Atlantic & Pacific Tea Co.

National Labor Relations Board - Board DecisionsAug 28, 1962

138 N.L.R.B. 325 (N.L.R.B. 1962)

ATLANTIC & PACIFIC TEA COMPANY 325 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above , occurring in connec- tion with the business operations of the companies described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, it is recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 2. California Water and Telephone Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Broadway Hale Stores , Inc., and Del E. Webb Corporation are engaged in commerce or in an industry affecting commerce. 4. By threatening, restraining , or coercing a person in an industry affecting com- merce with an object of forcing him to cease doing business with another person, Respondents have engaged in an unfair labor practice within the meaning of Section 8(b) (4) (ii ) ( B) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2 ( 6) and (7) of the Act. [Recommendations omitted from publication.] Atlantic & Pacific Tea Company and Retail Clerks Union Local 536, AFL-CIO . Case No. 1,3-CA-4575. August 28, 196Â°2 DECISION AND ORDER On May 4,1962, Trial Examiner John P. von Rohr issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that those allegations of the complaint be dismissed. Thereafter, the Respondent filed exceptions to the In- termediate Report and a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 138 NLRB No. 42. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations 2 of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Atlantic & Pacific Tea Company, its officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Retail Clerks Union, Local 536, AFL-CIO, or any other labor organization of its employees by dis- charging any of its employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Theatening or interrogating its employees concerning their union sympathies or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the above-named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Delbert Bishop immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered because of the discrimination against him in the manner set forth in that section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security 'In inferring that the Respondent had knowledge of Bishop's union activity of Novem- ber 11, 1961, Member Rodgers does not rely on the "small size of the store" or the "relatively few employees" 2The Trial Examiner found that the Respondent had not violated Section 8 (a)(1) of the Act by granting wage increases to the employees and making certain changes in their working conditions. As no exceptions were filed with respect thereto, we adopt the Trial Examiner ' s recommendation , pro forma. ATLANTIC & PACIFIC TEA COMPANY 327 payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (c) Post at its store in Canton, Illinois, copies of the notice attached marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent has violated the Act by conduct other than that found to be violative herein, be, and it hereby is, dismissed. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership in Retail Clerks Union Local 536, AFL-CIO, or any other labor organization of our em- ployees, by discharging or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten or unlawfully interrogate our employees regarding their union membership, activities, or desires. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, 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, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a condition of employment , as authorized by Section 8 (a) (3) of the Act , as amended. WE WILL offer to Delbert Bishop immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a re- sult of his discharge. All our employees are free to become or remain, and to refrain from becoming or remaining , members of the above -named or any other labor organization , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a. condition of employment , as authorized by Section 8 (a) (3) of the Act, as amended. ATLANTIC & PACIFIC TEA COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central 6-9660, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon an amended charge filed on December 29, 1961 , the General Counsel for the National Labor Relations Board , for the Regional Director for the Thirteenth Region (Chicago , Illinois ), issued a complaint on January 4, 1962, against Atlantic & Pacific Tea Company, herein called the Respondent , alleging that it had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The Respondent's answer denies the allegations of unlawful conduct alleged in the complaint. Pursuant to notice , a hearing was held in Canton, Illinois, on February 27 and 28, 1962 , before Trial Examiner John P . von Rohr . All parties were represented by counsel and were afforded opportunity to adduce evidence , to examine and cross- examine witnesses , and to file briefs. Briefs were subsequently filed by the General Counsel and the Respondent and they have been carefully considered. Upon the entire record in this case , and from my observation of the witnesses, L hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent Atlantic & Pacific Tea Company is a New Jersey corporation with re - tail stores located throughout the United States. The sole store involved in this ATLANTIC & PACIFIC TEA COMPANY 329. proceeding is located in Canton , Illinois, where it is engaged in the retail sale and distribution of groceries, meats, produce, and related products. During the calendar year 1960, the Respondent sold and distributed products at the Canton store which exceeded $500,000 in gross value. During the same period it received goods at the Canton store valued in excess of $50,000 from points and places located outside the State of Illinois. The Respondent concedes , and I find , that it is and has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Retail Clerks Union , Local 536, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The issue in this case is whether the Respondent discriminatorily discharged em- ployee Delbert Bishop in violation of Section 8(a)(3) of the Act and whether it engaged in other conduct alleged to be independently violative of Section 8(a) (1) of the Act. A. The facts The Respondent's store at Canton , Illinois, employs approximately 22 employees, of whom 7 or 8 work on a part-time basis only. The employees have never been represented by a labor organization, the Charging Union having lost an election in the year 1954. The events concerned in this case occurred during an organizing campaign by the same union in the months of October and November 1961. On October 4, 1961, an organizational meeting took place at the home of Edwin Griffith, an organizer for the Charging Union. Present at this meeting were Delbert Bishop, the alleged discriminatee herein, John Grant, John Franciskovich, and Ray Anderson, all of whom were fulltime employees at Respondent's store. Each of the employees signed union authorization cards. Griffith also gave them additional cards which were to be used in the solicitation of other employees for union mem- bership. On the following day, October 5, about 1 p.m., employee Bishop was approached by Ray Smith, Respondent's store manager. While Smith admitted that he stopped Bishop to speak about the Union, the versions of this conversation differ. Bishop's testimony is as follows: "On October the 5th, as I was running out for dinner, I was stopped up by the office and Mr. Smith came up to me and he said, 'I hear you are talking pretty strong about a union,' and I said, 'I don't know anything about it,' and he said, 'Don't tell me that, I know you had a meeting last night at a union man's house,' and I said, 'I don't know anything about it,' and he said, 'Didn't you attend,' and I told him, 'No,' and he said, 'Well, never do anything to let me fall down on you.' He said, 'We can give you all the Union can give you. All the Union wants is your union dues,' and I went to lunch." Smith denied that he had any knowledge of the union meeting of the previous evening at the time he spoke to Bishop. Smith's explanation as to the reason which, prompted him to speak to Bishop on October 5 was that on October 3 one of the employees, Vivian Kernal, told him that "the boys in the back room were talking about the Union" and that "I was curious, and on Thursday morning I asked Del- bert Bishop what he thought about the union...." Smith denied asking Bishop whether he had attended a union meeting on the preceding evening or that he made any statement to Bishop to the effect that he had heard Bishop was talking pretty strong about the Union. Other than conceding he questioned Bishop concerning his attitude toward the Union, Smith said that the only other statement he made to Bishop was that "I told him he was free to do whatever he cared to do but it cost money to belong to the Union and if he pays these dues he better be sure what he was paying for." For reasons which will appear hereinafter, I credit Bishop's version of the October 5 conversation over that of Smith's. Smith, while denying that he had knowledge of the union meeting at the time he spoke to Bishop on October 5, conceded that later on the same day he received a report about the union meeting from Bill Ladd, manager of the produce department. Thus, Smith testified, "On Thursday afternoon Bill Ladd stopped ... and he asked me if I knew that the boys were talking union and that they had a meeting the '330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night before, and I told them that I was aware that they had been talking union but I didn't know they had a meeting." 1 Smith admitted that after he spoke to Grant he asked employee Don Alpa if he was interested in the Union,2 and that he asked Jeff Hacket, identified only as the dairy department head, what he knew about the Union. In the latter part of the day on October 5, a group of some seven employees held a meeting among themselves at the store .3 The evidence is clear that at this meeting the employees decided to pay a visit to Smith' s home that evening because at this point they had become fearful that they might be subjected to reprisals by Smith because of their union activities .4 Smith testified that about 8 p.m. he re- ceived a telephone call from Bill Ladd in which Ladd stated that the employees had some grievances, that they wanted to come out "and talk to me about their troubles." The aforementioned employees who met at the store in fact did appear at Smith's home on the evening of October 5. However, employee John Grant, who then worked in the produce department with Bill Ladd, arrived by himself ahead of the others.5 Grant, as we shall see, clearly proved to be a hostile witness when called by the General Counsel. According to Grant's testimony, and this is un- disputed, it was he who initially took the lead in the organizational activities of Respondent's employees. Grant testified that before coming to Smith's home he spoke to produce manager Ladd and that "he [Ladd] said that I should go see Ray and make it right with him." Grant testified that when he arrived at Smith's home, "I told him I figured he knew why I was there, and he said he thought he had a good idea but he wasn't mad or anything." Grant was vague as to what was said between him and Smith prior to the arrival of the other employees but he did testify that "I told him we had gone to a meeting the night before, and he said he had heard about it that day." When Grant was asked whether he told Smith the names of the employees who attended the union meeting on the night before, Grant testified "I'm pretty certain I didn't." Grant was then confronted with a prior sworn statement which he had given to a Board agent investigating the case, in which he stated, inter alia, "That night Thursday, October 6, 1961,8 I went to Smith's house and I told him who had attended the union meeting at Griffith's house." Upon such confrontation, and when asked if he wished to change his testimony as to whether he told Smith who had attended the union meeting, Grant testified, "I can't say for sure or not if I did nor not." Concerning this matter, Smith testified that when Grant first arrived Grant stated that he had some problems to discuss and that a little later "he men- tioned that the boys had had a meeting and that they had gone to the Union to see what they had to offer, and that is when I told him, `I believe, John, we have as much to offer as they do and you fellows can do whatever you would like to do, but I would like for you to make sure first that you are getting something that you pay for."' The other employees arrived at Smith's home a short while after Grant. The evidence reflects that the employees took this occasion to discuss their grievances. These latter principally concerned an adjustment in their workine hours, and a 10- cent shift differential for the men working on the night shift. The evidence, con- cerning which there is no real dispute , reflects that during this meeting Smith told 3 Ladd , the produce manager, did not attend the union meeting of October 4. However, John Grant, an employee who worked in the produce department, testified without contra- diction that he told Ladd about this meeting at about 9 am. on October 5. 2 Smith testified that he also told Alpa, a produce clerk , that "the union was entirely up to him . . but I wanted him to know that it did cost money to join the Union and he can be sure that he got what he paid for." Alpa, who was called by the General Counsel, testified on direct examination that in this conversation Smith asked him if he had been to a meeting on the night before. However , on cross-examination in response to the question "Did Mr. Smith ask you if you had gone to the meeting" Alpa's answer was "no." Although to all appearances Alpa seemed an honest witness, his contradictory testimony in this respect cannot be used to support the General Counsel's case 8 These Included Bishop, John Grant, John Franciskovich, Ray Anderson, Don Alpa, and Bill Ladd 4 Thus, Ray Anderson , an employee who was called as a Respondent witness , testified that at the time of the above meeting "we was all fairly scared" and that "we was all afraid we were going to get busted, and I was." Grant , Bishop, and Alps, testified to similar effect. 5 Smith testified that Grant had also called him earlier to say that he would like to -come out and see him. 6 The reference to October 6 was inadvertent, the correct date being October 5. ATLANTIC & PACIFIC TEA COMPANY 331 the employees as follows: (1) the Respondent could give them the same benefits as the Union and they would not have to pay dues to receive such benefits; (2) unions cost money and that the employees should be sure they were receiving their money's worth; (3) it was the employees' choice, if they wished, to vote the Union in or out; (4) in response to questions from the night-shift employees about a 10- cent bonus for working nights, stated that a recommendation had been made to Respondent's St. Louis office several weeks before; and (5) in response to the com- plaints of several employees, promised to make certain adjustments in the length and schedule of their working hours. The upshot of the above meeting at Smith's home was succinctly stated by John Grant, who testified without contradiction that as a result of the meeting, "All of us decided right there to drop the whole thing." That the employees at this point decided to abandon the Union is further borne out by the fact that none of them engaged in any further union activities until Bishop some 5 weeks later made an attempt to renew the union organizational activities. Delbert Bishop was discharged on November 13, 1961. However, the incident which Respondent asserts as the cause for Bishop's discharge occurred on November 11. It was on this same date, November 11, that Bishop undertook fresh steps toward the union organization of Respondent's employees. It is .the General Coun- sel's position that this latter activity was the real reason for Bishop's termination. During the time of the events related herein the Respondent's store was in the process of an extensive remodeling program. There is no dispute that the remodeling process caused considerable inconvenience to the employees.7 At about 7 p.m. on November 11, which was a Friday, Bishop was engaged in the loading of shelves with Ray Anderson, an employee who at this time worked as a backroom clerk. Bishop testified that as they were thus working, he remarked to Anderson: "Boy, we better get some order control back here. I can't even get back to the wall." Bishop testified that at this point Smith came up and overheard the latter remark, but that he was not aware of Smith's presence when he made the remark. Ac- cording to Bishop, Smith then said to him, "The reason we got so much freight here is because we are remodeling the store. I order on Monday and Saturdays; if you want the order board come up and I'll give it to you." Bishop said the con- versation ended with his telling Smith, "You said when Harold Rose went on vaca- tion, you told me you were going to show me how to order but you never did." Smith's version of this incident is that as he passed Bishop and Anderson while walking down the aisle, Bishop turned to him and said, "Someone has to do some- thing about this God damn order control. All they do is grab pencils and order wild around here. Look there on the bottom there is a case marked right on the bottom." Smith testified that this remark of Bishop irritated him and that at this point he told Bishop, "if you think you can do a better job, come up front and get a pencil." He thereupon walked away. Anderson's version of the incident, when called as a witness by the Respondent, was substantially the same as that of Smith's. Anderson testified, and Bishop denied, that after Smith left the area he told Bishop that "statements like that can get you fired," to which Bishop replied that he did not care because he was promised a job with Krogers. On the other hand, Bishop testified that after Smith left Anderson said to him, "Boy, I guess he told you," and that he responded by saying, "I didn't even know he was around or I wouldn't have made that remark." I credit Bishop's testimony over that of Anderson with respect to this latter conversation between them .8 Further comment with respect to this incident is reserved until hereinafter. Before reporting to work in the morning of November 11, Bishop spoke to em- ployee Tom Stanley outside of the store and obtained his signature to a union authorization card. On the same day he also asked employee Lois Layton to sign a card, but the record does not disclose the time or place. At about 9 p.m. on 7 Smith testified that the remodeling "disrupted the routine" and that "I made it a point to go to every employee and told them that during the remodeling, which none of them had experienced, would call for an extra effort on their part. . .." 8 Anderson clearly was hostile toward Bishop. He conceded that sometime after Bishop's discharge he told Bishop to drop the unfair labor practice case here involved. In fact, Anderson conceded that on one occasion after Bishop's discharge, he and his cousin, John Franciskovich (an employee who also testified adversely to Bishop) went to Bishop's house and threatened Bishop with physical violence. Moreover, it is also interesting to note that Anderson took Bishop's job after Bishop was discharged . Anderson testified that prior thereto his duties included "giving him [Bishop] a hand in the back room " Anderson received a raise of $2 . 50 per week shortly after Bishop left. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 11, during a coffee break in the dairy department, Bishop spoke with employees Ray Anderson, John Grant, Jeff Hacket, Carl Walters, and John Klin- felter and invited them to attend a union meeting to beheld at his home at 7 a.m. on the following day. Also on the evening of November 11, Bishop succeeded in getting employee Dale Wheelhouse to sign a union card.9 None of the employees attended the meeting which Bishop had called at his home for November 12. On November,13, a Monday, Bishop reported to work as usual but found that his timecard had been pulled. According to Bishop, Smith came up to him and said, "I've been thinking about the remark you made the other night and I think the job is too big for you, so I'm going to let you go." Bishop further testified that as he went to his locker, Smith came back to him and said, "If you need a, recommendation, I'll give you one. You are a good worker." Bishop said that he responded to this by saying, "I don't think I need a recommendation. I think I can get a job." Smith's version of this conversation was the same as that of Bishop's except that he denied telling Bishop at this time that he was a good worker. Smith also testified that on this occasion Bishop said, "I have a job somewhere else, and I was going of leave you in two weeks anyway." To the extent that the versions differ, I credit the testimony of Bishop over that of Smith. B. Additional facts; concluding findings The Respondent asserts that Bishop was discharged for insubordination. Thus, with reference to the Friday evening (November 11) incident, Smith testified that he gave the matter further thought during the weekend and that, "I knew that by Monday the word would get around to the rest of the personnel that Bishop was mouthing off to me [in] an impudent manner, and if he got by with that, I would certainly be a poor leader with the rest of the personnel, and the more thought I gave to it I thought the best thing to do for the whole organization was to discharge him." On the entire record, including my observation of the witnesses and my considera- tion of all the factors and circumstances involved in this case, I am convinced that the real reason for Bishop's discharge on November 13 was his renewed organiza- tional efforts among the employees on November 11. At this point comment should be made concerning my credibility observations. As previously noted, the principal employee witnesses, John Grant, Ray Anderson, and John Franciskovich, all demonstrated hostility or bias against Bishop. I have, of course, taken this into account when weighing their testimony. Delbert Bishop, the discriminatee herein, impressed me as being an honest witness. Having observed him testify and having weighed his testimony in the light of the entire record, I am -persuaded that his testimony was not fabricated.10 As to Smith, it cannot be said that the General Counsel was successful in shaking his testimony. It was my observation, however, that at times Smith's responses to questions put to him by his counsel were a little too smug to be accepted at their face value. (As noted here- inafter, I do not credit the reason given by Smith for Bishop's discharge.) While I have taken all of the foregoing into consideration, in the last analysis the basic facts in this case are not overly in dispute. Accordingly, the principal basis upon which my determination rests is predicated upon all of the circumstances disclosed in the entire record. This Trial Examiner is well aware that company knowledge of union activities is a prerequisite to a finding of an 18(a)(3) violation. As noted heretofore, there is no dispute but that the Respondent here had general knowledge of the union activities of its employees. This much even Smith conceded. But did the Respondent obtain knowledge of the renewed union activities which Bishop engaged in on November 11? 9 Respondent suggests in its brief that Bishop called for a union meeting at his home on November 12 because of the earlier incident on November 11. This contention must be rejected . Thus, as indicated above, Bishop had already renewed his union activities in the morning of November 11 at which time he obtained the signature of an employee to a union card. Further, in explaining his renewed union activities , Bishop credibly testified , "After we seen that Mr Smith wasn 't going to keep his promise about giving a eight hour shift and a day off, I received more authorization cards from Mr. Griffith.... (Emphasis supplied.) la Ray Anderson testified that on one occasion Bishop requested him to "change his statement," this apparently with reference to any testimony that he would give. On cross-examination , however , Anderson conceded that he never did tell Bishop what his statement would be. At best, the evidence shows that Bishop requested Anderson to give him a good statement . It is clear, and I find, that Bishop made no attempt to get Anderson to testify falsely . See also footnote 8. ATLANTIC & PACIFIC TEA COMPANY 333 To be sure, there is no direct evidence to show that it did. However, I am con- vinced, and I find, that the entire record in this case warrants an inference that it did receive knowledge of this activity. Thus, we have Smith's admission that he received reports from two employees, Vivian Kernel and Bill Ladd, concerning the employees' earlier union activities. On October 5 Kernel told Smith that the boys in the backroom were talking union and on October 5 Bill Ladd reported that the boys were talking Union and that a union meeting had been held the night before. Upon receiving these reports, Smith admittedly interrogated three employees concern- ing their union feelings and sympathies, one such interrogation, as we have seen, including a threat to Bishop. Then we have the meeting held at Smith's home on the evening of October 5, which resulted from the employees' fear of reprisals because of their union activities. Again, it is noteworthy that employee Grant arrived ahead of the other employees and gave Smith word about the union meeting held the night before. There is no question but that the pros and cons of the employees con- tinuing with such activity was discussed with Smith at this time. Immediately there- after the employees abandoned all interest in the Union until November 11 when Bishop attempted to revive the organizational activities. These factors considered with the small size of the store and the relatively few employees lend support to the inference that Smith was aware of Bishop's union activities at the time of his discharge. Further buttressing this inference is the very pretextual nature of the ex- cuse given by Respondent for Bishop's termination. We turn to this now. Prior to his discharge Bishop had been an employee of the Respondent for 2 years. Smith conceded that at least until the last 6 months Bishop had been a sat- isfactory employee. It will be recalled that the specific reason, and the only reason given by Smith for Bishop's discharge was that Bishop allegedly was insubordinate to him on the evening of November 11. Yet, Respondent attempted to show that Bishop's work for the last 6 months was not up to par and that apparently some consideration was given to this in effecting his discharge. In view of the absence of any indication by Smith that Bishop was discharged because of the quality of his work, Respondent's attempt to show to,the contrary must be viewed as an inconsistent defense. In any event, the deficiencies which Respondent attempted to attribute to Bishop consisted of such trivialities that they are hardly worthy of comment. Having considered the evidence in this regard, suffice it to say that the work deficiencies in question were of the type which at some time or other could be made by any average employee. The fact is that as late as in October 1961, not long after the start of the store remodeling, Smith prevailed upon Bishop not to quit his job, which Bishop had threatened to do." As to the November 1.1 incident itself, the versions given by Bishop and Smith have been related in the preceding section herein. Even if Smith's version is ac- cepted, I find it incredible to believe that Bishop's conduct on this occasion was so aggravated as to warrant the extreme penalty of discharge for this 2-year em- ployee.12 On the entire record, I am convinced, and I find, that Respondent has at- tempted to utilize the November 11 incident as a coverup for its real motive in dis- charging Bishop, which was the intervening circumstance of his renewed union ac- tivities. Accordingly, I find that by such conduct the Respondent violated Section 8(a) (3) of the Act' it is also found that Respondent violated Section 8(a) (1) of the Act by Smith's questioning of employees on October 5 concerning their union ac- tivities and sympathies, and his threatening statement to Bishop, "never do anything to let me fall down on you," in the context in which it was made. The complaint further alleges a violation of Section 8(a)( I) in that "Since on or about October 5, 1961, Ray Smith offered, promised, and granted wage increases and changes in working conditions to employees in order to induce them from attending union meetings or giving any assistance or support to the Union." Promises of benefits and benefits bestowed are not unlawful unless they can be shown to have u The credited and uncontroverted testimony of Bishop. 12 In considering the testimony concerning this incident , I note that even Smith's ver- sion quoted Bishop as saying, "All they do is grab pencils and order wild around here." Thus, Smith 's own version would seem to indicate that Bishop's remark was not intended to be a reflection upon him. I would also note that whether or not Bishop used the words "God damn," swearing was not assigned by the Respondent as a reason for the discharge. In any event, I am convinced and find that Bishop did not employ the use of any such language either directly or derogatorily toward Smith. It is noteworthy, also, that even Anderson apparently considered the incident trivial, for his testimony was that when Bishop advised him of his discharge on Monday morning he at first took it jokingly and told Bishop that he did not believe it. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discouraged union activities. Further, as a general rule such is not the case unless the benefits or promises of benefit are harnessed to the condition that the employees cease their union activities or reject the union.13 Here it is true that at the October 5 meeting Smith indicated that he would adjust various of the employees' grievances. At no time during this meeting, however, did Smith indicate that any such adjust- ment would be contingent upon the employees' abandoning the Union. Moreover, regardless of Smith's interrogation of employees earlier in the day, the meeting at Smith's house was at the employees' own behest. It was at this meeting that the employees voiced their grievances and it was in response thereto that Smith promised to do something about them. Obviously, this promise to adjust employee grievances was not taken at Smith's initiative. I find that a preponderance of the evidence does not establish Smith to have proposed or granted employee benefits for purposes pro- hibited by the Act and I shall recommend that this allegation be disi iissed.14 C. The allegations that Respondent's counsel unlawfully interviewed employees and that Respondent unlawfully obtained affidavits from its employees The complaint alleges that on or about December 1 and 4, 1961, one of the Re- spondent's counsel, William Coday, unlawfully interrogated employees concerning their union memberships and activities. Admittedly, Mr. Coday did interview the employees at Respondent's store when advised that an 8 (a) (1) and (3) charge had been filed. These interviews necessarily related to the allegations contained in the charge. However, he explained to each employee the nature and purpose of his interview, being careful also to advise each employee of his rights under Section 7 of the Act and that it was not his purpose to infringe upon those rights. There is nothing in the evidence to show that these interviews were conducted in such a manner so as to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Contrary to the position of the General Counsel, inasmuch as I find these interviews not to have been conducted in an unlawful man- ner, I deem it immaterial that they occurred prior to the issuance of a complaint.15 Accordingly, and inasmuch as the Board has never held that such interviews are per se illegal, I shall recommend that this allegation be dismissed. At the hearing the General Counsel amended the complaint to allege: During the month of January, 1962, Ray Smith demanded and obtained from employees copies of sworn statements which they had given the National Labor Relations Board during an investigation of unfair labor practice charges. It is undisputed that Smith asked the employees to send to the Board's Regional Office for a copy of the affidavits which they had given to the Board agent investi- gating the case. Smith told the employees that the statements would not be read by him but that they would be sent directly to the Company's attorneys. This, in fact, is what happened. When the employees sent for their statements , as they did, Smith handed them an envelope addressed to Respondent's attorneys. The employees placed the affidavits in the envelopes, sealed them, and placed them in a mailbox outside the store. I can appreciate the General Counsel's concern over the Respondent's tactics in obtaining the affidavits of his witnesses in this manner. Board policy, as embodied in Section 102.118 of the Board's Rules and Regulations, is not to produce any such statements until after the witness has testified. But the issue here is confined to whether or not Respondent's conduct in obtaining copies of these affidavits was in violation of Section 8(a)(1) of the Act. I am constrained to find that it was not. The evidence shows that Smith but requested the employees to obtain copies of their affidavits for the purposes indicated. He did not, as the General Counsel alleges, de- mand that they be produced. In the absence of any threats, harassment, or undue 13 See, for example, General Engineering, Inc. and Harvey Aluminum (Incorporated), 131 NLRB 648, 659. 14 In fact , the alleged changes in working conditions brought about by Smith were minor, consisting only of a slight change in working hours for one or two employees . As to wage increases, the evidence shows only that several employees received minor wage increases at undisclosed dates between October 5 and the date of the hearing . The evidence is In- sufficient to establish that such increases were given in violation of Section 8(a)(1) of the Act. u The interviews were held shortly after the filing of the charge herein . In this con- nection , I think it appropriate to note that in some instances a period of several months may elapse between the time a charge is filed and the actual issuance of a complaint. Note also Section 101.4 of the Board ' s Statements of Procedure. LOCAL 4, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 335 persuasion , I am compelled to find that Smith 's conduct in this regard was not in violation of Section 8(a) (1) of the Act.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged and refused to reinstate Delbert Bishop, I will recommend that the Respondent be ordered to offer him im- mediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him by the payment to him of a sum of money equal to the amount he nor- mally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, with backpay com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, 291-294. In view of the nature of the unfair labor practices committed the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to their employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discouraging membership in a labor organization through discrimination in employment, and by interfering with, restraining, and coercing employees in the ex- ercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1 ) and Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 10 Cadre Industries Corporation , 124 NLRB 278 , the only Board case cited by the General Counsel on this point, is factually distinguishable from the instant case There, the basis for the 8 ( a) (1) violation found by the Board was company intimidation of an employee for the purposes of obtaining an affidavit which he had submitted to the Board. Local 4, International Brotherhood of Electrical Workers, AFL- CIO and The Pulitzer Publishing Company. Case No. 141-CD- 100. August 28, 196f2 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed on April 29, 1960, by the Pulitzer Publishing Company, hereinafter referred to as the Company, alleging that Local 4, Inter- 138 NLRB No. 46.