205 N.L.R.B. 1076 (N.L.R.B. 1973)

Jif-E-Mart

National Labor Relations Board - Board DecisionsSep 6, 1973

205 N.L.R.B. 1076 (N.L.R.B. 1973)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shop-Rite Foods, Inc. d /b/a Jif-E-Mart and Retail Clerks International Association , Local No. 455, AFL-CIO and Edward V. Gongora . Cases 23- CA-4332 and 23-CA-4399 September 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On February 6, 1973, Administrative Law Judge Melvin Pollack issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Shop-Rite Foods, Inc. d/b/a Jif-E-Mart, San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, concurring in part and dissenting in part: My colleagues err in finding that Respondent vio- i We affirm the Administrative Law Judge' s conclusion that Respondent violated Sec 8(a)(1) of the Act by discharging Supervisor Abel Zule for his failure to reaffirm before a Board agent an affidavit previously given to Respondent which was favorable to its interests We do so, however, not only for the reasons advanced by the Administrative Law Judge, but for the further reason that since we have found Respondent' s original solicitation of Zule to file unfair labor practice charges to be a violation of Sec 8(a)(1), it follows that his discharge for failure to support those charges through the reaffirmation of an affidavit previously given is equally violative of Sec 8(a)(l) Unlike our dissenting colleague, we find no difficulty in affirming the Administrative Law Judge' s finding concerning Respondent 's solicitation of charges against itself Collusive litigation has long been frowned upon by all Judiciaries , and it is difficult to imagine a clearer instance of collusive litiga- tion than that of a company instituting proceedings against itself Like the Administrative Law Judge, we are persuaded that this devious activity was an abuse of our processes and an improper interference with employee rights 2 Respondent's request for oral argument is hereby denied , as the record and the briefs adequately present the issues and positions of the parties lated Section 8(a)(1) by filing meritorious 8(a)(2) charges. Accordingly, I dissent from the majority's decision to the extent that it finds Respondent in vio- lation of Section 8(a)(1) for soliciting the execution of 8(a)(2) unfair labor practice charges from Store Man- ager Zule and employee Chandler, and for discharg- ing Zule in light of his refusal to support those charges through reaffirmation of a truthful affidavit. It is undisputed that the showing of interest in sup- port of a petition for an election filed on April 26, 1972, was procured, at least in part, by store managers found by both the Administrative Law Judge and my colleagues to be supervisors within the meaning of Section 2(11) of the Act.' In my judgment, this finding is more than adequately supported by the record. Ac- cordingly, the 8(a)(2) charges executed by Zule and Chandler alleging supervisory taint were clearly meri- torious and should have resulted in an immediate dis- missal of the Union's petition. And yet, Respondent's solicitation of these meritorious charges is now held to be a violation of the Act. From the outset, the Act has contained no re- striction on the classes of persons qualified to initiate the Board's processes through the filing of unfair la- bor practice charges. In the legislative hearings, Sena- tor Wagner, sponsor of the bill, strongly cautioned against any such limitation.4 The Senator's advice is currently reflected in the Board's rules which provide that a charge may be filed by "any person." 5 In com- menting upon the Board's procedures in this regard, the Supreme Court observed in N.L.R.B. v. Indiana & Michigan Electric Company, 318 U.S. 9: The Act requires a charge before the Board may issue a complaint.. . .The charge is not proof. It merely sets in motion the machinery of an inquiry. When a Board complaint issues, the question is only the truth of its accusations. The charge does not even serve the purpose of a pleading. Dubious character, evil or unlawful motives, or bad faith of the informer cannot de- prive the Board of its jurisdiction to conduct the inquiry. In view of this expression of legislative, administra- tive, and judicial intent, I fail to understand how an employer can be disqualified from notifying the Board, through solicitation of unfair labor practice charges from the individuals affected, that its supervi- sors have unlawfully assisted a union in establishing a showing of interest. And yet, this is precisely the 3 i note that in another case , 23-CA-4652, involving this same employer, the General Counsel alleges that Store Manager Ramero Rodriguez, Jr, at store 644 is a supervisor within the meaning of Sec 2 (11) of the Act 4 Hearings before the Committee on Education and Labor, United States Senate, 74th Cong, ist Sess , on S. 1958, Washington, Government Printing Office, Part 3 (1935), pp 439-442 5 National Labor Relation Board Rules and Regulations, Series 8, as amended, Sec 102 9 205 NLRB No. 116 SHOP-RITE FOODS, INC. 1077 effect of the majority's decision. Respondent's efforts to have the petition dismissed because of supervisory taint were unsuccessful be- cause of the Regional Director's error. On May 9, 1972, Respondent filed a motion to dismiss the peti- tion on the ground that the showing of interest was secured by supervisory personnel and was therefore invalid. The Regional Director did not grant that mo- tion because of his erroneous conclusion that the store managers were not supervisors. The Respondent's fil- ing of the 8(a)(2) charge under these circumstances was a proper way for it to raise the issue of the super- visory status of its store managers. In my view, the majority is unfair to Respondent when it characterizes Respondent's action with re- spect to the 8(a)(2) charges as collusive, abuse of the Board processes, and devious 6 Such harsh characteri- zations cannot obscure the plain fact that Respondent's action was the only alternative avail- able to it to correct the Regional Director's error in refusing to dismiss the petition because of the tainted showing of interest. Traditionally we have held that inquiry concerning showing of interest is an adminis- trative, nonlitigable matter and there could have been no meaningful review or appeal in the representation case with respect to the erroneous conclusion that the store managers were not supervisors. I am unwilling to elevate the erroneous ruling of the Regional Direc- tor to such a divine status that the Respondent's en- tirely understandable effort to overcome it should be categorized as "abuse of our processes." In the ver- nacular, I reject the view that, like the young maiden, Respondent should not only have submitted to the erroneous ruling, but should have relaxed and en- joyed it. I am also of the opinion that it was not a violation of Section 8(a)(1) for Respondent to discharge Store Manager Zule following his refusal to reaffirm before a Board agent an affidavit previously sworn to. In support of his 8(a)(2) charges, Store Manager Zule ' gave to Respondent a sworn affidavit to the effect that (1) he had been solicited by his store manager to execute an authorization card, and (2) he had also been promised an assignment to a desired shift change for doing so. When Zule was subsequently asked to reaffirm his affidavit before a Board agent, he refused to do so. Zule did not indicate that the allegations contained in his affidavit were untrue, but merely that he "[d]idn't know what was going on . . . [and] didn't want to be mixed up on it." In my view, Store Manager Zule's persistent refusal to assist Respondent in the presentation of a meritori- ous case before the Board, and his refusal to reaffirm a truthful affidavit to which he had previously sworn, was a serious act of supervisory insubordination justi- fying discharge.' In conclusion, from both a legal and practical standpoint, when the Employer was faced with possi- ble 8(a)(2) liability resulting from his supervisors as- sisting the Union in procuring the showing of interest, there was nothing improper in its solicitation of the unfair labor practice charges for purposes of securing corrective action. Similarly, where such charges are supported by a truthful affidavit sworn to by a super- visor, I see nothing improper in discharging that su- pervisor for refusing to cooperate by reaffirming the truthful affidavit before a Board agent. 61 would join in the condemnation if (I) Respondent had sought the reaffirmation of a false affidavit, or (2) Respondent 's contention was totally unsupportable I cannot join in that condemnation since Zule's affidavit was true and Respondent 's legal position was clearly correct, as found by the majority, and the Regional Director 's determination on the supervisory sta- tus of store managers was patently wrong r Although Zule had been promoted to the position of store manager by the time he gave his affidavit , the events about which he spoke related to a period when he was a store clerk 8 Ozark Motor Lines, 164 NLRB 300 DECISION STATEMENT OF THE CASE MELVIN POLLACK, Administrative Law Judge: These cases were tried at San Antonio , Texas, on October 10, 11, and 12, 1972.' Pursuant to charges filed in Case 23-CA-4332 on May 5 and 30, a complaint was issued on July 12, amended on August 29 and September 26,2 and further amended at the hearing . Pursuant to a charge filed in Case 23-CA-4399 on June 16 , a complaint was issued on August 29 and amended on September 12. The cases were consolidated for hearing by an order of the Regional Director issued August 30. The principal questions presented are whether Respon- dent interfered with, restrained , and coerced its employees, in violation of Section 8(a)(1) of the National Labor Rela- tions Act, and whether Respondent discharged five employ- ees, in violation of Section 8(a)(3) and (1) of the Act. Upon the entire record in this case , my observation of the demeanor of the witnesses , and my consideration of the briefs filed by Respondent and the General Counsel, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent Shop-Rite Foods, Inc., d/b/a Jif-E-Mart,3 operates about 60 quick-service retail grocery stores in the San Antonio, Texas, area. Respondent's annual sales in its i All dates hereinafter are in 1972 , unless otherwise stated 2 G C Exh 1(u) and 1(pp) 3 The Jif-E-Mart stores involved in this proceeding are operated by Quick- ie Mart, Inc, a wholly owned subsidiary of Shop-Rite Foods, Inc 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Antonio operations exceed $500,000, and its annual interstate purchases exceed $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association , Local No. 455, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Facts The Union held organizing meetings for Respondent's store managers and clerks on March 23 and 28 . Store man- ager Ralph Godina showed up at the March 28 meeting after it had begun . An employee advised union representa- tive Juan Sierra , Jr., that Godina was a supervisor . Sierra asked Godina whether he had the right to hire and fire. Godina replied that "everybody had the right to hire and fire" and added that everyone in the room "would be in trouble and would be losing theirjobs ." Sierra told Godina that he would not proceed with the meeting until Godina left because Godina , unlike the other employees present, had the right to hire and fire . Godina left and the meeting was resumed. Store managers Daniel Gutierrez and Rodolfo Zapata attended the March 23 and 28 union meetings . Thereafter, supervisors Micky Rehms and Amalio Marin came into the store where Gutierrez was working . Rehms asked him, "What 's this I hear about you guys joining the RCIA Union?" Gutierrez gave some answer and Rehms asked him what the employees "wanted with the union ." Supervisor Nick Alonzo came into Zapata's store and asked him if he had heard about any union activity . Zapata said he had and Alonzo asked him if he had signed a union card . Zapata said "yes" and Alonzo said , "Well, what do you think" Would you like your job with the union?" Zapata did not answer and Alonzo said , "you don ' t have to answer" and left the store. On April 19 and 20, all store managers received copies of a memorandum on "Store Manager Job Responsibilities." District Manager John Davidson testified that he prepared and distributed the memorandum , because he had become aware that some store managers were participating in union activities and wished to warn the store managers that he considered such activities inconsistent with their duties and responsibilities . The memorandum inter alia stated the store managers had responsibility for supervising and disciplining all store employees , and recommending them for promo- tion , demotion , and transfers. On April 26 , the Union filed a petition for an election among Respondent 's store employees in the San Antonio, Texas, area. Store Managers Henry Torres, Monty Elliott, and Danny Gutierrez had attended the union meetings on March 23 and 28. Torres was discharged by District Supervisor Alon- zo on April 27 allegedly for cashing a personal check for another employee . Alonzo, the previous day, had told Tor- res it was "all right with him" to cash the check as long as Torres sent it in with the bank deposit the next day. On April 27, however , Alonzo told Torres , "Well, John Da- vidson asked me if any of the managers were out of line and I had to tell him the truth and I told him you." Alonzo then told Torres he was discharged. Elliott was discharged on May 3 by Supervisor Don Haw- kins allegedly for an inventory shortage of $900 . Elliott and the other store employees had passed polygraph tests but Hawkins told Elliott that he was being held responsible as store manager. Gutierrez was discharged on May 4 by District Supervi- sor Fred de la Garza . De la Garza gave no reason for the discharge. Abel Zule , a clerk , was promoted to store manager about May 1. On May 9, Attorney Capron interviewed Zule at Respondent 's office . Capron asked Zule if he had signed a union card . Zule said he signed a card before his promotion when his store manager , Henry Torres, said he would trans- fer him from the 11 p .m. shift to the 3 p .m. shift . After the interview , Capron prepared an affidavit for Zule's signature and also prepared for his signature charges against Respon- dent alleging violations of Section 8(a)(1), (2), and (3) of the Act. Zule returned to Respondent 's office on May 11 and signed the affidavit and charges . That same day , Respon- dent filed a motion to dismiss the Union's petition on the ground that Respondent 's store managers were supervisors and had actively participated in the Union 's organizing campaign . On May 12, Capron filed charges against the Union alleging violations of Section 8(b)(1)(A) and (2) of the Act, and on May 15 filed the charges against Respon- dent executed by Zule. On May 23, at Respondent 's office , Field Examiner Ber- nard Getto interviewed Zule in Capron 's presence . Zule said he wanted to withdraw his charges against Respondent and refused to affirm his affidavit insofar as it alleged that Tor- res had promised him a change in shift if he signed a union card .4 Capron telephoned Zule's supervisor, Nick Alonzo, and said , "Nick , I am standing here in the presence of your employee , Able Zule , who is declining to reaffirm the affida- vit he has already sworn to ." Capron then said to Zule, "Abel, I'm talking to your supervisor , Nick Alonzo. I am now asking you with him on the other end of the line will you sign that affidavit." Capron added that Respondent "regarded it as [Zule 's] duty to come forward with legal evidence to support the company ." Zule said he did not want to get involved and Capron stated he was not involved because he was no longer employed . Zule left the office and Capron told Getto he was going to withdraw his charges against the Union inasmuch as his evidence had disap- peared. On May 25, Zule signed an affidavit prepared by Getto stating inter alia that Torres had never solicited him to sign a union card. Capron had interviewed Felix Chandler on May 10. Chandler at that time signed an affidavit which included a statement that Chandler signed a union card in April 1972 4 Torres credibly testified that the employees at his store worked on a rotating shift basis SHOP-RITE FOODS, INC. when solicited to do so by store manager Torres. Capron interviewed Chandler again on June 9. After assuring Chan- dler that his cooperation with Respondent's efforts to secure information in connection with Board proceedings was en- tirely voluntary, Capron explained to Chandler why he be- lieved Respondent could gain "a certain advantage" if charges based on the union activity of the store managers were filed against it. Chandler agreed to file such charges. Capron thereupon prepared a 8(a)(2) charge alleging that Respondent assisted the Union by encouraging Chandler to sign a union card. Chandler signed the charge, which was filed on June 12. Edward J. Gongora, a clerk in a store managed by Ralph Godina, attended the March 23 and 28 union meetings. On June 9, Godina called Gongora and said he needed a bit of help. Gongora went to the store and, at Godina's request, went to the bank for change. When Gongora returned from the bank, he put the money "on top of a counter behind a book rack" and was standing in front of the money when Cesario Briseno, who was substituting for District Supervi- sor Alonzo, came from the back of the store. As Godina checked the money, Briseno said, "Who left this money on the top of the counter?" Don't you know it's company poli- cy not to lay the money on top of the counter?" Gongora said "no" and Briseno discharged him, saying, "Don't you know it's against company policy?" Get out of here. You're fired. Pick up your check Sunday. Later that day, Godina came to Gongora's house and told him that Eugene Perez had informed Briseno that Gongora was "getting the guys together to organize a union." The next morning, Gongora stopped by the store and spoke to Godina and Richard Moyer, a clerk at the store. Godina, in Moyer's presence, repeated that Briseno had discharged Gongora because Perez told him that Gongora "was organ- izing the guys for the Union." B. Analysis and Conclusions 1. Interrogation and discharge of store managers I find, and Respondent does not dispute, that its district supervisors interrogated store managers Zapata and Gutier- rez about their union activity. On April 19, District Manager Davidson issued a memo- randum on the responsibilities of store managers to advise them that Respondent considered union activity incompati- ble with such responsibilities. The Union filed a petition for an election on April 26. Torres was discharged on the next day, Elliott on May 3, and Gutierrez on May 4. The three men had attended the union meetings of March 23 and 28. Store manager Godina had interrupted this meeting with statements that the employees present would be discharged. District Supervisor Rehms subsequently questioned Gutier- rez about his union activity. District Supervisor Alonzo dis- charged Torres for the stated reason that he had cashed a check for another employee. Alonzo had told Torres the day before just to deposit the check promptly. Elliott was dis- charged allegedly for an inventory shortage although an investigation by Respondent into the shortage disclosed no evidence against him or the other store employees. No ac- tion was taken against the other employees. Gutierrez was 1079 discharged without explanation. I find from the foregoing circumstances that Respondent discharged Torres, Elliott, and Gutierrez because of their union activity. Respondent contends that all its store managers are su- pervisors or managerial employees under the Act and, ac- cordingly, that it did not violate the Act by the foregoing interrogation and discharges. Respondent's stores are open 7 days a week. Some are open around the clock and others operate from about 7 a.m. to about 11 p.m. The store managers prepare weekly work schedules which may be reviewed by district supervisors at their discretion to make certain that the weekly payroll does not exceed 9 percent of sales. The managers determine whether employees shall work fixed or rotating shifts. In most instances, a single employee works each shift. In large or busy units, however, there may be two employees on a shift, particularly aroung 6 p.m. when business peaks. The manager, like other employees, may work alone or with another employee. He performs the same basic work as the clerks-to serve customers, to stock the shelves, and to keep the store and toilet facilities clean and presentable. The manager must see to it that all shifts are covered. If a clerk fails to show up for his shift, the manager, if he can not get another clerk to take over the shift, will try to get help from his district supervisor and, if necessary, will take over the shift himself. He may give an employee time off if he can arrange to have the employee's shift covered. Store managers are paid a salary and may earn a bonus based on store profits. Clerks are paid by the hour. Store managers are responsible for maintaining inventory levels and may purchase certain fast moving items such as beer.5 They attend meetings with the district supervisors and de- termine the placement of promotional displays. They in- struct new employees in their duties and responsibilities. Some store managers credibly testified that they hired and fired employees before the advent of the Union; other store managers, including the alleged discriminatees, credi- bly testified that they never exercised such authority. The Davidson memorandum of April 19, while comprehensive on the responsibilities of store managers, did not ascribe to them the power to hire or discharge employees. Such power was expressly given to all store managers in May. In infer from these facts that Respondent had no fixed policy re- specting the authority of store managers to hire and fire employees when it discharged Torres, Elliott, and Gutierrez. It appears, however, that store managers before the ad- vent of the Union made recommendations to district super- visors concerning hiring, discipline, discharge, transfers, and promotions, and that their recommendations were fre- quently followed. Section 2(11) of the Act defines a supervisor, as follows: ... any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust 5 Respondent fixes ceiling inventory levels for the store by total dollar amount Thus, Elliott testified that the inventory level for his store was $14,000 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their grievances, or effectively to recommend such ac- tion, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. As district supervisors are responsible for a number of stores, they can spend only a limited time at each store. The efficiency of each store is therefore substantially dependent upon the manager. Respondent recognizes this fact by pay- ing the managers a bonus based on profits plus a weekly salary substantially larger than the weekly earnings of the hourly paid clerks. The key role played by store managers in Respondent's operations is further evidenced by the fre- quency with which their recommendations are followed with respect to hire, discharge, reward, transfer, or disci- pline. As the store managers thus unquestionably effectively recommend various actions listed in Section 2(11), the ques- tion to be answered is whether their recommendations are "merely routine or clerical" or require "independent judg- ment." Whether a clerk is sufficiently dependable, whether he adequately maintains the appearance of a store, whether he is sufficiently attentive to keeping shelves properly filled with merchandise, are all matters which must enter into the judgment of a store manager and by their nature require the use of independent judgment. I find, accordingly, that the store managers were supervisors under the Act at all rele- vant times, and that Respondent did not violate the Act by its interrogation of Zapata and Gutierrez concerning union activity, or by its discharge of Torres, Elliott, and Gutierrez for engaging in such activity. 2. Interrogation and solicitation of charges Early in May, Attorney Capron questioned Zule and Chandler concerning the union activity of the store manag- ers and solicited Zule to file charges against Respondent alleging that Respondent had illegally assisted the Union in violation of Section 8(a)(2) of the Act. After the Zule charges were withdrawn, Capron in June solicited Chandler to file similar 8(a)(2) charges. Before questioning Zule and Chandler, Capron advised them that the purpose of the questioning was to obtain evidence in connection with Board proceedings involving Respondent, gave them assurances against reprisal, and ob- tained their voluntary participation in the interviews. In these circumstances, assuming that Zule like Chandler was a rank-and-file employee, I find no violation of Section 8(a)(1) in Capron's interrogation of them concerning union activity. Madison Brass Works, Inc., 161 NLRB 1206, 1211. Moreover, as Zule was a store manager, and therefore a supervisor, when questioned about union activity by Ca- pron, no violation of Section 8(a)(1) may be found based on such questioning. I find, however, that Respondent violated the Act by its solicitation of 8(a)(2) charges from Zule and Chandler. Ca- pron testified that he solicited the charges in support of Respondent's motion to dismiss the Union's petition, to aid Respondent's defense to unfair labor practice charges based on its interrogation and discharge of store managers, and to vindicate the rights of Respondent's employees to be free from supervisory interference in their choice of a bargaining representative. Respondent's motion to dismiss, however, already presented the questions raised by the solicited charges-whether the store managers were supervisors un- der the Act and whether they had assisted the Union's or- ganizing drive-and effectively protected the employees' rights since no valid election could be conducted if Respondent's motion to dismiss was well founded. Respon- dent could also have disavowed the conduct of the store managers and assured the employees that they were free to engage in, or refrain from engaging in, union activity, with- out fear of reprisal. The solicited charges blocked the resolu- tion of the supervisory issues in the representation proceeding, for the Board, absent special circumstances, will not direct an election in the face of outstanding 8(a)(2) charges. Panda Terminals, Inc., 161 NLRB 1215, 1223. In these circumstances, I find that Respondent solicited charges against itself, not to vindicate the rights of employ- ees, but for the purpose of delaying Board action on the Union's petition. By thus impeding the machinery estab- lished by Congress for the expeditious resolution of ques- tions concerning representation, Respondent interfered with the right of its employees to select or reject the Union in a Board election, in violation of Section 8(a)(1) of the Act. 3. The discharge of Zule Respondent discharged Zule on May 23 for refusing to reaffirm before Field Examiner Getto the affidavit he had signed on May 11 that store manager Torres promised him a change in working hours if he would sign a union card. The discharge of a supervisor for giving a sworn statement to a Board agent adverse to his employer's interests inter- feres with the right of employees to seek vindication of their statutory rights in Board proceedings and hence is violative of Section 8(a)(1) of the Act. Electro Motive Mfg. Co., Inc., 158 NLRB 534, enfd. 389 F.2d 61 (C.A. 4); cf. Better Mon- key Grip Company, 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5, 1957), cert. denied 353 U.S. 864. Respondent's con- duct in discharging Zule for refusing in effect to give a Board agent a sworn statement favorable to its interests constituted a similar interference with the right of employ- ees. I find, accordingly, that Respondent discharged Zule on May 23 in violation of Section 8(a)(1) of the Act 6 4. The discharge of Gongora District Supervisor Briseno testified that he discharged Gongora because "he left approximately $ 100 on a counter in the store." It appears, however, that Briseno within the past week had permitted an employee at another store to remain at work although the employee had "actually lost $97" by leaving money on a counter. Gongora had attended the union meetings of March 23 and 28. He credibly testi- fied that Store Manager Godina told him after the discharge that Briseno knew that he was organizing for the Union and 6 Although the General Counsel litigated Zule's discharge on the basis that he was a rank -and-file employee , the circumstances of Zule's discharge were fully litigated and are not in dispute Indeed, my findings in this respect are based entirely on attorney Capron's testimony The Board , in these circum- stances, is not limited to the General Counsel's theory of the case . Cf Hughes Tool Company, 147 NLRB 1573, 1576-77 SHOP-RITE FOODS, INC. discharged him for that reason.? Briseno did not disavow knowledge of Gongora's union activity. I find that Respon- dent was aware of Gongora's union activity and discharged him for this activity, in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By soliciting 8(a)(2) charges from Zule and Chandler to block processing of the Union's petition for an election, Respondent violated Section 8(a)(1) of the Act. 2. By discharging Zule for refusing to reaffirm to a Board investigator a statement favorable to its interests, Respon- dent violated Section 8(a)(1) of the Act. 3. By discharging Gongora for engaging in union activi- ty, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it cease and desist therefrom and that it be required to take certain affirmative action designed to effectuate the policies of the Act. As Respondent unlawfully discharged Zule and Gongora it will be recommended that Respondent offer them imme- diate and full reinstatement to their former or substantially equivalentjobs without prejudice to their seniority or other rights and privileges.' It will also be recommended that Respondent make them whole for any loss of pay that they may have suffered by reason of Respondent's unlawful con- duct. The amount of backpay due shall be computed ac- cording to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, with interest on backpay comput- ed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and conclusions of law, and the entire record herein, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that there be issued the following: ORDERS Respondent, Shop-Rite Foods, Inc., d/b/a Jif-E-Mart, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, Retail Clerks International Association, Local No. 455, AFL- CIO, or any other labor organization, by discharging em- ployees or otherwise discriminating against employees in any manner with respect to their tenure of employment or and term or condition of employment. (b) Soliciting employees, supervisors, or other persons to file charges against Respondent for the purpose of blocking the processing of a petition for an election filed by the Union or any other labor organization seeking to represent its employees. (c) Discharging employees or supervisors for refusing to 1081 give testimony to a Board agent favorable to its interests. (d) In any other manner, interfering with, restraining, or coercing employees in the exercise of their rights under the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Abel Zule and Edward V. Gongora immediate and full reinstatement to their former fobs, or if those fobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges previously enjoyed by them, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, timecards, per- sonnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Jif-E-Mart stores in the San Antonio, Tex- as, area, copies of the attached notice marked "Appen- dix." 10 Copies of the notice, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon reciept there- of, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it al- leges unfair labor practices other than those found herein be dismissed. 7 Godina did not testify at the hearing S Although Zule was working as a store manager at the time of the hearing, the record does not show whether he was working at the same store as when he was discharged 9 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 10 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order 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 WE WILL NOT discourage memberhip in Retail Clerks 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association , Local No. 455, AFL-CIO, or any other labor organization , by discharging em- ployees or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of employment. WE WILL NOT solicit employees , supervisors , or other persons to file unfair labor practice charges against the Company for the purpose of blocking the processing of a petition for an election filed with the Board by the above-named union or any other labor organization seeking to represent employees of the Company. WE WILL NOT discharge employees or supervisors be- cause they refuse to give testimony we desire to the Board or its agents in the course of investigation or other Board process. WE WILL NOT in any other manner, interfere with, restrain , or coerce employees in the exercise of their rights under the National Labor Relations Act. WE WILL offer Abel Zule and Edward V. Gongora full reinstatement to their former fobs or, if such positions no longer exist , to substantially equivalent ones, with- out prejudice to the seniority and other rights and privi- leges enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of their discharge, together with interest. Dated By SHOP-RITE FOODS, INC d/b/a JIF-E-MART (Employer) (Representative) (Title) 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 direct- ed to the Board 's Office, Dallas-Brazos Building, 1124 Bra- zos Street , Houston , Texas 77002 Telephone 713-226-4271.