Skaggs Pay Less Drug Stores

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Skaggs Pay Less Drug Stores ' and Professional & Clerical Employees Division of Freight Checkers, Clerical Employees & Helpers, Local 856, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America Skaggs Pay Less Drug Stores and Gladyce Anderson Skaggs Pay Less Drug Stores and Eileen Marchewka. Cases 20-CA-5508, 20-CA-5717, and 20-CA-5718 May 25, 1971 ORDER DENYING MOTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 3, 1971, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding,' finding, inter alia, that the Respond- ent's discharge of employee Marchewka was based, at least in part, on discriminatory considerations in viola- tion of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Thereafter, the Respondent, on March 19, 1971, filed a petition which requested that the Board reopen the record and reconsider its above-entitled Decision and Order. In response, the General Counsel on March 29, 1971, filed a memorandum in opposition to the Re- spondent's petition. 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 proceeding to a three-member panel. The Respondent argues that since the Board's Deci- sion and Order "placed great significance on the pur- ported fact that Kenneth Lett had not prepared a final check for Eileen Marchewka when he discharged her on the afternoon of August 8, 1969," the Board should reopen the record and receive into evidence facts which allegedly show that Lett did in fact have Marchewka's check ready on that day. In support of its position, the Respondent asserts that the "evidence to be adduced relates to one narrow point not deemed material by either the parties or the Trial Examiner." (Emphasis supplied.) The Respondent's contention to the con- trary, the record clearly establishes that the matter raised in the Respondent's petition was in fact "deemed material" in the underlying proceeding. Thus, the Gen- eral Counsel specifically asked Marchewka at the hear- ing whether she received her termination check when she was discharged on August 8, 1969. Notwithstand- Hereinafter the Respondent ' 188 NLRB No 116, Chairman Miller dissenting ing the fact that the General Counsel raised this point fairly early in the hearing, the Respondent chose not to introduce any of the evidence which it now seeks to adduce, even though it was readily available at the hearing. We also note that the General Counsel there- after pointed out in both his brief to the Trial Examiner and in his brief to the Board in support of his exceptions to the Trial Examiner's Decision that Respondent's failure to give Marchewka her termination check on August 8, 1969, along with other factors in the case, established that the discharge was at least partly based on discriminatory considerations. Accordingly, as the issue was raised in the underlying proceeding, and as the Respondent had ample opportunity to respond to the General Counsel's contention, if it so desired, we find that the Respondent has not established, as re- quired under Section 102.48(d) of the Board's Rules and Regulations, that there exist "extraordinary cir- cumstances" which warrant the reopening of the record. Even if the evidence which the Respondent now belatedly seeks to introduce were to be made part of the record, it would not affect our ultimate conclusion that Marchewka was terminated at least in part for dis- criminatory reasons. Thus, even if, as now claimed by the Respondent, Marchewka's check was drawn im- mediately after Anderson's check was issued, the record nonetheless indicates that Marchewka's check was not finalized until the afternoon of August 8. Rex Bowers, who the Respondent now claims cosigned Marchewka's termination check, testified that Lett told him in the afternoon of August 8 that he intended to fire Marchewka. Commenting on this afternoon meet- ing with Bowers, Lett stated that Bowers "looked a little shocked" when told of Marchewka's impending termination. In light of Bowers' reaction, it seems clear that Bowers had no knowledge that Marchewka was to be fired until he met with Lett and, accordingly, that he signed Marchewka's check after this afternoon meeting. Our finding that Marchewka was discriminatorily discharged, however, does not rest solely on the facts relating to her termination check. It is true, as the Respondent points out, that we did note in the underly- ing Decision and Order the "decided peculiarity" of Lett's failure to have a check ready for Marchewka on the day of her discharge. We made it clear, however, that there were also other factors which established the Respondent's discriminatory motives. Thus, (1) Super- visor Ensor knew that Anderson had complained to Marchewka about her job reassignment on August 7; (2) Lett saw Anderson and Marchewka returning from lunch together on August 8; (3) Lett was undoubtedly aware that Marchewka had been a leading union acti- vist; and (4) Lett told employee Green that he had fired Anderson because he did not want any more "union 190 NLRB No. 104 SKAGGS PAY LESS DRUG STORES problems." These factors, along with the other factors cited in our Decision, and in particular the fact that Marchewka, who apparently had been considered a good employee during her 10 years' service with the Respondent, was discharged without prior warning- and after what could have been only a brief uncomp- leted survey of her work-indicate that Marchewka's termination was designed to combat unionism, at least as much to combat inefficiency. Accordingly, having duly considered the matter, it is hereby ordered that the Respondent's motion to reopen the record be, and is hereby is, denied as raising no matters sufficient to affect the Board's Decision and Order of March 3, 1971. 539 CHAIRMAN MILLER, dissenting: My original dissent herein pointed up some of the dangers inherent in second-guessing a Trial Examiner who has carefully evaluated the evidence. The motion to reopen underscores one of those dangers, and offers to show that the majority misinterpreted the evidence as to when Marchewka's check had been prepared. Since the majority had, in my view, erroneously relied on its interpretation of this evidence, it seems only fair to permit the Respondent to show that the majority's interpretation is contrary to fact. I would grant the motion.