Effingham Food Store, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 15, 1973201 N.L.R.B. 263 (N.L.R.B. 1973) Copy Citation EFFINGHAM FOOD STORE 263 Effingham Food Store , Inc. and Local 534, Amalga- mated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Case 14-CA-6706 January 15, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 4, 1972, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Effingham, Illinois , on August 2, 3, and 4, 1972. Following the close of the hearing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in this case , and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Missouri corporation, operates a retail food market in Effingham, Illinois. From November 1971, when Respondent commenced operations, until the is- suance of the instant complaint, Respondent's receipts from the sales of products from its store was in excess of $500,000 and, during the same period, its purchases of products for sale in its store was in excess of $100,000 of which products in excess of $50,000 were transported through channels of interstate commerce from points outside the State of Illinois directly to its store in Effingham, Illinois . Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Effingham Food Store, Inc., Effingham, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed on February 22, 1972, by Local 534, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, a complaint, dated June 20, 1972, was issued alleging that the Respondent, Effingham Food Store, Inc., herein called the Company, has engaged in and is engaging in conduct constituting unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the complaint, as amended at the hearing, alleges that Respondent on February 10, 1972, unlawfully discharged James Hinkle because he had joined or had engaged in activities on behalf of the Union and, by reason of said discharge and other conduct set forth in the complaint, Respondent also has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. Respondent duly filed answers to the complaint and its amendments generally denying that it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held in The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The principal issue in this case is whether, on February 10, 1972, Respondent discharged James Hinkle, who was employed as a meatcutter in its food market, because of his membership and activities on behalf of the Union. Subsidiary issues are whether Respondent unlawfully interrogated employees about their union activities, threat- ened employees that it would close its business if the Union should be successful in its organizing endeavor, and directed other threats against its employees if they persisted in their support of the Union. Respondent's principal officers and stockholders are James Hastings and his wife, Marcella. James Hastings is president and the chief operating official of the Company and Marcella Hastings is its secretary-treasurer and also assists her husband in managing the store. Respondent is a franchise affiliate of a substantially larger organization known as Eisner Food Stores (herein referred to as Eisner). Among the services which Eisner furnishes the Company is counseling in regard to store management, store opera- tions, and personnel administration. Gary Woods, who is employed by Eisner, is the franchise counselor for the Company. On occasions when Woods is unavailable Herbert Schloz substitutes for him. Woods and Schloz are responsible to Donald Hadley, vice president of the franchise division of Eisner. The Company's Effingham store began its operations in mid-November 1971. Its meat department was staffed by five persons: Vernon Koerner, manager of the meat department; James Fecho and James Hinkle, meatcutters; 201 NLRB No. 40 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David Hoesli, apprentice meatcutter; and Betty Bushur, meatwrapper. From the outset the operations of the meat department proved to be unsatisfactory. In mid-December 1971 Vernon Koerner was terminated and James Fecho was appointed meat manager in his place.' The department continued with only four employees at least until mid- February 1972. Unfortunately, Fecho lacked the organiza- tional ability to successfully manage the meat department, which resulted in his ultimate removal from that position. Months before the store opened for business James Hinkle had applied for employment as a meatcutter. Gary Woods testified that in the spring of 1971 Hinkle spoke with him about employment. After their conversation he gave Hinkle an application to be filled out and returned. Hinkle did not return the application. Woods further testified that before Hinkle actually began to work for the Company he recommended to James Hastings that Hinkle should not be hired. Nevertheless, according to Woods, "Mr. Hastings , for some reason unknown to me, was sympathetic toward Jim Hinkle, and went ahead and hired him." James Hastings testified that in connection with the employment of James Hinkle he directed an inquiry to the latter's former employer who also advised Hastings not to hire Hinkle. Finally, before Hinkle reported for work with Respondent, James Hastings was informed of the possibili- ty that as an employee Hinkle surreptitiously might remove food from the store. Immediately before Hinkle began working for Respondent he secured temporary employ- ment with Mayhood Construction Company. Margaret Osteen, who is employed as a secretary for that organiza- tion, testified that in October 1971 she had a conversation with James Hinkle's wife about Hinkle's prospective employment with the Company. In that connection Miss Osteen asked Mrs. Hinkle whether the latter would obtain a discount on food which she purchased in the store and Mrs. Hinkle replied, "The only discount you can get on food these days is what you can carry out the back door." Miss Osteen reported this conversation to her employer Gene Mayhood who later informed her that he had discussed the subject with James Hastings. Despite the adverse recommendations James Hastings hired Hinkle. When asked for an explanation Hastings testified , "Well, first of all, Jim did call and he told me that he had 18 years' experience as a meat cutter , so I figured that he would be a good meat cutter. He was a former local boy. There are a lot of Hinkles in Effingham. I had done accounting for one of the Hinkles and I thought highly of him. I thought, well, if [James Hinkle] is [a] relation to him , certainly [James Hinkle] would be fine."2 The evidence adduced by Respondent at the hearing indicates that Hinkle's performance on the job was unsatisfactory. From the very outset, James Hastings began to receive complaints about Hinkle . Thus , according I Some inconclusive testimony was adduced at the hearing relating to the supervisory authority of James Fecho during the period that he was acting as meat department manager However , it is unnecessary to resolve the question because General Counsel does not contend that while Fecho was manager he engaged in unlawful conduct on behalf of the Company or during such period that any alleged violations of Section 8(axl) arises from events involving Fecho 2 Marcella Hastings testified that before James Hinkle was hired it was reported to the Hastings that Mrs James Hinkle had remarked ( to Margaret to the November 15, 1971, report of Gary Woods he "told Jim [Hastings ] to keep an eye on the meat dept. There seems to be a problem there . I don't feel that everyone is working with the best interest of the business in mind. I feel that Jim Hinkle may be working against us. He just doesn't impress me as a meat cutter . He is slow , sloppy and has a bad attitude." On January 5, 1972, Gary Woods made the following report : "I told Jim Hastings that Jim [Fecho] had told me Jim Hinkle not cooperating. He does not do what Jim [Fecho ] as mkt. mgr. has asked him to do. Jim [Fecho] had told me that he feels Jim Hinkle is just plain laying down on job. I reminded Jim Hastings that I was not in favor of him [Jim Hinkle] be hired in the first place. I also told him if he kept him on the payroll to keep a very close eye on the man. I told Jim [Hastings ] I felt that Jim Hinkle is part of the problem with Dave [ Hoesli]. I feel Dave can be trained if he had the right man to do this. Jim Hinkle is not the man." A week and a half later Gary Woods reported about a conversation he and James Hastings had with Fecho. Woods' report states : "I told him [Fecho] to tell Jim Hinkle he is going to have to start carrying his share of the load. I told him that if Hinkle said he was going to quit to tell him to hit the door. [Jim Hinkle's name seems to be coming up quite a bit]. I told Jim Hastings that he should find someone to replace Hinkle." On his direct examination , when James Hastings was asked why he retained James Hinkle in the Company's employ against the advice of the Eisner counselors, James Hastings testified, "I knew that Jim had a lot of personal problems. Marcella and I personally liked Jim and his wife. We had nothing against him whatsoever. I had hoped that we could correlate the meat department together and that everybody could get along and that we could finally work it all out . I know that it takes sometime to do this , so that is what I was waiting for." B. The Contemplated Reorganization of the Meat Department Upon his appointment as meat manager the question quickly arose as to whether Fecho had sufficient organiza- tional skill to head the department. This is reflected in the various reports that Gary Woods submitted. As an example, Woods' report for January 18, 1972, states, "I also told Jim Hastings that we need to start looking for a new [market manager] just in case Jim F. is not able to get things put together. I'm beginning to think that Jim F. is not going to get organized. He is having a real problem directing people. I feel that Jim F. is a very good meat cutter . He knows how to make money. He would make a very good 2nd man." A decision to replace Fecho was finally made on February 7, 1972. On that day, Herbert Schloz together with another Eisner counselor, John Osteen ) that the benefits her husband would receive when he begins working for the Company would be "not really too good, but with what we can pack out, we will be O.K" Before Hinkle actually was hired, the Company made an investigation of his qualifications . In that connection Marcella Hastings testified . "Well, of course, we had contacted Eisner first We talked to them at great length about it Mr Martin. with 1GA here in town had contacted them before us I discussed it with him He told me about his recommendations " They were "very bad" and the recommenda- tions from Eisner were also bad EFFINGHAM FOOD STORE Gaddis, visited the Effingham store. While there they spoke with James Fecho to determine his reaction should he be replaced as meat manager . Fecho indicated that he would be pleased to be relieved of the pressure of the position and would be willing to continue in the store as a meatcutter. Schloz made such recommendation to James Hastings. According to his report: "John Gaddis and I spent the day here (Effingham Store). Discussed problems in meat dept. with Jim Hastings. Possible solution arrived at was hire a new qualified meat dept. manager perferably a local man, put Jim (Fecho) back as meat cutter and remove Jim Hinkle from market entirely." That same evening, February 7, James Hastings offered the position of manager of the Company's meat depart- ment to Douglas Louderback, a former meat market operator in Effingham. Louderback accepted and, accord- ing to James Hastings, "told me that he would more than likely give a two-week notice" to his current employer, but would report sooner should it become possible to do so. Hastings testified that he had expected to hear from Louderback on February 8 as to when Louderback could report for work, but did not hear from Louderback until February 9.3 A critical issue in this case is when the decision was reached to discharge Hinkle and as of what date such discharge would be effective. James Hastings testified that as of the night of February 7 he had "in mind" the idea that he would discharge Hinkle. According to James Hastings, "I just more or less came to this conclusion that if I brought in a new meat manager, someone would have to go, and I made up my mind that it would probably have to be Hinkle, if Fecho approved going to meat cutter." As of that date the decision to terminate Hinkle, in part, rested upon whether Fecho would accept a demotion from the position of manager to that of meatcutter. Also, the effective date of Hinkle's termination depended upon when Louderback would report for work which might have been no sooner than February 21.4 The next morning, February 8, James Hastings tele- phoned Donald Hadley and informed Hadley that he had offered the position of manager of the meat department to Douglas Louderback. He further advised Hadley that he was going to speak to Fecho about stepping down from the job of manager and continuing to work with the Company J 1 do not credit the testimony of James Whitehurst , who was employed as manager of the grocery department and as an assistant to James Hastings in the overall operations of the store, that on the night of February 7, James Hastings informed him that Louderback would start to work for the store on February 14 This is contrary to the testimony of both James Hastings and Douglas Louderback that at the conclusion of their meeting on February 7 it was uncertain when Louderback would report for work because the latter felt obliged to give his current employer 2 weeks' notice which would mean that he would be unable to report for work prior to February 21 1 I do not credit the testimony of Douglas Louderback that on February 7 he was informed that James Hastings and Mr Whitehurst "decided that they couldn' t bring me in and then hold three more butchers back there, so they decided on Hinkle [to be terminated ]." This testimony is contrary to the testimony of James Hastings and also contrary to the affidavit which Douglas Louderback furnished an agent of the National Labor Relations Board on March 14. 1972. In the affidavit Louderback averred that in his conversation with James Hastings on February 7, "We did not talk about any specific employees or talk about having to let anyone go " s James Hastings testified that on February 8 following his conversation with Hadley he called Fecho into his office and informed Fecho that he had 265 as meatcutter and that Hinkle "would be replaced in the course of the changes." 5 Because Gary Woods had been ill on February 8, early the next morning James Hastings telephoned him and advised him about the hiring of Louderback. Later the same morning, February 9, Hastings received a telephone call from Louderback advising that Louderback would be able to conclude his work with his current employer on Saturday, February 12, and therefore could begin to work for the Company on Monday, February 14.6 James Hastings in the afternoon of the same day telephoned Gary Woods a second time to inform him of this development. Thus, as of the close of business on February 9, Louderback was due to report to work and assume the responsibilities of manager of the meat department on February 14, and Fecho had agreed to relinquish his position as meat manager and continue in the Company's employ as a meatcutter . It was also contemplated that following Louderback's employment Hinkle would be terminated . Marcella Hastings testified that after her husband had talked to Fecho he and she decided that they would terminate Hinkle. However, as of Wednesday, February 9 (presumably after James Hastings received the telephone call from Douglas Louderback advising that he would be able to report for work on Monday, February 14), according to Marcella Hastings, "we decided that we would be letting [Hinkle] go before the weekend was out," but a decision had not been reached as to exactly when Hinkle would be discharged. C. The Organizational Activities Both Fecho and Hinkle previously had worked for stores which had collective-bargaining agreements with the Union or affiliated locals and had been members of such organizations. Hastings testified that he was aware of their prior union membership when he hired them. Hinkle testified that in May 1971, when he first spoke with Hastings about employment, Hastings inquired where he had previously worked. Hinkle replied that he had worked for A.&P. and after he was bumped from his job with that store he worked for Johnson's IGA. Hastings asked whether IGA was union and Hinkle responded, "No." hired Louderback to become manager of the meat department , that he considered Fecho was a good meatcutter , a hard worker , and was trying to do a good job, and he would like Fecho to remain as a meatcutter. Fecho responded that he would be happy to stay on as a meatcutter . In this conversation , Hastings testified , he also informed Fecho that because of the poor financial position of the Company there was no way that he could retain Jim Hinkle after Louderback goes onto the payroll and that he wanted the matter to be kept confidential until he had the opportunity to tell Hinkle Fecho denied that on February 8 he was advised by James Hastings that the latter had hired Louderback and had decided to terminate Hinkle Furthermore , Gary Woods testified that the next day, on February 9, he had two telephone conversations with James Hastings In the first conversation Hastings indicated to Woods that Hastings was thinking about letting Hinkle go and in the second conversation Hastings indicated that he had decided to terminate Hinkle . It seems improbable that James Hastings would inform Fecho of a positive decision to discharge Hinkle before advising the franchise counselors . I do not credit James Hastings in this respect 6 On Sunday , February 13, Louderback took an inventory of the merchandise on hand in the meat department of the store 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, Hinkle acknowledged that he had belonged to a Union.7 Fecho testified that on November 12, 1971, when he applied to James Hastings for a job the latter inquired about his qualifications. Fecho informed Hastings that he had worked in many stores and volunteered the informa- tion that a lot of them were union stores. Fecho further volunteered that he was no longer an active union member but held a withdrawal card. Hastings responded that he did not want a union in his store . Fecho assured Hastings that if the latter was worried about Fecho being a union man, that he would not join a union and that if "anything like that came up" he would take a 6 weeks' leave of absence or just quit. Hastings did not then offer Fecho employment. However , early the same evening James Hastings tele- phoned Fecho and informed him that he could begin working for the Company the next day.8 Although this conversation reveals Hastings ' antipathy towards the unionization of Respondent 's employees , contrary to General Counsel, I find that it did not infringe upon employees' protected rights. Fecho volunteered the infor- mation about his past union employment and Hastings' response merely was that he did not want a union in the store. It would be a distortion of this remark to imply therefrom that Hastings was telling Fecho that he would not hire any person who had formerly worked in a union store or was a member of a union. Any such possible inference is rebutted by the fact that Hastings hired Hinkle despite the latter's admitted union affiliations and the absence of assurances that he would not again become active in a union. Fecho's avowed disclaimer of any further union interest was unsolicited and there is no basis for believing that Fecho would not have been hired had the disclaimer not been given. Towards the end of December 1971, Fecho and Hinkle began to discuss the desirability of obtaining union representation. In January, Fecho contacted Jerry Blue, a business representative of the Union , and a meeting was arranged for the night of January 12, 1972. Only Fecho and Hinkle attended . Both signed applications for mem- bership and union authorization cards. They had invited Betty Bushur to come to the meeting but she had refused. Despite several conversations with Fecho and Hinkle about the Union dunng the month of January 1972 r Hastings denied that he discussed union membership with Hinkle Hastings explained that "it wasn 't really necessary because I knew , he told me that he worked for A.& P., so I kind of assumed it " 8 James Hastings denied that he had any such conversation with Fecho According to Hastings , Fecho was hired by Vernon Koerner and not by himself . I credit Fecho rather than Hastings in regard to the described interview In this instance and with respect to other events discussed below the testimony of James Hastings conflicts with the testimony of witnesses called by General Counsel. While I am of the opinion that James Hastings fundamentally is not an untruthful person, I likewise am of the opinion that his personal involvement in the instant litigation has served to distort his perspective Furthermore , Hastings ' glib explanation of events and his general deportment as a witness suggest to me that in his anxiety to prevail James Hastings has permitted himself to shape his testimony to fit the mold of the Company's defense rather than to answer the questions put to him precisely, accurately, and in accordance with the way the events actually took place 9 1 credit Blue 's version of his telephone conversation with Marcella Hastings rather than her slightly contradictory version 10 1 credit Mrs Bushur's version of their conversation rather than the version given by Mrs Hastings Bushur testified in a straightforward . direct Bushur's indifference continued . David Hoesli also was approached about the subject prior to the January meeting. At first he showed no interest . However, on February 9, Hinkle and Fecho had a further conversation with Hoesli about the Union and dunng part of the time they were joined by an independent truckdriver. Hoesli then indicat- ed a qualified interest. A meeting with Jerry Blue was suggested to which he agreed . The meeting was arranged for the same night . At the meeting on the night of February 9 Hoesli signed a union authorization card. The next day, February 10, about 10 a.m. Blue telephoned the store and asked to speak with Mr. Hastings. He was advised that Mr. Hastings was not present and the call was turned over to Marcella Hastings . The latter informed Blue that her husband was ill with the flu and not available and probably would not return to the store before Monday, February 14. Blue identified himself to Mrs. Hastings as a business agent for the Union and informed her that a majority of the meat department employees had signed applications a for membership in the Union and that he was interested in obtaining recognition on behalf of the Union and negotiating a contract . She responded, "We don't need a Union," and something to the effect that she was not interested in talking any further to him .9 Marcella Hastings immediately reported the conversation to her husband who was in the store's office. According to James Hastings: "[W]hen she got through [with ] the phone call, she came in and she said , 'Oh, I didn't know you were there.' She said, `I think I received a phone call from a union representative .' She said, `I think I'll go . . . and check with Betty or Dave or someone over there and find out if they know anything about it,' which she did." Marcella Hastings then went to the meat department where she spoke to Betty Bushur . Mrs. Hastings asked if there had been any talk about the Union in the meat room to which Mrs . Bushur responded , "Yes." Mrs . Hastings then inquired if all the employees were going along with the Union . Mrs. Bushur answered that she and David Hoesli were not and that only Jim Fecho and Jim Hinkle were supporting the Union.10 One or two days later Marcella Hastings again questioned Bushur about the Union . Mrs. Hastings asked Bushur whether she was sincere when she said that she was against the Union. The most significant and also the most controverted manner without any equivocation . Although Mrs Bushur was called as a witness by General Counsel , she was the only meat department employee who consistently opposed the organization of the meat department She appeared to have maintained a friendly relationship with Mrs. Hastings while at the same time her testimony indicated antagonism towards both Fecho and Hinkle Bushur seems to have had no reason to favor the Union or any of its supporters Also. at the time of the hearing she was still employed by the Company and gave her testimony in the presence of both Mr and Mrs Hastings This would further incline her to favor rather than to harm the Company by her testimony. In all the circumstances , I find that Mrs Bushur was a truthful and entirely reliable witness On the other hand. Mrs. Hastings impressed me as having been concerned by the instant litigation to an extent that it affected her objectivity . Her interest in a favorable outcome in this litigation , her resentment at the supposed faithlessness of her employees in seeking union representation, and her fear that a successful organizational campaign might mean the financial doom of the Company of which she and her husband are the principals served to distort her perspective and to cause her to color her testimony in order to place it in a light most favorable to the Company 's cause rather than to describe precisely and accurately what had happened EFFINGHAM FOOD STORE 267 testimony was given by David Hoesli. It related to conversations he had on the morning of February 10. According to Hoesli, between 10 and 10:30 a.m., while he was in the grocery department area of the store, Marcella Hastings came to him and inquired if he knew anything about the Union or its activities . Hoesli replied , "Not very much." Marcella Hastings questioned him as to whether he was telling the truth and Hoesli affirmed that he was. Mrs. Hastings then informed Hoesli that she had received a phone call from the Union and did not know what was up and was asking Hoesli to see if he knew anything. Mrs. Hastings then stated that they couldn't really afford the Union, and if the Union came in they would probably have to close the store." This remark is alleged to be and, I find, is a violation of the Act.12 The conversation with Mrs. Hastings took place as she was leading David Hoesli to the office . In the office he met with , in addition to Marcella Hastings , James Hastings, James Whitehurst, and the secretary, Mary Miller. Upon their arrival Marcella Hastings told her husband that she had asked Hoesli whether he knew anything about the Union and he had said that he did not know very much about it . James Hastings then asked Hoesli if he was sure he did not know anything about the Union and Hoesli repeated that he knew nothing about the Union. James Hastings then informed Hoesli that Marcella Hastings had received a telephone call that morning from someone who said that the Union represented a majority of the meat department and who wished to make an appointment, that Mrs. Hastings told the caller that her husband was home sick and would not be available until Monday, and that the union representative was going to call again on Monday to make an appointment. James Hastings voiced his perplexi- ty at the fact that the union agent had asserted that the Union represented a majority of the meat department. Hastings stated that he knew that James Fecho and James Hinkle held union cards but he could not figure out who the third person was who had signed a card to give to the Union the alleged majority. He said he knew that Betty Bushur probably had not signed a union card. James Hastings also discussed the fact that plans had been made to effect changes in the meat department. He stated that he was going to bring in as manager a man who was 55 years old, he was going to demote Jim Fecho to James Hinkle's job, was going to reduce Fecho's wages and then he was going to fire Hinkle. Hoesli was informed that he would retain his same job. Hastings also informed Hoesli that these changes were not scheduled to take place until Monday, February 14, 1972, but because Marcella Hast- ings had been contacted by the Union they decided that they would make the changes in the meat department at once . James Hastings explained to Hoesli that Marcella Hastings had been contacted by the Union but he had not been contacted yet, therefore, he was able to make the personnel changes in the meat department prior to receiving direct notification from the Union. Also, Hoesli was witness to the fact that James Hastings had made his decision regarding changes in the personnel of the meat department before Hastings received any notification from the Union. Hastings then said they were going to let Hinkle go that same day. At some point during the meeting James Hastings said to Hoesli that if the Union came in they would probably have to close the store. This threat violates Section 8(a)(1) for the reasons stated above.13 Before the meeting concluded James Hastings again asked Hoesli whether he knew anything about the union activities . Hoesli responded that he did not and stated that he would keep his ears open and let them know if anything came up or if anybody contacted him. Also, Hoesli was told not to talk about the meeting, to keep it quiet. James Hastings , Marcella Hastings , and Mary Miller specifically denied that any meeting such as was described by Hoesli took place. Also, Alberta Bracken, a checker, testified that she did not see Hoesli in the area of the office on February 10 and her further testimony is to the effect that had Hoesli gone to the office she probably would have seen him. I was most favorably impressed by the sincerity and apparent honesty of David Hoesli . Hoesli later decided to abandon his union affiliations and on February 14 confessed to James Hastings that he had signed a union card and informed Hastings that he had changed his mind about the Union. As of the time of the hearing Hoesli was still employed by the Company and he testified in the presence of both James and Marcella Hastings. In these circumstances, there appears to be no reason why Hoesli would testify falsely to the detriment of the Company. To the contrary, considerations of self-interest would prompt Hoesli to support the Company's position. I find Hoesli a more credible and a more reliable witness than Marcella and James Hastings. These two, as principals of Respon- dent, have an important stake in the outcome of this litigation. While interest does not necessarily determine ii Marcella Hastings categorically denied that she had any conversation with David Hoesli about the Union on February 10, 1972 Inconsistent to some extent with this denial is the testimony of James Hastings that on the morning of February 10, after Marcella Hastings had informed him about the telephone call she had received from Blue , she said that she would check with Betty Bushur or David Hoesli or "someone over there " to find out if they know anything about "it " According to James Hastings, "she came back and told me they didn't know anything about it." i2 "[S Itatements on the part of management to employees that it might be necessary to close the plant, made during a period when unionization of its employees was sought to be effected , must be regarded as coercive, notwithstanding sincere belief that such result would follow ." United Fireworks Mfg Co., Inc v. N.L R B., 252 F.2d 428, 430 (C.A. 6). Accord- N L R B v Kolmar Laboratories, Inc., 387 F.2d 833 (C A. 7), and cases discussed there . Surprenant Manufacturing Co v N L.R B, 341 F 2d 756, 760 (C.A 6). N.L R B v Joseph Ante!!, Inc, 358 F 2d 880, 881 (C A 1) See also N L R B v Gissel Packing Co., Inc., 395 U S 575, 618 (1969), where the Court stated. [An employer 's prediction about the consequences of unionization] must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . in case of unionization And Textile Workers Union of America v Darlington Manufacturing Co et at, 380 U S 263 , 274, In 20 (1965), where the Court stated. Nothing we have said in this opinion would justify an employer's interfering with employee organizational activities by threatening to close his plant 11 During the conversation James Hastings asked Hoesli, "[H low important all of it was to [ Hoesli ] " Hoesli understood that James Hastings "was referring to the union and everything else, all of it together " At this point Mary Miller asked Hoesli how important was hisjob While a veiled threat might be implied from this exchange . it is unnecessary to do so because of the other unambiguous , unlawful threats made to Hoesli 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questions of credibility, in this case, Marcella Hastings and James Hastings were unable to prevent their interest from affecting their objectivity. James Hastings, in particular, and to a lesser extent Marcella Hastings seem to have developed a scenario to which they tended to adhere in giving their testimony rather than to answer the questions put to them directly. Mary Miller and Alberta Bracken testified only briefly at the hearing. It is difficult to make any evaluation of them in the very short period of time they appeared before me. However, as I am of the opinion that David Hoeslt, who testified extensively at the hearing, was a truthful and reliable witness I will credit neither Mrs. Bracken's nor Mrs. Miller's denial of Hoesli's testimony. 14 The interrogation of Hoesl ► by James Hastings and Marcella Hastings as to whether he knew anything about the union activities among the store's employees and the similar questioning of Betty Bushur to elicit from Bushur her attitude towards the Union and the names of the employees who favored the Union constituted violations of Section 8(a)(1) of the Act. Such efforts to secure informa- tion which would be useful for discrimination or harass- ment, particularly in this case where the Company made no secret of its opposition to the unionization of its employees, without any explanation to the employees of any legitimate purpose for asking the questions and without giving the employees assurances against reprisals, were clearly coercive.15 The effect of such coercion became manifest when Hoesl ► answered falsely that he had no knowledge of the union activities, thereby indicating "an effort by one intimidated to conceal his true allegiance." 16 D. Hinkle's Discharge James Hastings, who was not feeling well on February 10, left the store in midmorning and did not return until 4 p.m. Upon his arrival in the store he called James Whitehurst and Marcella Hastings to the office and "told them I had . . . made up my mind what I was going to do, I said that I was going to try to get . . . hold of Jim Hinkle and let him go before he left the store." 17 Then, according to Hastings, "about that time" some meat salesmen came into the store and kept him occupied until about 5 p.m. by which time Hinkle had already left the store. i8 Marcella Hastings testified more fully regarding the afternoon conversation, which lasted 15 or 20 minutes, between herself, her husband, and James Whitehurst. According to Marcella Hastings, "February 10, was when we reached the time that we were going to let [Hinkle] go." Her husband began the conversation with the remark, "You realize that with this phone call coming . . . It is going to really look bad if we still go ahead and let Mr. Hinkle go." Mrs. Hastings responded that "we have no other choice." James Whitehurst interjected that it was unfortunate we were picking this time to act because "it 14 Even Counsel for Respondent was favorably impressed by Hoesh He stated on the record, "I think the young man is being truthful in spite of the pressure " The reference is to the alleged pressures sought to be exerted on Hoesh by Fecho IS N L R B v Cameo, Inc. 340 F 2d 803, 804-807 (C A 5), cerl denied 382 U S 926 16 N L R B v Wilco, Inc, et a!. 388 F 2d 133, 137 (C A 2) was going to really look incriminating" but we must "go ahead with our plans as they are and stand by that because this is what we have planned to do all week." Further, according to Marcella Hastings , part of the reason for the decision to terminate Hinkle on February 10 was the information given to them before Hinkle was hired to the effect that Hinkle's wife had made the remark that his pay with the Company was "not really too good, but with what we can pack out, we will be O.K." Also, Mrs. Hastings explained, "for economic reasons we could not go ahead and keep another one in the meat department and Jim [Hastings] said that since Eisner had recommended almost always every time they came that we get rid of Mr. Hinkle and let him go and keep Mr. Fecho because he was the best meat cutter, we had to weigh all of the circumstances and all of the evidence and come up with a reasonable decision, and this is what we came to." Mrs. Hastings further testified that dunng the entire time the store had been in operation the Eisner counselors had insisted that "there certainly had to be some meat going out the back door." At this meeting, according to Marcella Hastings, Jim White- hurst said, "[W]e know that we are losing meat. We have been from the beginning. We really don't know where it is going , but we know that it would be best now, we feel, that it would be best now if we would go ahead [and discharge Hinkle] , since we are going to discharge him, and let him go today. We don't want to go ahead and run the risk of it any later." While it is not entirely clear from Mrs. Hastings' testimony what was the precise order of the conversation, the determination to discharge Hinkle was made when her husband, James Hastings, said, "We will go ahead with what we had planned in the early part of the week. Now, we have determined that Mr. Fecho will stay when he steps down . . . and he will work under Doug so we will not be in there with one meat man alone. We will have two, and we can go ahead and we know that Mr. Hinkle has been recommended that we let him go and we will have to go ahead and discharge him." When asked on her direct examination by Respondent's Counsel whether there was any particular reason why Hinkle was discharged on February 10, Marcella Hastings answered, "Well, we had been advised previously that Mr. Hinkle was capable or might be capable of removing merchandise without us knowing about it, and we were a little apprehensive to let him stay in the store any longer, and regardless of the circumstances, we had to let him go that night." James Fecho was then called to the office. Except for insubstantial details the four participants to the meeting generally agree as to what occurred. James Hastings instructed Fecho to discharge Hinkle because Fecho was still the manager of the meat department. Fecho strenuous- ly objected. When pressed he explained that the Company probably had heard from the Union and the Company would be in trouble if it were now to fire Hinkle. 11 This confirms Hoesh's testimony that the decision to discharge Hinkle on February 10 was not made until after the telephone call from Jerry Blue requesting recognition of the Union as the representative of the meat department employees I" Upon being pressed during his cross-examination . Hastings testified that possibly the meeting with Fecho, discussed below, began at 4 30 p in EFFINGHAM FOOD STORE 269 Fecho testified that other things occurred which are not referred to in the testimony of Mr. or Mrs. Hastings or James Whitehurst. According to Fecho, Marcella Hastings came to the meat room and instructed him to go to the office. As he was walking towards the office Mrs. Hastings asked whether he had heard anything about a Union to which he answered, "No." Then, the first question from James Hastings when he entered the office was whether he had heard anything about a Union and again Fecho said, "No." Further, according to Fecho, when he advised the meeting that the Company would get in trouble with the Union if it fired Hinkle he was pressed to explain how he knew that. Fecho answered that he had signed a union card and knew that the Company was going to be notified by the Union early in the morning. Marcella Hastings made an exclamation to the effect, "how dirty us guys were and everything." Also, Fecho testified that during the meeting , Hastings remarked that he hadn't been notified by the Union and as he was the president he could fire and hire whomever he wanted. Finally, according to Fecho, just before he left the meeting , James Hastings asked him which way he would go, if he would go Union or non- Union. Fecho responded that he wouldn't vote. Marcella Hastings then asked, "Well, how can we believe that?" To which Fecho responded, "[Y]ou will just have to take my word for it." 19 After the meeting with Fecho ended James and Marcella Hastings and James Whitehurst went to Hinkle 's home and notified Hinkle that he was discharged . Hastings paid him for the balance of the week and also gave him an additional week's wages as severance pay. On his direct examination James Hastings was asked why he felt it was necessary to discharge Hinkle on the night of Thursday, February 10. He answered, " Several reasons, the big reason being that Doug was going to be in on Friday night and Saturday night. . . . He was going to take inventory with me2° I didn't want him or anybody else to be embarrassed. I thought enough time had gone by and I wanted to tell him as quick as I possibly could." When asked who would be embarassed, James Hastings testified, "For example, if I hadn't told Hinkle that night, the next day Doug would come in. Here he would be working on the meat cases and Jim wouldn't know anything about it. It would be kind of embarrassing, wouldn't it, to all of US?" 21 Fecho testified that he did not see Louderback in the store on February 11. Betty Bushur was not asked whether she saw Louderback in the store before February 14. Also, Hoesli was not questioned about the subject. In any event, the record indicates no necessity for Louderback's going to the store on Friday or Saturday February II or 12, if his presence would have embarrassed anyone. This reason for discharging Hinkle on February 10 is unconvincing. 19 General Counsel does not contend that any of the incidents on February 10 involving Fecho constitute violations of the Act. Presumably General Counsel takes this position because of the uncertainty as to whether Fecho was then a supervisor 20 Douglas Louderback testified that he took inventory on Sunday. February 13 21 Louderback continued in the employ of Tractors Supply Company until the close of business on Saturday, February 12. He informed James E. Conclusions Regarding Hinkle's Discharge If full credit were given to all the evidence offered on behalf of Respondent, by the morning of February 10 arrangements had been made for Douglas Louderback to begin working in the store on Monday, February 14, as manager of the meat department. Also, arrangements had been made for Fecho to step down to the job of meatcutter and a tentative decision had been made to terminate Hinkle. However, all these changes were to be effected simultaneously as of the end of the week on February 12 22 Only after the Company learned of the Union's organiza- tional interest was the decision made to terminate Hinkle earlier. The reasons given by James Hastings, Marcella Hastings, and James Whitehurst for accelerating the time of the contemplated discharge of Hinkle are inconsistent. None of the reasons are convincing. Both Mrs. Hastings and James Whitehurst testified that the possibility of pilferage was a motivating factor for the decision to terminate Hinkle on February 10. However, the factors which gave rise to a suspicion that Hinkle might pilfer were known to the Company even before he started to work in mid-November 1971. Furthermore, during the entire period of the store's operations, from mid-November 1971 through February 10, 1972, there had been excessive shrinkage of the meat department's inventory and, accord- ing to Hadley, it raised a suspicion that there might be pilferage. No adequate reason appears why the Company had to take precipitate action-by going to Hinkle's home after work hours, before the end of the workweek to discharge him-to correct a situation which had been continuing for 3 months. James Hastings' explanation that it would be embarrassing to retain Hinkle after February 10 because of the possibility that he might encounter Douglas Louderback is spurious. If the possibility of such embarrassment existed no explanation was given as to why it was necessary for Louderback to go to the store on either Friday or Saturday of that week. Furthermore, during that week Hinkle's normal quitting time was 5 p.m. and as Louderback was elsewhere employed and could not be at the store except during evening time it was unlikely that the two would meet. The evidence is overwhelming that Hinkle was discharged on February 10 as a direct reaction to the telephone call from Jerry Blue advising that the Union represented a majority of the employees in the meat department. Marcella Hastings denied that she told any employee that the store would close if the Union was successful in organizing its employees. However, she testified that a few days after February 10 she had a conversation with her mother, who also works in the store, during which they were discussing "the financial aspect of the thing, and I told her about the contact that we had received over the telephone from Mr. Blue, I guess, and I told her that it Hastings that that would be the case on February 9. It appears from James Hastings' testimony that Hinkle 's normal departure time that week was 5 p.m Therefore, it is not likely that Hinkle would have met Louderback if Louderback visited the store in the evenings. Louderback testified that Friday evening , February 11, he went to the store He did not testify that he visited the store on Saturday , February 12 22 James Hastings considered that Fecho continued in the position of manager until he was actually replaced on Monday. February 14. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would make it very difficult if the union would come in because of our financial status ." Similarly , James White- hurst testified that sometime after June 3, 1972, Mrs. Hastings said to him that if the Union came in the store would have to close. The Hastings have been of the opinion that the organization of any of its employees would be financially disastrous. Hoping to avoid such eventuality Hinkle was discharged on February 10. Hinkle's discriminatory dis- charge in such circumstances was designed to discourage membership in the Union and , accordingly , constituted a violation of Section 8(a)(3) of the Act. Furthermore, it interfered with , restrained , and coerced employees in the exercise of the rights guaranteed in Section 7 in violation of Section 8(a)(1) of the Act. F. Additional 8(a)(1) Violations I find that the following incidents took place and constitute evidence of further violations of the Act: In mid-February Marcella Hastings said to James Fecho in reference to the Union that they were going to have to close the store and there would be 50 people out of work. In mid-June 1972, James Hastings remarked to Fecho with reference to Hinkle, "If you do the way he has, you are,going to end up at the bottom of the barrel the way he has." In light of all antecedent events Hastings implied that if Fecho continued to support the Union he too would lose his Job with the Company. About a week later James Hastings remarked to Fecho that he would close the store before he would permit Hinkle to return to work. As this present proceeding then was pending , the import of Hastings ' statement was that rather than comply with an adverse decision of the National Labor Relations Board the Company would close its business. David Hoesli testified that about mid-July 1972, in the presence of Douglas Louderback , Marcella Hastings said, "[S ]he was trying to be fair to everyone and would like to give everyone a raise , but because . . . of what was going on, they couldn't say anymore to us, but she did say that the union would use me . . . . She said the union would use me and by the time it was all over with that I would be at the bottom of the barrel." In context of the antecedent events these Comments meant that because of the penden- cy of the instant proceeding the Company would not give its employees a raise which they merited and carried the further implication that any success the Union might enjoy in its organizational attempt or in the pending litigation would result in harm to the employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above , occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged James Hinkle on February 10, 1972, I shall recommend that Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists , to a substantially equivalent position , without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Respondent 's offer of reinstatement, less his net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters , in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. There is evidence in this case that prior to February 10, Respondent contemplated discharging Hinkle at the end of that week, on February 12, 1972. However, it is conjectural that such discharge would have occurred . The evidence shows that, despite the many complaints about Hitkle's performance at his employment , because the Hastings liked Hinkle and were sympathetic with his personal problems they continued him in their employ. Therefore, whether they would have in fact discharged him on February 12 is speculative . Also, there is a possibility that they might merely have placed him in a layoff status with the understanding that he would be recalled to work when a vacancy should occur or when business expanded and the need for an additional meatcutter should arise . Having discharged Hinkle on February 10 for an unlawful reason there is no way to establish whether he would in fact have been discharged for a lawful reason on February 12. The Respondent , who engaged in the unlawful conduct , rather than the employee , must assume the risk of any uncertain- ty.23 Whether or not backpay to Hinkle should be tolled for any period of time beginning on or after February 14, 1972, because his employment would have been suspended for nondiscriminatory reasons is a matter for determina- tion at the compliance stage of this case. For the reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. 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. By discriminatorily discharging James Hinkle on February 10, 1972, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging 23 The Lima Lumber Company, 176 NLRB 696 EFFINGHAM FOOD STORE 271 in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By reason of the foregoing conduct and by reason of the unlawful interrogation of employees, described above, the threats to close the store should the Union succeed in its organizational drive or if Hinkle 's reinstatement should be ordered by the Board, the threats of loss of employment and other reprisals if employees continue to support the Union, and withholding merited increases in pay because of the pendency of the instant case , Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 24 ORDER Respondent , Effingham Food Store, Inc., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership or activities or concerning the union membership or activities of other employees. (b) Threatening employees that it will close its store or go out of business if the Union, or any other labor organiza- tion , should succeed in organizing any of its departments or if the Board should direct the reinstatement of James Hinkle. (c) Threatening employees with loss of employment or other reprisals if they support the Union , or any other labor organization. (d) Withholding increases in wages because of the pendency of the instant case or of any other proceeding before the Board. (e) Discouraging membership in Local 534, Amalgamat- ed Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, by discharging any of its employees or by otherwise discriminating against any of its employees in regard to their hire, tenure of employment , or other terms or conditions of employment. (f) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self- organization , to form , join , or assist Local 534, Amalga- mated Meat Cutters and Butcher Workmen of North America , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choice , 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 is deemed necessary to effectuate the policies of the Act: (a) Offer to James Hinkle immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position , without prejudice to his seniority and other rights and privileges , and make him whole for any loss of earnings he may have suffered by reason of the unlawful discrimination against him in the manner set forth in the section of this Decision entitled "Remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (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 premises in Effingham, Illinois, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customari- ly posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.26 21 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 25 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 26 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 14, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees concerning their union membership or activities or concerning the union membership or activities of other employees. WE WILL NOT threaten our employees that we will close our store or go out of business if Local 534, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, or any other labor organi- zation , successfully organizes any of our departments, 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or if the National Labor Relations Board should direct the reinstatement of James Hinkle to his former job. WE WILL NOT threaten our employees with loss of employment or other reprisals if they support the above-named Union , or any other labor organization. WE WILL NOT withhold increases in wages because of any litigation or other proceeding that may be pending before the National Labor Relations Board. WE WILL NOT discourage membership in Local 534, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO , or any other labor organi- zation , by discharging any of our employees or by otherwise discriminating against any of our employees in regard to their hire , tenure of employment, or any other terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , to join or assist Local 534, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing , or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. WE WILL offer James Hinkle reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges and we will make him whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him. Dated By EFFINGHAM FOOD STORE, INC. (Employer) (Representative) (Title) We will notify immediately the above -named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces , in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, 210 North 12th Boulevard , Room 448, Saint Louis , Missouri 63101, Telephone 314-622-4167. Copy with citationCopy as parenthetical citation