Electro Mart

ELECTRO MART 769 J. Byron Klaue, d/b/a Electro Mart and Retail Clerks Local 1439, affiliated with Retail Clerks International Association, AFL-CIO. Case 19-CA-5351 December 10, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 29, 1972, Administrative Law Judge 1 Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions2 and briefs and has decided to affirm the rulings, findings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: This case was tried at Spokane, Washington, on November 11, 12, and 16, 1971. The charge was filed on July 6 by Retail Clerks Local 1439, affiliated with Retail Clerks International Associa- tion, AFL-CIO, herein called the Union, and the com- plaint was issued on September 13 by the Regional Director for Region 19. The issues involved in the case are whether Vincent Rago was threatened by Supervisor Cowell on or about April 21 with loss of his job if he attended a union meeting scheduled for that day and whether he was discharged on the same day because of his union activities and concerted action with other employees in endeavoring to obtain health insurance coverage. Upon the entire record in the case, including careful consideration of the briefs filed, by the General Counsel on December 15 and by counsel for the Respondent on December 27, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, J. Byron Klaue, a blind man, is the owner of Electro Mart, a retail furniture and appliance store located in Spokane, Washington. It is not disputed and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (5), and (6) of the Act and meets the Board's jurisdictional standards. I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, J. Byron Klaue, d/b/a Electro Mart, Spokane, Washington, his agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recom- mended Order. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 At the direction of the United States Court of Appeals for the Ninth Circuit, we have considered Respondent's original exceptions as though they were timely filed. We have also accepted and considered the additional exceptions filed by Respondent. 3 In adopting the Administrative Law Judge's conclusion that Respon- dent discharged Vincent Rago because of his support of the Union, we do not, in the circumstances described in the Administrative Law Judge's Decision, impute James Klaue's knowledge of Rago's union activities to his father, Byron Klaue, Respondent herein ; nor do we adopt the Administra- tive Law Judge's finding that Rago received a draw check for the coming 2- week period shortly before his discharge on April 21, 1971. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In September 1970, the Respondent interviewed Rago and hired him as a commission salesman . During the course of the interview, Rago disclosed that in July 1970, while working for an appliance store in Wenatchee, Washington, an information by the county attorney was filed against him charging that he had committed the crime of grand larceny by "having appropriated a check in the amount of $253.58 belonging to Sav-Mart, Inc.," his then employer. Under date of October 30, 1970, Rago requested leave to withdraw his plea of not guilty and to enter a plea of guilty to the charge, which was granted. He was then placed on probation. Later, the plea was changed from guilty to not guilty and the matter, in Rago's words, was "completely written off the books." Under date of October 26, 1971, the court entered an order dismissing the action and providing that Rago "is released from all penalties and disabilities resulting from the filing of said charge." At the time Rago was employed the Respondent was investigating the availability of health and accident insurance for its employees. It appears that the lack of an insurance program became a matter of substantial concern to the employees. At a meeting of employees, where the lack of an insurance program was being considered, Rago informed the Respondent and other employees that 207 NLRB No. 131 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coverage was available through the Union, of which he was a member, and he described it as an excellent program. During the month of December 1970, Robert Rogers, the sales manager, sustained an injury at the store. He was hospitalized for approximately a week and was out of work for about 2 weeks. When he returned Rago asked Rogers whether the Respondent had aided him in any way to meet his expenses, and Rogers replied that to date he had received no assistance from the Respondent. After discussions among themselves, the salesmen, on April 15, decided that Walker and Rago, on their lunch hour, should go to the Union's office and endeavor to ascertain what the Union could do for them. The two met with John Brack, a business representative of the Union, at the Union's business office. Brack advised them of the Union's insurance program and of the right of employees to organize and designate a union as their collective- bargaining representative. They were given authorization cards and were told to speak to other unit employees about having a meeting at the union hall the evening of April 21. They did so, but it was agreed they should attempt to conceal their activity from Klaue and Supervisors Rogers and Cowell. Between April 15 and April 21 Rago or Walker spoke with every salesman, clerical employee, and delivery employee in an attempt to persuade them to attend the union meeting-They also spoke to James Klaue, son of the Respondent who was temporarily working at the store due to the elder Klaue's illness. B. The Events of April 21 On Wednesday, April 21, Rago came to work about noon. The previous day had been his day off . When he arrived, three employees, Vickie Rigby, Walker, and Knudson were at the front desk engaged in a discussion concerning the union meeting scheduled for that evening. Rago picked up his draw check and walked to the rear of the store to hang up his coat. While passing a point some 30 feet from the front desk, he observed Klaue standing behind a partition. Rago listened to the discussion at the front desk and took part in it, for approximately 10 minutes; he was attempting to persuade Miss Rigby to attend the meeting . The discussion came abruptly to a halt when someone said that "Mr. Klaue was right around the comer and he can hear you." Following this, Rago went upstairs to Miss Rigby's office to check on his commissions . While there, Operations Manager Cowell told Rago , "I hear you are going to that union meeting tonight"; Rago replied in the affirmative and Cowell remarked, so Rago testified , "Well, when you go, you had better have some job leads handy." Rago asked, "Are you kidding? Is it that bad?" Cowell answered, "Yes." Thereafter, Rago continued with his usual duties and at about 1 or 1:30 spoke to James Klaue and asked him if he would attend the scheduled meeting. Klaue stated he would. According to Rago , James Klaue was the last employee told about the meeting and this occurred as Klaue was preparing to leave the store to make a delivery. Rago and Klaue agreed that the matter should be kept quiet and Klaue said it should be concealed from his father. At approximately 3 p.m. Rago, Walker, Rigby, and another employee, Jeanie Grow, went across the street to a coffee shop for their customary afternoon coffee. There they continued discussing the Union. While doing so, Rago noticed one of the other salesmen signaling for him to return to the store. He did so and was then told that the elder Klaue wished to see him. Rago went to Klaue's office and there, according to Rago's uncontradicted testimony, Klaue stated, "you are just too good of a man to sit around with no business coming in the door and it is not going to be good for you." He added, "I am going to let you go because you could do better somewhere else."' While in Klaue's office Rago said that there was no reason to let him go since he was the most productive salesman except possibly for Sales Manager Rogers. He told Klaue that the real reason for his termination was his involvement with the Union in scheduling the meeting for that evening. Klaue denied having any knowledge of the meeting. Rago left Klaue's office and spoke to Kimmel, Walker, and Knudson and asked them if they would walk out, in accordance with a prior agreement they had made to the effect that if one was terminated because of the Union the rest would walk out with him. They were undecided and, in fact, did not walk out. Shortly after Rago was terminated Kimmel and Walker were summoned to Klaue's office, where he questioned them whether they would honor their commitment regard- ing concerted activity or whether they would remain loyal members of his "team." During the course of that meeting Kimmel asked Klaue whether he let Rago go because of the meeting they were going to have that night, and Klaue replied in the negative. At the union meeting the night of April 21, Business Representative Brack, told Rago that he had the protection of the Act and could file charges alleging that he had been discriminatorily terminated. However, Rago decided not to do so at that time and subsequently made several attempts to obtain reinstatement, principally contacting Operations Manager Cowell. Shortly after Rago was discharged Byron Klaue suffered a severe heart attack and, in consequence, his son Randy, who was in charge of the Portland facility, assumed operational control of the Spokane store. There- after, Rago sought to obtain reinstatement by talking to Randy. At a luncheon meeting Randy told Rago, "With your sales record, I don't like to see you go, but it is strictly up to my dad." Subsequently, Rago contacted Cowell to ascertain if reinstatement was forthcoming. The Respondent's defense appears to be a vacillating one. The reason given for the termination of Rago on April 21, was that he was "too good a man" to be sitting around during a slowdown period. However, in her report to the state employment security department, Mrs. Klaue gave as the reason that there was a business slowdown. At that hearing counsel for the Respondent appeared to be taking the position that Rago was not a competent salesman, that on occasion he was tardy, that he caused dissension among the other employees, and that he was too "aggressive." 1 During the hearing there was reference to the fact that the sidewalk and this made it inconvenient for customers to enter the store. pavement in front of and adjacent to the store was being torn up and that ELECTRO MART Counsel introduced documents to show that Rago made clerical errors in his sales slips , that on occasion disputes occurred between Rago and other salesmen regarding commissions, and that on two Sundays he was late for work after having attended church. Rago testified that during his employment he was complimented on several occasions with respect to his work and that, although on occasion he was reprimanded for smoking on the selling floor, and certain errors with respect to his paperwork were drawn to his attention, he was never informed that his continued employment was in jeopardy or that the deficiencies in his paperwork were so serious that he was in danger of being discharged. Employee Edward Knudson, who had been employed since February and sold organs and pianos, testified that before Rago's discharge he and Rago engaged in a discussion at the front desk and that Rago stated that he nearly got fired and that he was going hire his own secretary to draw up the contracts. On direct examination, Knudson testified that Business Representative Brack accompanied by an unidentified attorney for Rago, attempted to solicit a sworn statement from Knudson to facts which were not true. However, upon cross-examina- tion it developed that Knudson had not only told Brack that he was aware, prior to, the time Rago went to Klaue's office that Rago would be discharged, but in addition he had given a sworn statement to a Board agent to that effect. Rago testified that when he emerged from Klaue's office he went downstairs and met Supervisor Cowell at the back entrance. According to Rago, he told Cowell that he had been fired and that Cowell replied, "I told you, I told you." On the other hand, Cowell testified that when Rago said he had been discharged he (Cowell) made no reply. The two had worked together for some 7 months and the record establishes that they had a friendly and harmonious working relationship. Cowell admitted that he regarded Rago as a competent and capable salesman and one of the best closers he had ever seen. In these circumstances, it seems highly unlikely that, upon being informed that a fellow employee and friend had been terminated, he would make no comment. I credit Rago's version of the conversation. It should also be observed that Rago was discharged with only 5 minutes notice, after having earlier obtained a draw check for the coming 2 week period. Although Klaue claimed to have no knowledge of Rago's union activities, it is perfectly clear that everyone else in the employ of the Respondent, including Supervisor Cowell and Miss Rigby, who served as a confidential employee and acted as Klaue's "eyes" (it will be recalled that Klaue is blind), knew of the upcoming union meeting and that Rago had played a prominent role in it. In view of the knowledge of Supervisor Cowell and Klaue's son, James, and the statements Klaue made to Kimmel and Walker, there is no doubt in my mind that Klaue was well aware of Rago's activities. Upon all the evidence, I infer and find that the Respondent terminated Rago because of his union activi- 2 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 771 ties. Moreover, it is plain that the anticipated slowdown of business because of street repairs did not occur; in fact, the gross volume of business was substantially in excess of what it had been during the same period in prior years. Accordingly, I find that Respondent violated Section 8(axl) and (3) of the Act. CONCLUSIONS OF LAW 1. By discharging Vincent Rago on April 21, 1971, because of his support of the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1). 2. By interrogating employees concerning their union and concerted activities, Respondent violated Section 8(a)(1) of the Act. 3. The foregoing unfair labor practices are unfair labor practices burdening and affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found, and from like or related invasions of the Section 7 rights of its employees, and to take certain affirmative action. The Respondent having discriminatorily discharged Employee Vincent Rago, I find it necessary that it be ordered to offer him immediate and full reinstatement, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1960) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of the discharge to the date reinstatement is offered. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER2 Respondent, J. Byron Klaue, d/b/a Electro Mart, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Retail Clerks Local 1439, affiliat- ed with I Retail Clerks I International Association, ' AFL- CIO, or any other union. (b) Coercively interrogating or threatening any employee concerning union support or union activities. (c) In any like or related 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 necessary to effectuate the policies of the Act: (a) Offer Vincent Rago immediate and full reinstatement to his former job, and if his job no longer exists, to a substantially equivalent position, without prejudice to his 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. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges, and make him whole for his loss of earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) 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 records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business at Spokane, Washington, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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." trial, that we violated Federal law by discharging Vincent Rago for supporting a union, and by otherwise interfering with our employees' right to join and support a union: WE WILL offer full reinstatement to Vincent Rago, with backpay plus 6 percent interest. WE WILL NOT discharge any of you for supporting Retail Clerks Union, Local 1439, affiliated with Retail Clerks International Association, AFL-CIO, or any other union. WE WILL NOT coercively question you or threaten you about union support or union activities. WE WILL NOT unlawfully interfere with your union activities. J. BYRON KLAUE, D/B/A ELECTRO MART (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days form the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-4532. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after