294 N.L.R.B. 660 (N.L.R.B. 1989)

Economy Foods

National Labor Relations Board - Board DecisionsMay 31, 1989

294 N.L.R.B. 660 (N.L.R.B. 1989)

660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Frigid Storage , Inc., d/b/a Economy Foods and United Steelworkers of America , AFL-CIO- CLC. Cases 9-CA-23710, 9-CA-23821, 9-CA- 23988, 9-CA-24019, 9-CA-24458, and 9-RC- 15030 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 1, 1988 , Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief and the Respondent responded to them. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings , findings, and conclusions only to the extent consistent with this Decision and Order. The judge concluded that the Respondent en- gaged in certain threats and interrogations in viola- tion of Section 8(a)(1) of the Act and discharged union supporters Chancie Love and Kenneth Ken- nedy on October 31, 1986, during a union organiz- ing campaign, in violation of Section 8(a)(3) and (1) of the Act. In the absence of exceptions, we adopt these unfair labor practice findings . In all other re- spects , the judge dismissed the complaint." We do not agree with the judge 's dismissal of the complaint in the following respects. 1. The judge found that the Respondent 's institu- tion of a written warning system after the union campaign began did not violate the Act because the Respondent thereby protected itself against future unfair labor practice charges . We disagree. ' We make the following modifications. With respect to the reduction of overtime hours , we do not rely on the judge's finding of business 'justi- fication-the need to reduce costs because of the expense of defending the unfair labor practice proceeding . The record shows that two of the four alleged discrtminatees regularly worked only 39-hour weeks before the alleged reduction in overtime Further, the other two discriminatees did not previously regularly work hours greatly in excess of 40 and their reduction in hours was minimal. We, therefore , find that the General Counsel failed to sustain his burden of proof. With respect to the discharge of Benny Thompson on December 5, 1986, we note that .the judge failed to address the 8 (a)(4) allegation in the complaint . However, it is unnecessary to reach this issue as we concur in the judge's conclusion that Benny Thompson 's discharge was for cause. With respect to the alleged more onerous working conditions (roof painting , grass cutting, and freezer work) imposed on certain employees after the first hearing , we note that the General Counsel alleges that Chancie Love and Benny Thompson were the only employees at issue. The judge's reference to any other employees in his analysis of this por- tion of the complaint does not warrant a result contrary to his dismissal. In addition , we disavow the judge's comments concerning what the Gen- eral Counsel would have charged had the Respondent sent employees home rather than require them to paint the roof. The record shows that the written warning system was instituted in response to union activity. It was concurrent with the Respondent 's expression of union animus and conduct in violation of the Act. Thus the change from oral to written warnings oc- curred at the same time as the Respondent dis- charged union supporters Chancie Love and Ken- neth Kennedy , made threats in retaliation for union activity, interrogated employees about the union activities of their fellow employees , and engaged in various other conduct in violation of employees' Section 7 rights. The use of a warning system as part of a dis- ciplinary procedure is permissible when the procedure is not implemented in response to protected union activities of employees. When the warning system is issued to discourage union activity, it is impermissible. Joe's Plastics, 287 NLRB 210, 211 (1987). As the Respondent instituted the written warning system in response to the union activity, we find that the new system was intended to and does discourage union activity and violates Section 8 (a)(3) and (1) of the Act. Further, the written warnings issued pursuant to this system similarly violate the Act and must be removed from employees' records . Accordingly, we fmd that the written warnings issued to Rich- ard Franklin and Benny Thompson on June 19, 1987, also violated Section 8 (a)(3) and (1) of the Act.2 2. The judge also found that the Respondent's ban on eating and drinking in the warehouse did not violate the Act because the Respondent there- by enforced a state health regulation applicable to its business . We disagree . The Respondent institut- ed the ban after the first hearing on the unfair labor practices at issue here . Employees testified against the Respondent at the hearing . Further, the alleged state health regulation cited by the judge is non- existent . The notice of violative findings issued by the Department of Agriculture, Consumer Protec- tion Division of the State of West Virginia, con- cerns inadequate housekeeping at the Respondent's warehouse . The Respondent was cited because there was evidence of rodents as well as improper- ly disposed of drink cans and cigarette wrappers and inadequately cleaned floors in the cooler and 8 In finding the written warning system and warnings issued pursuant to it to be violative of the Act, we are not thereby negating the offenses at issue. Were such offenses subject to an oral warning before the union organizing campaign, then they might similarly be subject to oral warn- ings concurrent with the union campaign. What was unlawful was for the Respondent to change from an oral to a written warning system in order to discourage union activity. 294 NLRB No. 50 ECONOMY FOODS freezer . The notice does not constitute a state ban on eating and drinking in the Respondent 's ware- house . Further, employees , as well as supervisors, customarily ate and drank in the warehouse. 3 Ac- cordingly, by revoking for an invalid reason a longstanding employee practice after employees had testified about the Respondent 's unfair labor practices , the Respondent engaged in a further re- prisal for the employees ' union support and thereby violated Section 8(a)(3) and (1) of the Act.4 3. The judge found that Chancie Love's 3-week layoff after June 19 , 1987, did not violate the Act because the Respondent experienced a slowdown in business and Love was the most expendable em- ployee because of his weak delivery skills. We dis- agree . The Respondent fired Love on October 31, 1986, in violation of Section 8(a)(3) and (1) of the Act. Further, the Respondent's antiunion animus had clearly not abated at the time of the second hearing on the unfair labor practices at issue here, November 18, 1987.8 Moreover, the Board need not treat Respondent 's antiunion self-serving asser- tions that Love was the most expendable employee as conclusive .6 Rather, we rely on the unrebutted testimony of employees Mitchell McCallister and Paul Hughes that the Respondent attempted to give Hughes credit for case counts in lieu of Love in order to have an excuse to lay off Love.7 Employee McCallister testified that Edmonds told McCallister that McCallister and others had to reduce Love's case count because he was doing much more than other employees . Supervisor Green told McCallister that it was necessary to get Paul Hughes' case count up and that if that were not done, Hughes could be laid off. Green told McCallister that McCallister and Green were to pull cases themselves but credit Hughes. Green also told McCallister to make sure that Love did not pull as many cases as he had been so that Love's case count could be kept low and Love, rather than Hughes, could be laid off, that that would give the Respondent a good reason to lay him off. In addition, Green told McCallister to give Love the small orders and save the big ones for Hughes . Employee Hughes corroborated a The Respondent so admitted, but represented that when it noticed this conduct , its supervisors were told it was forbidden; although there was no assertion of ever telling any employee not to eat lunch in the warehouse * Advertiser 's Mfg. Co, 280 NLRB 1185, 1191-1192 (1986). s The Respondent alleged during the second hearing that the charges being litigated were part of the Union 's continuing program of harass- ment "to destroy the company's will to resist doing the will of the United Steelworkers," and that employees such as Love "would close Economy Foods rather than work ." See Caamano Bras., 275 NLRB 823 fn. 1 (1985). 6 David 's, 271 NLRB 536, 538 fn . 17 (1984) Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1966), enfd. as modi- fied 308 F. 2d 89 (5th Cir. 1962). 661 McCallister by testifying that Hughes had been given credit for the work that Green' had done and that Edmonds had told him, "Your case count is going to get up. Chancie [Love] is not going to get any orders. You're going to get all of them." In these circumstances , it is clear that the Re- spondent continued to harbor antiunion animus against Love and that, whatever its proffered reason for the layoff, it was merely a pretext for once again discriminating against Chancie Love for his support of the Union.8 Accordingly, we find that the Respondent 's layoff of Chancie Love on June 19, 1987, violated Section 8(a)(3) and (1) of the Act. 4. The judge found that Richard Franklin's dis- charges on November 3, 1986, and February 5, 1987, did not violate the Act. The judge relied on the Respondent 's claim that it was a slow period and on Franklin 's prior misconduct for the earlier discharge and on Franklin 's misbehavior with a "whoopie cushion" for the later discharge. We dis- agree. On October 31, 1986, according to undisputed testimony, the day after receiving the petition, owner and sole operator Edward Edmonds held the second of two employee meetings during which he expressed his contempt for unions and stated that he had decided to discharge two em- ployees that day and one on the following Monday. Employees Love and Kennedy were un- lawfully discharged later that day because of their union activity. After the meeting, also according to undisputed testimony , Franklin talked to Supervi- sor Chris Gillette who told him that the "one more" would be either Franklin, or employees Ramsbottom or Castle. Franklin was discharged the following Monday, November 3, 1986, alleged- ly because there was a lack of work. The judge discounted this defense when the Respondent raised it with regard to discriminatees Love and Kennedy. The evidence clearly shows that the Respondent had no more lawful reason to discharge Franklin on November 3 than it did Love and Kennedy on October 31. All three discharges were precipitated by the Respondent's awareness of union activity, its contempt for unions, and a determination to re- taliate against employees for mounting an organiza- tional campaign . Accordingly, the Respondent vio- lated Section 8(a)(3) and (1) by discharging em- ployee Franklin on November 3, 1986. Franklin was recalled on January 19, 1987 (in order to mitigate any potential backpay obligations, according to the Respondent), and discharged 8 Aero Tec Laboratories, 269 NLRB 705, 707-710 (1984) 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD again on February 5, 1987. The only misconduct on which the Respondent can reasonably rely in support of the February 5 discharge is Franklin's use of a "whoopie cushion" during his lunch, hour on one occasion. Although Edmonds was aware of this incident; Franklin was never confronted about this behavior until he was discharged. The Re- spondent attempted to justify Franklin's February 5 discharge by invoking its rule against profanity. The evidence indicates, however, that employees generally and Edmonds himself used profanity or vulgarity on a regular basis. Accordingly, we find that the "whoopie cushion" incident is but a pre- text for the Respondent's discharge of Franklin be- cause of liis union activity and the Respondent vio- lated Section 8(a)(3) and (1) by discharging Frank- lin on February 5, 1987. 5. Finally, the challenged ballots9 are to be re- solved in the following manner: Benny Thompson was ineligible to vote at the December 9, 1987 election because he was discharged for cause prior to the election. Chancie Love, Kenneth Kennedy, and Richard Franklin were eligible to vote because their discharges violated the Act. However, it is unclear from the record evidence whether Kenne- dy already had accepted a position elsewhere at the time of the election. Accordingly, should the Regional Director determine that Kennedy's ballot is determinative, then his employment status on December 9, 1986, will need clarifying. This issue may be resolved at the compliance stage of this proceeding. AMENDED CONCLUSIONS OF LAW 1. By threatening to reduce wages and other em- ployee benefits, by interrogating employees about their knowledge of union activities among other employees, by interrogating employees as to the identity of other employees who had signed union authorization cards, by interrogating employees as to the identity of employees who were soliciting signatures to union cards, by threatening to close down the business in retaliation for the employees' union activity, by telling employees the Respond- ent would refuse to bargain in good faith with any union of their choice, by telling employees that the manager knew who the union activists were, by telling employees that the Employer will find a way to discharge prounion employees, and by tell- ing employees that they would be fired if they engage in a strike, the Respondent has violated Section 8(a)(1) of the Act. At the December 12, 1987 election there were six votes for the Peti- tioner and seven against At the time of the hearing, challenges to the ballots of Franklin, Thompson, Love, and Kennedy were unresolved 2. By discharging Chancie Love and Kenneth Kennedy on October 31, 1986, and Richard Frank- lin on November 3, 1986, and February 5, 1987, the Respondent has violated Section 8(a)(3) and (1) of the Act. 3. By instituting a written warning system in the last quarter of 1986 and issuing written warnings pursuant thereto, the Respondent has violated Sec- tion 8(a)(3) and (1) of the Act. 4. By issuing written warnings to Richard Frank- lin and Benny Thompson on June 19, 1987,.pursu- ant to the unlawfully instituted written warning system, the Respondent has violated Section 8(a)(3) and (1) of the Act. 5. By instituting a ban on eating and drinking in the warehouse after the June 2 to 4, 1987 unfair labor practice hearing, the Respondent has violated Section 8(a)(3) and (1) of the Act. 6. By laying. off Chancie Love for 3. weeks on June 19, 1987, the Respondent has violated Section 8(a)(3) and (1) of the Act. THE AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it shall be ordered to cease and desist and to take certain affirmative action to effectuate the policies of the, Act. To remedy the 8(a)(1) violations, the' Respondent shall be ordered to cease and desist from this con- duct. ' To remedy 'the unlawful discharges and layoff, the Respondent shall offer Chancie Love, Kenneth Kennedy, and Richard Franklin immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered as a result of the Respond- ent's unlawful actions. Loss of earnings shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest computed as pre- scribed in New Horizons for the Retarded.' ° To remedy the unlawful written warning system, the Respondent shall be ordered to cease and desist from using this system. To remedy the written warnings issued pursuant to this unlawful system, the Respondent shall be ordered to remove from its records any reference to the 'warnings and shall inform each of the em- ployees, in writing, that the references have been 10 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) ECONOMY FOODS 663 removed . Further, the Respondent will assure em- ployees'that the conduct at issue will not be used as basis for further personnel actions concerning any of them unless the conduct would have been subject to an oral warning pursuant to the preced- ing oral disciplinary system. To remedy the ban on eating and drinking in the warehouse , the Respondent shall reinstate the prac- tices preceding the June 2 to 4, 1987 hearing with respect to taking breaks and lunch periods in the warehouse. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, Frigid Storage , Inc., d/b/a Economy Foods, Hun- tington , West Virginia, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Threatening to reduce wages and other em- ployee benefits in retaliation for the employees' union activities , interrogating employees about their knowledge of union activity among the em- ployees, interrogating employees as to the identity of employees who had signed union authorization cards, interrogating employees as to the identity of employees who were soliciting signatures to union cards, threatening to close down its business in re- taliation for the employees ' union activity, telling employees that the Respondent would refuse to bargain in good faith with any union of their choice, telling employees that the manager knew who the union activists were , telling employees they would be fired if they went on strike , or tell- ing employees that the Respondent would find a reason for discharging prounion employee's ' (b) Discharging , laying off, or in any other manner discriminating against its employees in re- taliation for their protected, concerted , or union activity. (c) Instituting a written disciplinary system and issuing written disciplinary warnings to employees because they have engaged in activities in support of the Union or engaging in other activities pro- tected by Section 7 of the Act. (d) Banning eating and drinking in the ware- house in retaliation for employees engaging in ac- tivities in support of the Union or engaging in other activities protected by Section 7 of the Act. (e) In any other manner interfering with, re- straining , or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole Chancie Love, Kenneth Kenne- dy, and Richard" Franklin for any loss of pay or benefits they may have suffered by reason of the Respondent 's discrimination against them , with in- terest to be computed as set forth in the remedy. (b) Remove from its files the written warnings found unlawful and notify each of the employees so warned ,, in writing , that this has been done and that the conduct will not be used as a basis for future personnel actions against any of the employ- ees unless and to the extent the conduct would have been subject to an oral warning pursuant to the preceding oral disciplinary system. (c) Reinstate the practices existing before the June 2 to 4, 1987 hearing with respect to taking breaks and lunch periods in the warehouse. (d) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Huntington, West Virginia, copies of the attached notice marked "Appendix." " i Copies of the notice, on forms provided by the Regional Director for Region 9 , after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon receipt and main- tained for 60' consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced , or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the remaining alle- gations of the consolidated complaint are dismissed. IT IS FURTHER ORDERED that the Regional Di- rector resolve the challenged ballots in the manner indicated and on resolution issue a tally of ballots and the appropriate certification. 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or lay off any employ- ees in retaliation for their union activity. WE WILL NOT threaten to reduce wages and other employee benefits in retaliation for the union activities of our employees. WE WILL NOT interrogate employees about their knowledge of union activity by any other employ- ees. WE WILL NOT interrogate employees as to the identity of employees who have signed union au- thorization cards. WE WILL NOT interrogate employees as to the identity of employees who were soliciting signa- tures to union authorization cards. WE WILL NOT threaten to close down the busi- ness in retaliation for the employees ' union activity. WE WILL NOT tell employees we will refuse to bargain in good faith with any union of their choice. WE WILL NOT tell employees that we are aware of the union activities of particular employees. WE WILL NOT tell employees that we will find a way to discharge prounion employees. WE WILL NOT institute a written warning system and issue written warnings to employees because of their activities in support of the Union and we shall rescind the written warnings and documentation relating to them from personnel files. WE WILL NOT use the conduct for which em- ployees received written warnings as basis for fur- ther personnel action unless and to the extent the conduct would have been subject to an oral warn- ing pursuant to the preceding oral disciplinary system. WE WILL NOT ban eating and drinking in the warehouse and we shall reinstate the practices ex- isting before the June 2 to 4, 1987 hearing with re- spect to taking breaks and lunch periods in the warehouse. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Chancie Love, Kenneth Kennedy, and Richard Franklin for any loss of pay of benefits they may have suffered by reason of our discrimination against them , with interest. WE WILL remove from our files the written warnings found unlawful and notify each of the employees so warned, in writing, that this has been done and that the conduct will not be used as a basis for future personnel actions against them. FRIGID STORAGE, INC., D/B/A ECON- OMY FOODS Andrew L. Lang, Esq., for the General Counsel. Edward Edmonds, Jr., of Huntington, West Virginia, the Respondent in person. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A first hearing in this proceeding was held on 2, 3, and 4 June 1987, at Huntington , West Virginia , on a complaint of the General Counsel against Frigid Storage, Inc., d/b/a Economy Foods (the Respondent or the Company). That complaint issued on 3 April 1987, upon charges filed on 7 November and 10 December 1986, and on 9 February and 30 March 1987, by United Steelworkers of America, AFL-CIO-CLC (the Charging Party). The es- sential issues presented then are whether the Respondent unlawfully discharged four employees in violation of Section 8(a)(3) of the Act, and whether it also committed other unfair labor practices. A second complaint was issued by the General Coun- sel on 13 August 1987, based on a separate charge, in Case 9-CA-24458, filed by the same Charging Party on 2 July 1987. The two cases were consolidated, the record was reopened, and a further hearing was held on 18 November 1987. The issues presented by the second complaint involved a further discharge of an employee and other alleged violations of Section 8(a)(3) and (1) of the Act. Also consolidated with these cases is a representation proceeding, Case 9-RC-15030, in which the Board held an election among the employees here involved. The eli- gibility of three of the employees involved was ques- tioned during that election. A final question to be decid- ed now is the eligibility of those three employees . Briefs were filed by the General Counsel and the Respondent after the close of both hearings. On the entire record and from my observation of the witnesses , I make the following ECONOMY FOODS 665 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Economy Foods, a West Virginia corporation, does business in Huntington, West Virginia, where it is en- gaged in the wholesale sale and distribution of groceries and related products. During the 12-month period pre- ceding issuance of the initial complaint, a representative period, it purchased and -received goods and materials valued in excess of $50,000 directly from points outside the State of West Virginia. I find that the Respondent is an employer within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED I find that United Steelworkers of America, AFL- CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The basic question in this entire case-did the Re- spondent discharge four employees to put a stop to their union activities-starts with a look at two employee meetings the owner of the Company held on 22 and 31 October 1986. Edward Edmonds is the owner and sole operator of the entire business. He uses warehousemen and helpers in the plant, men and women who stock food on the premises and others who deliver to custom- ers in company vehicles. With about 12 or 14 employees altogether; it also uses four or five office clericals, who keep the records of transactions. Early in October 1986 there was a move among the warehousemen and drivers to join the Steelworkers Union, and a number of them signed authorization cards By letter dated 20 October the Union wrote to the Company, informing it that a ma- jority of the employees had joined the Union and re- questing recognition and collective bargaining. On 22 October, with the Union's demand letter in his hands, Edmonds held a meeting of his warehousemen Chancie Love, an employee, testified that Edmonds started by telling them all he had received 'the Steel- workers' letter requesting recognition and then "asked if anyone knew anything about the Union " When all the employees stood silent , Edmonds went on, still according to Love: "He said that he hated the Union. He hated anyone that worked for a union and he hated Black people. . . . And he said that, if your were forced to let a union in there, that he will cut our wages and he'd cut our benefits." From the testimony of Richard Franklin, also an employee: "He [Edmonds] said he had got a letter from the United Steelworkers-he said that a union wanted to get in here and he asked if anybody knew anything aobut it . . . . Nobody said anything . . . ." Kenneth Kennedy, another employee, gave like testimony. "He [Edmonds] came out and stated that he had a letter from the United Steelworkers, that he was going to be represented and he wanted to know what anybody knew about it." Edmonds testified at length at the hearing but did not contradict one word of the foregoing testimony. His threat to reduce wages and benefits if the employees per- sisted in their pro-Steelworkers activity was a clear vio- lation of Section 8(a)(1) of the Act, and I so find. In the light of his simultaneous threat, his interrogation of the employees as to their knowledge of the union activity was also an unfair labor practice This entire case there- fore stands with proof positive of an undenied determina- tion by the Respondent to put a stop to the self-organiza- tional activities of its employees. On 30 October the Union filed its petition with the Board for, an election among the warehousemen and drivers. The next day Edmonds held another meeting of employees, this time with all of them present The meet- ing lasted about an hour. Edmonds had received a bro- chure from the Board informing him of Board proce- dures and the right of the various parties in Board pro- ceedings. At this point in the testimony mention must be made of conversations that took place when Love and Kennedy were hired some time earlier. Love was hired by Edmonds in March 1986. His appli- cation showed he had previously been employed by a company called ACF Industries, also in Huntington. In the hiring interview Edmonds told him " I see that you was employed by ACF." Kennedy started with the Re- spondent in September 1986. His employment application showed he had worked at a company called Weiler Steel. Asked had Edmonds said anything about that pre- vious employment in his hiring interview, the witness said: "He noticed that they was union. He brought that to my attention . . . that he knew they was union up there and that they wasn't here, at his place." The testimony about Edmonds' talking to the employ- ees at the meeting he called on 31 October is as follows: By Love: He started the meeting and he said that he had re- ceived a brochure from the Labor Board telling him what he could do-what he couldn't do. And he asked, he said-he started off again, he says he hated unions, he hated anyone that work for unions, he hated policemen, he hated the proper word again is "niggers" is the way he implied it. He said he hated Mr. Thompson, hated the Steelworkers in Huntington, West Virginia. He said he hated preachers-all the preacher was good for was to come to your death bed and try to get you to repent of your sins so you can float off to heaven. And he started on me and Mr. Kennedy. Q What did he say to you and Mr. Kennedy? A. He said you're two good examples of union workers-how the union has failed them. He said, here they are today, working for me and the union has failed them. . . . he asked if, you know, if we knew who had signed the cards and who hadn't signed cards, or who had solicited us to sign a card . . .. At the end of the meeting he said, if anyone had anything to do [sic] say, you know, feel free to say it. I said , "I don't feel that the Unions is the cause of the way the economy is around here, be- cause the people's not buying your merchandise, then therefore, you can't sell it." 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Do you recall that Mr. Edmonds made any reference to what the situation would be if the Union got in there? A. Yes sir. Q. What did he say? A. He'd cut our wages and benefits. He said all the law required him to do was to pay $3.35 an hour and that's where he would start negotiating at. . . . He said, I can't understand why in the world the United Steelworkers would want to come in here and represent employees of food brokerage outfit. He said, I thought the Steelworker represent- ed steel-put steel mills and everything. Then he said, well, he looked-kind of looked at me and he looked at Mr. Kennedy and he said, "I've got a good reason why the Steelworkers are wanted in here." By employee Franklin: He said that he had been up half the night reading a book that he got, I guess, from the Steelworkers on what he could say and what he couldn't say in his conversation. . . . Yeah, he said he didn't . . . he didn't want no union in here and it will be a cold day in hell, in many words that they wouldn't be no union come in there. Q.Did he say if anything would happen if the Union came in? A. Yes sir, he did. He said he would cut every- body's wages back to minimum wage if he had to, or just close the business down. . . . He said that he was going to let a couple of people go that day and stop, but he hadn't said who-he was going to let go until after the meeting was over. Q.Did he say why he was going to let them go? A. Not in so many words and stuff, because of the union was up-because what he said about the Union and everything else-that he just didn't like the Union or anything and he mentioned about the ex-Steelworkers, Mr. Love and Mr. Kennedy. Q. What did he say about Mr. Love and Mr. Kennedy? A. Well, he asked them about-about their good-good job and stuff, he said about the Union and stuff like that-what-what the Union is good for and stuff. He said you was up there making around $10 an hour and so at ACF and stuff and then he went to Mr. Love. He said you was making pretty good money, Weilers, or whatever and here you was working and then he said, where was your great union now? NLRB. Said he'd been reading it all night and studying it. He mentioned Mr. Love. He said, "Mr. Love, you probably know this book by heart." Q. "Did he say why he called the meeting that day? A. He said that he wasn't going to negotiate a contract and if we did get a union in there, he was going to go minimum wage and negotiate from there. Q. Did he say anything that he would or wouldn't negotiate? A. He said he would not negotiate seniority in any contract. . . . Q. Did he say anything was going to happen before the meeting was over? A. Oh, he said before the meeting was over he was going to lay off two people that evening-that day. Q. Did he direct his coments at anybody in par- ticular at the meeting? A. Yes, he did, Chancie Love and Kennedy. He pointed out at first at the meeting that Chancie Love was-use to work at the Steelworkers Union and he said look what the Steelworkers have done for you. Q. Mr. love say anything during the meeting? A. No, sir. He did not, until after he was dis- missed .. . . Q. What about Mr. Kennedy? . . . Were any comments directed to him? A. No. Yes, he made comments to Mr. Kennedy about being in the Union and stuff, but I don't re- member exactly what the questions was. . . . Chan- cie and Kennedy-he directed all questions towards them-mentioned that they was in the Union before and that they was old union members and he just dulled them two and left everybody else alone. By employee Gary Castle: [Edmonds] started out by saying that he was going to have to let two go that day and possibly one Monday-that his business was getting slow and that he didn't need all the employees he had at the present time . . . . He said he had contacted a lawyer and that it wouldn't do anybody any good to stand up and say, "I filled out a union card," right now, because his mind was already made up who he was going to let go. . . . He said his lawyer had advised him that he had a right to let anybody he wanted go because he had no knowl- edge of who filled out a union card and who did not.... By employee Benny Thompson: He said he'd been notified by the Union that we was wanting to vote in the Union there. He said he didn't like unions. He said he didn't like preachers, and he said a preacher's name and used an example, like a little three sentence-four sentence sermon . . . . He said he'd had-got a book on the Q. Did he make any reference to Mr. Love and the book? A. He said that they need some people there that know the book better than him. He said it may be a coincidence that Mr. Love and Mr. Kennedy both had been employed and worked for the United Steelworkers. ECONOMY FOODS By Chris Gillette: Mr. Edmonds came in there and he had this little book he was holding in his hand and he said "I spent all night reading it from page-front to back." Then he went on, saying how he hated unions, how the union was destroying this country, and then he started saying a bunch of people that he hated.. . . There were union people, lawyers, niggers, welfare people; he hated ministers and he hated the Federal Government. . . . Then he said he was going to let two people go and I was going to be dissatisfied with the one, And he continued talking about how bad the Unions were, and the next thing he said, "Kennedy I'm laying you off and Love, you're the next one." By Kennedy: He said he'd made up his mind that he was going to discharge two employees that day And then he started in with why would we want to be represent- ed by the Steelworkers, and he said, "Take Chancie Love, here," he said "Here's a Steelworker for you. How much you make down at ACF, Chancie?" Chancie told him $10.85. He said, "Look at him now. He's working for half that for me." Then he said, "Look over here at Mr. Kennedy. Here's a steelworker. He's working for half the wages for me that he was making with them." He said, "He thought you would have a.life time job. You pay them to negotiate for you and look what you're at. .. ." He said, "I've made my mind up and the two employees I'm going to discharge is Chancie Love and Kenneth Kennedy " In his testimony Edmonds did not contradict one word about his intense dislike for unions, of his determination not to run a union shop, of his intent to reduce wages and benefits if the employees persisted in their union ac- tivities, of his having confronted Love and Kennedy as the outstanding union men then present , or of his having told them that same day that they were being fired. I certainly credit all this testimony that Edmonds also told Love and Kennedy that same day that they were going to be discharged. In fact he gave each of them his paycheck and a discharge slip when the meeting was over. The only conflict in testimony between Edmonds and the earlier witnesses turns on the question of just at what point during the meeting did Love express resent- ment against the owner. Love's testimony, supported by other employees who were present then, is that it was only after being told he was being singled out for dis- charge that he accused the owner of discriminating against him because of his union activity, and even told him he, the employee, would one day own the business and get rid of Edmonds. In contrast, Edmonds testified that Love spoke disrespectfully to him before he ever said he was one of the men he had decided to release. In the end, it was the Respondent's position that Love was discharged because he had always been a poor worker, because business was low, and because he had so spoken offensively to the owner without justification. In the 667 light of the witnesses' total testimony, I credit them against Edmonds. To start with, Edmonds' statement that Love was se- lected for discharge because he was a poor worker is false upon his own testimony . Before announcing the names of the two men to be released-Love and Kenne- dy-Edmonds told all the employees during that long lecture that Chris Gillette, one of the supervisors, might not agree with his choice. Only days earlier, when asked by Edmonds how he rated Love, Gillette had told the boss Love , was , the best order filler in the place. Throughout his employment Love had never been coun- seled or, disciplined for his performance. Indeed he had received substantial increases in pay With all this as background, Edmonds' admitted diatribe against both Love and Kennedy throughout that meeting in resent- ment of their special position as prounioneers , removes all doubt that, even if it were true that the Respondent had more employees at that moment than it needed, it in fact selected them for discharge because of their known position favoring the Union. At one point, while Edmonds kept blaming the union activity for his difficulties in the business, Love did speak up and say it was not the Union, but economic condi- tions that caused whatever problems there might be. It was not until Edmonds plainly spoke up towards the end that Love and Kennedy were the ones to go that Love did voice resentment about being chosen. He accused the owner of harassing him because of his prounion pench- ant, and he was right. It will not do for Edmonds now to say he fired the man for impoliteness towards him He had already decided to fire Love before the man spoke up in defense of his position. Kennedy too had received a substantial increase in pay and never received any criticism for his work perform- ance. Like Love he too was the pinpointed object of Ed- monds' criticisms during the meeting because of his known union activities in the past. Considering the entire record I find that the Respondent discharged Love and Kennedy on 31 October 1986 because of their union ac- tivities and thereby violated Section 8(a)(3) of the Act About 3 weeks after their discharge both Love and Kennedy were offered their jobs back. Love returned, on or about 21 November, Kennedy did not. He simply said at the hearing that he decided to work elsewhere. The complaint considered at the first hearing in this consolidated proceeding lists two other employees said to have been illegally discharged-Richard Franklin and Benny Thompson. They too were reinstated not long after their release. There is an implied contention in the General' Counsel's overall argument in this case that the fact of the Respondent having so quickly recalled em- ployees said to have been released with good justifica- tion, helps prove the basic allegations of illegal action in the initial discharges themselves. I find no merit in that assertion. No more would I find that Kennedy's refusal to return to his old job as evidence or admission by him that he deserved to be fired in the first place. Edmonds appeared at both hearings as his own representative; he is not a lawyer and had no lawyer representing his com- pany. He chose to explain the unusual proceeding on the 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ground that legal representation would have cost him more than his company could afford ' to pay . Edmonds also said that his reason for recalling the laid-off employ- ees on whose behalf the charges were filed was to be sure that in the event the discharges were found to have been illegal by the Board , his backpay obligation would also be no more than he could afford to pay. It was a perfectly rational and understandable position . I there- fore make no inference adverse to his interests from the fact he recalled any of the discharged employees. On 3 November 1986, the Respondent discharged Franklin , according to the complaint , because he favored the Union , but according to Edmonds because of poor conduct and behavior on the job . He was recalled in Jan- uary 1987 and again discharged on 5 February 1987, a dismissal also called a violation of Section 8(a)(3) of the Act. As to the second discharge the Respondent again defends on the ground that his personal behavior in the workplace was intolerable. As to the Respondent 's treatment of this employee I shall recommend dismissal of the complaint , for the evi- dence in it entirety does not suffice to prove the unfair labor practices . Franklin 's sole activity on behalf of the Union was no more than signing a union card and giving it to Love , as he himself testified . There is no evidence that anyone on behalf of the Respondent was aware of that fact . And, of course , there is no evidence at all of any antiunion animus pinpointed against him . Discharged on 3 November he was recalled to work in mid-Novem- ber, as he testified, but chose not to return until 19 Janu- ary. Discharged again on 5 February he was again re- called . At the time of the hearing in June he was still on the job. In discussing Franklin in his posthearing brief the Gen- eral Counsel keeps merging that man's name with those of Love and Kennedy , as though the three were some- how one . But the truth is there is no reason for relating the Respondent 's open hostility towards the other two men with its treatment of Franklin . What the General Counsel is really arguing in this case-not only with re- spect to Franklin but also with respect to other incidents, as will appear below-is : once it has been shown that an employer is opposed to having a union represent its em- ployees , anything , but anything , it does thereafter which prejudices or even inconveniences its employees, must be found to have been illegally motivated . It is not a con- vincing argument . It is not a convincing argument. It is an old principle of Board law that unfair labor practices, all of them , must be proved by clear and affirmative evi- dence. By the time the hearing started , 7 months after the critical events , there had developed a heated animosity between Edmonds and some of his supervisors, on one side, against a number of the employee witnesses who testified for the General Counsel . The record is replete with exaggerations about misconduct , false charges of misbehavior by management on the part of employees, justified or unjustified criticisms and warnings given by supervisors , etc. For the most part the witnesses were vague, evasive , argumentative , and clearly emotional in response to direct and fair questioning . But despite the confusions in testimony some relevant facts are clear. Franklin had a record of misbehavior with this compa- ny. He had been fired in the summer of 1986, Before all this happened, for what he called a "disagreement" with management about how to handle the frozen food stock. When an employee "disagrees" with the boss about how to go about his work , and is discharged as a result, it means he deliberately disregarded work orders. If he is fired for such misbehavior , it paints the picture of a very undesirable employee . He was recalled a few months later because the Company needed men . Franklin testi- fied that when released again in November 1986 Ed- monds told him it was because the economy was down and he was chosen for dismissal because he was unsuit- able for the work to be done . Of course , as a witness, he argued that he was suitable . After again being recalled, he was again fired on 5 February 1987 , this time, accord- ing to Edmonds , he was released because of his personal misconduct in the workplace . As to this incident , Frank- lin admitted having done what management told him was intolerable behavior . As best I understand what the wit- nesses were talking about , it is that the man had some kind of a gadget which he used to create the impression that he was "farting" loudly about the place, with a number of women employees also present . He said it was all in fun and that everybody laughed . He also agreed, in defense of his conduct , that he only did that one day in- stead of two , as Edmonds said he was told. Edmonds told him he considered such conduct improper , and that he would not stand for it. Was Edmonds being too sensitive that day : There is also uncontradicted testimony that on another occasion Franklin had "mooned" at another supervisor , again in the presence of other employees , including women. I learned , for the first time at the hearing , that "mooning" means lowering one 's trousers and exposing one's "pri- vate parts." Were this a case where at least a seemingly prima facie case had been made out in support of the complaint of illegal discharge , such an affirmative defense of discharge for cause might be seen as false, and therefore inferential- ly supportive of the complaint allegation , although I am by no means sure I would so hold. One might say Ed- monds was being overreactive to the man's unbalanced sense of propriety , but this is not such a case. The Re- spondent in this situation is not obligated to be absolutely convincing as to whether its reaction to the man's con- duct was reasonable . The boss is the boss . Absent proof of illegal motive , he has the right to demand proper con- duct in the workplace according to his own standards. The complaint with respect to Franklin 's discharge must be dismissed. I reach the same conclusion with respect to Thomp- son, the fourth man said to have been illegally dis- charged in the first complaint. This man was fired on 5 December' 1986. Edmonds ' defense in this instance is that the man was discharged because he had lied about a su- pervisor smoking pot in the workplace. Thompson ad- mitted having done precisely that a day or two earlier. When Edmonds had spoken to him about the rule that there should be no smoking while in the plant, Thomp- son testified he accused Edmonds of harassing him, and ECONOMY FOODS defended his conduct on the ground that Chris Gillette smoked pot without being criticized for it. When Gillette told Edmonds this was not true, Thompson was fired for having so spoken about the supervisor. The discharge came on 5 December. Three months later Thompson asked for work again, and the Respondent took him back. He was still at work during the hearing in June. As in the case of Franklin, there is simply no evidence to support the allegation that Edmonds' decision to dis- charge this man was based on his union activity Thomp- son testified his only union activity before his discharge was that he talked with Love in October 1986 and signed a union card then.-Again, there is no evidence that the Respondent was aware of that fact. Thompson also admitted that he told Edmonds, and other persons in the workplace, that he was "against the Union." Haupt, another employee, testified that Thompson also told him, as well as a number of other employees, that he was against the Union. With such clear evidence that the Re- spondent was assured by the employee himself of antiun- ion attitude, how can one find, on this record, that the Respondent fired him on 5 December for being "proun- ion?" To ask the question is to answer it. Before the discharge, while the organizational cam- paign was going on and the election petition had been filed, Thompson once asked Edmonds what would happen if there were a strike, would a striker be fired? According to Thompson, Edmonds responded, "Yes." i Improper as that answer by Edmonds may have been, it is no reason to believe that Thompson intended to back the Union in case of a strike, for he was at the same time telling people all over the place that he was "against" the Union. Four days after his discharge the election took place, and Thompson acted as the Union's observer. Coming as it did after his discharge that action by Thompson could have no bearing on the discharge alle- gation in the complaint. The fact is that it was not until after 5 December that the Respondent learned anything about Thompson's siding with the Union Two other violations of Section 8(a)(1) are alleged in the original complaint. After the union activity came to light the Respondent changed its warning system Before that, when employees were disciplined for errors, etc , or warned about wrongdoings, it had been done orally. No written records of such disciplinary action were kept. After the union activity surfaced, the Union filed charges with the Board, Edmonds consulted his lawyer, and on that advice, started to keep records of disciplinary and warning actions taken. That the Respondent so changed its system is admitted. A number of such written records, disciplinary actions, were received in evidence. And, of course, as was to be expected, given the animosity that had developed in the workplace between late 1986 and the time of the hearing in June 1987, the employees involved kept saying that the warnings, or criticisms, were unwarranted, while Ed- monds defended each of them as vigorously. I do not ' Edmonds denied having said this to Thompson, but on the record in its entirety, considering both Edmonds' admitted hostility towards the Union and his very poor credibility as a witness, I credit Thompson, and find that that statement by Edmonds was a violation of Section 8(a)(I) of the Act 669 intend to decide who was right and who was wrong. The only question is : Did the Respondent have a right to change its system? Better still, were the employees hurt or prejudiced in any way by the new recording system? I think not. This is not a case where a change of system endangers a man 's job, more than in the past, like when four warn- ings used to precede discharge, and later on only three were considered necessary. Whether Edmonds kept his records in his mind, or in writing, in no way affected the employee status of his men. Is the fact of writing things down intimidating to the employees? Perhaps a little. But against that possibility is the safety Edmonds said he wanted for himself, that is, to protect his position of being able to prove what had happened in the past in case further unfair labor practices should be charged against him. On balance, I cannot find it to have been a violation of this statute for that change to have been in- stituted. Lastly, the Respondent did something else, now said to have been an unfair labor practice. Beginning in late 1986 he reduced the amount of overtime his employees used to do. It was never very much. He made it a point to say that the employees did no more than 40 hours of work per week, because, as it was again said at the hear- ing, the overtime work used to cost him from 20 cents to about $1.20 per hour more than regular time pay Franklin testified he sometimes used to do 2 or 3 hours of overtime per week, but later sometimes worked only 37 or 38 hours a week. Another employee Castle, testi- fied he used to be scheduled for 39 hours a week before Franklin was recalled to work in February, and that thereafter he used to do 34 or 35 hours a week. Thomp- son's testimony on this subject was very confused, and vague; he kept changing his story as he went along. He started by saying he used to be scheduled 39 hours a week; then added he used to work 12 or 14 hours a day. Then, saying his hours were cut, he also added that he knew business had "gone down." Two witnesses for the Respondent explained the decrease in overtime worked was demanded by the fact that the volume of business had declined But all this mixed up testimony is really meaningless here because the owner admitted he changed the system, in a deliberate plan to avoid paying overtime rate to any- body. It was at this point in the story that Edmonds said, as a witness , that his legal costs because of this proceed- ing had reached $10,000. Again: May an employer, faced with the necessary legal expense in defending against an NLRB complaint, cut his business costs by avoiding all overtime work, which is paid at a higher rate than regu- lar time? I have no reason not to believe Edmonds' testi- mony that he paid that much money already for a lawyer in this case. The fact he appeared personally to defend is strong indication that he was tight for money. I make no finding that because the Respondent stopped having its employees do overtime work in consequence of this legal proceeding, it committed an unfair labor practice. We come to the evidence offered at the second hear- ing, on 18 November 1987. It all involves things that 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD happened after the close of the first hearing early in June . The clearest thing shown in this later transcript, and in the subsequent briefs filed by the General Counsel and the Respondent , is that the animosity among all the participants had continued to escalate . In consequence, the factual assertions made by both parties must be taken with a grain of salt. In his brief, Edmonds , who continued as his own rep- resentative , spoke most offensively about the General Counsel personally . His behavior was absolutely unwar- ranted . All it did is further discredit him where his sworn testimony is concerned . The General Counsel then filed a request that the offensive brief by Edmonds be smitten from the record. There is no need to rule on matters of that kind , for in my decisional process I ignore all irrelevancies, either on or off the record. My findings here rest solely and entirely upon the sworn tes- timony of all the witnesses and on the documents re- ceived in evidence. Some of the unfair labor practice allegations require very little comment . Some time in June 1987 the Re- spondent decided that the roof of the building in which the employees worked required a new coat of protected painting . For several days it assigned some of its regular employees to do that work during the afternoon . Includ- ed among these were Love, Franklin , and Thompson, men who had been intimately involved in the early pro- ceeding in favor of the Union . Other employees were also asked to do that work and did so. The complaint says it was a violation of Section 8(a)(3) for the Re- spondent to have used those three men for that work. As best I can understand the theory underlying this conten- tion it is that it was hot on the roof in June , that that work was not included in the work responsibilities of these three .men, and , with no evidence at all, that Ed- monds used those three men to satisfy his feeling of re- venge against them because of their prounion feelings. The record as a whole shows clearly that maintenance is part of the duties of all these employees inside the place . Certainly repairing a roof was maintenance work. From Thompson 's testimony : "Q. Is maintenance part of your job? A. Yes." It is alleged that the three men in question were deliberately selected to go to the roof, but there is no evidence to show that, because others were used to do the same work at the same time. It is also a fact that in the afternoon in this place there is less work to do , because most of the loading of the delivery trucks at the shipment work is done in the morning . There is always less work in the afternoon . If Edmonds had sent some of these men home because he did not have work for them , the General Counsel would have charged him with deliberately cutting the pay of the union men, I can make no finding of illegality in the Respondent having used anyone to do the maintenance work on that roof during the regular work hours for which they were paid. One day Edmonds asked Love to cut the lawn on his, Edmonds ', mother house across the street from the place where all worked . Love said he did not object to doing that . A picture of that house , received in evidence, shows there is very little grass ground on the side or front part of the house . Again, Love did it during hours and was paid his regular rate for the time. The General Counsel now says the Respondent violated the Federal statute by having Love work an hour or two cutting the grass . It would demean this decision to speak further of that incident. Part of the work of all the employees in this place is to work in the freezer, where all the wholesale food is kept. They stack it there and fill orders all morning as needed. The employees rotate part-time working in the freezer and part-time outside. There is another allegation of violation of Section 8(a)(3) that was belabored again and again throughout the hearing. It is that after the June hearing in this proceeding the Respondent used Love, Thompson, and Franklin longer hours in the freez- er than it did before and that the supervisors assigned them to the freezer more often than they did other em- ployees. The testimony in its entirety does not prove such discrimination against those three men, let alone the fact of a total absence of illegal "intent" in such assign- ments, were it true. Once supervisor, Green, testified that even after the June hearing he tried "to distribute it -equally," that is, the freezer work. Haupt, also a supervisor, testified that all the employees do about the same time in the freezer, and that Love, Thompson, and Franklin, because they did little delivery work, sometimes did more. He added he tries to keep employees no more than 1 hour at a time in the freezer. He was not the clearest witness, but com- pared to Love and Thompson on this subject he was definitely the more credible. Love started by agreeing with the General Counsel's statement that Thompson and Franklin were "the pri- mary people who work in the freezer." He added they were ordered to stay "an hour or two at a time in the freezer." Love then went on to say that he had kept a detailed, precise, written record of exactly how long each and every employee had spent working in the freez- er throughout the period in question, as well as a written record of just who had worked, and exactly how long, on the roof. Then came the following: Q. Have you been given the job of recording the time people spent on particular jobs? A. No, sir. Q. You say you accomplished this by keeping notes? A. Yes, sir. Q. Where do you keep the notes? A. That's private ... . Q. Do you keep them in a notebook, on a piece of paper, do you write them on a cardboard box? A. I feel that's my privacy, where I keep them. Can one believe a witness who says he has written records to prove his testimony contradicting his supervi- sors, when that man refuses to present such records he says he still possesses? Where there is the slightest con- flict in testimony between Love and other witnesses in this transcript of the hearing held in November 1987 I do not credit a word by Love. ' Franklin's testimony on that point is equally unreliable. He began by saying that before the June hearing he used ECONOMY FOODS to do about 20 to 25 minutes at a time in the freezer. And then came the following from him: Q. Were you ever told to work longer than the usual time in the freezer? A No. Not a specific time. No. Q. What? THE WITNESS: No, I haven't been, no. Such vascillating and inconsistent testimony will not do to prove an unfair labor practice. Thompson's testimony is no more convincing. He said-again by agreeing with a leading question by the General Counsel-that work in the freezer "was the least popular job in the warehouse." "Q. Since the hearing in June, have you received any new or different assign- ments than you had ever had before working for Econo- my Foods? A. No." At one point in the record the Gen- eral Counsel said: "I would say that there is some evi- dence here that the Company has a callous disregard for the employees, particularly in the freezer." I do not think this generally conclusionary statement, either by his wit- nesses or by the General Counsel, suffices to prove the Respondent deliberately used those particular three men in the freezer for longer periods than in the past as a technique to discriminate against them in punishment for their prounion activities. Another complaint allegation is that on 19 June 1987, the Respondent issued two written warnings for poor work performance, one to Thompson and one to Frank- lin. This was just 2 weeks after the earlier hearing on the first complaint, It will be recalled that when the union organizational campaign started , late in 1986 , the Re- spondent changed its old system of giving oral warnings and began to issue all warnings in writing . It did that on advice of'counsel in order to be in a position to prove objectively any past records of poor performance by any employees. And then, at the June hearing, the Company was charged with violating the law by issuing written warnings. With this, after issuing the two warnings to Franklin and Thompson on 19 June, the Respondent dis- continued issuing any written warnings , now fearful that by doing that it would be violating the law, as the Gen- eral Counsel had said that very month. Edmonds testi- fied that after 19 June, and until the November hearing, he had given about 12 oral warnings to this and that em- ployee. Now the General Counsel says that because the Respondent stopped issuing warnings , because the only written warnings issued went to two prounion employ- ees, this proves a deliberate selection of unioneers for criticism, or, discrimination in violation of Section 8(a)(3) of the Act. It amounts to an overall theory of damned if you do and damned if you don't! An interesting aspect of this particular allegation in the complaint is that the testimony of both Thompson and Franklin proves that these particular warnings of 19 June were justified. Thompson said that while Edmonds did not explain exactly why he was criticized on 19 June, a few days later he spoke to his supervisor, Haupt, about it. Haupt told him it was because he had failed to put "the sample box back on the top of the stack, I didn't I forget to restack the packet." I do not know how 671 serious such errors then were, but that it was a violation of the work rules, for which Edmonds had a right to warn him , is clear. Franklin was laid off the following month, on 24 July, for deliberately refusing to perform a regular work as- signment. As a witness he tried to get around that layoff discipline by telling a story about a funeral, and so on At one point he admitted he had refused to clean the windows, as ordered;,at another he indicated he had left voluntarily for a few weeks' An example of his testimo- ny: After the hearing, you were working there. Were you laid off for a period of time? THE WITNESS: I was off a couple of weeks or so, because my wife's mama passed away. Q. You mean, you chose to stay away yourself? THE WITNESS: Well, I was-how would you put it. Well, laid off or whatever for about 3 weeks there, because when I came back after the funeral and stuff like that, I was off . . . With this kind of a witness contradicting the Respond- ent's assertion that he deserved the 19 June warning, I have no reason for doubting the defense contention that Franklin's behavior generally justified the written criti- cism of his work. Shortly after the June hearing-10 days according to an employee witness, 4 weeks according to Edmonds' testimony, the Respondent posted a notice saying that no kind of food or drinks were permitted in the warehouse, that no lunches could be eaten there, or even kept in the freezer. From then on the employees have left the build- ing for lunchbreaks or gone to a restaurant outside to eat. The complaint alleges that rule was also posted to inconvenience the employees as a punishment for the union activity and participation in the Board hearing that had come earlier. Edmonds insisted at the hearing that the union activity had nothing to do with that posting, and explained that the applicable health rules required that no food of any kind be brought into the warehouse by employees at any time. About the health rule prohibiting food of any kind in this warehouse Edmonds was right There is a confu- sion in the record as to exactly what Governmental agency inspected the place, and ordered all food and drinks to be removed at all times, and so told the Re- spondent The witnesses referred to the United States Food and Drug Administration enforcing these rules. They also spoke of the State Health Department having such regulations. Whichever it is, the General Counsel does not dispute the fact that food of any kind is simply not permitted in the workplace as a matter of law. On this point too the conflicting testimony that runs throughout this record is very marked. Employee Castle kept saying the men used to have coffee and pop during work hours, that the supervisors at times saw them doing that. That the men did have drinks and even eat in the warehouse is true, if only because Edmonds admitted he often told the supervisors to put a stop to it. But it is also true an old sign on the door of the building read that no 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD one was admitted except while on duty. From this it fol lows that lunch was not to be eaten inside the ware- house. As another aspect of this second hearing, the General Counsel relieds on the fact that this posted notice was put up after the June hearing, and not before. He also relies on the fact that Edmonds lied at one point in his testimony. First Edmonds said the notice was posted after the place had been examined by a Government in- spector. It then developed there was inspection but that it took place in August, 2 months later. Did Edmonds himself ask the inspector to come in so he could have a good legal defense? I do not know; it could be. If it was an unfair labor practice for the Respondent to have en- forced a statutory health rule in retaliation for its em- ployees' union activity, can it be ordered to go back to the old practice of permitting prohibited things to be car- ried on in this plant? That Edmonds hates unions is the clearest fact in this overall proceeding, as set out in the beginning of this decision. Yet I do not think I can find a violation of this statute in this Respondent having en- forced an admitted health regulation applicable to his business. Before reaching the final real question to be decided, there is one small matter that must be disposed of. Em- ployee Thompson has been on and off his job with the Respondent for some time, for reasons of health. He last left in July 1987 because of a damaged knee. He testified that shortly after the June hearing Greene, the supervi- sor who knew him well, went to his house and advised him to obtain a doctor's certificate to justify a particular absence. Thompson quoted Green as follows- "He came up there, and he said, `I've come up as a friend and not as a supervisor. You'd better come up with a doctor's excuse or Mr. Edmonds is going to fire you. If you do, he's going to find some other reason." Green testified at length for the Respondent about the poor quality of work of the three employees said by the two complaints here considered as suffering at the hands of the Company. He did not contradict Thompson' s testi- mony about that talk shortly after the first hearing.2 If a supervisor's statement to a rank-and-file employ- ee-the boss is going to find a reason to fire you-be viewed in isolation, certainly is a threat of discharge. And, given the recent union activity, which the Re- spondent definitely did not like, it also must be called a violation of Section 8(a)(1) of the Act. Green not having denied it, I credit Thompson on this one point and find the unfair labor practices alleged in the complaint. Actu- ally, it could not have been too intimidating a statement, for, as Thompson himself said , Green went to his house that night for the very purpose of protecting the man's job; to tell him to be sure to get the doctor's certificate. The last allegation in this complaint is that on 19 June 1987 the Respondent unlawfully laid off employee Love. The charge in support of this complaint was filed on 2 July and on 9 July the Respondent recalled Love to 2 After the close of the second hearing the Respondent filed a motion to reopen the record so it could call Green to the stand again as a de- fense witness The General Counsel filed an opposition paper For the reasons stated by the General Counsel the motion is denied work. He was,.,still on job in November. All Edmonds said at the hearing is that Love was released because he was the most "expendable employee at that moment." From his testimony- I came to this time where once again this man now, because he was expendable, I had no work for him in the warehouse, he was not capable of delivery, I had to lay someone off, because they were standing around in the warehouse, they'd finished painting the roof, so I laid him off. There is some support for the foregoing statement by Edmonds. Deliveries were performed in the morning and there was less work in the afternoon. Love kept saying others were used for delivery and he was not, and that this was a form of discrimination against him at the time. He justified an apparent error he had made back in March 1986 while on a delivery route, while Edmonds kept building that particular incident as proof of Love's worthlessness. Love even stressed the fact he had been asked to obtain a chauffeur 's license, like all the other employees. What sets this matter at rest is the uncontra- dicted testimony of the payroll clerk She said the records show Love did no more than 27 hours of deliv- lery work during the 2000 hours of work up to June 1987. I agree with the General Counsel that the testimony by company witnesses about Love's poor performance, the lack of work for him to do, his relative undesirabil- ity, and so on, is vague, indefinite, and not very convinc- ing. At the same time, Love's testimony about his work and the Respondent' s mistreatment of him suffers the same weakness. It must be remembered that this was the man who kept the written records of all precise assign- ments into the freezer and on the roof painting work, but considers them too "private" to show them to anybody. In short, it is not really possible to make any definite finding of just what work was available for him in June 1987, or exactly how he had behaved in the workplace. The antagonism that existed between management and the General Counsel's employee witnesses is simply too great. It is a case of this kind that calls for application of the oldest rule of Board law. The burden rest on the General Counsel to prove an alleged unfair labor practice by af- firmative, positive evidence. In this case the necessary proof of an intent, in the Respondent, when it laid off Love in 19 June 1987, that it did so with a prohibited motive, fails, that is, antiunion animus against him. There is no such proof on this entire transcript of a full day's hearing in November 1987. The only indication of animus voiced by any management representative is Su- pervisor Green's single statement to Thompson. Absent a prima facie case in support of the complaint I cannot find that the Respondent laid Love off in June 1987 with an illegal purpose. What the General Counsel again relies on to support this second complaint issued in August 1987 is the an- tiunion evidence-aimed directly against Love-dating back to October 1986, and proved in the earlier hearing. As set out above, merely because an employer acts un- ECONOMY FOODS 673 lawfully a year earlier , it does not follow that anything it does thefollowing year that hurts any particular known unioneer constitutes an unfair labor practice . Edmonds represented himself in each of the hearings , without his lawyer present . But there is every indication that he was advised by counsel throughout the events . It may be that after learning of the testimony contained in the first hear- ing his lawyer advised Edmonds to keep his mouth shut, to stop giving voice to his antiunion sentiments. What- ever the reason , the fact is Edmonds did not give any later expression of his feelings against the Union. Deci- sion on Love's layoff in June 1987 must rest upon the second hearing record . I shall therefore recommend dis- missal of the allegation as to that layoff.3 Case 9-RC-15030 dered to cease and desist from any such conduct in the future. It must also be ordered to make Love and Kenne- dy whole for any loss of earnings because of the unlaw- ful discrimination against them . The Respondent must also be ordered to post the appropriate notices. V. 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 operations of Frigid Storage Incorporated , d/b/a/ Economy Foods, 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 ob- structing commerce and the free flow of commerce. Employee Love was eligible to vote in the December 1986 Board election. Kennedy said he voluntarily left the Company 3 weeks after 31 October 1986. He therefore was not eligible to vote on 9 December . Thompson was justifiably discharged in December 1986 and therefore also ineligible on 9 December. IV. THE REMEDY It having been found that the Respondent discharged the two employees in violation of the statue , and violated Section 8 (a)(1) in many other respects , it must be or- 9 A Board field examiner , Carol Shore , interviewed Edmonds in July 1987 in the investigation of the 2 July charges She wrote a summary of her recollection of that day 's interview on 21 July and sent it to Ed- monds In her summary she included the following statement "Based on your previous problems with Franklin , Thompson and Love with respect to their job performance and attitude towards customers , you decided that you would have to select one of them as opposed to other employ- ees for layoff" In response , Edmonds wrote her a letter , dated 28 July , in which he explained further the details of what had happened Here he included the statement " I believe your summary fairly accurately recounts your visit " The General Counsel offered this letter as an admission of guilt on the part of Edmonds I do not consider it as such To say that a three- page detailed statement is "fairly" accurate is not an admission of every detail set out in the examiner 's letter Shore did not appear as a witness to quote Edmonds precisely CONCLUSIONS OF LAW 1. By discharging Chancie Love and Kenneth Kenne- dy, on 31 October 1986, the Respondent has violated and is violating Section 8 (a)(3) of the statute. 2. By the foregoing conduct , by threatening to reduce wages and other employee benefits , by interrogating em- ployees about their knowledge of the union activities among other employees , by interrogating the employees as to the identity of other employees who had signed union authorization cards, by interrogating employees as to the identity of employees who were soliciting signa- tures to union cards, by threatening to close down the business in retaliation for the employees' union activity, by telling employees the Respondent would refuse to bargain in good faith with any union of their choice, by telling employees that the manager knew who the union activists were, by telling employees that the Employer will find a way to discharge prounion employees, and by telling employees that they would be fired if they engage in a strike , the Respondent has engaged in and is engag- ing in violations of Section 8(a)(1) of the statute. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.]