W. T. Grant Co.

W. T. GRANT COMPANY 1179 conduct as an agent of a "labor organization," namely, MMP. Such a holding is not at war with the decisions of the Court of Appeals for the District of Columbia, and is in accord with the pronouncements of other courts of appeals. In Di Giorgio Fruit Corporation v. N.L.R.B.,11 Judge Miller, in a dissenting opinion, held that a union, not itself a labor organization, might be held responsible under Sec- tion 8(b) as an "agent" of a labor organization. The majority of the court, finding no agency in fact, seemingly did not disagree with this view of the law. In the Standard Oil case, supra, the court found no statutory or decisional impediment to the Board's finding that a union may be held as an "agent" of a labor organization, where the fact of agency was shown. The court there stated (at 171) : We think the Board is right in construing §8 (b) as empowering it to fasten independent liability on an agent of a labor organiza- tion, whether this be an individual, a labor union or other entity, just as it could in the case of an employer. That is what the words say, the history relied on by petitioners does not alter them, and any basis for negative inference from the absence of corre- sponding words in § 8(a) is removed by the presence of those words in the definition of "employer" in § 2(2). The record in the instant proceeding is replete with evidence which establishes that, while engaging in its illegal secondary picketing, Local 47 was acting as an agent in behalf of MMP. Based upon this evidence, which is extensively reported in his Intermediate Report, the Trial Examiner found that such agency relationship existed in fact. So far as appears, neither MMP nor Local 47 disputes this find- ing. Here, too, we adhere to our original decision, and find that Local 47 is responsible for the charged misconduct as an agent of MMP. MEMBER JFNKixs took no part in the consideration of the above Supplemental Decision. 11191 F. 2d 642, 649 (C AM C.). W. T. Grant Company and Retail Clerks Union Local 1116, Re- tail Clerks International Association, AFL-CIO. Case No. 18-CA-1514. October 24, 1963 DECISION AND ORDER On May 29, 1963, Trial Examiner Stanley Gilbert issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 144 NLRB No. 109. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 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 [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications. The Trial Examiner found, and we agree, that Respondent violated Section 8 (a) (1) of the Act by requesting seven employees to furnish its attorney with copies of the statements which they had given to the Board agent investigating the initial charge in this case, and by subsequently interrogating an employee , who complied with the re- quest, as to the contents of her statement? In Joy Silk Mills v. N.L.R.B., 185 F. 2d 732, at 743, (C.A.D.C), cert. denied, 341 U.S. 914,3 the court stated: The Board has held that "an employer is privileged to inter- view employees for the purpose of discovering facts within the limits of the issues raised by a complaint, where the employer, or its counsel, does so for the purpose of preparing its case for trial ,and does not go beyond the necessities of such preparation to pry into matters of union membership , to discuss the nature or extent of union activity, to dissuade employees from joining or remain- ing members of a union, or otherwise to interfere with the statu- tory right to self-organization ." [Citation omitted.] Apparently this rule means that an employer may question his employees in preparation for a hearing but is restricted to ques- tions relevant to the charges of unfair labor practice and of suf- ficient probative value to justify the risk of intimidation which interrogation as to union matters necessarily entails; and that even such questions may not be asked where there is purposeful intimidation of employees . Such a standard assumes that inter- rogation of employees concerning their union activities is, of ' We agree that Respondent's claim that Ruth Guile's discharge was motivated by work deficiencies is unconvincing. In addition to the matters discussed by the Trial Examiner, we note that, only 7 weeks before her discharge , Ruth Gullo was given a merit raise based in part upon personal observation of her work ability by Respondent's store manager. 2 It appears from the record that Respondent's attorney interrogated employee Eileen Rickey in this fashion , as well as employee Shirley Carlson. 8 Accord : N L.R.B. v. Guild Industries Manufacturing Corp., 321 F. 2d 108 (C.A. 5). W. T. GRANT COMPANY 1181 itself, coercive, but that fairness to the employer requires that a limited amount of such questioning be permitted despite the pos- sible restraint which may result. We think that the standard established by the Board, as just described, is a reasonable one, and aptly designed to carry out the purpose of the Act. An employer's request fora copy of a statement which an employee has given to a Board agent is, in substance, an attempt to engage in the kind of interrogation which is prohibited under the above rule. These statements frequently contain information bearing on union attitudes, sympathies, and activities of the witness and of other em- ployees as well. Such information usually is not relevant to an em- ployer's defense to unfair labor practice charges. In such a situations an employee who complied with the employer's request would furnish information which, if directly requested of him by an employer, would constitute unlawful interrogation because it was an infringement of his employee rights. It is true that, under the Board's rules, an em- ployer has the right to request and examine a signed statement given by an individual who is called by -the General Counsel as a witness at a hearing.' But this right is circumscribed. The employer does not have a right to request a statement by an employee who is not called as a witness, and in any event is not entitled to such statement in pos- session of the Board in advance of a hearing.' Here, Respondent asked for copies of employees' pretrial statements regardless of whether they were to be called as witnesses by the General Counsel, and before the scheduled hearing. It is not material that Respondent "requested" rather than "de- manded" the statements, or that the employees were told that they were under no obligation to accede to the "request." In the Joy Silk Mills case, supra, counsel for the employer submitted a written ques- tionnaire to employees in preparation for the hearing. He advised employees that the purpose of the questioning was to prepare his defense, that there would be no reward, threats, coercion, or prom- ises of any kind connected with filling out the questionnaire, and that employees could refuse to answer all or any of the questions. Never- theless the Board held, and the court agreed, that certain of the ques- tions were violative of Section 8(a) (1), because the evidence which could be garnered from these questions was of so little probative value as not to warrant the risk of infringing upon employee rights. Moreover, Respondent's conduct constituted serious interference with the Board's processes, and thus interfered with employees' exer- * Section 102.118, Rules and Regulations and Statements of Procedure, Series 8, as amended 5 N L R.B . v. Vapor Blast Mfg. Company, 287 F. 2d 402 (C.A. 7) ; N.L R B. v Chambers Manufacturing Corp, 287 F. 2d 715 (C.A 5). 1182 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD cis' of their statutory rights.' The Board's ability to secure vindi- cation of employee rights depends in large measure upon the ability of its agents to obtain relevant information and supporting state- ments from employees. Knowledge by an employee that his employer may obtain copies of his statement serves only to inhibit that em- ployee's willingness to give a statement at all or to disclose all matters of which he has knowledge for fear of incurring the employer's dis- pleasure and possible reprisal. For this reason, statements furnished by employees are, and must be, treated as confidential unless the em- ployee is called to testify at subsequent proceedings, at which tin'le upon proper demand, the statement is made available to the employer. Respondent argues that the Board's investigation was not impaired because its requests for copies of statements were not made until the first week in December 1962, at which time the Board investigator had completed his interviews and Respondent had been informed that a complaint would issue. This argument overlooks the fact that in determining whether particular conduct violates Section 8(a) (1) the Board looks to the tendency of such conduct rather than to its actual effect in the given case.' It is obvious that whether the employee is made aware that his employer will seek a copy of his statement before or after as complaint has issued, the impact upon an employee's willing- ness to cooperate with the Board in pending and future proceedings is equally inhibitory. Accordingly, we find, as did the Trial Examiner, that by soliciting its employees' pretrial statements and interrogating its employees as to the contents thereof, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, and thereby violated Section 8(a) (1) of the Act. ORDER' The Board hereby adopts as its Order the Recommended Order of the Trial Examiner with the modifications of provisions 2 (c) and (d) in accordance with footnotes 10 and 11 of said Recommended Order. 8 Winn-Duv a Stores, Inc., 143 NLRB 848; Hilton Credit Corporation, 137 NLRB 50. 711... it has been consistently held that the question is not whether an employee actu- ally felt intimidated but whether the employer engaged in conduct which may reasonably be said to tend to interfere with the free exercise of employee rights under the Act." Joy Silk Mills v. N L R.B , supra, at 743-744 8 The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: 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 Respondent, its officers, agents, successors , and assigns , shall: INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on October 17, 1962, by Retail Clerks Union Local 1116, Retail Clerks International Association, AFL-CIO (hereinafter referred to as the W. T. GRANT COMPANY 1183 Union), the complaint herein was issued on November 29, 1962, against W. T. Grant Company (hereinafter referred to as Respondent or the Company ), alleging that Respondent did engage in, and is engaging in, an unfair labor practice affecting commerce within the meaning of Section 8(a) (1) and ( 3) and Section 2(6) and (7) of the National Labor Relations Act, asamended. An amendment to the complaint was issued on December 27, 1962, alleging that the Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. In sub- stance, the complaint , as amended, alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by its discharge of employee Ruth Gullo and Section 8(a)(1) of the Act by "interrogating employees concerning statements given by them to Board Agents " investigating the aforesaid charge and by "demanding" copies of their statements. Respondent denied the commission of unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner Stanley Gilbert in Superior, Wisconsin, on February 6 and 7, 1963. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument and to file briefs. Oral argument was waived and briefs were filed by General Counsel and Respondent within the time designated therefor. Upon the entire record in the case and from my observation of the witnesses and their demeanor , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation , maintains its principal office and place of business in New York, New York, and more than 1 ,000 retail stores and other facilities in 46 of the 50 States of the United States, and is, and has been at all times material herein , engaged in said retail stores and locations in the department store business as a retailer of general merchandise. The Respondent's store located in Superior, Wisconsin, is the only place of business of the Company involved in this proceeding. During the calendar year ending November 30, 1962, a representative period, Respondent, in the course and conduct of its business operations , sold and distributed products of a gross value in excess of $5 million. During the same period of time Respondent received goods across State lines at its various places of business valued in excess of $1 million . During the same period of time Respondent received goods valued in excess of $50,000, transported to its places of business in Wisconsin in interstate commerce directly from States of the United States other than the State of Wisconsin. Respondent concedes , and I find, in view of the above facts, that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is conceded by Respondent,' the Union is a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The discharge of Grillo On August 9, 1962, Respondent opened the store involved in this proceeding. During the preceding month, Ada Figg, on detail from Respondent's personnel department in Chicago, interviewed and hired applicants for employment. Among those she employed was Ruth Grillo, who was hired on July 25 as a clerk at $1.05 per hour. The day after the store opened, Gullo was given charge of two depart- ments 2 and a 10-cent-per-hour raise . She remained as the department head of the same two departments (departments Nos. 3 and 29) until her discharge approximately 7 weeks later (on September 29). General Counsel contends that her discharge was discriminatorily motivated and Respondent that it was for cause. It does not appear that the Union took any steps to organize the store's sales personnel until late in September. However, testimony was introduced with respect ' By stipulation during the course of the hearing 2Although she was classified as a department head, it is conceded by the parties, and, I find, that she was not a supervisor within the meaning of the Act It appears that all, full-time sales personnel were "department heads." 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to incidents prior thereto relevant to the issues herein. Orville Anderson, a business agent of a Teamsters local which was attempting to organize the employees in the store's warehouse and receiving department , testified that, sometime in July 1962, he visited employee Pauline Potosky at her home and asked her about her sentiments concerning joining a union. According to his testimony, her name was on a list of store employees who were supposed to be interested in joining the Teamsters, but in the interview she indicated "that she wasn't opposed to union, but that she wouldn't take an active stand in it." Dell Nelson , the store manager , testified on direct examination that Potosky called him by telephone , apparently on the day she had been interviewed by Anderson ,3 and told him that "someone had approached her about the Union ," that she did not know his name, but said he represented the Retail Clerks' Union in Superior.4 General Counsel introduced testimony with respect to a visit to the store by representatives of the Union and of the Teamsters on September 24, 1962. However, it does not appear to be necessary to discuss the details of this testimony or of the contradictory testimony introduced by Respondent with respect to this incident. Evidently General Counsel sought to establish, by the testimony as to the visit of September 24, that, as of that date, Nelson was alerted to the Union's interest in organizing the store . However, by Nelson's own testimony he had already been so alerted in the latter part of August by Potosky 's telephone call with respect to the visit from Anderson , who Nelson thought represented the Charging Party. Therefore , no purpose would be served in resolving the credibility issues relating to the September 24 visit. Furthermore, even if I were to fully credit the testimony of General Counsel's witnesses as to this incident, there is nothing that occurred which would indicate to management that the representatives of the two unions were present on union business , but only that Nelson and Ostertag suspected that they might be. This would add nothing to the effect of Nelson's own testimony that he had instructed Ostertag to keep union representatives off the sales floor, evidently because he suspected they would attempt to solicit the sales people to join the Union. On October 2, 1962, three representatives of the Charging Party (Donald Jones, Elwood Haynes, and Jerry Osterich) and two representatives of the Teamsters (William Denter and Anderson) interviewed Nelson at the store. Haynes, Denser, and Nelson testified as to the conversation between the union representatives and Nelson on that occasion . The union representatives protested Gullo's discharge which occurred on September 29 and Haynes asserted that it had been discriminatorily motivated and that she should be reinstated Haynes and Denier testified that Nel- son refused to put her back to work and stated that it "was up to New York." How- ever, they further testified that Haynes, in the course of the discussion , also informed Nelson that an unfair labor practice charge would be made if she were not reinstated. Nelson testified that he denied discharging her for union activities , and that he stated that if there were "any charges to be made that they would have to be made to the New York office." The only substantial conflict in their testimony is whether the reference to the "New York office" was with respect to Gullo's reinstatement or with respect to the charge of an unfair labor practice. If I were to credit Haynes' and Denier's testimony, it would appear that Nelson admitted that the authority he normally exercised (to hire and fire) was taken out of his hands by the New York office with respect to Gullo which would permit the inference urged by General Counsel that there was "something special" about her case-her union activity. However, since it appears that the request that she be reinstated was combined with a threat of an unfair labor practice charge if she were not, it is not at all unlikely that Nelson, in referring to the New York office , intended to indicate that it was "up to" that office to take action on the charge and that Haynes and Denter misunderstood the reference to apply to the authority to reinstate Gullo. In view of this, I do not consider it appropriate to rely on Haynes' and Denier's testimony to draw the inference suggested by General Counsel. 3 Nelson testified that this occurred in the latter part of August Although it is not essential to determine whether the incident occurred in July or August, it would appear the incident did occur in August, for the record discloses that on the day in question Potosky was on leave from the store because of illness and the store was not opened until August 9 Although the employees started work prior to the opening, they apparently were not hired until close to the end of July I This was introduced by Respondent preliminarily to his testimony that in anticipation of union representatives visiting the store , he then instructed Raymond Ostertag, the assistant store manager , that they were not to be permitted on the sales floor . Gullo had previously testified that she had overheard him say to Ostertag "if the union came in that he was to put them out." Gullo admitted that she heard only this portion of their conversation. W. T. GRANT COMPANY 1185 Gullo had been a member of the Union during the course of her previous employ- ment. At the time of her employment by Respondent, she informed Figg, who was doing the hiring, of this fact. On the night of September 27, 1962, Gullo and an unidentified employee (who apparently did not take an active part in campaigning for the Union) met with union representatives Anderson and Jones, who enlisted Gullo's support in organizing the employees. During the course of the following 2 days, according to Gullo, she spoke about the Union to most of the sales people. This was corroborated by other witnesses, employees Eileen Rickey, Shirley Carlson, and Shirley Niemi. It also appears from their testimony that there was quite a bit of discussion among the employees on said 2 days with respect to this activity on the part of Gullo. It appears that no other employee engaged in any activity on behalf of the Union, at least prior to Gullo's discharge. At the end of the workday on September 29, Gullo was summoned to Nelson's office where she was notified by him that she was discharged because he did not like the way she "kept up" her stockbook and because she was not a "good sales woman." The record discloses that she had received no previous warning. Nelson testified that it is not the practice to give employees prior warning of discharge, that it is "the custom to advise and correct, try to correct, people that are doing improper work." Nelson denied that he had any knowledge of Gullo's union activities at the time of her discharge, and claimed that he discharged her because she was deficient in mak- ing inventories of her departments (taking stock checks), in keeping up the appear- ance of her departments, and in servicing customers. I do not credit Nelson's testimony as to the motive for Gullo's discharge and am ,of the opinion that Nelson did have knowledge of Gullo's activities, based on the following: (a) Gullo engaged in open and extensive campaigning for the Union on the 2 days preceding her discharge. (b) There were only 25 sales clerks in the store, working on split shifts of ap- proximately 15 people. (c) Gullo was the only employee who engaged in union activity. (d) Management had knowledge of Gullo's membership in the Union which was disclosed to Figg at the time she was hired. (e) The discharge occurred at the end of the second day of Gullo's union activity, and not at the end of the workweek.5 (f) On the day of the discharge the employees were shown, for the second time, a movie "concerning the benefits of being employed at the W. T. Grant Company," 6 It would appear that the showing was timed to offset any union organizational efforts. (g) Gullo, who had 15 years of sales experience and was the only employee to engage in union activity, was the only employee discharged (at least up to October 1962). (h) Nelson's testimony discloses that he believed, or at least suspected, that the Union was interested in organizing the sales employees. (i) I do not find the testimony of Nelson and Ostertag as to Gullo's work defi- ciencies or Nelson's testimony as to what motivated the discharge action to be convincing. As to point (i) above, the reasons given for the discharge were threefold. First, Nelson testified Gullo was deficient in making the required stock checks. It appears that she had failed to do so in one of her departments in the latter part of September according to schedule. However, Nelson admitted, upon questioning by the Trial Examiner, that he did not recall discovering this failure before he discharged her.7 6 Nelson testified that he did not discharge Gullo on Thursday , the end of the workweek, because Friday and Saturday (September 28 and 29) are the two busiest days of the week However, he also testified that he did not find it necessary to hire a replacement for her, and also, that he did not make up his mind to discharge her until that Saturday. 6 This was indicated by the testimony of employee Rickey who stated that it was on a Saturday after Gullo had talked to her about the Union, but prior to her discharge She recalled Gullo being present at the meeting at which the movie was shown Nelson testified that the particular movie was shown ibefore the store opened, and, as to the second showing, he testified, "I would put it about the second week in September." In view of Rickey's positive testimony as to the date in relation to Gullo's discharge, and ',ekon's rather vague recollection, I credit Rickey's testimony with respect thereto. 7 Considerable testimony was adduced with respect to the matter of stock checks, in gen- eral, and the stock checks by Gullo, in particular, but, in view of this admission by Nelson, it does not appear that her failure to take the stock check could have been a factor in Nelson's decision to discharge her. Therefore, no purpose would be served in going further into this aspect of the testimony. 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The second deficiency in her work which Nelson testified provoked the discharge was Gullo's failure to keep her departments m good order. He testified that he first noticed this deficiency 1 to 3 weeks after the store opened, that he recalled speaking to her about it several times, but could only recall the approximate date of one such occasion (the early part of the week of her discharge). However, he also testified that "this [speaking to employees about keeping their departments neat] is something which we do all the time." Although he claimed that Gullo's departments were the only ones that failed to show improvement, after being pressed he admitted that he could not be "positive" that this was so. He also admitted that he did not discharge any other employees to whom he had to speak about their "housekeeping." Raymond Ostertag, the assistant store manager, testified that he had to speak to Gullo about the "upkeep" of her department more frequently that he did to other employees, but no details were elicited from him in support of this statement. Employee Niemi, who worked in a department adjacent to those of Gullo and who relieved Gullo on the latter's "breaks" and "day off," testified that neither Nelson nor Ostertag ever "criticized" the way Gullo did her work. It would appear likely that if Gullo's housekeeping had been poor, either Nelson or Ostertag would have had the occasion to instruct Niemi to rectify the condition of Gullo's departments when she relieved Gullo. I was not impressed by the testimony of Nelson and Ostertag with respect to Gullo's "housekeeping," particularly because of the vagueness of its content. Ostertag gave no details with respect to his observation of Gullo's claimed deficiency, and, while Nelson did supply some details as to her poor housekeeping, his recol- lection was poor as to when he observed instances thereof, and, at first, he obviously exaggerated her deficiency in comparison with that of other employees. The third deficiency in Gullo's work which Nelson testified motivated the dis- charge was poor "customer service." This consisted of talking too long to "friends" and neglecting other customers, and "sitting" on the counter. He testified that he did speak to her about sitting on the counter, but could not remember if he ever mentioned anything about talking to friends. He could not give any dates of when he talked to her about customer service and could not remember the last instance he did so. It further appears from his testimony that the incident which finally precipitated the discharge was on the day thereof when he and Ostertag observed her "sitting" on the counter. However, it appears that neither of them said anything to Gullo about her misconduct and that he did not discuss with Ostertag the matter of Gullo's discharge or notify him of his intention to take such action. Ostertag demonstrated the manner in which she rested on the counter, and it appeared from his demonstration that her position would better be described as leaning against the counter rather than sitting on it. When Nelson discharged Gullo that day the he made no mention of the incident to her in stating the reasons therefor. On rebuttal, Gullo testified that the matter of sitting or leaning against the counter was never mentioned to her. I am not impressed by the testimony with respect to Gullo's customer service. It does not appear that her practice of leaning against the counter was considered to be of any importance, since I credit her testimony that she was never advised to discontinue the practice. Nelson's testimony on this point was rather vague as to particulars. As to her practice of talking at length with "friends," Nelson admitted, with respect to the one incident he recalled in which she indulged in such practice, he did not know whether the person to whom Gullo was talking was a friend or what they were discussing. He testified that he knew it was a "friend" because of the length of their conversation. However, he could not remember whether he ever said anything to her about talking to friends. Gullo testified that she had worked 15 years in her previous place of employment and had attempted to build a following of customers. Nelson testified that she did have a considerable number of "friends" (apparently people who did not act as if they considered her an anonymous salesclerk). Gullo testified credibly that she talked at length to her customers, sometimes as long as 10 minutes, helping them to select patterns and fabrics, and at times, even measuring them to make certain they got the proper pattern. She further testified that Nelson never complained to her about the amount of time she spent talking with people. In view of her long experience in the type of work she was doing for Respondent, her apparent success in attracting customers, and the unconvincing nature of the testimony of Nelson and Ostertag as to her deficiency in servicing customers, I am far from persuaded that Nelson did, in fact, take such a factor into consideration in determining to discharge Gullo. Although Nelson testified that he became dissatisfied with Gullo's work perform- ance starting some 4 to 6 weeks prior to her discharge, he admitted that he never had W. T. GRANT COMPANY 1187 a "talk" with her about her deficiencies . He testified that he did have such "talks" with employees when he gave them a "personnel rating," but up to the time of her discharge he "hadn't rated" Gullo. Based upon the above analysis of the circumstances surrounding Gullo's dis- charge and of the testimony with regard thereto, I conclude that Gullo 's discharge was motivated by her union activities. B. Re the statements obtained by the Board As indicated above, the complaint was amended by adding the allegation that Section 8(a) (1) of the Act was violated by "interrogating employees concerning statements given by them to Board agents" investigating the charge filed herein and by "demand- ing" copies of their statements . there is no conflict in the testimony as to the facts related to this allegation. By letter dated November 30, 1962, 8 from Respondent's counsel so Nelson, the latter was requested to read or show to employees the following portion of said letter. The Company will have to defend its actions in the discharge of Mrs Gullo. In prepai mg our defense, we would like to study any statement that was made to the National Labor Relations Board. You must understand that you are under to obligation to hand over such a statement if you do not wish to 1. Have you made such a statement? (If this answer is no, don 't pursue this any further.) 2. Do you have a copy of the statement and if not , would you be willing to write the National Labor Relations Board and request a copy? 3. Would you be willing to place your statement in a self-addressed stamped envelope directed to the Company 's attorney ? I can assure you that I will not in any way attempt to examine this statement, and you may mail the letter to the Company 's attorney yourself after having sealed it. The only purpose in asking for this statement is for the preparation of the Company's case. You, of course, understand that if the Government calls you as a witness, the Company has as a matter of right the right to request to see the statement made by you. Seven employees had given statements in Nelson's office to the Board's investigator. Nelson either read or showed to each of them the above quoted portion of said letter, shortly after it was received by him. It appears that some of the employees requested of the Board copies of their statements and upon their receipt sent them to Respondent's counsel. One employee (Shirley Carlson ) gave her copy to Respond- ent's counsel when he interviewed her at the store on the day before the hearing in this matter. During the interview counsel discussed with her the contents of her statement. In its brief, Respondent takes the position that its conduct was not violative of the Act in that its interrogation was "relevant and of probative value" and therefore, permissible within the limits set forth in Joy Silk Mills, Inc. v N.L.R.B., 185 F. 2d 732, 743 (C A D.C ). Furthermore , it contends that copies of the statements were "requested" and not "demanded," citing the definitions of the two words which would appear in "any standard dictionary." Finally, Respondent 's counsel states that the facts in Atlantic and Pacific Tea Company, 138 NLRB 325, "are four square with the facts in this case, counsel for Respondent having relied on this case [the case cited] in advising his client." In the Atlantic and Pacific case the Board affirmed the findings in the Intermediate Report therein which included a finding that Section 8 (a)(1) was not violated by the respondent therein requesting copies of employees' affidavits, there being no "demand," or evidence "of any threats, harassment , or undue persuasion ." In said report it was pointed out that the only case cited by General Counsel , Cadre Industries Corporation , 124 NLRB 278, was factually distinguishable because, in said case, there was "company intimidation" of an employee in attempting to obtain a copy of his affidavit. The Intermediate Report in the Atlantic and Pacific case was issued on May 4, 1962, and, therefore , the author of the report had no opportunity of considering the Board 's decisions in Hilton Credit Corporation, 137 NLRB 56, which was not re- leased until May 8, 1962, and the subsequent cases in which the Hilton case was cited, Royal School Laboratories , Inc., 138 NLRB 818, and Texas Industries, Inc., s By that time the Board 's Regional Office had made it clear to Respondent that a complaint would he issued based on the charge heiem 727-083-64-vol. 144-76 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 139 NLRB 365. In substance, these cases hold that a "demand" that copies of state- ments be furnished or "interrogation" with respect to what was told a Board investi- gator is violative of Section 8(a)(1) based upon the rationale of the Hilton case quoted below. It does not appear, from a study of these three cases, that an em- ployer's attempt to obtain the content of statements given to Board investigators (whether orally or through the furnishing of a copy thereof) is permissible under the Act, as long as there is no "demand," "threat," "harassment," or "undue per- suasion." The rationale of these cases is set forth in footnote 1 of the Hilton case: "Clearly inherent in employees' statutory rights is the right to seek their vindi- cation in Board proceedings." Better Monkey Grip Company, 115 NLRB 1170. It is quite obvious that the Board's ability to secure such vindication depends in large measure upon the ability of its agents to conduct effective investigations of matters alleged to be unfair labor practices, and to obtain relevant informa- tion and supporting statements from employees. Such statements are, and must be, treated as confidential matters until, and unless, the employees involved testify in subsequent proceedings, at which time, and upon proper demand, the pretrial statements of witnesses become available to Respondent. Employer demands of employees that their statements be disclosed to it before trial, and without the safeguards afforded by trial procedure, necessarily exerts an in- hibitory effect on employees' willingness to make such statements and to other- wise cooperate with Board agents. Such demands therefore interfere with the Board's efforts to secure vindication of employees' statutory rights and thus interfere with the enjoyment of such rights in violation of Section 8(a)(1). True the word "demand" is used, but I am of the opinion that the rationale of these cases would also rule out action which only constituted a "request " It does not appear that the controlling factor is the manner in which the attempt to get such information was made. These three cases indicate, to my mind, that it is the posi- tion of the Board that the contents of statements given to it are of a confidential nature and that any attempt on the part of a respondent to obtain what was said to the Board's investigator "without the safeguards afforded by trial procedure" would have an "inhibitory effect on the willingness of employees to make such statements." While the Board does use the alternative terms demands or interrogation in the Texas Industries case, I see no practical difference between noncoercive questions as to the contents of an affidavit and a noncoercive request for a copy of the contents. If it is necessary to prohibit employers from interrogating employees regarding the contents of their statements in order to avoid the aforementioned "inhibitory effect," it would appear equally necessary to prohibit employers from requesting employees to furnish copies of such statements. Although the Board did affirm the Intermediate Report in the Atlantic and Pacific case, I am not persuaded that I can rely upon such affirmance to find that there is a distinction between requests and demands or interrogation. In the Atlantic and Pacific Intermediate Report no consideration was given to the "inhibitory effect" of employees being requested to furnish copies of affidavits, but only whether the manner in which the information was sought intimidated the employees (by "demand," "threat," "harassment," or "undue persuasion"). Consequently, I do not infer that, in affirming the report without comment, the Board intended to and did place "re- quests" outside the ambit of the three cases I have cited 9 Therefore, I conclude that the Respondent by requesting its employees to furnish copies of their statements did violate Section 8(a)(1) of the Act. This conclusion would not preclude any respondent from preparing his case by interviewing employees as to what they may know with respect to the contents of a charge or the allegations of a complaint. I am persuaded that the need to prevent the "inhibitory effect" (on employee's willingness to cooperate with Board in its investigation) of permitting a respondent to request employees to furnish copies of their statements outweighs in importance the need of such respondent in preparing its case to have such copies. Any variation between facts elicited by a respondent in its interviews with employees and elicited from them by the Board's agents are disclosed to a respondent during the course of the hearing by the required production, at that time, of affidavits given to the Board. Upon a showing of good cause therefor, additional time can be granted by the Trial Examiner conducting the hearing to permit the respondent to prepare its defense in the light of such variations. Consequently, it appears that a respond- ent is not seriously inconvenienced by being precluded from "requesting" copies of the affidavits given by its employees to the Board. 9It is noted that the Board's Decision discloses that the General Counsel did not file any exceptions to the findings of the Trial Examiner. W. T. GRANT COMPANY 1189 I now turn to the interrogation of Carlson by Respondent's counsel with respect to the contents of the statement which she turned over to him when interviewed. Carlson testified that she complied with Nelson's request that she obtain a copy of her statement, but, instead of mailing it to counsel as requested, she carried it in her purse until she was summoned to be interviewed by him. At that time, without being requested by counsel, she handed him the statement. I consider that she did so pursuant to the request which Nelson had made. In these circumstances, I believe counsel's interrogation of her with respect to the contents thereof was violative of Section 8(a)(1), as was the request by Nelson that the statement be furnished to counsel. I do not consider this equivalent to interrogation of an employee with respect to the contents of his affidavit which he turns over to a respondent without being solicited to do so. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of 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 commerce, and the free flow thereof. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. In view of its violation of Section 8(a) (3) of the Act, it would appear that the issuance of a broad order is warranted. Having found that Respondent discriminatorily discharged Ruth Gullo, I shall recommend that it offer to her immediate and full reinstatement to her former, or a substantially equivalent, position without prejudice to her former rights and privileges. It will be further recommended that Respondent make said Gullo whole for any loss of pay suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount of wages she would have earned, but for said discrimination, from the date of her discharge to the date she is offered rein- statement, together with interest thereon, as provided below, and that the loss of pay be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. General Counsel urged that interest be allowed on the backpay award, and, as indicated, I find that the requirement of the payment of interest would be appropriate. Isis Plumbing & Heating Co., 138 NLRB 716 The interest payable, as stated above, shall be computed at the rate of 6 percent per annum on the amount due in each instance for each calendar quarter (under the Woolworth formula) beginning with the end of the first calendar quarter and continuing for each succeeding calendar quarter until payment of such amount is properly made 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 engaged in commerce within the meaning of the Act. 2 The Union is a labor organization within the meaning of the Act. 3. Respondent discharged Ruth Gullo because of her activities on behalf of the Union in violation of Section 8 (a) (3) and (1) of the Act. 4. By requesting its employees to furnish it copies of affidavits given by them to a Board agent investigating an unfair labor practice charge filed against it, and by interrogating one of its employees with respect to the contents of her affidavit which she supplied to Respondent's counsel in accordance with its request , Respondent violated Section 8(a) (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended, that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging activities on behalf of, or membership in, the Union, or any other labor organization, by discharging any of its employees, or in any other manner discriminating against any employee or applicant for employment in regard to their 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire or tenure of employment, or any term or condition thereof, because of their union affiliation or activities. (b) Requesting employees to furnish it copies of affidavits given to the Board in its investigation of a charge or interrogating them with respect to the contents thereof. (c) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Ruth Gullo immediate and full reinstatement to her former, or a substantially equivalent, position without prejudice to her seniority or other rights and privileges. (b) Make said Gullo whole for losses suffered as a result of the Respondent's discrimination against her, together with interest thereon at 6 percent per annum, as provided in "1 he Remedy." It shall also preserve and make available to the Board or its agents, upon request, all payroll and other records relevant to a determination of the amount of backpay due under the terms of this Recommended Order. (c) Post in conspicuous places at its store in Superior, Wisconsin, including all places where notices to employees and applicants for employment are customarily posted, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director in writing within 20 days from receipt of this report what steps Respondent has taken to comply herewith." 10 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the woids "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 11 In the event that this Recommended Order be adopted by the board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply heiewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activity on behalf of, Retail Clerks Union Local 1116, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT request our employees to furnish us with copies of statements they may give to the National Labor Relations Board or interrogate them with respect to the contents thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce our 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 other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL offer to Ruth Gullo reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and we will make her whole for any loss of pay suffered as a result of our discrimination against her. WESTERN ALUMINUM OF OREGON INCORPORATED, ETC. 1191 All our employees are free to become or remain members of Retail Clerks Union Local 1116, Retail Clerks International Association, AFL-CIO, or of any other labor organization, or to refrain therefrom except to the extent such right may be affected by an agreement authorized by Section 8(a) (3) of the Labor Management Relations Act of 1947, as amended. W. T. GRANT COMPANY, Employer. Dated---------- --------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis 1, Minnesota, Telephone No. 339- 0112, Extension 2601, if they have any question concerning this notice or compliance with its provisions. Western Aluminum of Oregon Incorporated , Western Aluminum Corporation (a California Corporation), and Oregon Screen Corporation (an Oregon Corporation ) and General Teamsters Local No. 324, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America . Case No. 36- VA-1227. October ^05, 1963 DECISION AND ORDER On June 25, 1963, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and rec- onunending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dis- missal of such allegations. Thereafter, the Respondents filed excep- tions to the Intermediate Report and a brief in support thereof. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondents' exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addition. The Trial Examiner found, and we agree, that the Respondents violated Section 8(a) (1) of the Act by depriving employees of bene- fits in retaliation for their joining the Union, and Section 8(a) (3) by discharging Laurel Williams, one of their three employees, because of his union activities. The Trial Examiner further found that while 144 NLRB No. 112.