented to him by Summey was dated April 9. Gillespie testified to the effect that De Young was " Both Hilton and George admitted that they had been drinking before they got to the store George testified that he had had "three or four beers " 11 Concerning his conversation with Tomblin, De Young testified , " I was just trying to find out if there were some of them that belonged to the union , talking union, what 's happened, just get your market straightened out [Tumblin] just told me that he had heard that there were some of them in the market talking union " 18 De Young at first testified that he did not get any reports about George visiting stores where he did not work and later testified to the above in answer to a leading question 1" Bobby Porter, a supervisor of the Respondent, gave responsible for the decision to discharge George. De Young testified, in substance, that he learned of George's interest in the Union from Tumblin;17 that George's transfer to store 12 was "temporary"; that prior to the transfer Tumblin had complained to him that George "had let down on his job" and asked to have him transferred or "let out of the company"; that Block and Claude Garret, the manager of store 4, had asked him to transfer George to store 12; that he transferred George during the middle of a shift because Tumblin had reported to him that George was causing "some disturbance" in the store by distracting employees from their work by talking" and because they "felt that John was the root of the disturbance"; that Block had told him that George was "unreliable on the job" as he might leave during the middle of a day and not return until the next morning; and that after George's transfer Garret called him on Monday and reported that George had returned to the store "causing trouble."'s Concerning his final reason for discharging George, De Young testified, "I guess on John George, my patience just run out with him. I had to transfer him to another store hoping that he was going to do better; after he left the store and goes back to the store that I had transferred from, he starts a disturbance." Tumblin testified that he had a conversation with De Young concerning George about "four to six weeks" before George's transfer. As to his complaints to De Young at the time, Tumblin testified, "Well, my day off when I would come in, and about half the work would be done that was supposed to be done; and the counter man had told me that there was too much going on, talking, messing around, and not working." Mitchell testified that during the summer of 1965 John George' came to store 11 and caused Eunice George to leave work; that at the time Eunice George told John George that her hours had been cut; that John George said that he did not "give a damn" about the Respondent; and that John George was not an employee of the Respondent at that time.1s Gentry testified that on a Saturday at sometime during 1965 when both he and Eunice George were working at store 5, John George came to the store wearing Bermuda shorts; that John George was "slightly intoxicated"; and that when John George started waiting on customers, his wife told him to leave the store.20 James Hendley, assistant market manager at store 6, testified to the effect that on the Monday after George's transfer he saw him and another man talk to Harry Hill, an employee in the meat department, for about 20 minutes; that he reported this to Block and Langford, the market manager; and that when Langford gave him a description of Hilton, he (Hendley) was able to identify him as the other man with George.21 Dillard testified to the effect that for about a month before his transfer George talked a lot and his work "was substantially the same testimony as Mitchell concerning this incident John George testified that during August 1965, he took his wife off the job because the Respondent kept changing her scheduled work day, that he was not employed by the Respondent at the time, and that he was later rehired by the Respondent t" It is not clear from Gentry's testimony if John George was employed by the Respondent at the time of the above incident 11 De Young testified that he had not received any report about George visiting store 6 George denied being in store 6 or talking to Hill on the date in question Hilton also denied being at the store Hill was not called as a witness I find it unnecessary to resolve this issue of fact since De Young denied receiving a report of the alleged incident BI-LO, INC. 1015 kind of falling off." Simpson, also called as a witness by the Respondent, testified that he was "head counter man" in the meat department at store 4; that he had an opportunity to observe Gedrge's work prior to his transfer; that George's work appeared "satisfactory" to him; that he did not hear any complaints about George; and that George "got along ... all right" with both employees and customers. The statements of Tumblin and Chapman, related and found above, disclose that the Respondent's motive for transferring and discharging George was discriminatory. The undisputed evidence shows that he was a "real good" meatcutter, that all meat department employees except the manager helped to clean up, and that a thorough cleaning of a meat department was not an everyday occurence. George performed no meatcutting while he was at store 12. Instead he was scheduled for late hours and assigned to menial tasks for almost all of his working time. That the incident at store 4 on April 11 was an afterthought is shown by the fact that George's check was dated April 9. Other incidents involving George and testified to by the Respondent's witnesses took place when George did not work for the Respondent. It does not appear from De Young's testimony that such incidents were reported to him. In any event, the Respondent rehired him after they occurred. Accordingly, from all the evidence, I find that the Respondent transferred George on April 6 and discharged him on April 12, 1966, in violation of Section 8(a)(3) of the Act. D. The Transfer and Discharge of Charles E. Hilton When Hilton first was employed by the Respondent, he worked as a stockman in the grocery department at store 4. He was transferred to store 5 and continued to work as a stockman. His supervisor there was James Alverson, the store manager. When he was transferred to store 7 on April 7, he worked under the supervision of Hosea Streitman, the store manager. Hilton was transferred to store 7 during the middle of the day. About 5 p.m. on April 7 he advised Streitman that he already had worked 44 hours before the transfer. Streitman told him to work until 7 p.m. that night and to report the following morning at 9 a.m. Hilton worked from 9 a.m. until 1 p.m. on Friday. As he was leaving, he asked Streitman for his work schedule for the following week. Streitman told him to report for work on Monday and that he would work out a schedule for him then. Gillespie and Outlaw entered the store as Hilton was leaving. As related and found above, Hilton was discharged by Gillespie when he reported for work on Monday, April 11. Hilton testified that he was never reprimanded or warned about his work; that about 6 or 8 weeks before his discharge Alverson told him that Gillespie had praised the appearance of his (Hilton's) section;22 and that during the latter part of March 1966, Alverson told him to keep his section up as he wanted him as assistant store manager when Walter Hammett (the assistant at the time) was transferred.23 Hilton admitted that when he worked for 3 or 4 weeks under Coker at store 4, Coker complained to him that the shelves were not properly stocked; and that Alverson at times questioned him as to why he did not have certain items on the shelves. He testified that on each occasion he gave them satisfactory explanations , such as the items in question being out of stock at the warehouse or ordered but not delivered. Bryant testified without contradiction that he had worked under Alverson for a long period of time; that about a month after Hilton had been transferred to store 5 , he went there to visit Alverson ; and that Alverson told him at the time that he was very "pleased" with Hilton 's work . Bryant also testified that he had had an opportunity to observe Hilton's work at store 4 , and that in his opinion Hilton was a very good employee. Coker testified that when Hilton worked at store 4, he had to get after Hilton "about speeding up and getting his department ready by Wednesday night "; that Hilton did not stock "some items"; that although he told Hilton to order such items, he did not do so; that Hilton said that such items did not sell or that he did not have space for them ; that on one occasion Hilton said , "I've worked like this all my life, I'm not going to change now"; that the Respondent had a rule that employees would not engage in prolonged conversation with customers ; that "on several occasions" he warned Hilton about talking to customers; that Hilton was "about the worst " stockman that he had ever had under his supervision ; that the Respondent had a policy of transferring an unsatisfactory employee to another store in the hope that he would improve ; and that he complained to Gillespie about Hilton's work about 2 weeks before Hilton 's transfer to store 5. Alverson testified that Hilton was transferred to his store about January ; that during the first week after the transfer he reprimanded Hilton " in front of everybody" for having his section "halfway stocked "; that Hilton's work thereafter improved for about a month ; that complaints of customers about Hilton were "over two to one" compared to other employees ; that these complaints had to do with "being out of merchandise on the shelves "; that on one occasion on a Friday morning (Hilton 's day off) he and Gillespie had to order "thirty or forty cases ... pertaining to . . . salad dressings , pickles, jams and jellies , fruits, juices and also canned vegetables " in order to fill up Hilton 's section ; that almost every week he was "always pushing to get [Hilton] to finish his section" by Wednesday; that on such occasions he either helped Hilton or did the necessary work himself; that Hilton was "among the worst" of employees he ever had under his supervision ; that he "quite often" talked about Hilton to Gillespie; that about 3 weeks before April 7 he and Gillespie discussed the possibility of either discharging or transferring Hilton ; that about 11 a.m. on the day that Hilton was transferred to store 7 he, Block , and Gillespie discussed Hilton ; and that Gillespie told him that store 7 was "short on help" and that he should tell Hilton at noon of his transfer. Hines testified that Hilton was "awfully slow getting the stock up," and that he talked to other employees and customers "usually about fifteen or twenty minutes, not always, though ." She also testified that "about a month or so" before his transfer to store 7 she smelled " liquor on his breath" after he returned from lunch. Hammett testified that he was Hilton 's immediate supervisor when Alverson was not present ; that the "only 11 Gillespie testified that he may have said "some encouraging Hilton of the possibility of the lob "if he would improve and bong things" to Hilton 13 Alverson admitted this conversation but testified he told his end of the store up " 1016 DECISIONS OF NATIONAL problem" that he had with Hilton was that "he just didn't get the sections filled up"; that on one occasion Alverson and Gillespie had to get the catalogue and make out an order for Hilton's section ; that Alverson told him (Hammett) that Hilton was "drinking too much" and "ought to do better" ; that every Tuesday when Alverson was off he saw Hilton talking to people whom he presumed to be customers and to John George24 " anywhere from 45 minutes to an hour"; that in his opinion he had "bag boys [couldi do better stocking"; and that on Hilton 's day off when he came to the store with his wife to shop, he could tell from his breath that Hilton had been drinking. David Page , a part -time bagboy at store 4 , testified that he had worked with Hilton; that Hilton was "lazy, slow, sat down and talked and killed time"; that at times he had observed Hilton talking to customers "ten to fifteen minutes" ; that "almost every week " he helped Hilton stock his section "so he could get through and clean up and get out on time Wednesday "; and that when Hilton came to the store on his day off, he could tell he had been drinking "by the smell." Streitman testified that Hilton came to his store "as a temporary transfer" because he needed help; that he notified Gillespie to this effect; that he assigned Hilton to performing stock work; that Hilton "walked around not doing anything"; that it took Hilton "approximately 2-1/2 to 3 hours" to stock the dried bean section when it should have required only about " an hour to an hour and a half"; that he did not tell Hilton to report for work on Monday; that as Hilton was checking out on Friday Gillespie came to the store; and that he told Gillespie that he did not like Hilton "worth a damn" and did not want him " any more." Gillespie testified to the effect that the only reason for Hilton's transfer to store 7 and his discharge was his failure to "keep his section stocked "; and that he had no reports about Hilton's drinking , talking to employees or customers , or visit to store 4 on April 11. Gillespie admitted that about a week prior to Hilton's discharge he had heard that he was an adherent of the Union . Gillespie further testified that Hilton was transferred from store 4 to store 5 because of the complaints of Coker and Claude Garret , the store manager of 4; that 2 or 3 weeks before Hilton's transfer to store 7 it was decided to either transfer or discharge him; that when Streitman asked for help, he decided to give Hilton another chance ; that on April 8 Streitman told him that he did not want Hilton as he was "not worth a damn"; that he had Hilton's final check on Saturday but was not able to locate him; and that he did not tell Hilton the reason for his discharge. The Respondent ' s witnesses testified at length about Hilton's drinking habits and his talking to employees and customers . But Gillespie admitted that he had no reports about such conduct and that they had nothing to do with his discharge . Hilton's alleged failure to stock ..:s section properly was the sole cause for the transfer and discharge, according to Gillespie. I believe and find that this reason was merely a pretext. Hilton, like John George , was transferred during the middle of the day. Although Honea Path is about 35 miles from Greenville , Hilton had received no prior notice of his transfer. Alverson told him that it was "permanent"; and 24 The undisputed evidence shows that George's day off was on Monday Hammett testified that he saw Hilton talking to George during working hours "just about every week" on Tuesday "anywhere from thirty minutes to an hour at a time " LABOR RELATION BOARD did not warn him that the transfer was for the purpose of giving him another chance to prove himself. In my opinion, these facts do not comport with the Respondent's contention that such was the purpose of the transfer. The record indicates that Hilton was not as poor an employee as he was painted by the Respondent's witnesses. According to Hammett, it would appear that Hilton spent most of his time talking and not working. Hammett testified that Hilton talked to George for long periods of time almost every Tuesday. However, it is difficult for the Trial Examiner to believe this in view of the undisputed evidence that George was working at store 4 at such times. Also, in one breath Alverson testified that Hilton was one of the worst employees that he had ever had under his supervision. In the next breath he admitted that he had held out to Hilton the possibility of becoming assistant store manager. Assuming arguendo that Hilton was lax in stocking the shelves, the Respondent tolerated the situation for a long period of time and took no action until it learned that he was an adherent of the Union. Accordingly, I conclude and find that the Respondent's conduct in transferring Hilton on April? and in discharging him on April 11, 1966, was violative of Section 8(a)(3) of the Act. E. The Reduced Hours and Discharge of Eunice I. George George first was employed by the Respondent in November 1964. She worked in the meat department of store 5. She quit her job on July 8, 1965, but was rehired by the Respondent on August 22, 1965. She then worked in the meat department of store 11. For the most part she weighed and wrapped meat. About January 1966, she received a wage increase of 10 cents per hour. Gentry, the market manager, was her supervisor. Robert Watson was the store manager. Starting on about March 14, 1966, George was off from work because of an operation. Employee Carol Tuck commenced working in the meat department on March 5, quit her job on or about March 19. Monday was George's day off from work. She returned to work on March 22. On that day or shortly thereaft -,r she had a conversation with Gentry. He told her that he was "glad" to see her back at work; that he had had "an awful lot of headaches" with Tuck; and that Tuck had made "an awful lot of mistakes" with "chuck roasts going out at 18 and 28 cents." As related above, on April 9 George was notified that her hours of work were to be cut to 21 per week. Prior to this time she had been working an average of about 46 hours per week. When George asked Gentry the reason for the cut, he answered, "Well, the payroll had to be cut." She was permitted to work on April 12 and 13 for a total of only 8-1/4 hours. The weekly hours of Brian Fantl and William Hill, the two employees who had been working with her, were not cut 'i uck was rehired on Monday, April 11, and worked a total of 42-3/4 hours for that week.25 On April 12 Watson went to the meat department and talked to George. He told her that he had found "eight dollars worth of meat prices wrong on the packages." She ' Timecards of Tuck, Fantl, and Hill were received in evidence There was no appreciable change in the weekly hours of Fantl and Hill before and after April 9 Tuck worked 45 , 42-3/4, and 47-1 /4 for the weeks ending April 23 , 30, and May 7, respectively BI-LO, INC. 1017 replied, "Well, I wasn't the only wrapper, there were three of us." Watson did not speak to Tuck or Hill about the errors.26 When George reported for work on April 14, she was discharged by Watson who told her, "I hate to do this, but I'm ordered to ...... He did not give her any reason for the discharge.27 Mitchell, the assistant market manager at store 11, testified that Gentry told him that the hours in the meat department were going to be cut in order "to cut down on the overhead"; that the hours of George, Hill, and Fantl were cut;26 that when Gentry notified George of her reduced hours, she said that her husband would come to the store and "whip somebody's ass about it";29 that George then went into the cutting room and sat on the table, saying that she would "sit out the clock"; that, at the time, his work and that of the other employees was "caught up"; that on that same day Hill's hours were cut to 20 per week; and that while George was still employed, Tuck was working "part-time."30 Concerning the error in weighing on or about April 12, Mitchell testified, "Well, the girl ... that runs the register, she brought a package back to the meat counter, and . said, Mr. Mitchell, there's an error in this here ... don't nobody get no two T- bone steaks for $.49, and we put in on the scales and weighed it, and it was a dollar and forty-nine cents." He further testified that George and Hill were doing the weighing at the time, and that there was no way to identify the one who had made the error. Gentry testified that on April 9 the hours of George, Hill, and Fantl were cut; that hours of Hill were reduced "approximately five or six" and those of Fantl "four or five"; that the hours of some other employees in the "whole general store" also were reduced; that the reduction in hours was made because the payroll was exceeding the permissible percentage compared to volume; that when he informed George about her reduced hours, she threatened that her husband would come to the store; that she then sat down on the table in the cutting room; that although he asked her to get back to work, she continued to sit on the table for "35 or 40 minutes";31 that the error in weighing of the meat occurred on Tuesday, his day off; that when he reported for work on Wednesday morning, Watson showed him "one particular package" that had been priced incorrectly; that when Watson asked him who had made the error, he identified "the handwriting" as that of George;32 that he heard of other packages that also had been incorrectly priced on Tuesday; that on Wednesday after his conversation with Watson he reprimanded George for the error, telling her "Eunice, you know what happened yesterday ... now this is something we cannot tolerate";33 that the decision to discharge George was made "between Mr. Watson and myself"; and that the reason for her discharge was "her work not being satisfactory ... her meat pricing." Concerning the reason for rehiring Tuck, Gentry was questioned and testified as follows: Q. (By Mr. Eubanks) Now, why was it necssary to bring Mrs. Tuck in for forty hours a week, when you were cutting the hours of the other employees? A. That's a good quetion. Well, my reason was, it was more or less Mrs. George had gotten to the place where she just , everything worried her ... not only that, misweighing packages.''" Watson testified that the hours of employees in his store were reduced because "the payroll was running high" compared to sales; that the hours of seven employees in the store were cut from 6 to 10 hours; and that of this number his own weekly hours were cut 10, and those of an office girl, the cashier, Hill, and Fantl were cut approximately 8. Concerning the reason why Tuck was rehired on April 11, Watson testified: Well, she had previously worked for us, and I tried to keep her, and she had left; I try to keep good help; and I tried to have it so that I could keep in contact with her; and the reason she was hired back was that I could put two girls in the market, cut out the overtime on both of them; and save money; and get the same amount of work done. As to the reasons why he discharged George, Watson testified, "Well, to begin with, there had been two occasions when she had left [work] without letting me know anything about it....35 She had been warned on different occasions and especially when the market was condemned about the correct weighing of packages... . When the hours were cut, it was reported to me that she made the statement that `George would whip somebody's ass over it.' All right, at the time she sat down at the table back there for about 45 minutes to an hour and refused to work ... and then she made a phone call and went back to work." In my opinion, the Respondent's defense to George's discharge stands or falls on the facts surrounding the reduction of her weekly hours. Contrary to the testimony of Gentry and Watson, the Respondent's own 'records is George testified without contradiction to the effect that Tuck and Hill also were wrapping and weighing meat at the time in question 1, George testified credibly to the above conversation with Watson He denied telling her that he had been ordered to discharge her He testified that the error on the meat prices was brought to his attention on April 12 or 13, and that he told George, "we couldn't tolerate the meat packages being marked like that " He testified that this conversation took place on April 13 is As noted above, the timecards of Hill and Fantl do not disclose that their hours were reduced t" George admitted making the above remark 3i The timecard of Tuck for the week ending April 16 shows that she worked in excess of 9 hours per day on April 11 and 12, and that she worked for 6 hours on April 13 31 George denied that she refused to work but admitted that she sat down for "five or ten minutes " 32 During cross-examination Gentry testified that Watson told him that George had misweighed some packages, and that both Watson and Mitchell told him that the misweighed packages had been shown to George by them on Tuesday Watson testified, "I saved one package of meat and gave it to Mr Gentry to check the writing on the package, I felt that it was Mrs George's and I wanted him to check to be sure that it was, and he said that it was 33 Gentry testified to the above during cross-examination He testified during direct that he did not talk to George about the error after his conversation with Watson. 34 There is no evidence that George had misweighed any packages for some months prior to April 12 It is undisputed that during the summer of 1965 a case of meat was condemned by a State inspector for improper weighing, that George, Hill, and another employee were the weighers at the time, and that Gentry reprimanded the employees involved Gentry admitted that all employees had made mistakes in weighing 35 It is undisputed that during 1965 George was off from work for some few days when she went to Atlanta, and that she again was off from work during about October 1965 when her scheduled hours were changed Watson admitted that he rehired her after each incident 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show that the hours of Fantl and Hill were not reduced.36 Also, contrary to Watson's testimony, the rehiring of Tuck did not eliminate overtime. Starting on April 11 and through the week ending May 7, she worked approximately the same number of weekly hours as George prior to April 9. On April 11, George's day off, Tuck worked 9-1/2 hours. On April 12 Tuck and George worked 9-1/4 and 4-1/4 hours, respectively. In short, the evidence as a whole in this connection shows that George was the only employee in the meat department whose hours were cut and that the rehiring of Tuck added to rather than reduced the Respondent's payroll costs (provided that the Respondent planned to keep George on the payroll). George testified that she did not engage in any union activity other than to sign a union card at her home on April 4. The Respondent had no way of knowing about this. However, the conversation between Bryant and Tumblin on April 6, related above, tends to show that the Respondent suspected that George was involved with the Union. In any event, the Respondent knew that her husband, John George, was the leading adherent of the Union. For all of the above reasons I find that the Respondent's action on April 9 in reducing Eunice George's hours of work was violative of Section 8(a)(3) and (1) of the Act. Other than the incident involving the condemned case of meat during the summer of 1965, there is no evidence that George made any mistake in weighing prior to April 12. Alverson testified that she did "a good job" while she worked under him at store 5. Gentry admitted that her work was "pretty good" before April 9. That Mitchell and Gentry did not consider George's conduct on April 9 to be of a serious nature is shown by their admissions to the effect that they did not reprimand her at the time because it occurred near the end of the work day and the work in the department was "caught up." Although Gentry had told George on or about March 22 that Tuck had made "an awful lot of mistakes" in weighing, Tuck was rehired on April 11. Tuck and Hill also were weighing when the mistake was made on April 12; but Watson spoke to George only. Mitchell, contrary to Gentry, testified that there was no way to identify the person who had made the mistake by looking at the package. Further, it appears that Watson told Gentry that George had made the error before asking him to make the identification. In making the above findings, particularly with respect to conversations between George, Gentry, and Watson, I have credited George's testimony. She appeared to me to be a reliable and credible witness. As noted above, there are contradictions and conflicts in the testimony of the Respondent's witnesses. Accordingly, from the above and from the entire record I reject the reasons advanced by the Respondent for the discharge. I find that the Respondent by discharging Eunice George on April 14, 1966, violated Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent reduced the hours of work of Eunice I. George and discharged her, John C. George, and Charles E. Hilton. Accordingly, it will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay suffered by reason of the discrimination by payment to each of them of a sum of money equal to that which he or she would have earned as wages from the date of the discrimination to the date of reinstate ment, less his or her net earnings during such period in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sum, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discriminating against John C. George, Charles E. Hilton, and Eunice I. George because of their activities on behalf of the Union, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that the Respondent, its officers, agents, successors, and assigns, shall be ordered to: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization of its employees, by reducing the hours of work of, transferring, or discharging, employees or otherwise discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their membership in or activities on behalf of the Union, or making threats of reprisal or promises of benefit of such activity. 36 Fantl was a part-time employee DIT-MCO, INCORPORATED 1019 (c) Keeping the union activity of its employees under surveillance. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer John C. George, Charles E. Hilton, and Eunice I. George immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify John C. George and Charles E. Hilton if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its stores in Greenville and Honea Path, South Carolina, copies of the attached notice marked "Appendix."37 Copies of said notice, to be furnished by the Regional Director for Region 11, after being duly signed by the Respondent or its authorized representatives, 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 to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.311 WE WILL NOT discourage membership in Amalgamated Meat Cutters & Butcher Workmen of North America, Local442, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment , or any term or condition of employment. WE WILL NOT interrogate our employees concerning their membership in or activities on behalf of the above Union or make threats of reprisal or promises of benefit because of such activity. WE WILL NOT keep the union activity of our employees under surveillance. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist the above Union, or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion. or to refrain from any or all such activities. WE WILL offer John C. George, Charles E. Hilton, and Eunice I. George immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain, or refrain from becoming or remaining , members of any labor organization. BI-LO, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive day's from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911. 31 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 3" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: DIT-MCO, Incorporated and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW-AFL-CIO, Petitioner. Case 17-RC-4660. April 12, 1967 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to Decision, Order, and Direction of Second Election issued by the National Labor Relations Board on April 28, 1965,i a second election by secret ballot was held under the direction and supervision of the Regional Director for Region i Not published in NLRB volumes. 163 NLRB No. 147 Copy with citationCopy as parenthetical citation