S. E. Nichols Shillington Corp.

S. E NICHOLS SHILLINGTON CORP. 189 S. E. Nichols Shillington Corp. and Retail Clerks, Em- ployees Union, Local 1393, Retail Clerks Interna- tional Association, AFL-CIO. Case 4-CA-5533 January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY ployee Rosemary Stamm because of her union or other con- certed activities. At the close of the hearing, the parties waived oral argument but thereafter submitted briefs in sup- port of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT On November 8, 1971, Trial Examiner Paul Bisgyer issued the attached Decision in this proceeding. There- after, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, S. E. Nichols Shillington Corp., Shillington, Pennsylvania, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's recommended Order. ' The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear prepon- derance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding, with all the parties represented, was heard on August 10 and 11, 1971, at Reading, Pennsylvania, on the complaint of the General Counsel issued on June 25, 1971,' and the answer of S. E. Nichols Shillington Corp., herein called the Respondent or Company The question litigated is whether the Respondent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,' discriminatorily discharged em- ' The complaint is based on original , first, second, and third amended charges filed on April 13, 22, May 19 and June 24, 1971, respectively Copies of these charges were duly served on the Respondent by registered mail on the respective filing dates ' Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent , Section 7 pro- vides that "[e]mployees shall have the right to self-organization , to form, The Respondent, a Pennsylvania corporation with its prin- cipal office in Shillington, Pennsylvania, operates a retail dis- count department store at that location. In the regular course and conduct of its business the Respondent 's annual gross sales exceed $ 1 million. It also annually purchases and re- ceives from outside the State goods valued in excess of $50,000. I find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is conceded, and I find , that Retail Clerks, Employees Union, Local 1393, Retail Clerks International Association, AFL-CIO , herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence This is another one of those familiar cases where the em- ployer is charged with attempting to stem the organizational tide by unlawfully terminating the leader in the union move- ment, while the employer protests his innocence, insisting that the discharge was motivated solely by legitimate business reasons On the basis of the evidence presented, I find the allegations of discrimination sustained. 1. Stamm's employment; the commencement of union activities Rosemary Stamm was hired by the Respondent in Decem- ber 1970 as a cashier on the night shift.' Her hours were from 5 to 10 p.m. Monday through Friday and from 1 to 10 p.m. on Saturday. In February 19744 Stamm was assigned addi- tional functions previously performed by Shirley Laman, the night head cashier who left the Respondent's employ. These duties included verifying customer checks and charges; sup- plying cashiers with change; checking out registers; authen- ticating "voids"; releasing cashiers from their stations and seeing that receipts were brought to the office at the close of the business day; arranging for rest breaks; and training new cashiers. She was instructed in these functions by Jean Ann Nyman, the head office cashier, who informed her that Store Manager Murray Jacobs was pleased with her performance and thought that she was qualified to take on the indicated join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection 11 Section 8(a)(3), with certain qualifications not material herein, pro- hibits an employer, "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization " Stamm also had responsibilities with respect to the operation of the candy counter ' Unless otherwise indicated, all dates refer to 1971 195 NLRB No. 33 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new duties.' On April 7, Stamm was, nevertheless, summarily discharged under circumstances related below. Because of her dissatisfaction with the wages, hours, and other working conditions in the store, Stamm discussed the situation and the desirability of union representation with the employees on the night shift. Receiving a favorable response from a majority of those employees, Stamm on March 29 telephoned the Union and advised its president of the em- Floyees' union interest The next day, Organizer Eugene Niss- ey visited Stamm at her home, gave her union authorization cards and booklets, and instructed her in the technique of soliciting card signatures from employees About 4:30 in the afternoon, before she was scheduled to begin work, Stamm arrived at the store and in the employee cloakroom succeeded in securing 23 signed cards from employees as they arrived for work. Having thus exhausted her supply of cards, Nissley on Monday, April 5, furnished her with more authorization cards. 2. The events of April 6 On the morning of April 6, Store Manager Murray Jacobs left the store to attend a seminar in Lancaster, Pennsylvania Upon learning this, Robert Soto, the manager of the leased shoe department, telephoned Stamm at her home about 11:30 a.m., informed her of Jacobs' absence and that he (Soto)6 and other day shift employees were interested in having a union and suggested that she come to the store. Accordingly, about noontime, Stamm arrived there and proceeded to solicit card signatures at the snack bar and work stations from em- ployees, some of whom Soto indicated were likely prospects. When discussing the Union with clerks in the selling areas, Stamm credibly testified without contradiction, she was care- ful that there were no customers around to be waited upon. Soto also engaged in this organizational effort, securing a number of signed cards which he turned over to Stamm. By the time Stamm left the store that afternoon she had collected 25 to 30 signed cards. In the course of the foregoing activities some 10 to 15 employees gathered in the receiving room which is separated from the public areas of the store. Several of these employees had left their work stations on the selling floor to be present while others were in the receiving room or were passing through in connection with the performance of their regular duties. Probably other employees on their lunch period were also there. The number in the group at any particular time, however, varied as some left and others entered the room. Whether or not Stamm and Soto deliberately convened this meeting and invited employees to attend,' it is quite clear that they were responsible for it. Manifestly, there was nothing secretive about this meeting which appears to have been more in the nature of a question and answer period where Stamm and Soto explained the advantages of unionization in re- sponse to questions put to them. This meeting lasted 10 to 20 minutes and no employee was reprimanded for leaving his or ' These findings are based on the persuasive testimony of Stamm and Sharon DeLong, who was a cashier during Stamm's employment Neither Jacobs' denial that Stamm was assigned head cashier functions nor Nyman's denial of knowledge that Stamm was performing them impresses me as coming from candid witnesses Moreover, it is hardly likely that DeLong, who is still in the Respondent's employ, would bear false testimony against her employer and thus invite its ill will Georgia Rug Mill, 131 NLRB 1304, 1305, in 2 Soto had previously expressed his reluctance to become involved in the union movement when Stamm sought his support and assistance in organiz- ing the day shift employees ' In view of my findings and conclusions, it is unnecessary to determine whether Stamm and Soto had actually assembled these employees which they denied they did in contradiction of other testimony her work station unattended. After this meeting, Stamm resumed her solicitation in the store until her departure about I or 1:30 p.m. The above events were promptly reported the same after- noon to the Respondent's executive offices in New York and then to Store Manager Jacobs while he was still in Lancaster. The testimony relating to these reports was given by Jacobs, the only witness produced by the Respondent, and is as fol- lows: While still in Lancaster Jacobs received two telephone calls, urging him to return to the store immediately because there were "meetings and disruptions." One call was from Alma Dietrich, then an employee in the Shillington store office, who simply relayed a message to Jacobs that he was wanted back in the store. The second call came from Gerald Holt, the area supervisor of ladies', men's, and children's wear departments. Holt works out of the New York offices and occasionally visits the Shillington store. Stating that he was making the call on behalf of Company President Rosen- baum, Holt told Jacobs that he should immediately return to the store because "all hell was breaking loose-or something to that effect"; that union organization "meetings" were be- ing held in the back stockroom; that employees were off the floor; and that store operations were being disrupted. Al- though earlier in his cross-examination Jacobs denied that Holt mentioned that Stamm or any other person was involved in the organizational activities or attended "the meetings" or that Stamm solicited cards or discussed the Union in the store, he later testified that Holt told him that Soto "was behind" the union organizational drive and was at the meet- ing. As for Stamm's union activity, so Jacobs testified, he first learned about it after he returned to the store from Lancaster and was unhappy with this development. However, in subse- quent testimony, Jacobs stated that Holt informed him in the above telephone conversation that Stamm and Soto were the two "principals" who "were leading the meetings " Concern- ing the reports of the above episode made to the Respondent's executive offices in New York, Jacobs testified that in the same telephone conversation Holt advised him that he had previously conveyed the information to President Rosen- baum in New York after Juanita Wentzell, an area supervisor who was then visiting the store, called him at home and apprised him of the situation. Jacobs further testified that after the second telephone call he left Lancaster, arriving at the store between 3:30 and 4 in the afternoon, at which time Stamm and Soto had already gone. He also testified that he then received reports from his assistant managers, Wentzell, and several employees, that in his absence Stamm and Soto had been "conducting meetings in the stockroom" and that employees were off the floor.' However, he testified, his informants did not furnish him with details regarding the meetings and dislocations or the dura- tion of the employees' absence from their work stations. Ad- mittedly, Jacobs did not reprimand any employee for leaving his or her station to attend a meeting. In fact, he denied knowing who attended the meeting except the two "prin- cipals,"Stamm and Soto. Furthermore, there is no direct, convincing testimony that Stamm's and Soto's union solicita- tion and discussions in the store caused any serious disruption or dislocation of store operations. Indeed, if they did, it is difficult to understand why the persons in charge of the store in Jacobs' absence or other supervisors did not take measures According to the testimony of DeeDee Schillermann, the manager of the ladies' and girls' wear department, she told one or two girls in her department that Stamm and Soto wanted to talk to them in the receiving room This information was passed on to other employees in this depart- ment Schillermann and apparently other employees in that department joined the group in the receiving room S. E. NICHOLS SHILLINGTON CORP. to halt such conduct . According to the head office cashier, Jean Ann Nyman , who unquestionably was unsympathetic to the union organizational campaign, testified that when she reported the afternoon happenings to Jacobs , he simply com- mented "Don't worry about it. These things happen." In the evening (April 6), Stamm came to work as usual. However , according to her uncontroverted testimony, which I credit, Jacobs personally kept her under surveillance, fol- lowing her wherever she went , including to the door of the ladies' room. She further credibly testified without contradic- tion that, while working at her cash register, one of the security guards approached her, patted her clothes pocket which contained union cards, and cautioned her that she "better not let Mr . Jacobs see [the cards].... He's watching you." Nevertheless, during her break at the snack bar Stamm secured additional signed cards from a few employees. 3. The involvement of the New York office in Stamm's discharge It is disputed that the Respondent 's executives in the New York offices, including President Rosenbaum , Executive Vice President Manfred Brecker, and Vice President Keller, were fully conversant with Stamm's and Soto's organizational ac- tivity in the Shillington store during the afternoon of April 6. Later in the evening Jacobs received a long distance tele- phone call from Brecker in New York to discuss the subject of discharging Stamm.' Jacobs gave the following account of this conversation:" Brecker asked Jacobs whether he had been aware of Stamm 's organizational activity . When Jacobs responded in the negative, Brecker retorted that he "was very remiss as store manager in not having knowledge of some of these things that went on under-[his] roof." In discussing Stamm's employment status, Brecker pointed out that she was a security risk who had previously confessed to giving unauthorized discounts and taking candy for her own use. Jacobs further testified that, although Area Supervisor Katz had 3 weeks before Stamm's discharge advised him that Stamm was a security risk, this was the first time he learned the details. The facts of this accusation will be later consid- ered. According to Jacobs , the final discharge decision was made the following day, April 7 . It is clear that the decision ema- nated from the New York executive offices and that Jacobs' participation was apparently to agree that this action was "long overdue." Jacobs conceded that he did not initiate the discharge, even though as store manager he had the power to terminate store employees Jacobs testified that on April 7 Vice President Keller visited the store and instructed him to discharge Stamm. He further testified that Keller told him that "the biggest reason" for Stamm's dismissal was the fact that she was a security risk, adding another reason that "to a great extent" she caused disruption of the store operation the day before when "most of the staff" left their work stations to attend the organizational meeting. Admittedly, Stamm was never given the opportunity to answer these charges. ' It appears that Soto was discharged by his employer , the lessee of the store 's shoe department , on April 6 or 7 1° Brecker did not testify , nor did any other company executive in the New York office 191 4. Stamm's discharge on April 7; the Respondent's reasons asserted at the hearing On April 7, at 5 p .m., Stamm reported for work on her regular shift. While hanging up her coat in the cloakroom, she was paged over the intercommunication system to go to the office . There she met Jacobs who asked her to enter the conference room . Stamm expressed her reluctance to do so, stating that anything Jacobs had to say to her could be said in the office . This evoked Jacobs' angry response that he hoped she had a good lawyer . Stamm, nevertheless, pro- ceeded to the conference room where Jacobs told her that company rules did not permit the employment of relatives and that she therefore had to go. Stamm protested her selec- tion and pointed out that she had been in the Company's employ longer than her sister-in-law, Linda Stamm . Besides, Stamm noted, a sister and brother, Susie and Mike Warner, were then working in the store . Jacobs answered that this was none of her business and Stamm walked out of the conference room and went to the snack bar." At the snack bar, Stamm heard the Warners being paged. A few minutes later the Warners left the conference room. Susie Warner was in tears when her brother approached Stamm and accused her of causing Susie's discharge ." Stamm disavowed responsibility. At the hearing, Jacobs admitted telling Stamm that she was being separated because of the Company's "no relative" rule. However, he testified that this was not the true reason. When questioned why he gave Stamm a false reason, Jacobs testified that he was "a coward"; that he "didn't want to start a commotion by going into details"; and that he "thought the best way to solve the situation was to invoke the relationship rule." However, this leaves unexplained the separation of Susie Warner under this alleged rule except to suggest that it was prompted by a desire to lend an air of legitimacy to Stamm's discharge." After staying at the snack bar for a short while, Stamm made a telephone call to Union Organizer Nissley and re- ported her discharge. Thereafter, when Area Supervisor Holt began to follow her in the store, Stamm invited him to walk with her. Holt then told her that he had to ask her to leave, adding that she knew why; that "[t]here's things going on" in which he did not want to get involved; that she was a "good worker" and "a nice person"; and that it was "nothing per- sonal." Stamm agreed to leave, and Holt took her to the snack bar and bought her a soda . while there, Vice President Keller approached and angrily reminded Holt that he had directed him to get Stamm out of the store. Holt answered that Stamm wasn't doing anything and was going to leave peacefully as soon as she finished her soda. Keller remained at the snack bar until Stamm departed. Although the discharge decision obviously originated in the Respondent's New York executive offices, Jacobs was the only management witness to attest to the asserted underlying 11 The foregoing findings are based on Stamm's testimony Jacobs did not contradict Stamm's account except that he denied that he stated that he hoped she had a good lawyer I find Stamm to be a more credible and candid witness than Jacobs who demonstrated his unreliability, among other things, in his highly dubious testimony regarding the reasons for Stamm 's discharge discussed below " Stamm testified that she later learned that Susie Warner was trans- ferred to the Antietam Valley store No contradicting testimony was ad- duced " According to the undisputed testimony of employee DeLong, at a company meeting of employees on April 7 or 8, a mamagement official also stated, in answer to an employee 's question , that Stamm was terminated because of the company rule prohibiting the employment of relatives of employees 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons for this action, namely, Stamm was a security risk; she caused a disruption of store operations on April 6; and her repeated unauthorized absences from her regular ca- shier's post at the checkout counter. As for Stamm's pur- ported designation as a security risk, the undisputed facts are contained in Stamm's following testimony: In accordance with her agreement noted in her employment application, Stamm submitted in January to an interview and polygraph test conducted by Lincoln Zohn for the Respondent. After preliminary interrogation and testing, the examiner told her that because of her nervousness no valid results could be achieved and that therefore he would forego the polygraph test. In the interview, Stamm freely admitted that at one time while cleaning up candy shelves, which was one of her as- signed duties, she found a half-empty bag of candy. After making an appropriate notation in a markup book, she shared the candy with several cashiers. The examiner expressed his opinion that this was not stealing. Stamm also told him that she once gave an unauthorized discount. The examiner as- sured her that these admissions would not affect her job and that she need not worry. At the examiner's request,'she signed a statement containing her admissions and the interview ended. Nothing was said to her thereafter concerning her acts in question or the necessity for taking another polygraph test.14 As indicated above, Jacobs testified that on April 7, when he was instructed by Vice President Keller to terminate Stamm, he was advised that Stamm's being a security risk was "the biggest reason" for this action. Jacobs further testified that about 3 or 4 weeks before the discharge, he was orally informed by Area Supervisor Katz for the first time that she was a security risk but that he was given no details regarding the basis for this designation. Under cross-examination, it developed that at that time he was given a list of about half a dozen "[s]ecurity risk employees that were scheduled for dismissal" and that all but Stamm were discharged before April 6. When questioned why she was retained during the 3 or 4 week period, Jacobs testified that it was to keep her under surveillance "as a means of leading us to other em- ployees who might be involved with her." Yet, since Jacobs concededly was not informed why Stamm was considered a security risk, her asserted retention for surveillance purposes while the other listed security risks were discharged is highly questionable. Moreover, although Jacobs admitted that he had no evidence that Stamm had repeated the alleged offenses which made her a security risk, she was nevertheless subse- quently discharged. The transparency of the security risk reason for Stamm's termination requires no further discussion. Indeed, the Re- spondent in its brief realistically discounts the security risk ground in observing that "the polygraph report, while justify- ing unusual surveillance, did not produce anything of sub- stance against Stamm." As for my appraisal of Jacobs' tes- timony, I do not believe that the Respondent ever regarded Stamm a security risk or that she was kept under surveillance for that reason. With respect to Stamm's asserted disruption of store opera- tions on April 6, this has already been discussed earlier in this Decision. Turning then to the final reason for Stamm's dis- charge, her alleged unauthorized absences from her assigned station at the cash register, the Respondent presented such a dismal picture of her neglect of duties which, if true, leaves " At the hearing, the Respondent's counsel stated that one ground for discharging Stamm was the Company's belief that she was a security risk because of her refusal to submit to a polygraph examination . However, not only was no evidence presented to substantiate this assertion, but the record establishes the contrary to be the fact one perplexed why it had not gotten rid of her sooner." Moreover, if she were actually guilty of these derelictions, and they really prompted the discharge, it is incomprehensi- ble why Jacobs should have failed to inform Stamm at her discharge interview of such fact. In any event, Jacobs recited the following account of Stamm's neglect of duties: For at least several weeks before her dismissal, Stamm failed to perform her job at the cash register. She would wander around in the store, requiring him "frequently" to page her to return to her register at the check- out counter. This happened approximately three times an evening, despite the fact that he had admonished her that her business was to be at her register and not to leave it except for breaks and "under ... [his] direction." As time went on, Jacobs' warnings to Stamm became more severe. He probably verbally warned her four or five times but could not remem- ber the nature of those reprimands. On some occasions of her absences from her register, he asked her for the reason she was away but could not recall the most recent date of such inquiry. However, he recalled that when he found Stamm in the shoe department a week before her discharge, he ques- tioned her about her absence and ordered her to return to her register. Jacobs testified that he kept no written record of Stamm's repnmands or unauthorized absences; nor did he have records of any employee's performance.16 Also testifying on the Respondent's behalf was Jean Ann Nyman, the head office cashier, whom I find was hostile to the Union" and inclined to gross exaggeration. She testified, in substance, that her workday began 8 o'clock in the morn- ing but she usually worked to 7, 8 or 9 o'clock in the evening and thus had an opportunity to observe Stamm's work habits on the night shift. According to Nyman , Stamm was a fine cashier until the middle of January when she began leaving her register to walk around the store or sit at the snack bar. Before Stamm developed these bad habits, she (Nyman) had intended to recommend Stamm to Jacobs as a replacement for the night head cashier who had left the Company's em- ploy. Nyman testified that she did not make the recommenda- tion because of Stamm's repeated delinquencies in "never" being at her register; that she wandered around in areas where she had no right to be and "constantly" had to be called back; that for 2 or 3 weeks before her discharge, Stamm was called back to the register "several times" - "four or five times, six, seven, eight, nine times a night" - and, on occa- sions after returning, she would leave again, necessitating her " In its brief, the Respondent acknowledges the understandable doubt that Stamm's neglect of duties really motivated her discharge Thus, the brief states that "the employer knowing of her neglect for a long period of time did not act on it previously, so that taken alone it does not appear to be the reason for discharge." However, it argues that Stamm's neglect of duties "taken in conjunction with the disruption of store operations amply justifies discharge " 11 Because of the absence of written records of this nature, Jacobs in- dicated that the New York executive offices would have no knowledge of Stamm's performance 1' Although not contended to be a supervisor within the meaning of the Act, Nyman enjoys a position of responsibility with respect to employees About noon on April 6, in response to the Union's organizational drive, Nyman initiated and drafted a petition that the employees "did not wish to be part of any Union organization" and thereafter solicited and secured some 50 employee signatures She also furnished employees advice on send- ing individual letters to the Union, requesting return of their previously signed authorization cards According to the testimony of DeeDee Schiller- mann, the department manager of ladies' and girls' wear whom the Re- spondent produced as a witness, she and several other employees gave Nyman the withdrawal letters they had written to be forwarded to the Union by certified mail, without affixing postage stamps. The complaint, however, does not allege that the Respondent violated the Act by reason of Nyman's conduct S. E. NICHOLS SHILLINGTON CORP. 193 being paged again; that throughout February and March several cashiers and office employees complained to her (Ny- man) about Stamm's absences; that she reported Stamm's conduct and employee complaints to Jacobs who stated that he would observe Stamm; and that one day in the middle or end of March, Nyman also spoke to Stamm about her wan- derings which griped employees with the result that her con- duct only worsened. The testimony of Carol L. McElwee, a former employee and witness for the Respondent," was in the same general vein. According to her, Stamm was "frequently" in the shoe department and soft goods department areas in the rear of the store, where she overheard conversations between Stamm and Soto McElwee further testified that these conversations occurred at least once a night and sometimes more often; the Stamm's wanderings began in December when Stamm was first employed and remained away from her work stations until paged to return; that she (McElwee) heard Stamm being paged at least every night with its frequency increasing as time went on; and that she (McElwee) on several occasions complained to management that Stamm was talking in the rear of the store and was disturbing employees working there. Disputing the foregoing recitation of her derelictions, Stamm testified, in effect, that her absences from the register were in connection with the performance of her duties or when she was on a break and referred to three such incidents. One incident involved the handling of a refund about 4 weeks before her discharge. According to Stamm, she took care of the refund in the rear of the store, at Nyman's direction, when Jacobs paged her to return to the checkout counter to ap- prove a check. In the office, Jacobs reprimanded her for running around in the store. When Stamm explained her presence in the rear of the store, Jacobs turned to Nyman who answered that she told Stamm to have somebody else handle the refund The second occasion she was paged, Stamm testified, was when she went to the ladies' room. As for the third incident, Stamm testified that she went to the jewelry counter after she was called by a salesgirl to show her how to make out a charge; that while she was explaining the procedure, she was paged, and that when Stamm informed Jacobs the reason for being at the jewelry counter, Jacobs told the salesgirl that if she needed assistance in preparing a charge, to go to the office Stamm also testified that she was never warned that she risked discharge or other consequences if she persisted in absenting herself from the register. Employee DeLong, who worked as a cashier near Stamm, substantially corroborated Stamm's testimony in various re- spects. She testified that Stamm was not absent from her register too often, probably three or four times, but did not know the purpose of those absences. She further testified that Stamm did not operate a register at times when she was engaged in performing other duties, such as checking cou- pons, getting change for the cashiers or signing "voids" or charges. In addition, DeLong denied that she ever com- plained about Stamm's absences from the register nor, to her knowledge, did the other cashiers complain From my appraisal of the testimony in the context of all the circumstances related above, I find that the testimony of Jacobs and other company witnesses concerning Stamm's delinquencies was greatly exaggerated and beyond reasonable belief. I seriously doubt that if her conduct were as bad as it " Although McElwee also enjoyed a position of responsibility over em- ployees while she was in the Respondent's employ, it is not urged that she was a supervisor within the meaning of the Act She admitted that em- ployees tried to keep knowledge of the Union's campaign from her because they considered her unfriendly to the Union was pictured to be Jacobs would have retained her as long as he did or that he would not have mentioned her shortcomings at the time of her dismissal. Accordingly, I credit Stamm's and DeLong's testimony. In any event, as I later conclude, whatever estimate the Respondent might have had of Stamm's work habits or performance, it did not enter into its decision to discharge her. 5. Stamm's subsequent evictions from the store On April 10, Rosemary Stamm and her husband visited the store to purchase a pair of shoes for their child. While their child was being fitted, Store Manager Jacobs approached and asked them to leave. When Stamm's husband protested that there was no reason for this request, Jacobs responded that Rosemary was a union organizer, and that he was going to call the police unless they left. After Jacobs walked away, two security guards informed the Stamms that Jacobs wanted them out of the store. Asserting their constitutional right to shop in the store, the Stamms nevertheless departed. On April 15, pursuant to prior arrangement with the Un- ion's attorney, Joseph E. Organtini, constable of the Town- ship of Cumru, accompanied Rosemary Stamm and her hus- band on another visit to the store. The following is Organtini's version as corroborated in substantial respects by Rosemary Stamm. The Stamms first bought a carton of ciga- rettes at the tobacco counter and proceeded to the dry goods department. While Rosemary Stamm was examining a dress pattern, a security officer appeared and ordered the Stamms to leave the store. Organtini identified himself and inquired whether the Stamms had done anything wrong. When the security officer answered that he was only acting on orders from Jacobs, Organtini asked to speak to Jacobs and was directed to him at the front of the store. There, with the Stamms standing nearby, Organtini introduced himself and stated that he accompanied the Stamms to the store at the request of the Union's attorney. Organtini then inquired whether the Stamms had done anything wrong to be ordered out of the store. Receiving Jacobs' reply that Rosemary Stamm had been discharged, Organtini asked whether the discharge was for shoplifting, stealing or anything like that. Jacobs gave a negative response, adding that she was dis- charged because she was a union organizer. This elicited Organtini's expression of doubt that such activity was unlaw- ful. At that point, a town police officer appeared at the scene. Organtini advised the officer the purpose of his mission, which was to protect the Stamms' civil rights. Organtini then stated that if the police officer wanted the Stamms to leave they would do so peacefully. When Jacobs affirmed that that was his wish, the Stamms and Organtini left the store. Jacobs' account of this incident is essentially the same except that he categorically denied telling Organtini that Rosemary Stamm was discharged because she was a union organizer. According to Jacobs, he said he wanted her to leave the store because she was "a known organizer." Con- cerning the reasons for her termination, he testified, he told Organtini that they were for "an infraction of the rules and we were not permitted to employ relatives in the store." As previously indicated, Jacobs did not impress me as a reliable witness. Organtini's testimony, corroborated by Rosemary Stamm's, was very persuasive, and I accordingly credit it. In any event, even were Jacobs' testimony credited in this re- spect, my ultimate determination would be the same. Under cross-examination, Jacobs admitted that at the time of the Stamms' eviction from the store, they had not caused any disruption of operations but that his action was taken "on advice of counsel and other executives." There is also undis- puted testimony that 2 or 3 weeks later Rosemary Stamm experienced another ungracious invitation to leave the store. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On that occasion, she and a union organizer entered the store and while they were having a soda at the snack counter, Jacobs directed them to leave, which they did. B. Concluding Findings The question whether an employee was illegally discharged because of his union activities is not susceptible of easy deter- mination as it involves an inquiry into the employer's state of mind. In resolving this question, therefore, all the facts and circumstances surrounding the separation must be carefully appraised with due recognition being accorded to the settled principle that an employer may terminate an employee for any reason, good, bad, or indifferent, provided he is not moti- vated by union considerations . It is equally well established that the existence of a "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause."19 From my analysis of the evidence, I am convinced that Stamm's discharge was dictated by her leadership in the Un- ion's organizational drive and not by the reasons advanced by the Respondent. As shown above, there can be little doubt that the Respondent became aware of Stamm's union activi- ties on April 6, the day before her termination, and that it did not welcome the prospect of its store being unionized. It is also clear that, upon learning of Stamm's activities, the Re- spondent's executives in its New York offices promptly ini- tiated steps to terminate her the following day. In a conceded effort to conceal the real reason for her discharge, Store Manager Jacobs falsely informed Stamm in her exit interview that he was simply enforcing a company rule prohibiting the employment of relatives of employees. However, when she pointed out that she had entered the Respondent's employ before her sister-in-law, and that a brother and sister, Susie and Mike Warner, were then working in the store, Jacobs retorted that it was none of her business . The transparency of the reason thus given to Stamm for her discharge probably induced Jacobs to retract it on the witness stand and acknowl- edge its pretextual nature . However, his explanation for giv- ing Stamm a false reason - that he lacked the courage to tell her the truth - only serves to cast graver doubts on the purity of the motivation underlying the discharge. Not only am I unable to discern anything in the assertedly honest reasons for the discharge requiring secrecy or confidentiality, but the inexcusable extreme to which Jacobs went in dismiss- ing an innocent employee , Susie Warner, in an effort to lend an air of legitimacy to his purported enforcement of the "no- relative" rule," strongly suggests that impermissible consid- erations entered into the discharge decision. Turning to the discharge reasons urged at the hearing - that Stamm was a security risk, neglected her duties in fre- quently absenting herself from her station at the cash register, and disrupted store operations on April 6, - I find that they, too, cannot withstand scrutiny . As found above, the Re- spondent actually never regarded Stamm as a security risk, even though Jacobs testified that he was advised by Vice President Keller that this was "the biggest reason" for the discharge. Indeed , in its brief, the Respondent concedes that the polygraph report "did not produce anything of substance against Stamm." As for Stamm's asserted neglect of duties, it is difficult to understand why, if her conduct were really as intolerable as it was pictured to be, she was retained in the Respondent's employ as long as she was, without even a warning that she risked discharge unless she mended her ways. The inescapa- '° NIL R.B v Solo Cup Company, 237 F 2d 521, 525 (C A 8) 30 Apparently to make amends for the injustice done to Susie Warner, the Respondent subsequently reinstated her in its Antietam Valley store A similar offer was not made to Stamm ble answer for her retention is that actually she was not an unsatisfactory employee but that, by more than a strange coincidence, she became persona non grata only when her union activities became known to the Respondent. Conceding that Stamm 's derelictions do not appear to be a justifiable ground for her discharge in view of the Respond- ent's toleration of this conduct for a long period of time, the Respondent argues that Stamm's neglect of duties considered in conjunction with her disruption of store operations on April 6, nevertheless warranted the discharge. However, I am not convinced that the Respondent believed that Stamm caused such a serious disruption in the store as to compel her summary discharge in the middle of the workweek, without prior warning or desire to learn her version of the April 6 events. Significantly, neither the so-called disruption nor her asserted neglect of duties was even given to Stamm as a reason for her discharge; instead, Jacobs admittedly attempted to justify his action to Stamm on the basis of a pretextual reason. Such a deliberate effort to hide the true motivating reason clearly supports the inference that Stamm 's alleged acts of misconduct are merely afterthoughts and that her discharge was really inspired by her union activities." Weighing all the evidence including the timing and sum- mary nature of Stamm's discharge," the involvement of the Respondents's executives in New York in a disciplinary mat- ter ostensibly of local concern , the assignment of pretextuous reasons for the discharge, and the Respondent's purposeful efforts to conceal its real motive, I conclude that the Re- spondent discriminated against Stamm because of her union activity. Such conduct, I find, necessarily discouraged union membership in violation of Section 8(a)(3) of the Act and interfered with, restrained, and coerced employees in the ex- ercise of their self-organizational rights in violation of Section 8(a)(1) of the Act. The validity of these findings is buttressed by Jacobs' admission to Constable Organtini at the time of Stamm's eviction from the store on April 15 that she was discharged because she was a union organizer. Finally, even assuming that Stamm's alleged neglect of duties and disrup- tion of store operations to some extent entered into the Re- spondent's decision to terminate her, I nevertheless find that a significant factor causing her discharge was her leadership in the union movement and that therefore her discharge would still be violative of the same provisions of the Act.29 IV THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recom- mend that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully discharged employee Rosemary Stamm because of her union activity. To remedy this violation, I recommend that the Respondent offer her 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 earnings " Winchester Spinning Corporation v NLR.B, 402 F 2d 299, 306 (C A 4), in which the court observed that "[w]here an asserted business motive is discredited or contradicted by substantial evidence, the Board is free to treat it as pretextuous and infer discrimination on account of union activity " " NLRB. v Montgomery Ward & Co, Inc, 242 F 2d 497, 502 (C A 2), certiorari denied 355 U.S. 829 " N.L R B. v Jamestown Sterling Corp., 211 F 2d 725, 726 (C A 2), Winchester Spinning Corporation v NLR.B., supra, 304, N.L.R B v His- toric Smithville Inc, 414 F 2d 1358, 1361 (C A 3) S. E. NICHOLS SHILLINGTON CORP. 195 she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned from April 7, 1971, the date of her discharge, to the date of the offer of reinstatement, less her net earnings during the said period. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289-294, and Isis Plumbing & Heating Co., 138 NLRB 716 To facilitate the computation, as well as to clarify the named employee's rights to reinstatement, the Respond- ent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such pur- poses. The posting of a notice is also recommended. In view of the nature of the discrimination for union mem- bership and activity which "goes to the very heart of the Act,"24 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be or- dered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.25 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. The Respondent 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 discriminating in regard to the hire and tenure of employment of Rosemary Stamm to discourage membership in and activities on behalf of the Union, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, the Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor praciices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommended:26 ORDER The Respondent, S. E. Nichols Shillington Corp., Shilling- ton, Pennsylvania, its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Discouraging membership in Retail Clerks, Employees Union, Local 1393, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discharging employees or discriminating against them in any other man- ner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bar- 34 N.L R B v Entwistle Mfg Co, 120 F 2d 532,536 (C A 4) N.L.R B v Express Publishing Company, 312 U S 426, 433 " 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, 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 gain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer Rosemary Stamm immediate and full reinstate- ment 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 earnings she may have suffered by reason of the discrimination against her, 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, person- nel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its store in Shillington, Pennsylvania, the at- tached notice marked "Appendix."27 Copies of said notice, on forms provided by Regional Director for Region 4, after be- ing duly signed by the Respondent's authorized representa- tive, shall 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. Reasona- ble steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4 in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.28 11 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 after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order what steps the 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 The Act gives all employees the following rights: To organize themselves. To form, join, or support unions. To bargain as a group through a representative they chose. To act together for collective bargaining or other mutual aid or protection. WE WILL NOT discharge or lay off any employee or otherwise discriminate against him or her because of his or her membership in, or activities on behalf of, Retail Clerks, Employees Union, Local 1393, Retail Clerks In- ternational Association, AFL-CIO, or any other labor organization. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the excercise 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 representa- tives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized by Section 8(a)(3) of the Act. WE WILL offer Rosemary Stamm immediate and full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniroity or other rights and privileges, and make her whole for any loss of earnings suffered by reason of the discrimination against her All our employees are free to become, remain, or refrain from becoming or remaining members of Retail Clerks, Em- ployees Union, Local 1393, Retail Clerks International As- sociation, AFL-CIO, 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. S. E. NICHOLS SHILLINGTON CORP (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania, Telephone 215-597-7601.