Tucker's Minit MarketsDownload PDFNational Labor Relations Board - Board DecisionsSep 29, 1978238 N.L.R.B. 1188 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tucker Enterprises, Inc., d/b/a Tucker's Minit Mar- kets and Retail Clerks Union Local 1557, Retail Clerks International Association, AFL-CIO. Case 9-CA- 11299 September 29, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On May 26, 1978, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, Respondent filed 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 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 Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Tucker Enterprises, Inc., d/b/a Tucker's Minit Markets, Bowling Green, Ken- tucky, its officers, agents, successors, and assigns, shall take the actions set forth in said recommended Order. I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on October 19 and 20, 1977, in Bowling Green, Kentucky. on the com- plaint of the General Counsel issued on June 10, 1977.1 and the answer of Tucker Enterprises, Inc. d/b/a Tucker's Minit Markets, herein called the Respondent or Company. both pleadings being amended at the hearing. In issue are The complaint is based on a charge filed by the Union on April 22, 1977, a copy of which was duly served on the Respondent by registered mail on April 25, 1977. questions of whether the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended,2 by closing its convenience grocery stores and dis- charging its 21 employees because of their union and other protected concerted activities and refusing to rehire all but three of the employees for the same reasons when it re- opened the stores several days later; by declining to recog- nize and bargain with Retail Clerks Union Local 1557, Re- tail Clerks International Association, AFL-CIO, herein called the Union, as the exclusive representative of the Re- spondent's store employees in an appropriate unit; and by engaging in other unlawful acts of interference with, re- straint, and coercion of employees in their exercise of statu- tory rights. At the close of the hearing, the Respondent moved to dismiss the complaint on the ground that the evi- dence failed to sustain the alleged unfair labor practices. Ruling on this motion was reserved and the motion is now denied in accordance with my findings and conclusions set forth below. Although waiving oral argument at the hear- ing, the General Counsel and the Respondent subsequently filed briefs in support to their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENI The Respondent, a Kentucky corporation, operates four retail grocery stores in Bowling Green, Kentucky, under the active management of Horace A. Tucker, its president and sole stockholder. Its annual gross revenues derived from these operations exceed $500,000. In the regular conduct of its business, the Respondent annually purchases and re- ceives goods valued in excess of $50,000, which are shipped directly to its Bowling Green facilities from points outside Kentucky. It is admitted and I find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. 11. THE LABOR ORG(ANIZArION INVOLVED The uncontroverted testimony establishes that the Union is a nonprofit organization which represents employees em- ployed in the retail industry in southern Kentucky, middle and eastern Tennessee, and northern Alabama with respect to wages, hours, and other working conditions embodied in 2 Sec. 8(aX 1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that "[elmploy- ees shall have the right to self-organization, to form. join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.... " Sec. 8(aX3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization.... " Sec. 8(aXS) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees" designated by a majority of them in an appropriate unmt. 238 NLRB No. 168 1188 TUCKER'S MINIT MARKETS collective-bargaining agreements with various employers. In addition, employees participate in the administration and management of the Union. Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THiE A.l.iEGED) UNFAIR LABOR PRAC(TIC(ES A. Introduction; Issues Presented This case arises out of the Respondent's closing of its four retail convenience grocery stores on March 16, 1977; dis- charging its entire complement of 21 store employees; and reopening these stores several days later, rehiring only three of its former employees. It is the General Counsel's position that this action was taken in reprisal for its employees' ac- tual or suspected union interest and sympathies or other lawful concerted activities for their mutual aid and protec- tion and that therefore the Respondent violated Section 8(a)(l) and (3) of the Act. Denying that such was its moti- vation, the Respondent argues in its brief that it did not violate the Act as the store closings and employee termina- tions were due solely to large inventory and cash shortages it had been experiencing over the years, and especially dur- ing the preceding 6-month period, its employees' lack of cooperation to help eliminate this problem, and the need to get "a fresh new start." Manifestly, this issue presents a factual question whose resolution rests upon all the facts and circumstances surrounding the store closings, the dis- charges. and the refusal to rehire in the reopened stores. Also to be determined is the question whether the Respon- dent defaulted in its bargaining obligation in violation of Section 8(a)(5) and (I) of the Act by refusing to recognize and bargain with the Union, as the employees' majority representative, when it received the Union's written bar- gaining request 2 days after the stores closed. The General Counsel urges an affirmative finding on this issue, while the Respondent defends against this allegation on the ground that at the time it received the Union's bargaining request, it had no employees in its employ for the Union to repre- sent and hence the Respondent was not duty bound to hon- or the request. The final issue to be resolved is whether the Respondent engaged in various independent acts of inter- ference, restraint, and coercion of employees prohibited by Section 8(a)(l), consisting of a threat to close the stores and discharge the employees if they organized, interrogation of two employees respecting their union interest and activity, and the retention and perusal, without the Union's permis- sion, of the Union's missing organization file containing signed authorization cards and statements of employees pertaining to their employment and discharge, and other papers, which mysteriously came into the Respondent's possession. We turn to the evidence in the sequence in which the events occurred. B. The Evidence i. The Respondent's proposed institution of a polygraph program At the time of the events herein, the Respondent oper- ated four retail stores in the Bowling Green, Kentucky, area with a staff of approximately 21 full- and part-time employ- ees.3 These stores are known as the ByPass store (No. 1), the Gordon Ave. store (No. 2), the Shive Lane store (No. 4), and the Russellville Road store (No. 5).4 In general, one employee was assigned to run a store on each shift. Ap- proximately five part-time employees periodically took in- ventory at the various stores. For several years the Respondent had been experiencing shortages in inventory and cash. In the hope of meeting this problem, the Respondent in the summer of 1976 adopted an inventory control program designed to furnish more reli- able information concerning its inventory figures. Accord- ing to the Respondent, this procedure revealed its worst shortages for the period from June 1976 to mid-February 1977, resulting in lost gross profits of $39,754.29.5 Con- cerned over the Respondent's continued losses. Horace Tucker, the Respondent's president and sole stockholder, consulted with Robert Snyder, a duly licensed polygraph examiner, in the early part of February 19776 with the ob- ject of introducing lie detector tests for employees, although Tucker admittedly regarded most of the employees to be honest and not responsible for the losses. Consequently. Tucker made arrangements with Snyder to explain the con- templated ploygraph program to the employees at two meetings to be held on March 9 at the Company's office. There can be no doubt that Tucker's efforts to solve his shortage problem was not prompted by union consider- ations inasmuch as no union had vet entered the picture to organize the Respondent's employees at this time. Indeed, a number of employees were familiar with the occurrences of shortages which they attributed, in part, to shoplifting and requested Tucker to hire additional help to stop it. How- ever, Tucker would not accept this advice, stating that he considered such shortages to be minimal. Other reasons were also cited by employees to account for losses such as 3 The employees who were in the Respondent's employ on March 16 and are alleged in the complaint to have been discnrmnated against are, as fol- lows: Shirley Aldridge Joyce Anderson Henry Boards, Sr. Ann Cadle Kenneth Connor Sarah Dalton Toni Deanng Roy Evans Herman Forrester Lawrence Gibson Alice Hays Dean Hays Winiford Hill Lora Horton Angela Ingram Linda Johnson Hazel Lewis Gerald Pearson Juanita Pemberton "Pat Delos Welch Walker Young Only Aldridge, Anderson, and Gibson were subsequently rehired when the stores were reopened. 'The No 3 store, known as the Fairview store, was not in existence at the time of the relevant events. This figure is based on the fact that the Respondent's gross profit rate derived from net sales dunng the indicated period was 19.08 percent instead of 23.5 percent which is the predetermined rate of return expected to be earned from the Respondent's "131 percent markup" on merchandise offered for sale. According to the Respondent, the gross profit rate for the 3-year penod from 1973 through 1975 was 19.31 percent. Whether the asserted losses accurately or realistically reflect the financial situation or problem at the time of the events herein, or whether the inventories were carelessly conducted or whether part of the losses could otherwise be accounted for by shoplifting or other factors need not be considered for the purpose of resolv- ing the issues before me since, as will later be shown, the polygraph examina- tion program was presented to the employees before the Union's appearance at the stores. I All dates refer to 1977 unless otherwise indicated. 1189 DECISIONS OF NATIONAlI LABOR RELATIONS BOARD the careless handling of money by management and inaccu- rate inventory-taking procedures and practices. In anticipation of the scheduled meetings, Tucker on March 4, included in each employee's pay envelope the fol- lowing letter over his signature: IMPORTANT NOTlICE TO OUR IMPIOYEES As a part of our new insurance, bonding and em- ployment ploicy, all employees, including executives, will be asked to participate in a scientific evaluation (Polygraph) examination program sometime in the near future. The reason this course of action has become neces- sary is that. as you may already know, we have experi- enced considerable losses due to the taking of cash and merchandise. This has caused losses to the company and to you, in that it reduces the funds available for employee benefits. Further, it serves as a reflection on that vast majority of our employees who are honest, loyal, and conscientious. IT IS TO PREVENT FURTHER LOSSES AND TO PROTE('T Al.L CONCERNED THAT WE ARE INSTITUTING THIS PRO(iRAM. Those few who in the past have engaged in irregular practices, have no reason for concern provided they assist us in this program and cease such practices in the future. WE ARE PRIMARILY (ONCERNED WIITH IHE FUTiURI. NOT WITH WHAT HAS HAPPENED IN THE PAST. YOU WILL W'II.L ONLY BE ASKED ABOUT YOUR WORK WITl i THIS COMPANY. NO PERSONAI QUESTIONS WIL. HBE ASKED. YOU WII.I. BE MADE AWARE OF EA(CH QUES- TION BE FORE TIlE EXAMINATION AND YOU WII.L. BE ASKED TO ASSISI IN THE FORMUL.ATION OF TIlE QIUES- TIONS. THE QUESTIONS WI1.. BE ASKED ONI.'Y wr III YOUR APPROVAI. The examinations themselves are simple, take little time, and are in no way uncomfortable or embarassing. The results will remain entirely confidential. Our entire employee roster has been made available to the firm conducting the interviews and they will select at ran- dom, a cross-section of employees to be interviewed. The interviews will be conducted during your nor- mal working hours. There can obviously be no reason why any employees would object to participating in this program unless that person has committed irregu- larities and does not intend to change. SIN(CE THIS PROGRAM WII.I. BENFFIT AI.I. CONCERNEl). WE KNOW WE (CAN RELY ON YOUR FUI.I. COOPERA I'ION. Very truly yours, H. A. Tucker, President Please sign and return to any store manager immedi- ately. It appears that only three employees, Linda Johnson, Sarah Dalton, and Roy Evans,7 signed and delivered to 7 Employee Ann Cadle credibly testified, without contradiction, that while she was on sick leave before the March 9 meeting, Supervisor David L. Williams called her on the telephone and asked her whether she would take management the above letter, indicating agreement to take the ploygraph test. Evidently disappointed that more em- ployees did not respond affirmatively to take the test, Tuck- er telephoned several employees on Monday., March 7. One of these employees was Hazel Lewis whom Tucker called four or five times during the day while she was at work at the Shive Lane store. Lewis, in reply to Tucker's question, told hi that she was uncertain whether she would take the ploygraph examination because she had never before been accused of taking anything and doubted that Tucker had lost $40,000, as he claimed. In their conversation, Tucker accused Lewis of being "an instigator" who telephoned em- ployees at other stores, telling them not to take the poly- graph test. Lewis denied the accusation and suggested that they get together to discuss this matter at another time. Employee Lora Horton was also called by Tucker on March 7 about taking the polygraph test and informed Tucker that she would go along with what the other em- ployees did. Another employee, Henry Boards, Sr., when called by Tucker on March 7, declined to sign the agree- ment to take the test until he first discussed the matter with Tucker, while employee Pat Welch, in response to Tucker's similar telephone inquiry, stated that he was perturbed about the test and that the Respondent's proposed meeting to discuss the polygraph program was a good idea and should have been held before the letters were given to the employees. On the same day, Supervisor David Williams inquired of employee Gerald Pearson why he had not signed the agreement to take the test and the latter replied that he would wait to see what the other employees did.8 On Wednesday, March 9, the Respondent conducted two meetings-one at 2 p.m. for employees scheduled to go on duty later in the day, and a second meeting at 4:30 p.m. for those employees coming off the earlier shift. Tucker ad- dressed the employees, reviewing the persistent problem of shortages in inventory and cash and the monetary losses the Respondent was suffering which could lead to bankruptcy. In the same vein as his March 4 letter, Tucker pointed out the need for the polygraph program to prevent further losses: appealed to the employees to cooperate in this pro- gram: and assured them that he was not concerned with past irregularities, for which they would not be penalized, but that he was only thinking of the future. Snyder, the polygraph examiner, was then introduced and he explained the operation of the lie detector test and the need for volun- tary participation. Many questions were asked by employ- ees which were answered by Snyder. At time the ensuing discussions were heated and highly emotional, with various employees voicing their objections to the validity and reli- ability of the polygraph test and their fears of unfair results due to nervousness and other factors. From my evaluation of all the testimony on the subject, I am not convinced, as the Respondent argues, that the em- ployees at these meetings expressly refused to submit to the polygraph examination if' they were required to do so5, al- the polygraph test and that she agreed, adding that she had taken it on previous occasions. The foregoing narration concerning the above conversations is based on the credible and virtually undisputed testimony of the employees involved in them. I Tucker initially testified that, in his opinion, 85 percent of the employees 1190 IUC('KER'S MINI' MARKETS though it is clear that they were highlycritical of that test. Significantly, not only is there no evidence that Tucker polled the employees at these meetings to ascertain their intentions, but also, although Tucker testified that at the close of the meetings he planned to proceed with the poly- graph program, he admittedly did not so advise the employ- ees at that or any subsequent time, much less warn them that they risked discharge or other discipline if they refused to take the test. These factors lend credence to the testi- mony of the employees that they did not declare at these meetings their unequivocal refusal to take a polygraph ex- amination if the Respondent required it but, on the con- trary, that the employees were generally disposed to take the test if directed, despite their misgivings. and the ex- pressed sentiment of some of them that they would go along with the majority. Moreover, apart from the employees' criticism of the polygraph test, I find, in disagreement with the Respondent, no credible evidence in the record disclos- ing a lack of sympathy for, or an unwillingness on the em- ployees' part to assist or cooperate with the Respondent in its efforts to solve the problem of losses it claimed to he experiencing. 2. The advent of the Union: the request for recognition In the middle of January, employee Linda Johnson en- gaged Tucker in a conversation at the ByPass store in the course of which she asked for a wage increase. When Tuck- were against taking the polygraph test. with some of them stating that ihes would not take the test, while others stated that they did not want to take the test or were afraid to take it and one employee. Htenry Boards, indicated that he would go along with the majorit. LIater in his testimony. Tucker testified that at the end of the meetings there was a general consensus among the employees that nobody was going to submit to the test. including those who had previously signed the March 4 letter agreeing to take it. Subsequently however, when asked who changed emplosee Dalton's mind about taking the test after she had signed the authorization, Tucker gave the following testimony: A. Evervbody wanted to do what everyhody else was going to do, so to speak This was the general thing. In other words there was no con- clusion as to whether they would or whether they would not Everything was just as if we hadn't had a meeting. MR. I AN(;: Mr. Tucker, are you saying that the only conclusion at the meeting that was held on March the 9th was that the employees had indicated that they were going to either all take the test or no one was going to take the test? A, No, that's not true at all. Q. Did you not say that the employees had indicated that some of them had indicated that they were going to go with the majority? A. Only one had made that statement Jcit(;G BISGYER: And that one was? TIE* WIrNESS: That was Henry Boards Q. How about Sara Dalton? A. Sara in a general conversation during the meeting had soiced her opinion, you know, that she wasn't sure about what she wanted to do. Q But she had presiousls signed the letter stating tht she would he willing to? MR. LAN(: Are siOU now saying that the employees did not indicate a clearcut decision at those meetings? A. Well, that's right. There was no clearcut decision. That's true I am not impressed by Tucker's testimony regarding the employees' al- leged unalterable refusal to submit to a polygraph test. I find his testimony in that respect to be evasive, inconsistent, and unreliable, as I subsequently find his testimony to be concerning the reason tor closing the Respondent's stores and terminating all the employees and rehiring only three of them to work in the reopened stores er denied the request, Johnson remarked that what the em- ployees needed was a union. This evoked Tucker's reponse that there w'as no need for a union. When Johnson ex- pressed disagreement because employees were unable to se- cure raises or benefits, Tucker reacted with a warning that he would fire every employee and close the stores if the employees tried to organize a union. ' ° Following this episode, there is no evidence of any em- ployee action to interest a union to organize the Respon- dent's employees until about March 8. On that date, Linda Johnson communicated with Ralph Barron. the Union's business representative, to apprise him of the employees' dissatisfaction with their working conditions and benefits and their desires for union representation. Barron there- upon explained the procedures to achieve representation and advised her that he would send her union authorization cards for employees to sign. In addition, Barron arranged to meet with the employees at Johnson's home the following Monday evening. March 14. On March 9, Barron mailed authorization cards to Johnson who proceeded to solicit sig- natures from employees and to invite them to the scheduled meeting. On March 14, the meeting was held in Johnson's home attended by II or 12 employees. Barron discussed the tUnion's objectives and the advantages of union representa- tion. On this occasion, eight employees signed authorization cards' which were handed over to Barron together with several other cards previously signed by employees not in attendance at this meeting. The next day, March 15, Barron received additional cards bringing the total number of cards signed by employ- ees to 14'2 out of 21 store employees. The same da:. Barron sent the Respondent a letter by certified mail with return receipt requested, notifying it that the Union represented a majority of the Company's employees at its four stores and requesting recognition as the employees' bargaining repre- sentative in such appropriate unit. The letter also stated that the Union was ready to submit the signed authoriza- tion cards to the Company or an impartial third party for verification and asked for a meeting. As will later be dis- cussed. this letter was received by the Respondent on March 18, following the store closings and the discharges of all the employees. 3. Subsequent events; closing of stores and mass discharge of employees on March 16 On March 15, the day after the union meeting mentioned above, Supervisor David Williams, sensing a change in em- plo'ees' attitude toward him. engaged employee Forrester in a conversation at the Shive Lane store in which he asked Forrester what was going on among the employees that he is The foregoing finding is based on the convincing testimony of Johnson who impressed me as an individual not inclined to manufacture a story. Although conceding that he might have said that the employees did not need a union. Tucker denied making the threatening remarks. As previously noted. I do not consider Tucker a reliable witness and reject his denial. L Employee Forrester's card was erroneously dated March 15 instead of March 14. i: The emplosees who executed these cards were Horton. Welch, Johnson. l.ewis, Boards. Pemberton, Cadle. Forrester. Connor. Pearson. Dalton. In- gram. Anderson. and Hill. On March 17. a das after the stores were closed, Dean Hays Alice Hays, and Roey Evans also signed cards. 1191 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Williams) should know about as the employees were shun- ning and avoiding talking to him. Forrester replied that he did not know what Williams was referring to, noting that he (Forrester) was not treating him any differently than be- fore.'3 It appears that during the week following management's March 9 meetings with the employees the Respondent's President Tucker took no measures to implement his inten- tion to pursue a polygraph program or to apprise the em- ployees that they would be required to submit to such an examination in order to retain their jobs. For all that also appears, he continued to conduct his business without ma- terial change until March 16. According to Tucker, he de- cided that morning to cut expenses in order to escape bank- ruptcy by terminating the inventory and all the other part- time employees. About 8 a.m., Tucker summoned Supervi- sor Williams to his office, advised him of his decision and then both promptly proceeded to terminate a number of the part-time employees. About 9:30 the same morning Williams telephoned em- ployee Forrester at the Shive Lane store to inquire how Shirley Aldridge, a new employee who first started working for the Respondent a few hours earlier, was progressing. In the course of this conversation, Williams advised Forrester of Tucker's decision to terminate the inventory and the other part-time help. The conversation ended with Wil- liams' bringing up the subject of his inquiry of the previous day to the effect whether Forrester was sure that he wasn't aware of anything concerning which Williams should know. Forrester again replied that he did not know what Williams was talking about. In the meantime, the same morning Tucker and em- ployee Lora Horton drove to a police court hearing involv- ing a charge of shoplifting allegedly committed at the Rus- sellville Road store where Horton worked. On the way to the court, Tucker informed Horton that earlier that morn- ing he had dismissed the inventory and other part-time em- ployees in order to cut expenses, which action was necessi- tated by his losses, and that he and Supervisor Williams would thenceforth handle inventory. In answer to Horton's inquiry whether any part-time help would, nevertheless, be employed weekends, Tucker answered in the negative, add- ing that he intended to raise prices and reduce volume and thus eliminate the need for such help. The police court matter lasted only a short while and concluded with the release of the accused individual, to Tucker's disappointment. Tucker and Horton thereupon re- turned to Tucker's office, during which ride Tucker did not indicate in any way that he was considering closing his stores and terminating all his full-time employees. Upon their arrival at Tucker's office no later than 10 a.m. (May 16) Horton drove off in her own car to the Russellville Road store where she resumed her duties. Tucker testified that either on the way back to his office or after returning there, he suddenly made up his mind to close his stores and to discharge all his remaining employ- ees. He thereupon telephoned Williams at the Russellville Road store about 10 a.m. and, upon Williams' arrival at the 3 This conversation embodies Forrester's credited testimony. Williams ad- mitted having a conversation in which he inquired about employees shun- ning and being unfriendly to him. office, Tucker advised Williams of his decision.'" According to Williams, Tucker told him he took this action because "he had had all of the losses he could take." Tucker, his son, and Williams then immediately proceeded to close down the stores, beginning with the Russellville Road store, and to inform the employees of their termination. While at the Russellville Road store, Tucker told employee Horton that he took this action on account of his losses and his inability to identify the employees responsible for them. However. Tucker did not refer to the employees' lack of cooperation to locate shortages. When Tucker subsequently closed the Gordon Avenue store, he told employee Boards that he and the other employees were being fired because of the shortages and that he (Tucker) was going "to start over." The stdre closing operation was completed by II a.m. Employee Ann Cadle, while on sick leave, was notified of her discharge by Tucker when he called her at her mother's home. She credibly testified, without contradiction, that Tucker informed her that he had closed all his stores and fired all his employees, including her and that in response to her remark that she could not be replaced. Iucker indicated agreement." Cadle further testified that, while Tucker also expressed his concern over shortages, Tucker stated that "the reason [for his action] was that things went on behind his back. Everyone was pulling in different directions and the cool treatment that he and Mr. Williams were receiving from employees." She testified that on this occasion Tucker did not specifically mention that he was unable to get full cooperation from the employees. Employee Linda Johnson also received notification of her discharge when Tucker telephoned her and in an excitable voice informed her of the store closings and employee terminations. To justify his undeniably precipitate action in closing his stores and discharging his employees en masse, so soon after the employees had designated the Union as their bargaining representative, Tucker furnished the following testimony: As a witness for the Respondent, he explained that since the March 9 meetings"6 he had not received any "cooperation" from the employees to solve his problem of losses. When asked by the Administrative Law Judge what kind of "co- operation" he sought from the employees, Tucker answered that he didn't "care how guilty" they were in the past, if they had "stolen" from him, since he was "willing to forget anything in the past" if they would "as a group, join hands with ... [him], with one common goal in mind and that's to make a profit." Continuing with his explanation, Tucker seemed to indicate that the employees' lack of cooperation was their previous refusal to submit to the polygraph test. '1 The precipitate nature of the discharges and store closings is indicated by the fact that only a day before (March 15), Williams had advised em- ployee Sara Dalton that she was granted a raise which would be reflected in her next paycheck. Moreover, as shown above, employee Shirley Aldridge had started working for the Respondent that same morrung as a new hire. "i Tucker also admitted that at the conclusion of the second polygraph meeting on March 9, he offered Cadle a manager's job at the ByPass store as soon as she was well enough to return to work. On this occasion, in the course of discussing the shortages, Tucker also agreed that neither Cadle nor Horton was a thief and remarked that shortages could have resulted from "the way they Ithe inventory employees] shuffled the inventory." 51 As noted previously, the March 9 meetings were pnncipally concerned with the employees' taking a polygraph examination as a means of solving the problem of lost profits. 1192 TUCKER'S MINIT MARKETS This idea was pursued further by the Administrative Law Judge in Tucker's examination. Q. And their uncooperativeness was their refusal to take the lie detector test which you felt would rectify the situation? A. No sir, no sir, not to object but the thing that I really meant in this matter, no one came back with any counterproposals or any kind of solution that they would suggest that we might do to work this thing out. It was just that they didn't want to go along." In answer to the Respondent's attorney's subsequent ques- tion, Tucker testified that he did not get from the employees any other such suggestions or solutions to his problems- adding, "Obviously I knew I wasn't." Under further examination by the Respondent's attor- ney. Tucker testified- Q. Now,... when you made your decision to close all of the stores and to fire all of the employees, did you fire them because they refused to take the Polygraph test or because there was no unanimous agreement... to take the test? TEin WITNESS: The Polygraph test-they didn't agree to it.8 MR. MILLIKEN: Well, let's put it this way. Mr. Tuck- er, what was the reason for you-(interruption) THE WIlNESS: Just because I could not get any co- operation out of my people when I had already lost forty some thousand dollars. They weren't even willing to cooperate with me in any way to help me find out where my leak was. Q. Now, for say the week or ten days before March the 16th, what was your frame of mind about this thing? A. The only thing that was on my mind was the fact that these employees were out here as a group running in every direction and me supposedly, supposed to be their boss and talking about how we could try to find out how to grasp a solution to stop the leak. I was going bankrupt is what it really boils down to if I would have continued. During his cross-examination by the General Counsel Tucker was implored to state concisely and clearly why he discharged all his employees and he offered the following response: A. Because of the disorganization, in general, I could not put my finger on anybody and get an opin- ion. It was what somebody else wanted them to do rather than what I wanted them to do. In other words, they are going to go along following some other direc- tion rather than me, which I was the one that was paying them. Q. But it was because of these losses, is that right? ' The record is devoid of any evidence that the Respondent solicited any solutions to the problem of losses at the March 9 meetings or subsequently. The only significant proposal made at the March 9 meetings was the poly- graph program. is Under cross-examination, Tucker testified, in response to the General Counsel's inquiry as to what he meant by lack of employee cooperation, that "no one was willing to go along with the program and join hands with me to make a profit." A. Yes, that's exactly right. That is the prime rea- son, certainly. With the Respondent's verified answer to the complaint in mind," the General Counsel proceeded to cross-examine Tucker regarding the basis for the reasons set forth therein for the discharges. Specifically, the answer alleges, among other things, that the employees were discharged "for the further reason that employees had become lax and ineffi- cient and grossly incompetent in carrying out their duties to the detriment of Tucker Enterprises, Inc. and had become rude, uncooperative and inefficient in dealing with custom- ers causing a decline in the number of customers at all four stores." When asked whether the stores had lost customers, Tucker replied that he could not answer because he did not keep a count; that he did not know how many but that in fact, there was a loss because "they [the customers] told me so," although he could not identify the informants. Finally, Tucker stated that the information came to him after the discharges were effected and conceded that loss of custom- ers was not a reason for the termination. As for rudeness of the employees, Tucker also conceded that he learned about it after the discharges. When, in a followup question, Tuck- er was asked whether it was therefore true that employee rudeness did not enter into his dicharge decision, Tucker testified that "generally' speaking, that was not the thing. It was the fact that I could not trust my inventory' with people who were not keeping up with what was going on. This is basically' what the situation is. This is where my shortage mainly is." Upon being further questioned about this inven- tory problem. Tucker testified that he expected his employ- ees to curb shoplifting by "keeping a close watch over what was left to their responsibility." 0 This led to Tucker's examination concerning another rea- son set forth in his verified answer to the complaint men- tioned above, as well as in his earlier signed response to the unfair labor practice charges filed herein," that the "em- i9 In par VI of the Respondent's answer, verified by Tucker as true, the following appears as the reasons for the discharges: [The Respondent] states that the employees mentioned in paragraph Via of the Complaint were discharged for just cause and just reason: that the just cause and just reason for the discharge of the employees mentioned in paragraph Via of the Complaint was because there had been persisting shortages in all four of the retail stores owned by Tucker Enterprises, Inc. for several months, not only in cash shortages but in loss of inventory and stock of goods without explanation from the em- ployees and without cooperation from them in determination of the cause of the shortages and for the further reason that employees had become lax and inefficient and grossly imcompetent in carrying out their duties to the detriment of Tucker Enterprises, Inc. and had become rude, uncooperative and inefficient in dealing with customers causing a decline in the number of customers at all four stores. Further, the em- ployees had been belligerent and uncooperative in the efforts of Tucker Enterprises, Inc. to solve the problems which had caused considerable losses to Tucker Enterprises, Inc. and refused to make any effort relat- ing to the correction of the problems which existed. As a result the financial and business condition of the four stores suffered to such an extent that Tucker Enterprises had no other alternative but to discharge those employees who were responsible. An earlier document, which was a statement of position in response to the unfair labor charges, contained similar reasons. 20 Yet, there is credible testimony in the record that employees were con- stantly calling Tucker's attention to the shoplifting problem and requesting more help to reduce such losses but that Tucker rmnimized the seriousness of that problem and denied the employees' request. 21 The following paragraphs of the response to the charges were read into the record: The employees of Tucker Enterprises. Inc. were discharged not by (Continued) 1193 DECISIONS OF NATIONAl LABOR RELATIONS BOARD ployees were grossly incompetent in carrying out their du- ties." Tucker affirmed the truth of that assertion, which he testified was demonstrated by the fact that he was unable to derive 23.5-percent gross profit out of his grocery operation. He further testified that the employees were "grossly in- competent evidently during the full length of their employ- ment." although he also acknowledged that many of them were long-time employees with whom he had maintained good relations and who were rehired on different occasions after previously quitting their jobs with the Respondent. In this connection, Tucker testified that in using the phrase, "in addition" in the statement in his response to the charges that "in addition employees have become lax and inefficient and grossly incompetent in carrying out their duties to the detriment" of the Respondent, he "really" did not intend the quoted assertion to be a separate and independent rea- son for the discharge but rather was part of the explanation of the shortages set forth in the preceding paragraph. A similar explanation was given by Tucker with respect to the use of the phrase "for the further reason" pertaining to em- ployee incompetency and misconduct alleged in his verified answer to the complaint. Testifying a day before as an adverse witness called by the General Counsel concerning the motivating cause for his discharge decision, Tucker stated, in effect, that he could not remain in business with his former employees and, although "I am not blaming anybody and I have not blamed anybody . . . I am blaming them with something. Either they were taking merchandise or they were allowing merchandise to be taken by the people." Upon being con- fronted with his affidavit given to a Board agent in which Tucker stated that he became upset with his employees "trying to run my business," he began fencing verbally with the General Counsel when the latter referred to the quoted statement as the reason previously advanced by Tucker for the discharges. Thus, Tucker testified he was "[d]issatisfied in [the employees] trying to run it out of business." Then, after reading the above-quoted statement from his affidavit, Tucker testified that he meant by it that the employees were "running . . . [his] business into bankruptcy." When asked whether it was true that among the discharged employees were a number whom he had personally known and trusted, Tucker responded in the affirmative, adding that he had "now . .come to the point where . . . [he questioned] why [did he] ever ... trust them." When asked whether he reason of any Union activity or attempt to organize but because there had been persisting shortages in all four of the retail stores owned by the Tucker Enterprises. Inc. for several months not only in cash shortages but in the loss of inventory stock of goods without explanation from the employees. The statement made here relates to the shortages of cash and the shortages of inventory stock of goods for a considerable period of time and may be very easily verified by the examination of the audit reports and records of Tucker Enterprises, Inc. In addition employees have become lax and inefficient and grossly incompetent in carrying out their duties to the detnment of Tucker Enterpnses. The employees also have become rude and uncooperative in dealing with customers causing a decline in the number of customers at all four stores. In contradiction of the Respondent's assertions of incompetency and mis- conduct of employees embodied in this document and in the Respondent's previously quoted answer to the complaint, the General Counsel presented contrary testimony of some 15 employees whom I credit as reliable and trustworthy witnesses was saying that on March 16 he no longer trusted his em- ployees. Tucker answered: Not to the point of their personally taking, but the action that the' had taken, but the lax manner in which they were running my business in letting my merchandise leave if they were not taking it them- selves, running customers off with their ill-type person- alities and things of this nature, They were running me into bankruptcy and I didn't have any alternative. fIhis last response invited a line of inquiry by the General Counsel which elicited answers inconsistent with those sub- sequently given by him as Respondent's witness, as recited above. Thus, Tucker was unable to identify employees who "ran off' customers since the complainants had identified the employees "just [in] general conversations." When ques- tioned whether he had talked to the offending employees about the complaints, Tucker answered in the negative be- cause the complaints were made after the employees were no longer in his employ. Pursuing this line of interrogation, the following developed: MR. LAN(;: SO these allegations of rudeness or im- proper treatment of customers were not brought to your attention before the discharges? A. Not as generally as theys have been since. A lot of times people have a tendency to hold back. Jurl)(;i BIS(;YER: The point is, are you now saying that you also received complaints about individual em- ployees before the)y were fired? THE WIrrNFSS: Right, yes sir, right. Q. Were those employees identified by the com- plainants to you ... ? A. I am certain at the time, this is a fact, yes sir. I am certain at this time. Q. And did you speak to the employees who . . . [were] the offender[s]? A. No sir, they weren't available because they were not the employees of mine. Q. But you said before they were fired you had re- ceived complaints? Didn't you say that just a minute ago? A. Not to my knowledge. I don't recall that. Maybe I have but I can't specifically point to specific times and people and what have you. Generally. Q. Before you fired these individuals and closed your stores, did anyone, any customer come to you to complain about the treatment that any employee had given that particular customer'? I am talking about be- lore you closed your stores? A. I couldn't specifically make a statement on that. Your Honor. Q. Then I suppose you can't make a specific state- ment as to whether or not you spoke to these employ- ees about their ill-treatment of customers before they were fired? A. Normally this is done by the supervisor again, because I don't go to the people themselves because this shows disrespect to my supervisor if I did this. Q. Did you speak to your supervisor about the treatment ... of customers to the employees? A. I would have to say I can't be specific about that 1194 liICKER'S MINII MARKETS at this point, Y"our Honor. I would have to say at this point I can't be specific. I won't say that its not possi- ble. I won't say that. Tucker categorically denied being aware that the Union was in the picture at the time he closed down his stores and terminated his employees. In fact, he testified that he first learned about the Union's presence at 3:30 p.m. on March 16. when following the store closings and the discharge of his employees he received a telephone call from a television newsman who asked him for a statement concerning the store closings and discharges. According to Tucker, he ex- plained to the newsman his problem of large inventory and cash shortages. Tucker further testified that the newsman thereupon informed him that he understood that Tucker's "employees were forming a union behind . .. [his] back" and that the Retail Clerks Union from Nashville was repre- senting them. Disavowing that he had had any union em- ployees. Tucker testified, the telephone conversation ended and he then turned to his former employee, Alice Hays. who was seated near his desk, and inquired of her whether she knew "anything about anybody wanting a Union in this organization" and she replied that she did not know about other people but that she and he son, Dean. who was also a discharged employee, were not members.2 ' In addition. Tucker testified that he was not "exactly sure" whether he also asked Hays for the identity of the employees who had signed union cards but that he "might have." although he was not saying that he did not pose that question to her. I find it extremely difficult to, and do not, attach any credence to Tucker's testimony concerning his motivation for the store closings and employee terminations and his professed lack of knowledge of the Union's organizational interest in the Respondent's employees, in view of the dem- onstrated ambiguities, evasiveness. inconsistencies, and ex- aggerations in his testimony related above, as well as in his testimony respecting other matters recorded in the tran- script of testimony of this hearing. 4. Reopening of the stores On Friday, March 18. Tucker began the process of re- opening the stores, rehiring only three former employees with the rest of the store personnel being new employees. notwithstanding the fact that the former employees were experienced and, in the past were trusted: had relatively long periods of employment with the Respondent; and who, I find, were not unalterably opposed to submitting to a lie detector test if required to do so. The Shive I ane store was the first one to be reopened on the indicated date. To operate this store Tucker rehired former employees Joyce Anderson and Shirley Aldridge. Tucker testified that the reason he reemployed them was that they could not have been involved in the shortages because Anderson had previ- ously worked for the Respondent only 2 weeks during 22 Tucker testified that Alice Hays was in her office at the time to discuss the store closings and her discharge; that. in response to her denial that she had taken anything from the stores, Tucker conceded that his action might have resulted in the firing of some inno cent employees who were personally not guilty of taking merchandise without paying for it: and that since he was unable to separate the guilty from the innocent, he had "no alternative but to wipe the slate clean and start anew." It appears that Alice and D)ean Hays signed union authorization cards the next day, March 17. which period she was out sick for at least a week and was not present at the March 9 polygraph meeting, and Al- dridge had started working for the Respondent the morning the stores were closed. Tucker volunteered the statement that at the time he rehired Anderson. the latter advised him that she had previously signed a union card. : ' On Saturday afternoon, March 19, "practically all, a goodly number" of the fired employees began to picket the reopened Shive Lane store-2 and to distribute handbills to customers, appealing to them to withhold patronage of the store. The picketing lasted until approximately 6:30 p.m. when a deputy sheriff served a local court Restraining Or- der on Union Business Representative Barron and a num- ber of pickets. Although Tucker testified to his indifference whether or not employees were represented by a union, for- mer employees Boards and Johnson credibly testified, in substance, that at the local court injunction hearing held on March 28 Tucker gave testimony that he could not and would not operate under a union. On March 19, the second store to reopen was the Gordon Avenue one, while the remaining ByPass and Russellville Road stores reopened the following Monday, March 21. The only other discharged employee to return to work was Lawrence Gibson who was rehired under the following cir- cumstances: On Sunday, March 20. T ucker telephoned Gibson at a service station where he was then employed and invited him to his office. Accepting this invitation, Gibson arrived at Tucker's office where Tucker oflered him a job which Gibson accepted. Tucker testified as an adverse witness that in the course of their conversation, he "(p]ossibly . . . may have" asked Gibson about this "so-called Union move- ment" and that he "probably did" but he didn't know whether or not he did, although he was "sure there was a general discussion." After being shown his affidavit given to a Board agent, Tucker agreed to the truth of his statement that he asked Gibson how he felt about "the so-called Union movement" and that Gibson replied that "he told the other employees that it wouldn't work and that he didn't want anything to do with it."25 Tucker further testi- fied that during this conversation, he hired Gibson because, after the March 9 meeting mentioned above.2 6 Gibson had expressed sympathy for Tucker's position and offered to help him to reorganize the stores and do whatever he needed "in the way of a security program." Tucker, how- ever. also admitted telling the Board agent during the inves- tigation of this case that he rehired Gibson because "he did not turn into a traitor" against him. When asked what he meant by the phrase "turning into a traitor," Tucker testi- fied that Gibson "was the only one who was really sincerely interested in coming along and helping me get to the bot- tom of my problems. I had almost $40 thousand stolen and no one else ... want[ed] to even cooperate whatsoever and 2" Anderson signed a union authorization card on March 14. 24 On March 17, Union Business Representative Barron met with the dis- charged employees in Linda Johnson's home where it was decided that the stores would be picketed when the) reopened. ' Employee Johnson credibly testified. without contradiction, that she had unsuccessfully solicited Gibson to sign a union card. 26 Tucker subsequently testified that he supposed that the last time he spoke to GCibson before the stores were closed was the da, of the March 9 meeting. 195 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was just a matter of chaos, you might say." Tucker also admitted, after refreshing his recollection by reading his pretrial affidavit, that he noticed that Gibson was not one of the pickets in front of the Shive Lane store on March 19. Although Tucker was concededly hard pressed to locate competent persons to employ in order to reopen and oper- ate the stores, he never offered discharged employee Sarah Dalton a job, despite the fact that in a conversation he had with her on March 16, he acknowledged to her that she was a good employee and suggested that she call him the latter part of the following week when he would decide what to do about the stores. Upon subsequently learning that the Respondent was reopening its stores and hiring new em- ployees, Dalton called Supervisor Williams the beginning of the week of March 21 and inquired why she was not rehired while Gibson was. Observing that Tucker might have a mis- take in firing her, Williams stated that he would talk to Tucker about her and then call her back later. However, Williams never thereafter communicated with Dalton, as he had promised he would do; nor were Dalton's efforts to reach Williams and Tucker successful until Friday, March 25, when she finally reached Tucker. In answer to Dalton's inquiry whey Gibson was rehired and not she, Tucker stated that Gibson was "cooperating in everything." Dalton thereupon replied that she, too, had been cooperative and, indeed, had signed the agreement to take the polygraph test. At this point, Tucker asked her whether she had signed a union card. When she answered in the negative, although she had actually signed a card on March 15, Tucker in- credulously repeated his question two or three times and noted that before he could rehire her she would have to secure clearance from his attorney, as Gibson had done. Tucker nevertheless added that as her former full-time27 job had already been filled, if there were an opening for her it would be as a part-time employee.25 On April 1, several days after the local court injunction hearing involving the picketing in this case was held, Linda Johnson, who had worked for the Respondent during three different periods, telephoned Tucker and inquired why Gib- son and none of the other discharged employees had a job with the Respondent. Tucker replied that it was because Gibson was "the only loyal employee and that the rest of us were traitors." When the subject of shortages was raised, Tucker acknowledged that Johnson had never taken any- thing from him." 5. The Respondent's rejection of the Union's request for recognition As shown above, the Union on March 15, a day before the store closings, sent the Respondent a letter by certified mail, requesting recognition as the employees' bargaining representative. According to Tucker's testimony, he first be- came aware of this letter when a post office carrier informed him about I 11 a.m. or noontime of March 18 that there was 2' Prior to her discharge, Dalton had worked 3 years for the Respondent as a full-time employee. 2s The foregoing findings are based on Dalton's undisputed, credible testi- mony. 29 The foregoing findings pertaining to Johnson's telephone conversation with Tucker are derived from Johnson's testimony which I credit. According to Tucker, Johnson had never approached him about getting her job back: at least he did not recall it. a "registered" letter for him in the post office.3 0 Assuming that the letter was from the Union, Tucker summoned his attorney to accompany him to the post office to witness its receipt. There, Tucker accepted delivery of the letter at 1:50 p.m. and signed the notice indicating the date and time of receipt. By letter dated March 19, the Respondent's attorney, on its behalf, answered the Union's letter, rejecting the Union's request for recognition, as follows: Mr. Tucker denies that you represent a majority of his employees, and states that he had no employees at all on March 18th, 1977 when the letter was received by him as he had closed all of his stores on the morning of March 16th, 1977 for just and reasonable cause. Demanding that the Union remove its illegal picket line at the Shive Lane store, the letter enclosed a photocopy of a Restraining Order issued by the Warren Circuit Court. 6. The disappearance of Union Business Representative Barron's attache case; the Respondent's possession of the Union's file In the evening of March 19, after Union Business Repre- sentative Barron was served with a local court Restraining Order during the picketing of the Shive Lane store, Bar- ron's attache case which contained, among other things, the Union's file pertaining to the organization and representa- tion of the Respondent's discharged employees, disap- peared from his car which was parked in the vicinity. Among other papers in this file, were the 17 union authori- zation cards signed by the employees3 and employee state- ments pertaining to their discharge. Tucker testified that he first saw "this file, or a file or some file" on March 19 when Barron left it at a telephone booth near the store where he made a call following the service of the Restraining Order on him. However, Tucker testified, he did not call Barron's attention to this oversight because he (Tucker) "felt . . . [that the file] was in pretty good hands." The Union first became aware of the existence of its file 7 months later on October 19, the first day of the hearing in this case when, in the course of Tucker's examination, as an adverse witness, by the General Counsel concerning his knowledge that em- ployees had signed union authorization cards, Tucker an- nounced that he had the cards in his possession and brought them to the hearing. Tucker was thereupon ques- tioned respecting his possession and inspection of the Union's file and his failure to return it sooner and gave the following testimonial account: Around the end of March, "[s]omeone," whom Tucker could not identify,32 telephoned Tucker's son at his home and informed him that he had in his possession "some- thing" he believed Tucker "would like to have." "Evidently, ° The envelope in which the letter was enclosed bore the Union's name and address in Nashville, Tennessee, and a handwritten notation "Closed 3- 16-77" and a stamped notation "lst Notice March 17, 1977." 1' When the Union's attache case and the Union's file were subsequently returned at the hearing, the 17 signed authorization cards were introduced and received in evidence. 52 Tucker testified that, although he asked his son for the identity of the individual from whom he had received the Union's file, his son declined to reveal it. 1196 TUCKER'S MINIT MARKETS ... [his] son met" that individual and received the file which his son, in turn, delivered to Tucker. This file contained "everything that's got to do with the Union by the employ- ees." Although Tucker was aware that the file might belong to Barron or some other Union official or the Union itself, Tucker testified that he "didn't have any responsibility at all to return it." It is not clear how long Tucker retained the file before bringing it to his attorney who advised him to return it if he could ascertain the rightful owner. However, as indicated above, Tucker did not return the file until the hearing in this case. As an adverse witness, Tucker testified that he had "no idea who the owner ... [of the file was] but .. .[he thought he] might know." Later, as a witness for the Respondent, he testified that he did not "know who its rightful owner was.... [He] had no idea ... [but he] knew it belonged to somebody involved in this session right here but . .. [he] didn't know who." I have no doubt that Tucker was fully aware that the file belonged to Barron, or at least to the Union or one of its representatives. This is indicated in his testimony, as eva- sive and inconsistent as it is. Moreover, I am equally con- vinced from his testimony that Tucker had carefully and thoroughly scrutinized the contents of the Union's file while it was in his possession which obviously contained sufficient information respecting its ownership. Indeed, when Tucker visited his attorney in October, 7 months after receiving the latter's advice to return the file, and was asked bv his attor- ney whether he still had the Union's file, Tucker gave an affirmative answer, asserting that he saw no reason to take a trip to Nashville, where the Union's offices were located, "if that is who it belonged to," and that he kept the file in his safe until the owner inquired about it. How Tucker could expect the owner to make an inquiry, if Tucker did not notify him that the file was in Tucker's possession, is be- yond imagination. C. Concluding Findings 1. With respect to the store closings, discharges, and refusal to rehire As previously noted, the General Counsel contends that the Respondent, in violation of Section 8(a)(1) and (3) of the Act, closed its stores, discharged its employees and re- fused to rehire all, except three, of his former employees to man its reopened stores, because of the employees' actual or suspected union interest and other lawful concerted ac- tivities for their mutual aid and protection. The Respon- dent, on the other hand, argues that its action was legiti- mately motivated by large cash and inventory shortages it had been experiencing for years, the employees' lack of co- operation to solve this problem, and the urgent need to get "a fresh new start." The question whether employees were illegally termi- nated because of their union or other concerted activities is not susceptible of easy determination as it essentially in- volves an inquiry into the employer's state of mind. As di- rect evidence of motive, which is not also self-serving, is seldom available, resolution of his issue requires that all the facts and circumstances surrounding the dismissals be care- fully appraised with due recognition being accorded to the settled principle that an emplover may discharge his em- ployees for any reason, good, bad or indifferent, provided he is not motivated by union considerations or the employ- ees' other protected concerted activities. Of course, it is equally well established that the existence of a "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause."3 From my analysis of the evidence, I am led to the conclu- sion that the store closings, mass discharges, and the refusal to rehire were prompted by union considerations and the employees' other protected concerted activities. It is clear that within 2 days after the Union held its first employee meeting where the employees designated the Union as their bargaining agent, the Respondent, without any prior notice or warning, closed its stores and terminated its entire work force, despite the fact that it appears that the Respondent's business was still profitable in the face of its asserted short- ages34 and despite the further fact that many, if not most of the employees were experienced and enjoyed long satisfac- tory records of employment with the Respondent. Such pre- cipitate action and timing suggest that the Union's appear- ance on the scene was more than a strange coincidence when the Respondent's President Tucker decided to take those drastic measures. Quite the contrary, the Respon- dent's sudden and extreme action lends support to the infer- ence that the store closings and mass discharges were dis- criminatorily motivated. Fortifying this inference is the fact that the grounds advanced by Tucker at the hearing for his decision were seriously undermined by his lack of candor, evasiveness, inconsistencies, and ambiguities evident in his testimony, as found above, and could only be viewed as transparent attempts to conceal his true, but improper, rea- son. As one court observed, "Where an asserted business motive is discredited . . . the Board is free to treat it as pretextuous and infer discrimination on account of union activity."3 Also quite revealing of his unlawful motivation for the store closings and discharges is the disparate treatment Tucker accorded to all but threew of the discharged em- ployees, most of whom had signed union authorization cards, in rehiring for the reopened stores, as compared to the treatment accorded to Gibson, a nonunion employee whom Tucker was keenly aware had not joined the Union's picket line at the Shive Lane store the day before Tucker offered him a job. As discussed above, in their conversation, which resulted in Gibson's reemployment, Tucker interro- gated Gibson as to how he felt about the "so-called Union movement" and Gibson, in turn, declared his antiunion at- titude, informing Tucker that he had previously told the employees that the Union "wouldn't work and that he VN.L.R B v. Solo Cup Company, 237 F 2d 521. 528 (C.A. 8. 1956); to the same effect. Shattuck Denn Mining Corporation (Iron King Branch) v. N L.R.B, 362 F.2d 466, 470 (C.A. 9. 1966). 3 According to the Respondent's evidence, Its rate of gross profit for the 8- month penod preceding the events herein was 19.08 percent instead of 23.5 percent, although the gross profit rate for the 3-year penod from 1973 through 1975 was only 19.31 percent. 35 Winchester Spinning Corporation v. N LR B., 402 F.2d 299. 306 (C.A. 4, 1968); see also Shattuck Denn Mining Corporation, supra. 15 As noted above, the three rehired employees were Gibson and Aldndge, who began working for the Respondent a few hours before the stores were closed, and Anderson who was in Tucker's employ for 2 weeks about half of which time she was on sick leave. 1197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't want anything to do with it." At the hearing, Tucker admitted that he rehired Gibson because "he did not turn into a traitor" against him. On the other hand, Tucker was not favorably disposed to recall any of the other discharged employees for a reason that appears to be related to the employees' designation of the Union as their bargaining representative. Thus, upon learning of Gibson's reemploy- ment, employee Dalton, whom Tucker and Supervisor Wil- liams regarded as a good worker, finally reached Tucker by telephone after previous efforts to contact had failed and asked him why Gibson was rehired and not she. When Tucker answered that Gibson was "cooperating in every- thing," Dalton replied that she, too, had been cooperative and, indeed, had signed the agreement to take the poly- graph test. Tucker thereupon asked her whether she had signed a union card and received a negative answer, even though Dalton had actually signed a union authorization card on March 15. After repeating his inquiry two or three times and apparently getting the same negative response, Tucker informed Dalton that to be rehired she was required to secure a clearance from his attorney. Employee Johnson was similarly rebuffed a few days later in her attempt to obtain reemployment for herself and the other discharged employees. In a telephone conversation with Tucker in which she protested Gibson's reemployment and Tucker's refusal to rehire her and the other discharged employees, Tucker pointed out that Gibson was "the only loyal em- ployee and that the rest of . . . [the employees] were trai- tors." In the context of the facts and circumstances herein, I find that Tucker's references to traitors and Gibson's loy- alty were thinly disguised references to union adherents and Gibson's commendable antipathy to the Union. The Respondent, nevertheless, argues that discrimination could not be found as there is no proof that Tucker was aware of the Union's presence at the time of his decision to close the stores and terminate the employees. Although it is true that there is no direct evidence of Tucker's awareness of the Union at that time, this does not preclude the finding of knowledge based on circumstantial evidence. 7 I find such an inference of knowledge is warranted by the evi- dence summarized above. Moreover, there is additional evi- dence to support an inference of knowledge. Thus, a day before the store closings, Supervisor Williams became sus- picious that something exceptional was afoot which in- duced him to ask employee Forrester what was going on among the employees who were shunning him and whether there was something he (Williams) should know about. The next morning, approximately one-half hour before Tucker decided to close down, Williams called Forrester and again inquired whether he was sure he wasn't aware of anything about which Williams should know. Also indicating that Tucker did not make his decision without knowledge or suspicion of the Union's presence are his remarks to em- ployee Cadle when he notified her of the store closings and the termination of all the employees, that he took those measures because "things went on behind his back. Every- one was pulling in different directions and [he and Williams were receiving] . . . cool treatment . . . from employees." In sum, I find that the Respondent closed the stores, ter- "7 N.L.R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114, 116 118 (C.A. 8, 1973). minated all the employees and refused to recall all but three employees to operate the reopened stores in reprisal for the employees' actual or suspected union interest and activities. Indeed, the Respondent's action effectuated the prophetic warning Tucker made to employee Johnson just 2 months earlier to close the stores and fire the employees if the em- ployees sought union representation. Accordingly, I con- clude that the Respondent's conduct constitutes discrimina- tion in employment to discourage union membership and therefore violates Section 8(a)(3) and (1) of the Act. The fact that Anderson, one of the three reemployed employees, had informed Tucker when she was rehired that she had previously signed a union card does not detract from a find- ing of unlawful motivation in the store closings, mass dis- charge and refusal to hire. Apart from not knowing what commitment Tucker had exacted from Anderson as the price of reemployment, her treatment does not exculpate the Respondent for the discrimination practiced against the other employees.3 8 In addition to antiunion motivation bor the store closings, discharges. and refusal to rehire found above, I find that a substantial contributing cause was the employees' protected concerted activity in opposing and criticizing the Respon- dent's proposed poloygraph program. This plan was actu- ally the only means the Respondent was then considering to resolve the problem of cash and inventory shortages. With- out repeating the details, it is clear that the employees had misgivings about the program and only three employees signed the agreement to take the lie detector test and one verbally agreed to submit to the test. Sorely disappointed by this poor response and after failing to persuade a num- ber of employees to change their attitude, Tucker tele- phoned employee Lewis on March 7 and accused her of being "an instigator" in telling employees not to submit to the polygraph test. At the subsequent March 9 meetings, which were called to explain the polygraph program, the employees virtually in one voice expressed their criticism and apprehension of, and objections to the validity and re- liability of the lie detector test. Notwithstanding their mis- givings about this program, the employees did not declare an unequivocal position that they would not submit to the test, if the Respondent required them to take it, even though some employee sentiment was expressed that they would follow the majority. However, at no time following these meetings did the Respondent advise the employees that they were required to take the polygraph test, much less warn them that they risked discharge or other discipline if they failed to heed the advice. Instead, as discussed above, Tucker a week later abruptly closed the stores and terminated the employees. Section 7 of the Act guarantees to employees "the right to ... engage in ... concerted activities for the purpose of ... mutual aid or protection.... "To terminate employees for exercising this right violates Section 8(a)(1) of the Act.? Even if the discharges are caused in part only by the em- '3 Nachman Corporation v. N.L.R.B.. 337 F.2d 421, 424 (C.A. 7. 1964). where the court observed that "a discriminatory motive, otherwise estab- lished, is not disproved by an employer's proof that it did not weed out all union adherents." Accord: N.L.R.B. v. W. C. Naborr dl/ba W(. C Nabors Compain, 196 F.2d 272. 276 (C.A. 5. 1952). 1 N.,L. R B v. Washington Aluminum Companm, Inc., 370 U.S. 9, 16 17 (1962). 198 TUCKER'S MINIT MARKETS ployees' protected concerted activities, they are still unlaw- ful, despite the existence of good grounds for the termina- tion.40 Guided by these principles, I find that the employees' opposition to the institution of a polygraph program falls within the ambit of concerted activity for mutual aid and protection safeguarded by the Act. As shown above, this was demonstrated especially at the March 9 meetings where the employees aired their virtually unanimous criticism of and objections to the polygraph program in an obvious elk- fort to dissuade the Respondent from pursuing it further. Certainly, the institution of a polygraph program. involving as it does a degree of job insecurity, affects the employees' working conditions and hence is a matter of legitimate con- cern to the employees4 ' and for group action aimed at per- suading their employer to abandon it. Of course, the Re- spondent was privileged to inaugurate the polygraph program in the face of employee opposition and to dis- charge any employee who refused to take the test. How- ever, this is not the case here, as the evidence establishes that before the store closings and discharges the Respon- dent had not put the program into effect or implemented it or otherwise required the employees to comply or suffer dismissal or other discipline. In view of the foregoing. I find that the employees were entitled to statutory protection for their concerted activity in voicing their opposition to the Respondent's contem- plated polygraph program and that their discharge for such activity violated Section 8(a)(l) of the Act. Even were it assumed that valid reasons to some extent entered into the Respondent's decision to close the stores and terminate the employees, I find that the employees' protected concerted activity, as well as their union involvement previously dis- cussed, was a substantial moving cause and that therefore the store closings and discharges would still violate the same statutory provisions.4? 2. With respect to interference, restraint. and coercion As discussed earlier in this Decision, the Respondent's President Tucker in mid-January warned employee John- son that if employees selected a union to represent them, he would close all his stores and fire every employee. On March 20, while interviewing discharged employee Gibson for reemployment, Tucker interrogated Gibson concerning the "so-called Union movement." In the latter part of March, when discharged employee Dalton applied for her former job, Tucker inquired of Dalton whether she had pre- viously signed a union card. When she replied in the nega- tive, although she had signed a card before the store clos- ings, Tucker skeptically repeated the same question two or three times. Clearly,. under settled law, Tucker's warning and interrogation were forms of interference, restraint, and coercion of employees violative of Section 8(a)( 1) of the Act. "4 N.L.R.B . Adam Loos Boiler Works C(o., 435 F.2d 707 (C.A. 6. 1970); J. P Stevens & Co., '. NL.R.B, 380 F.2d 292, 300 (C.A. 2. 1967). cert denied 389 U.S. 1005. " Medicenter, NMid-South Hospital, 221 NLRB 670, 675 678 11975). "J. P. Stevens & Co., supra; ,V L R B . Jamesioa'n Sterling (Corp., 211 F.2d 725, 726 (C A. 2, 1954). The General Counsel also contends that Tucker's reten- tion of 1Union Business Representative Barron's file con- taining organizational materials relating to the Respondent, such as employee statements concerning their discharge and signed union authorization cards, and Tucker's perusal of' this material constituted a violation of Section 8(a)( 1 ) of the Act. I agree. As shown above, Tucker mysteriously came into posses- sion of the file through his son and, despite his attorney's advice to return it to the owner, retained it for some 7 months until it was returned in October dunng the trial of this case. I find that Tucker, although fully aware that the file belonged to the Union. if not to Barron. deliberately refrained from notifying the Union that he had the file in his possession. Moreover. I find that. while a perfunctory inspection of the file was all that was needed to ascertain ownership Tucker's testimony indicates that he carefully read the contents including the employee statements and signed union authorization cards. In these circumstances. I conclude that Tucker's conduct, manifestly designed to col- lect organizational information without the Union's permis- sion and to which information he was not otherwise enti- tled, amounts to an improper intrusion into the employees' organizational activities and the Union's internal affairs which Section 8(a)( 1) of the Act prohibits. 3. With respect to the refusal to bargain a. Appropriate unit. the U iio i maloriVoti t(uIS For several years, the Respondent has operated in the Bowling Green, Kentucky, area, four retail convenience grocery stores located three or less miles from each other. The entire enterprise is managed by Respondent's President Tucker from his office where policy is determined, payroll is prepared. and employees are hired. On March 16, 1977, there were a total of 21 full and regular part-time store and inventory clerks in the Respondent's employ. In general, one store clerk is assigned to run a store on each shift, while inventory clerks. usually part-time employees, conduct in- ventories periodically at each store. Several store clerks regularly work in two or more stores. All of these employ- ees are directly supervised by David Williams; are paid an hourly wage rate: receive the same 10 percent discount on purchases: have the same holiday pay arrangement: and enjoy vacation and Christmas benefits which vary accord- ing to their length of employment or some other reason. The Respondent contends that four store clerks were des- ignated store managers and therefore were supervisors to be excluded from the bargaining unit. The individuals who oc- cupied that position immediately before their discharges on March 16. 1977. were identified by the Respondent as Ha- zel Lewis. Ilora Horton, Henry Boards, and Pat Welch, who was an acting manager temporarily replacing an individual who had quit. The record establishes that store managers do not have any employees working under them to super- vise: nor do they otherwise possess supervisory authority over employees. Instead, the evidence discloses that the store manager's duties and working conditions are actually the same as those of other store clerks except that the store managers usually work on the day shift and have the addi- 1199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional responsibility of preparing certain daily reports and making bank deposits. Accordingly, I find that, as store managers do not possess any of the indicia of supervisory' authority over employees as defined in Section 2(11) of the Act, they are included in the unit. 43 On the basis of the foregoing facts, it is found that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b): All full-time and regular part-time employees em- ployed by Tucker Enterprises, Inc., d/b/a Tucker's Minit Markets at its four stores in Bowling Green, Kentucky, including store managers, but excluding all office clerical employees, and all professional employ- ees, guards and supervisors as defined in the Act. As the evidence recited in the preceding part of this De- cision establishes that since at least March 15, 1977, when the Union mailed its request for recognition to the Respon- dent, and March 18, 1977, when the Respondent received the letter, more than a majority of the employees in the bargaining unit had voluntarily signed authorization cards. I find that at all material times the Union has been the exclusive collective-bargaining representative of the em- ployees in an appropriate unit. b. The Respondent's refusal to recognize and bargain with the Union It is undisputed that, by letter dated March 19, 1977, the Respondent rejected the Union's request for recognition and refused to bargain with it as the employees' exclusive representative on the ground that the Respondent no longer had any employees in its employ on March 18 when it re- ceived the Union's letter. However, having found above that the Respondent's discharge of all its employees on March 16 was in violation of Section 8(a)(1) and (3) of the Act, the employees retained their status as employees. As there is no question that the Union enjoyed majority status evidenced by the signed authorization cards, and which sta- tus was confirmed by the number of employee pickets at the reopened Shive Lane store on March 19, 1977, I1 find that the Respondent breached its statutory bargaining obliga- tion owing to the Union and therefore violated Section 8(a)(5) and (1) of the Act. IV. FHE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully discharged all its employees because of their actual or suspected union 14 It follows that Lewis, Horton, Boards, and Welch, as employees, are entitled to statutory protection against their unlawful discharge, as I have previously found. U As noted above. Respondent's President Tucker subsequently had the occasion, which I find he utilized, to verify the Union's majority status when he inspected the authorization cards in the Union's file then in Tucker's possession. These were the cards which were introduced and received in evidence at the trial of this case. and other protected concerted activities and unlawfully re- fused to rehire all but three of them when it reopened its stores shortly thereafter. To remedy these unfair labor prac- tices, it is recommended that the Respondent offer all of the discharged employees" - immediate and full reinstatement to their former jobs or, if thsoe jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to each of' them of a sum of money equal to that which each one normally would have earned from March 16, 1977, the date of discharge, to the date of the offer of reinstatement, less his net earnings during the said periods. Backpay shall be computed with'interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 176 (1962)). To facilitate the computation, as well as to clarify the named employees' right to reinstate- ment, the Respondent shall make available to the Board, upon request. payroll and other records necessary and ap- propriate for such purposes. In addition to the foregoing relief. I find that effectuation of the policies of the Act requires that the Respondent be ordered to recognize and bargain, on request, with the Union as the exclusive representative of the Respondent's employees in the unit found appropriate herein. This rem- edy is plainly needed because the unfair labor practices committed by the Respondent are of such a serious and pervasive nature as to preclude the holding of a free and fair election to redetermine the Union's majority status which has already been established by signed union autho- rization cards and confirmed by the number of pickets at the Shive l ane store on March 19, 1977. Thus, the employ- ees cannot lightly, ignore the extremes to which the Respon- dent was willing to go to undermine their self-organization- al rights when it closed its stores and discharged the employees en masse in reprisal for their union and other concerted activities and, for the same reason, thereafter re- fused to hire all, except three, of the discharged employees when it reopened the stores a few days later. Such conduct can only serve to demonstrate to employees the Respon- dent's hostility to the Union and its inflexible determination not to deal with their duly designated bargaining represent- ative. Indeed. not only did Tucker interrogate two employ- ees concerning their union interest when they applied for "J They are: Boards, Cadle, Connor, Dalton. Dearing, Evans, Forrester, Alice Hays. Dean Hays, Hill, Horton, Ingram, Johnson, Lewis, Pearson, Pemberton, Welch, and Young. Although three additional employees, Al- dndge, Anderson, and Gibson, were reinstated when the Respondent re- opened the stores, they will also be included in the reinstatement order as it is not clear whether their reinstatement was in conformity with Board re- quirements concerning reinstatement to their former or substantial equiv- alent jobs without prejudice to their senionrity and other rights and privileges. ' There appears to be a special question concerning the amount of back- pay due employee Hazel Lewis. She testified that on March 11, 1977, she gave the Respondent notice that she was quitting her job but, at the request of Supervisor Williams, she agreed to stay on for a week to enable Williams to secure a replacement. However, while still in the Respondent's employ, she and all the other employees were unlawfully discharged on March 16, 1977, as found above. In these circumstances, the determination of the amount of backpay due her, as well as that due the other named individuals, will be left to the compliance stage of this proceeding. 1200 t CKER'S MINIT MARKETS their jobs back in the reopened stores and rehired only the one who was antiunion, but Tucker also declared that he did so because the latter individual was "loyal" while all the other discharged employees were "traitors." The lingering effects of the Respondent's action, which the Respondent's President Tucker had warned an employee 2 months earlier that he would take if the employees secured union represen- tation is readily apparent. In short, I find that a bargaining order is necessary to remedy the Respondent's unfair labor practices and to prevent the Respondent from benefiting from further delay in fulfilling its bargaining obligation." In view of the nature of the discrimination for union sup- port and sympathies which "goes to the very heart of the Act."`4 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be ordered to cease and desist from in anv other manner in- fringing upon the rights guaranteed employees in Section 7 of the Act." Posting of an appropriate notice is also recom- mended. Upon the basis of the foregoing findings of fact and upon the entire record in the case. I make the following: CON( LU SIONS (F I.AwS I. The Respondent is an employer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the employees listed below, to discourage membership in, and activities on behalf of the Union, the Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. Shirley Aldridge Joyce Anderson Henry Boards Ann Cadle Kenneth Connor Sarah Dalton Toni Dearing Roy Evans Herman Forrester Lawrence Gibson Alice Hays Dean Hlays Winiford Hill Lora Horton Angela Ingram Linda Johnson tHazel Lewis Gerald Pearson Juanita Pemberton "Pat" Delos Welch Walker Young 4. By discharging the above-named employees for engag- ing in protected concerted activities for mutual aid and pro- tection, the Respondent engaged in unfair labor practices in violation of Section 8(a)(1 ) of the Act. 5. All full-time and regular part-time employees em- ployed by the Respondent at its four stores in Bowling Green, Kentucky, including store managers, but excluding all office clerical employees, and all professional employees. guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4 N.L.R.B v, Gissel Packing Co, Inc, 395 U.S. 575 (1969); Trading Port, Inc, 219 NLRB 298. 300 (1975); see also Beasleo Energs, Inc .d/b a Peaker Run Coal Cormpan'. Ohio Division : 1, 228 NLRB 93 (1977) N" L.R.B v Entwistle Mfg (o., 120 F.2d 532, 536 (C.A. 4. 1941). 49 L. R B s. Express Publishing Comparei, 312 U.S. 426, 433 (1942). 6. Since March 15, 1977 and at all subsequent times, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 7. By refusing since on or about March 18, 1977. to rec- ognize and bargain collectively with the Union. as the ex- clusive representative of the employees in the aforesaid ap- propriate unit, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. By warning an employee that if the employees se- lected a union to represent them, the Respondent would close all the stores and fire the employees; by interrogating an employee during a job interview concerning the "so- called Union movement" and another employee who ap- plied for her job back whether she had signed a union au- thorization card: and, without the Union's permission, by retaining the Union's missing organizational file and by in- specting employees' statements concerning their discharges. union authorization cards signed by employees, and other papers which were contained in that file, the Respondent interfered with, restrained and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act, 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. IUpon the foregoing findings of fact, conclusions of law. and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER ' Ihe Respondent. Tucker Enterprises, Inc., d/b/a Tuck- er's Minit Markets. Bowling Green, Kentucky. its officers, agents, successors, and assigns, shall: 1. ('ease and desist from: (a) Discouraging membership in Retail Clerks Union Local 1557, Retail Clerks International Association, AFL- CIO, or any other labor organization, by discharging or refusing to rehire employees or in any other manner dis- criminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Discharging or refusing to rehire employees for en- gaging in protected concerted activity for mutual aid and protection with respect to wages, hours, or other terms and conditions of employment. (c) Refusing to recognize and bargain with the above- named Union, as the exclusive representative of the Com- pany's employees in the unit described below, concerning rates of pay, wages, hours of employment and other condi- tions of employment: All full-time and regular part-time employees em- ployed by the Company at its four stores in Bowling Green, Kentucky. including store managers, but ex- so 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 Section 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. 1201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cluding all office clerical employees, and all profes- sional employees, guards and supervisors as defined in the Act. (d) Warning employees that, if they select a union to represent them, it will close all its stores and terminate them: coercively interrogating employees concerning their union membership, sympathies and activities; and, without the Union's permission, retaining the Union's missing file and inspecting employees' statements concerning their dis- charge or other organizational matters. union authorization cards signed by employees or other union papers contained in the Union's file. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted ativities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer the employees named below immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge, in the man- ner set forth in the section of this Decision entitled "The Remedy." Shirley Aldridge Joyce Anderson Henry Boards Ann Cadle Kenneth Connor Sarah Dalton Toni Dearing Roy Evans Herman Forrester Lawrence Gibson Alice Hays Dean Hays Winiford Hill Lora Horton Angela Ingram Linda Johnson Hazel Lewis Gerald Pearson Juanita Pemberton "Pat" D)elos Welch Walker Young (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records. social security payment records. timecards, personnel records and reports, and all other records neces- sary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Upon request, bargain collectively with Retail Clerks Union Local 1557, Retail Clerks International Association, AFL-CIO, as the exclusive representative of the Respon- dent's employees in the above-described unit, concerning rates of pay, wages, hours of employment, and other condi- tions of employment and, if an understanding is reached. embody such understanding in a signed agreement. (d) Post at its grocery stores in Bowling Green, Ken- tucky, the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 9. after being duly signed by the Respondent's au- thorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. n' In the event that this Order is enforced by ajudgment 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." APPENDIX NOTICE To EMPLsOYEIIS POSTED BY ORDER Oi 1lil NATIONAI. LABOR REI.AIiONS BOARD An Agency of the United States Government The Act gives all employees the following rights: To organize themselves To form, join or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of those activities. WI wI.l.L NOT discharge or refuse to rehire any em- ployee or otherwise discriminate against him because of his membership in, or activities on behalf of. Retail Clerks Union Local 1557, Retail Clerks International Association, AFL-CIO, or any other labor organiza- tion. WE W'ILL NOT discharge or refuse to rehire any em- ployee for engaging in protected concerted activity for mutual aid and protection with respect to wages. hours, or other terms and conditions of employment. Wi vWIl.l. NOT refuse to recognize and bargain collec- tively with Retail Clerks Local 1557, Retail Clerks In- ternational Association, AFL CIO, as the exclusive representative of the Company's employees in the unit described below, concerning rates of pay,. wages, hours of employment, and other conditions of employment: All full-time and regular part-time employees em- ployed by the Company at its four stores in Bowling Green, Kentucky, including store managers, but ex- cluding all office clencal employees, and all profes- sional employees, guards and supervisors as defined in the Act. WE WIL.l NOI warn our employees that, if they select a union to represent them, we will close all our stores and terminate them; or interrogate our employees con- cerning their union membership, sympathies or activi- ties: or, without the Union's permission, retain the 1202 TUCKER'S MINIT MARKETS Union's file and inspect employee statements concern- ing their discharge or other organizational matters, union authorization cards signed by the employees. or other union papers and documents. W Wit l.l NOT in any, other manner interfere with. restrain, or coerce employees in the exercise of their right to self-organization. to form labor organizations. to join or assist the above-named Union or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, to engage in con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection. or to refrain from any and all such activities. except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act. Wi wll.I bargain collectively, on request, with the above-named Union, as the exclusive representative of all the employees in the unit described above. with re- spect to rates of pay. wages, hours of employment, and other conditions of employment and. if an understand- ing is reached, embody such understanding in a signed agreement. Wi wtl.l. offer the employees named below immedi- ate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful discharge. Shirley Aldridge Joyce Anderson Henry Boards Ann Cadle Kenneth Connor Sarah Dalton Toni Dearing Roy Evans Herman Forrester Lawrence Gibson Alice Hays Dean Hays Winiford Hill Lora Horton Angela Ingram Linda Johnson Hazel Lewis Gerald Pearson Juanita Pemberton "Pat" Delos Welch Walker Young All of our employees are free to become, remain or re- frain from becoming or remaining members of Retail Clerks Union Local 1557, Retail Clerks International Asso- ciation, AFL CIO, or any other labor organization, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. Tt ( KitR ENI iRPRIS-.S, IN( . D/B/A 'Tt 'KER'S MINII MARKFI S 1203 Copy with citationCopy as parenthetical citation