Peoples Outfitting Co.

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peoples Outfitting Company and Retail Clerks Inter- national Association, AFL-CIO, Local Union 876. Case 7-CA-7588 June 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On April 28, 1970, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Peoples Outfitting Com- pany, Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CHAIRMAN MILLER, dissenting in part: I would dismiss the 8(a)(3) allegation and limit the findings of 8(a)(1) violations to the instances of interrogation. The only direct evidence of improper motivation with respect to the discharge which I can find in this record is the testimony of the one employee (admittedly a union supporter) to the effect that a managerial employee stated that "he would have to find a way to get rid of [the dischargee] because she was causing too much trouble." Two other per- sons were present at the time of the conversation in which this remark was alleged to have been made. One was one of the General Counsel's witnesses, employee Moore, who testified concerning the con- versation in general but failed to corroborate that any such statement was made in the course of it. The other person present was the managerial em- ployee himself, Tell, who testified, "I can't recollect making a statement in that particular being. If I made any mention to Miss Perry in regards to the work, it had to be after discussing the problems that we encountered in M cycle and the number of ac- counts that had to be sued and the amount of work that was applied to those accounts, which was Miss Perry's responsibility." The Respondent claims that the discharge had no relationship to union activity and was one of many terminations made because Respondent was in severe financial strains. It is undisputed that a sub- stantial number of other employees were ter- minated, and it is also undisputed in the record that terminations were not effected on any seniority basis nor had the Employer ever had a policy of ter- minating on a seniority basis. Nor is there any al- legation that other union supporters were selected for termination because of their union activities, and the record affirmatively shows that a number of other union supporters were retained in the employ of the Company in the course of the general reduc- tion in force. On the record considered as a whole, I am not persuaded that the General Counsel has met his burden of proof in establishing that the discharge of Perry violated Section 8(a)(3) and (1), nor am I persuaded that the evidence will support a finding that the Employer threatened reprisals for engaging in union activities. Furthermore, the finding of an 8(a)(1) violation based on an alleged offer of benefit to the discharged employee to induce her to drop her charges also rests on highly insecure evidentiary grounds. The alleged offer came about in a telephone call initiated by the discharged employee herself and in a context in which the employee volunteered that she had filed the instant charge because the Employer was "fighting me on com- pensation." The Employer's response that he would "stop fighting" on compensation if she dropped the charge more nearly indicates a desire to amicably arrange a settlement of what the Employer seemed to regard as her real complaint, rather than any im- proper interference with employees' rights, particu- larly since the employee had volunteered that her motivation for filing the charge was the attitude of the Employer with respect to her claim for unem- ployment compensation. 184 NLRB No. 47 PEOPLES OUTFITTING COMPANY 433 TRIAL EXAMINER'S DECISION $50,000 were transported and delivered to its STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard in Detroit, Michigan, on February 24, 1970, with all parties participating pursuant to due notice upon a complaint' issued by the General Counsel on December 31, 1969.2 The complaint as amended at the hearing, in substance, alleges that Peoples Outfitting Company, hereafter referred to as Respondent or Company, in violation of Section 8(a)(1) and (3) of the Act interfered with, restrained, and coerced its employees by coercive interrogation, threats of discharge for en- gaging in union activities, promise of a benefit for withdrawing a charge, and by discriminatorily discharging employee Jacqueline Perry. Respon- dent in its answer admitted the discharge of Perry but claims it was due solely to economic reasons connected with its receivership in a bankruptcy proceeding, and denied engaging in any violations. All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. A brief was received from the General Counsel and has been carefully considered. Upon the entire record in the case, and from my observation of the wit- nesses, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent, at all times material herein a cor- poration duly organized under the laws of the State of Michigan, has maintained its principal office and place of business at 4600 Merritt Street in the city of Detroit, Michigan, where it maintains, inter alia, an office and store for the retail sale and distribu- tion of furniture, appliances, and related products. During the year 1969, Respondent, in the course and conduct of its business operations, derived a gross revenue in excess of $500,000 from the retail sale and distribution of its products, and during the same period purchased and caused to be trans- ported and delivered to its Merritt Street store and surburban branches in and around Detroit, Michigan, furniture, appliances, and other goods and materials valued in excess of $100,000 of which goods and materials valued in excess of I Based upon a charge filed on October 21, 1969, by Retail Clerks Inter- national Association , AFL-CIO, Local Union 876, hereafter referred to as the Union 2 All dates hereafter refer to the year 1969 unless otherwise noted ' The Union held two meetings , one on the night of September 23, and the other on September 30 Prior to each meeting, the Union distributed handbills in front of Respondent 's premises containing notices of the Union 's meetings ' Perry testified that on a few occasions she had been picked up at the end of the day's work in front of her office by Business Agent Novicoff and stores in and around Detroit, Michigan , directly from points located outside the State of Michigan. Respondent admits , and I find, at all times material herein it has been an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, at all times material herein, that the Union has been a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED VIOLATIONS A. The Alleged Interrogation and Threat Alice Perez, a former employee of Respondent, testified that Supervisor Richard Tell summoned her to his office the morning following a union meeting3 held the preceding night and questioned her as to whether she and who else attended the union meeting, to which she replied that she had not attended and did not know who did. She testified further that on the day following the second union meeting, both she and employee Julia Moore were summoned by Tell to his office where they were questioned about the preceding union meeting and how many attended. Both employees replied that they had not attended the meeting and were unaware as to who did. According to Perez, Tell also stated that he had heard that employee Jacqueline Perry had attended the union meeting, and that she had been seen riding in the car of a unionman ." Perez replied that merely because Perry rode in a unionman's car did not mean she attended union meetings, and denied knowing anything about whether Perry attended the union meeting.5 Perry testified that following one of the union meetings she was engaged in conversation by Harold Kaplan, Respondent's president, and that he asked whether it was true that she was dating a unionman and whether she had signed a union authorization card. Although present at the hear- ing, Kaplan did not testify. B. The Discharge of Perry and Promise of Benefit Perry began working for Respondent in November 1968 as a regular collector in the collec- tion department. Her job was to telephone driven home in his car 5 Julia Moore, still employed by Respondent, testified that all she heard was that Tell asked how the meeting had gone and how many attended, and that Perez mentioned Perry was dating a unionman Tell testified that he questioned Perez and Moore about the union meeting, that Perry's name had been mentioned as being acquainted with one of the union people, and that he didn't recall whether he stated he would have to find a way to get rid of Perry but if he did, it would have been in connection with her work Perez appeared to be a straightfoward and persuasive witness and her testimony Is credited 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customers delinquent in paying their bills in an ef- fort to have them pay up. Later, she was promoted to a 90-day collector, which involved more difficult collection work and was regarded as being a job su- perior to that of a regular collector. During the Union's campaign she solicited employees to sign union cards and attended union meetings. When she reported for work on the morning of Tuesday, October 7, at the timeclock to punch her timecard, Albert Magitz, a collection supervisor, told her that Mr. Tell had pulled her timecard, and he had been directed to notify her she was no longer employed.6 When she asked why, he replied he wasn't sure.? Perry had never received any warning of an im- pending dismissal. A couple of weeks after her discharge, Perry found a message at her home to call Respondent. She called and spoke to Kaplan who asked why she was giving him trouble with the NLRB case, and if she would drop it. When she replied "you're fighting me on compensation,"8 Kaplan said "Well, if you will drop the case, I will not fight you with your compensation." Perry told him that she would think it over. Meanwhile on October 2, Respondent had filed a petition requesting reorganization pursuant to chapter XI of the Federal Bankruptcy Act, and a receiver had been appointed by the United States District Court. On the same day Respondent posted a notice on its bulletin board addressed to all em- ployees, advising them of the court proceeding, as- suring them that it was solvent, and stating the next few months would be difficult for management, but the Company would continue to operate as it had been, and was not expecting any interruption of its normal routine. In connection with Perry's discharge, Tell testified that he had received instructions from Kaplan and the court appointed receiver to lay off employees according to ability and not seniority, and that about 18 employees, including Perry, were laid off during September and October. He testified further that Mr. Wilt, a supervisor, after reviewing Perry's work on October 3 or 4, had recommended her immediate dismissal because of her poor work. However it was admitted that ordinarily if an em- ployee's work was found to be delinquent, she would be warned a couple of times that she would be discharged if she failed to improve. Tell could only recall Perry's name of all who were discharged and stated further that of 360 employees in July, there were only 160 at the end of December. C. Conclusions 1. The interrogations and threat Tell admittedly interrogated Moore and Perez as to whether they had attended the union meeting and how many others attended. During the same conversation Tell stated he had heard that Perry was associating with the unionman, that she had at- tended the union meeting, and that, as found above, he would have to find a way to get rid of her because she was causing too much trouble. It is also undenied that in a conversation following one of the union meetings, Kaplan questioned Perry whether she was dating a unionman and had signed a union authorization card. In the context of Tell's conversation with Moore and Perez, his remark about getting rid of Perry carried the reasonable implication that union activi- ty would lead to her discharge and amply demon- strated Respondent's union hostility.9 The remark also carried the threat of similar action in the future if other employees engaged in union activity. It is well settled that an employer violates Section 8(a)(1) of the Act by threatening to retaliate against an employee because of her union activity. N.L.R.B. v. The Bin-Dicator Company, 356 F.2d 210, 213-214 (C.A. 6), enfg. 143 NLRB 964, as modified. This rule also applies where the em- ployer's statement, although not an explicit threat, can reasonably be so construed by the employees. See N.L.R.B. v. Electric Steam Radiator Corp., 321 F.2d 733, 736 (C.A. 6). The interrogation of the employees concerning the Union was coercive because it took place in an atmosphere of active opposition to the Union, without explanation to the employees of the pur- pose of the questioning under circumstances in- dicating it had no legitimate objective, and was unaccompanied by any assurance against reprisal See Bourne v. N.L.R.B., 332 F.2d 47, 48 (C.A. 2); N.L.R.B. v. The Lorben Corp., 345 F.2d 346, 348 (C.A. 2); and N.L.R.B. v. Builders Supply Co. of Houston, 410 F.2d 606 (C.A. 5). 1, therefore, find that by its threat to get rid of Perry and its inter- rogation of Moore, Perez, and Perry, Respondent interfered with, restrained, and coerced its em- ployees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. e Her regular workweek was from Sunday to Saturday with payday on the following Thursday ' According to Magitz he told her " Well, for various reasons Many of them you know yourself " 8 Perry had applied for unemployment compensation and the Company had been delinquent in sending the required information to process her claim Pursuant to the General Counsel 's request, official notice is taken of the Board Order and the enforcement judgment of the Court of Appeals for the Sixth Circuit in a poor case involving Respondent In that Case 7-CA-7271, not published , Respondent entered into a settlement stipula- tion (executed on July 29) providing for a Board Order (issued on Sep- tember 2) and court decree (entered on September 12) based on Board findings of coercive employee interrogation and a discriminatory discharge during March of 1969 These findings provide additional grounds indicat- ing Respondent's union animus PEOPLES OUTFITTING COMPANY 435 2. The discharge of Perry and promise of benefit Respondent contends that Perry was discharged for economic reasons connected with the chapter XI reorganization proceeding. Yet, it appears that shortly before her discharge, Respondent indicated its sensitivity to the Union's progress by interrogat- ing Moore , Perez, and Perry about the Union. Both Tell and Kaplan were aware of Perry's union activi- ty and each made reference to it in their respective conversations . Tell, in fact, predicted that she would be discharged because she was causing too much trouble. This came true when she was abruptly discharged on Tuesday, October 7, in the middle of a workweek, after Supervisor Wilt al- legedly reviewed her work during the preceding day and recommended her immediate dismissal. Oddly enough, no evidence was presented to in- dicate in what way she was delinquent in her work. Nor was she previously warned about being discharged unless she showed improvement in her work, the procedure ordinarily used in effecting dismissals . Respondent attempted to explain away its failure to resort to the customary method of dismissing employees by claiming that an emergen- cy situation had been brought about by its reor- ganization proceeding. However, its posted notice on the bulletin board on October 2, stated that the Company would continue to operate routinely and assured the employees of its solvency. There was no reference or inkling that drastic action was contem- plated involving sudden layoffs. Moreover, even as- suming that such drastic action was necessary, that circumstance alone would not justify Perry's discharge if antiunion motivation was also involved. Thus, as the court in N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6), enfg. 136 NLRB 1694, stated: "Even though part of the motivation for ... discharge might have been a needed cutting of expenses, such circumstance could not be legally used to effectuate a companion motive to rid the company of a union protagonist." Nor am I "compelled to accept an employer's state- ment when there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity." Great Atlantic and Pacific Tea Co. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5). See also N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Division, 390 F.2d 782 (C.A. 6). Based on all the evidence, I find that Perry's union activity was undoubtedly a very significant, if not the prime , factor in Respondent's decision to discharge her. Moreover, the availability of a lawful cause for discharge is no defense where the em- ployee is actually discharged because of union ac- tivity. N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8). I accordingly conclude that Respondent discriminatorily discharged Perry in violation of Section 8(a)(3) and (1) of the Act. Pursuant to the General Counsel's unopposed and granted motion, the complaint was amended to include an allegation of an additional 8(a)(1) viola- tion based upon Respondent's offer to Perry, made sometime after the filing of the charges, not to con- test her claim for state unemployment compensa- tion due to her discharge if she would drop her un- fair labor practice charges. Undenied testimony was adduced in support of that allegation . The General Counsel contends that the aforesaid offer con- stituted a promise of benefit which interfered with the free exercise of Perry's statutory rights in viola- tion of Section 8(a)(1). I find that Respondent's offer was an attempt to buy off an unfair labor practice charge by withdrawing opposition to Per- ry's unemployment compensation claim. Respon- dent thereby engaged in conduct which had a direct tendency to frustrate the purposes of Section 7, and also tended to interfere with Board process in derogation of the public interest, in violation of Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respon- dent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. At all times material herein, Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Perry on October 7 and thereafter refusing to reinstate her in order to discourage union activities, Respondent dis- criminated in regard to the hire and tenure of her employment in violation of Section 8(a)(3) of the Act. 4. By interrogating employees concerning union matters, threatening reprisals for engaging in union activities, and offering benefits to employees to drop unfair labor practice charges, Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Sec- tion 7 of the Act in violation of Section 8(a)(1). THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that 436 DECISIONS OF NATIONAL it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent has dis- criminatorily discharged Perry, I shall recommend that it offer her reinstatement to her former or sub- stantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her. Backpay shall be computed on a quar- terly basis and in a manner consistent with the Board policy set forth in F. W. Woolworth Com- pany, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and conclu- sions of law and upon the entire record in the case, I recommend the following: RECOMMENDED ORDER'° Respondent, Peoples Outfitting Company, its of- ficers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning union matters within the meaning of Section 8(a)(1) of the Act. (b) Threatening to discharge employees for en- gaging in union activities. (c) Offering benefits to employees to drop unfair labor practice charges. (d) Discouraging membership and activities in Retail Clerks International Association, AFL-CIO, Local Union 876, or any other labor organization, by discriminating in regard to the hire and tenure of its employees, or by discriminating in any other manner in regard to any term or condition of em- ployment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Jacqueline Perry immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered as the result of her discharge in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its office in Detroit, Michigan, copies of the attached notice marked "Appendix."" Cop- ies of said notice, on forms provided by the Re- gional Director for Region 7, after being duly LABOR RELATIONS BOARD signed by its representative, shall be posted by 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 12 10 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes " In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " '= In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning their union activities or threaten discharges for engaging in such activities or offer benefits to employees to drop unfair labor practice charges within the meaning of Section 8(a)(1) of the Act. WE WILL NOT discharge or discriminate against our employees because they have joined or supported Retail Clerks International Association , AFL-CIO, Local Union 876, or any other labor organization. WE WILL offer Jacqueline Perry full rein- statement to her former job or, if that job no longer exists , to an equivalent job and pay her for any loss of earnings she may have suffered as a result of her discharge. PEOPLES OUTFITTING COMPANY (Employer) Dated By (Representative ) (Title) PEOPLES OUTFITTING COMPANY 437 This is an official notice and must not be defaced Any questions concerning this notice or com- by anyone. pliance with its provisions may be directed to the This notice must remain posted for 60 consecu- Board's Office, 500 Book Building, 1249 Washing- tive days from the date of posting and must not be ton Boulevard, Detroit, Michigan 48226, altered, defaced, or covered by any other material. Telephone 313-226-3200. 427-835 0 - 74 - 29