J. C. Penney Co., Inc.

J C. PENNEY COMPANY, INC. J. C. Penney Company, Inc. and Retail Clerks Inter- national Association, Retail Clerks Union, Local 1552, AFL-CIO. Cases 9-CA-8237 and 9-RC- 10379 October 30, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 27, 1974, Administrative Law Judge Ar- nold Ordman issued the attached Decision in this consolidated proceeding. Thereafter, Respondent- Employer and Charging Party-Petitioner filed excep- tions and supporting briefs. 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 consolidated proceeding to a three- member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings , findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge that Attorney Sartoris' remarks to the employees , suggest- ing that Respondent could summarily discharge or replace any of them in the context of Respondent's open hostility to the Union, constituted a violation of Section 8(a)(1) of the Act . While we agree with our dissenting colleague that unionization does not guar- antee employees that they will not be discharged or laid off, the question here is whether these employ- ees, unsophisticated in the technicalities of labor law, could reasonably believe that if they voted for the Union against Respondent's wishes the latter would exercise the right asserted by Sartoris to fire or lay them off "for no cause at all." In our opinion, the Administrative Law Judge correctly concluded that the employees received a clear message from Sartor- is: "discharge or replacement was an imminent possi- bility unless they abandoned the Union." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, J. C. Penney Company, Inc., Springfield, Ohio, its officers, successors, and 445 assigns, shall take the action set forth in the said rec- ommended Order. IT IS FURTHER ORDERED that the election held on February 8, 1974, in Case 9-RC-10379 be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 Chairman Miller would not find an 8(a)(1) violation with respect to Sartoris' remarks concerning discharge and layoff at the November 30 meeting The Administrative Law Judge found that the statements occurred in the context of an inquiry by Lykins about job security at the November 30 meeting The record sustains this, and shows that the entire context involved a discussion of the relative degrees of employee security which exist in an organized, vis-a-vis an unorganized, shop Attorney Sartoris responded to the effect that even in an organized plant-ie, if the Union were to be successful in organizing Respondent's facility, "he could lay us off or fire us " Sartons testified that he responded that he knew of no law that required an employer to have a reason for laying off an employee, but "not during this period though because of the Union You can't lay off for union activities " in that Chairman's view, the reference to layoffs and discharges was not a threat, but was, instead, a legitimate and correct explanation of the simple fact that unionization does not guarantee employees there will be no dis- charges or layoffs, but that the law does protect employees from layoff or discharge as a form of retaliation against their union activity Hence he dissents from the 8(a)(1) finding predicated on these remarks DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge: This is a consolidated proceeding heard before me in Springfield, Ohio, on April 24 and 25, 1974.1 Case 9-RC-10379 is a representation proceeding; involved therein is the validity of certain timely objections filed by Respondent-Employer, herein called Penney, to conduct affecting the results of a Board election in which the Charging Party-Petitioner, herein called the Union, had received a majority of the ballots cast. The objections, in substance, allege that the Union offered to waive initiation fees for those employees signing authorization cards prior to the election, that the Union promised employees cash or free merchandise for a "Yes" vote, and, finally, that union agents and/or employ- ees in the voting unit engaged in threats or other conduct, all of which precluded the holding of a fair election. Case 9-CA-8237 arises from a timely unfair labor prac- tice charge filed by the Union against Penney. The com- plaint based thereon, dated March 20, 1974, alleges that Penney engaged in threats, promises of benefit, and other activities to discourage organizational and union activities among its employees in violation of Section 8(a)(1) of the Attorney Sartoris took the stand as witness for Respondent and at that point withdrew his appearance as counsel for Respondent 214 NLRB No. 74 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, as amended, and dis- charged an employee, James Lykins,2 because of his union sympathies and activities in violation of Section 8(a)(3) and (1) of the Act. Because the representation case and the unfair labor practice case involved related matters the Acting Regional Director for Region 9, on March 25, 1974, directed that the two proceedings be consolidated for hearing and resolution by an Administrative Law Judge with a further directive continued before the Board in Washington, D.C. Upon the entire record in this consolidated proceeding, upon my observation of the witnesses, and after due con- sideration of the briefs filed by General Counsel and by Penney, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Penney is a Delaware corporation engaged in the retail sale of merchandise in stores throughout the United States including a store located at Springfield, Ohio, the facility involved in this proceeding. Penney's gross volume of sales annually exceeds $500,000 and during the past year in ex- cess of $50,000 worth of goods were purchased for and shipped to Penney at its Springfield store from points out- side Ohio. The complaint alleges, the answer admits, and I find that Penney is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act Jurisdiction is properly asserted herein. II. THE UNFAIR LABOR PRACTICE PROCEEDING A. Background Respondent operates an auto center at its Springfield store which is housed in a separate structure from that housing the main store. About 23 to 24 employees work in the auto center. Fred Lawson is the automobile center manager and Charles High is a service manager. Fred Terkhorn is overall manager of the entire Springfield facili- ty. In November 1973 an organizational drive began among the auto center employees. On the evening of November 28, 1973, a number of these employees attended a meeting at the Springfield Travel Lodge with Sherman Hammer- gren, an organizer for the Union. Lykins and several of the other employees present signed cards authorizing the Union to represent them. Hammergren also gave Lykins and employee Ron Hall additional blank authorization cards to distribute to other employees for their signatures. Lykins and Hall carried out this assignment and obtained signatures to additional cards. All the signed cards were turned over to Hammergren in support of the representa- tion petition which the Union filed with the Board and which gave rise to the election and objections thereto which have been made part of this consolidated proceed- ing. In the meantime, however, management learned imme- diately after the November 28 meeting of the organiza- tional effort of its employees and forthwith instituted a countercampaign. That campaign began with a meeting called by Penney of its auto center employees. This meet- ing occurred either on November 29 or 30, a day or two after the employees met with Hammergren and initiated the solicitation of signatures to union authorization cards. It is General Counsel's contention that at this meeting and in the weeks immediately following, culminating in the dis- charge of James Lykins on January 7, 1974, Penney en- gaged in a program of threats, promises of benefit, and related conduct violative of Section 8(a)(1) of the Act and discriminatorily discharged Lykins in violation of Section 8(a)(3) of the Act. The specific allegations of the complaint are dealt with hereunder. B. The Threat To Layoff and/or Replace Employees If They Did Not Abandon the Union As noted, knowledge of the organizational activity and of the distribution of union authorization cards came promptly to management's attention. Arrangements were made forthwith to have Attorney Joseph Sartoris, retained by Penney some 4 months earlier to be its regional person- nel relations representative, come from his Pittsburgh, Pennsylvania, office to meet with the auto center employ- ees. The meeting began in the morning and lasted for the remainder of the day without a lunchbreak. Sartoris and Lawson were present for management but Sartoris did all the talking. Only a handful of employees were present at the outset for it was Penney's plan to have Sartoris speak to the employees a few at a time. James Lykins was one of those in the first group of employees. Sartoris opened the meeting by introducing himself and holding up a blank union authorization card which had come into his possession. Sartoris explained that the card signified the reason for his presence. He told the employees that Penney was aware of the Union's organizational effort and explained that his function at the meeting was to tell the employees of their rights and to set forth the position of management in that regard. Sartons did precisely that. As Sartoris himself testified, he told the employees that he wanted them to know "right off the bat what the company position was with respect to organization." He explained that they couldjoin or refrain from joining a union but that "it was extremely important that they considered whether they really wanted a union before they signed an authori- zation card." Sartoris also told the employees that Penney would not threaten, promise benefits to, or interrogate any employees in relation to union matters. He explained that, in the event of a strike for increased benefits, the company could replace strikers and then went on to differentiate between economic and unfair labor practice strikes and the consequences which flowed therefrom.' Sartoris also talked 3 Much of this discussion, as shown by the testimony of employee Gary 2 Incorrectly designated in the charge and complaint as James Lykons Hutchinson, was obviously over the heads of the listeners J C PENNEY COMPANY, INC. 447 to the employees about appropriate units and election pro- cedures. The discussion was not wholly a monologue. Sartoris did all the talking for management and Lykins was the princi- pal spokesmen for the employees and the protagonist for the Union. At some point in Sartons' talk Lykins inquired about the employees' job security. According to Lykins, Sartoris stated that if a union came in Penney could fire or lay off the employees and hire his (Sartoris') relatives or his brother in their place and that the employees could do nothing about it. It was at this point, Lykins testified, that Lykins abruptly left the meeting and returned shortly with the other auto center employees. Lykins asked Sartons to repeat to the other employees what Sartoris had previously stated. After reiterating the introductory remarks he had made to the initial group, Sartoris did so According to Lykins, Sartoris said again that Penney had the right to fire employees and hire relatives. Lykins further testified that Sartoris also stated that, in the event a picket line was es- tablished, Penney could contact its suppliers and have them drive their trucks right through the picket line. Sartor- is added, according to Lykins, that if the employees recon- sidered about the Union, no action would be taken against them. Ron Hall and Mickey Clarke, auto center employees substantially corroborated Lykins as to the tenor of Sartor- is' remarks.4 Sartoris' testimony as to the meeting was generally con- sistent with the account given by Lykins. The difference was largely one of emphasis. According to Sartoris his re- sponse to Lykins' initial query as to company policy on layoff and hire was that no law required the company to have cause for laying a man off or refusing to rehire him but that the company would not engage in such conduct because that would be poor personnel practice Sartoris testified that he also said an employee could not be fired for union activities. Sartoris' testimony was in accord with that of Lykins that Lykins left the meeting at that point and that Lykins assembled the other employees and asked Sartoris to repeat his prior statements. Sartoris testified that he essentially repeated to the entire group what he had previously stated to the initial small group. Lawson and employee Gary Hutchinson gave testimony consistent with that given by Sartoris as to the discussion at the meeting. As the foregoing summary indicates, there is a critical question on the record as to whether Sartoris, expressly or by plain implication, conveyed to the assembled employees that the advent of the Union might result in their layoff and replacement and that this hazard would be avoided if the employees dropped the Union. Certainly this was Ly- Penny sought to impeach Hall's credibility by establishing, on cross- examination of Hall, that Hall had a few years earlier been involved in a criminal proceeding in which he pleaded guilty to a perjury charge Hall did not list this offense in his application to Penney for employment because, as he testified, he had "paid for" his crime Clarke vouchsafed on direct exami- nation that he too had a record of a prior felony conviction Unlike Hall, Clarke had noted his prior conviction on his application to Penney for employment Notwithstanding their prior convictions, I believe and find that Hall and Clarke testified straightforwardly and honestly in this pro- ceeding kins' understanding when he abruptly left the meeting, as- sembled his fellow employees, and asked Sartoris to repeat his remarks. Moreover, Sartoris' own testimony under- scores that he made clear to the employees that manage- ment was deeply concerned over unionization and consid- ered it a matter of extreme importance that the employees consider whether they really wanted a union. In this context Sartoris' admitted declaration that Pen- ney could lay off its employees without "just cause" and for "no reason" could not fail to have a deep impact upon the employees as a hazard which could be avoided by fol- lowing management's view that it might be wise for them to abandon the Union. To be sure, Sartoris undoubtedly, in the course of his remarks extended over a period of several hours, gave a correct, if sometimes necessarily tech- nical, discussion of the law governing the right of dis- charge, unfair labor practice and economic strikes, right of replacement, picketing, appropriate units, and election pro- cedures. But neither Sartons nor any qualified observer could fairly anticipate that an involved exposition of the law to an unsophisticated group of employees would blunt the impact of a direct statement that Penney could lay them off for no reason and without just cause. Particularly in the context of an ongoing campaign for unionization to which Penney was plainly opposed, the message to the em- ployees was clear: discharge or replacement was an immi- nent possibility unless they abandoned the Union. "Words are not pebbles in alien juxtaposition," as Judge Learned Hand long ago pungently noted in N L.R.B. v. The Federbush Co., Inc., 121 F.2d 954, 957 (C.A. 2, 1941). A long and detailed exposition of the law to unsophisticated employees does not shield the thrust of a blunt or slightly veiled, threat to discharge or replace employees who ad- here to a union. Here, as in Federbush, "the second aspect obliterates the first" (ibid). See also N.L.R.B. v. Gissel Packing Co, Inc., 395 U.S. 575, 620 (1969). I find that Sartons, an agent of Penney, threatened em- ployees with layoff and replacement if they did not aban- don the Union. C. Promise of New Tools and Other Benefits The other aspect of the meeting here under scrutiny de- rives from General Counsel's allegation that Penney prom- ised the employees tools and other benefits if they aban- doned the Union. The relevant evidence can be quickly summarized. In the course of the meeting Sartoris admittedly sought to de- termine the reasons for the employees' dissatisfaction and their desires for a union. In that connection Lykins voiced the complaint that the employees at the auto center were not being furnished the tools they needed to do their work. The condition was a longstanding one. Sartoris immedi- ately replied that, if company policy provided for tools to which the employees were entitled, the employees could get them. Tools were furnished the very next day. Penney denied that a promise or grant of benefits to discourage adherence to the Union was involved here. Its contention is that it was merely righting a deviation from established standards. However, it is highly significant that management seized upon the particular situation of an in- 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cipient union campaign to remedy in precipitate fashion a longstanding complaint. Inescapable is the inference that the real reason for its precipitate action was not its desire to bring the supply of tools up to standard but rather to wean the employees away from the Union by the promise and grant of benefits . Such conduct was plainly an interfer- ence with the employees' freedom to organize in violation of Section 8(a)(1) of the Act. NL.R.B. v. Exchange Parts Co., 375 U.S. 405 ( 1964). I so find.' D. The Identification of Lykins as the Union Instigator and the Threat To Discharge Him The complaint alleges that on or about December 21, 1973, Penney accused an employee of being responsible for the Union's organizational drive at its Springfield facility and threatened to discharge an employee because of his union activities. On that date there was a scheduled representation hear- ing on the petition for representation which the Union had filed. Sartoris, Lawson, and Terkhorn were among those appearing for management. Among those appearing for the Union was James Lykins, the only employee from Penney's work force present.6 It is undisputed that Sartoris and Lykins engaged in a private conversation on this occa- sion. Lykins testified that Sartoris accused him of starting the union movement and that Sartoris stated further that "somebody was going to have to pay for it, organizing this union and that he would get me one way or another in the end." Sartoris' version of the conversation was quite different. Initially, he stated on direct examination that he merely "exchanged pleasantries" with Lykins and "that was the extent of the conversation I had with him." On cross-exam- ination, however, Sartorfs acknowledged, after persistent questioning, that the conversation had gone further. Thus, he admitted having told Lykins that Lykins was "one of the main people in the union campaign." Sartoris testified also that "after the November 30 meeting it was obvious ... that Jim [Lykins] was the most outspoken guy." Sar- torfs denied, however, stating that he would get Lykins or anyone for it. The question here, of course, is one of credibility. Pen- ney argues that Lykins' testimony in this regard is suspect because in a sworn affidavit signed on January 8, 1974, Lykins' statement of his interchange with Sartoris differed from that given in this testimony at the instant hearing. In his affidavit Lykins stated that Sartoris did accuse him in the December 21 meeting of being the instigator of the Union. Lykins also stated in his affidavit that Sartoris had threatened to "get" him for it but placed this threat as having occurred prior to the scheduled hearing on Decem- ber 21 when Sartoris learned that Lykins would attend that scheduled hearing. Penney argues also that one should not assume that Sartoris, an attorney, would make a blatant threat of discharge in the presence of union officials and a Board agent who were in attendance for the scheduled Board hearing. Admittedly, there is a discrepancy between Lykins' testi- mony and his affidavit as to precisely when Sartoris alleg- edly made the threat of discharge; there is no discrepancy, however, as to the substance of the threat. And the argu- ment that one may not assume that Sartoris would have made such a threat in the presence of union and Board officials overlooks the undisputed fact that this was a pri- vate conversation. On the obverse side of the coin, it appears that Sartorfs' testimony was not wholly straightforward. Thus, Sartoris stated at the outset that his conversation with Lykins con- sisted merely of "pleasantries." It was only after detailed and continued questioning that Sartoris, reluctantly and in somewhat obfuscatory fashion, admitted that more than "pleasantries" were involved and that, at the very least, Lykins' role as a principal proponent of the Union was discussed. Sartoris adhered to his denial that he threatened to "get" Lykins for taking on that role. Perhaps it is not wholly without significance that Lykins was in fact discharged just a few weeks later. But quite apart from this circumstance and based on the testimony in the record and my observation of the witnesses, I find that Sartoris did, as he admitted, tell Lykins that he was a principal proponent of the Union. And I find further that Sartorfs told Lykins also in this private conversation that Penney would get Lykins one way or another in the end. As Penney concedes, a threat to get Lykens because of his union activity is a patent violation of Section 8(a)(1) of the Act and I so find. On the other hand, the allegation that Sartoris' identifi- cation of Lykins as the principal proponent or instigator of the Union is likewise a violation of Section 8(a)(1) of the Act is not nearly so obvious. Normally, an employer's de- signation of an employee as a union adherent or a union spokesman can hardly be regarded as interference where, as here, the designated employee has publicly made his sympathies known to all concerned. Cook's United, Inc, 208 NLRB 134 (1974). However, inasmuch as the accusa- tion that Lykins was the principal union proponent was made here in the context of a threat to discharge him for that activity, its minatory impact was obvious and fortifies the finding of an 8(a)(1) violation. I so find. 5 The record contains some evidence of like conduct revealed in a conver- sation between Sartoris and Ron Hall, an employee , on January 7. 1974, the day Lykins was discharged Ron Hall testified that Sartors , in a discussion concerning the Union , asked him "what it would take , a nickel's" When Hall demurred , Sartoris suggested a dime When Hall replied , "Keep going," Sartons left Hall's testimony as to this conversation is undisputed, Sartorfs made no reference to this conversation in his testimony However , inasmuch as this incident was not alleged as an unfair labor practice nor can it be said to have been fully litigated , I predicate no finding thereon 6 The scheduled hearing did not take place Instead , the parties entered into a Stipulation for Certification Upon Consent Election E. The Promise of a Promotion The complaint alleges that, on or about January 3, 1974, Fred Lawson, manager of the automobile center, promised an employee a promotion to persuade him to abandon the Union. Undisputed testimony establishes that on January 3, 1974, Lykins asked Lawson how he (Lykins) "could get promoted because everybody was getting promoted all of a J C PENNEY COMPANY, INC sudden." Lawson replied, that, if Lykins would square things away in the shop, Lawson would take care of him. Lykins then said, "No, sir, I'm happy where I'm at." The foregoing testimony, given by Lykins, was corroborated by employee Ron Hall who was a bystander and overheard the conversation. Lawson, called as a witness by Penney, testified extensively but, significantly, was not questioned as to this incident. I find that the conversation took place as herein recited. General Counsel contends that the clear purport of Lawson's remarks was that if Lykins, the outstanding union proponent would square things away in the shop, i.e., abandon the Union which Penney plainly opposed, Lawson would take care of him. Penney, on the other hand, argues that this is a wholly unwarranted inference, that the word "Union" was never mentioned in the conver- sation, and that the allegation of the complaint in this re- spect is completely unsubstantiated. The issue is fairly stated by the parties. The question is, absent any explicit reference to union considerations, whether Lawson's statement can fairly be said to have had reference to union considerations or, alternatively, whether it merely had reference to work performance. In this con- nection, it is worthy of note that so far as Lykins' work performance, generally speaking, might have been in- volved, Lawson had no fault to find with Lykins. Lykins, Lawson testified, was a good mechanic and Lawson had nothing against him.' On the other hand, the union campaign was at its height at this time. A Stipulation for Certification Upon Consent Election had been entered into less than 2 weeks earlier, a scheduled election was in the offing and the contest for the employees' favor by the proponents and opponents of unionization was in full swing Lawson, fully sensitive and attuned to the drive for unionization among the employees and fully cognizant of the leading role Lykins played in that regard, would readily seize upon Lykins' desire for promotion as an opportunity to wean him away from his sponsorship of the Union. On all the evidence of record, I think it a fair inference and I find that Lawson conditioned his approval of a pro- motion for James Lykins on the latter's abandonment of his union activity. Such conduct is plainly violative of Sec- tion 8(a)(1) of the Act. F. The Discharge of James Lykins Lykins was discharged on January 7, 1974. Initially em- ployed by Penney in March 1972 in the auto center at the Springfield facility, Lykins worked there continuously until his discharge . His immediate supervisor was Service Man- ager Charles High who reported , in turn, to Lawson, man- ager of the auto center . During Lykins's employment with Penney, he received several raises, the last of these about a month before his, discharge . Lawson volunteered that Ly- kins was "a good mechanic" and, not too long before the 7 As shown hereunder, the alleged derelictions, subsequently alleged by Penney as grounds for Lykins' discharge, had not yet really surfaced and it is neither suggested nor argued that Lawson's remarks could have had refer- ence to these matters 449 present controversy, testified to Lykins' good character in a divorce proceeding. Despite this record Lykins' continued employment be- came intolerable to Penney early in January 1974. It needs no emphasis that in the several weeks immediately preced- ing his discharge a vigorous unionization campaign was in progress among the employees at the auto center and, as both the employees and the officials of management knew, Lykins was in the forefront of that campaign. As noted, that campaign began in November 1973 and at the end of that month, Penney initiated its countercam- paign with an all-day meeting in which Sartoris, regional personnel relations director for Penney, brought from Penney's Pittsburgh, Pennsylvania, office for that purpose, sought to dissuade the employees from supporting the Union. As Sartons acknowledged, it was obvious to Pen- ney at that meeting and thereafter that Lykins was the principal proponent of the Union. It is General Counsel's contention that Lykins' vigorous union advocacy gave rise to his discharge and that his ter- mination was designed to discourage activities and mem- bership in the Union in violation of Section 8(a)(3) and (1) of the Act. Penney, on the other hand, denied that anti- union motivation played any role in the termination of Ly- kins and argues affirmatively that the discharge was attrib- utable to specific derelictions by Lykins which came to its attention on or about January 3 and which had to do with a threat to a fellow employee conditioned on his voting for the Union and with misuse or appropriation of company property. The issue here is clear-cut. Section 8(a)(3) and (1) of the Act proscribes the discharge of an employee for union con- siderations. On the other hand, even a union activist is not shielded from discharge if the reason for discharge is unre- lated to union or protected activity The critical determi- nant here, as is frequently the situation in cases of this kind, is whether the reasons assigned by the employer for the discharge genuinely motivated that action or whether they were mere pretexts contrived to conceal the antiunion considerations which were the true motivation for the dis- charge. Relevant here is an analysis of the grounds proffered by Penney to justify the discharge. 1. The first ground adduced by Penney to justify its ac- tion is that on or about January 3, 1974, it was informed that Lykins had threatened to kill a fellow employee, Bill Gartin, unless Gartin voted for the Union. Lykins admit- ted making this statement to Gartin. On its face such conduct by Lykins would certainly ap- pear to warrant disciplinary action up to and including discharge. But scrutiny of the circumstances underlying Lykins' utterance cast doubt on this conclusion. Lykins testified that while he did say he would kill Gar- tin if the latter did not vote for the Union he did so in a joking manner and it was so understood by all present in- cluding Gartin. Preliminarily, it bears note that this kind of behavior was quite typical for Lykins. Undisputed testimo- ny establishes that Lykins was in the habit of making threats, none of which was ever implemented, and that they were not taken seriously. Lawson reluctantly admitted that he was aware prior to January 3, 1974, of Lykins' 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proclivity to indulge in such conduct . Gartin himself ac- knowledged that Lykins had threatened him before but that nothing had come of the threat.8 As to the particular threat here in issue, it appears that Lykins made his statement to Gartin on the auto center floor. Present on the scene in addition to Lykins and Gar- tin were employee Ron Hall and Service Manager Kenneth Burnet, a supervisor . According to Lykins, a good deal of "joking around and cutting up" was going on and Lykins grabbed Gartin and said, "If you don't vote for the union, I'll kill you." Gartin's response , Lykins testified , was, "You tell me that every week." Supervisor Burnet, Lykins further testified, "just chuckled." Ron Hall who also testified as to this interchange sub- stantially corroborated the account given by Lykins. Ac- cording to Hall, Gartin made no response to Lykins but just laughed and Supervisor Burnet "just smiled and turned away." Hall further testified that, on an evening shortly after Lykins' discharge, he asked Gartin, "Didn't you know Lykins wasjust kidding?" and Gartin replied affirmatively. Supervisor Burnet, present on this occasion , was not called as a witness. Bill Gartin confirmed that Lykins had threatened him before and that nothing had come of the threats . He testi- fied further that Lykins was always threatening people. Contrary to Penney's assertion that Gartin had told man- agement following the January 3 threat that he was afraid to come to work as long as Lykins was there, Gartin stated unequivocally on cross-examination that he had never made such a statement to management or to anyone else. Gartin also acknowledged that although Lawson was standing nearby when Lykins made the threat in issue here he (Gartin) made no complaint to Lawson at the time. Even more persuasive of the fact that Penney did not really consider Lykins' conduct on this occasion blame- worthy is that such conduct, not only on the part of Lykins but also on the part of other employees and supervisors, appeared to be quite typical and was openly tolerated by management. Not only were threats a common occurrence, as credible testimony establishes , but so, too, was even more serious conduct including the pulling of a gun by one employee on another and the brandishing of an open knife by a supervisor to persuade an employee to hand over a candy bar. So far as appears, management had never seen fit to discipline either the employee or the supervisor in- volved in such known conduct . Whether on the basis of the particular incident there involved or on the basis of management's entire pattern of conduct with respect to like incidents, its claim that it regarded Lykins' statement as constituting a real threat or as meeting the discipline of discharge lacks persuasiveness. 2. The second ground asserted by Penney to justify its action of discharge is that Lykins stole a can of de-icer. Notwithstanding that the value of the item was minimal, less than a dollar, certainly theft of company property could properly be regarded as a serious offense. In this connection the evidence is not in substantial dis- pute. On January 3, 1974, at approximately 5 p.m., Lykins was leaving work . On his way out he pulled his truck to the gas island which Penney operated to have his gas tank filled . Because there had been an ice storm that day, Ly- kins went into the store area to get a can of de-icer and told the clerk, Mario Grassie , to put the can of de-icer on his charge. Grassie told Lykins to have the gas attendant put the de-icer on his gasoline charge. Lykins proceeded out- side, told the gas attendant , Terrance McFall, to put the de-icer on his gasoline charge, used some of the de -icer on the windshield of his truck and threw the can with the remainder of its contents on the front seat of the truck. The gas attendant did not put the charge for the de-icer on the gasoline ticket. According to Lykins, he signed the gasoline ticket without reading it and drove off. When told at his discharge interview on January 7 that the charge for the de-icer had not been included on his ticket , Lykins paid the 77-cent charge which should have been listed. Both Grassie and the gas attendant , Terrance McFall, testified as to the incident . Grassie confirmed both in his testimony and in his written report to management which the latter asked him to execute that Lykins had asked Grassie to charge the de-icer and that Grassie told him to have the gas attendant put everything on one ticket. Simi- larly, McFall, the gas attendant, confirmed that Lykins had asked to charge the gas and , possibly, the de-icer.9 On the basis of the foregoing undisputed facts, I find it difficult, if not impossible, to believe that Penney's officials could seriously entertain the notion that Lykins intended to steal the can of de-icer . Instead, I believe and find as the record shows that Penney made a precipitate effort to get written documentation from the individuals involved and a copy of the gas bill in the hope that it could establish an offense warranting discharge . I am satisfied that Penney seized upon this incident to cover its real desire to get rid of an outspoken union adherent. 3. The third and final ground which Penney advanced to legitimize its discharge of Lykins was that Lykins in the process of working on the car of a fellow-employer, Terry Noble, had put parts on Noble's car without charging him for it. The parts involved were a length of heater hose, clamps, and some antifreeze . Lykins admitted that he had put these items in Noble's car. The circumstances surrounding this incident are not in serious dispute . Terry Noble testified that in the latter part of December he reported to his assistant service manager, Dick James, that he was having brake trouble on his car and James authorized him to bring his car into the auto center for a check . Noble did not have a work order, nor- mally required when work was to be performed, because company policy provided that work orders were not re- quired when work was done on cars belonging to company personnel . Lykins did the work on Noble's car. Lykins tes- tified that he checked out the brakes and noticed a defec- tive heater hose. Lykins told Noble the hose needed replac- ing and Noble said he did not have the money to pay for it. At this point there is conflict in the testimony. According to Noble, Lykins went ahead and did the work anyway. Noble said Lykins cut the old hose, made a call on the 9In view of McFall's uncertainty here, I am inclined to and do credit s On an earlier occasion Lykins had been reprimanded for threatening to Lykms' testimony that, as he had with Grassie, he also asked McFall to break a windshield In this instance also, the threat was never implemented charge the de-icer J. C. PENNEY COMPANY, INC 451 "intercom" then left and returned with a heater hose and clamps and put them on Noble's car. Noble admitted that at no time during this operation-he was present through- out-did he tell Lykins to stop. Noble also admitted that he knew the merchandise was not paid for and that Lykins, as a mechanic, was not the person Noble would have to pay. According to Noble, Lykins told him "not to worry about it, just vote right on the union." In any event, as Noble testified, he made no effort to pay the amount in- volved, about $8, until a few weeks later when, on January 3, he decided to tell management what had happened. Management directed Noble at that time to pay for the merchandise. Lykins gave a different account of the events following his recommendation that the heater hose be replaced and Noble's response that he could not pay for it. According to Lykins, Lykins suggested that they see Assistant Manager James and explain the situation. This was done and James authorized the work to be done including the furnishing of heater hose, clamps, and antifreeze. James stated that No- ble could pay for the merchandise when the latter got his paycheck. Armed with this authority, Lykins got the parts from the parts department and put them in Noble's car. When Noble explained to Lykins again that he had no money to pay, Lykins told him to take the matter up with James. According to Penney, Assistant Manager James reported to management upon inquiry that he had not authorized the work in question. Penney, however, did not call James as a witness and James did not testify. According to Ly- kins, Lykins complained to James a few days after the dis- charge as to why James had not supported him and James replied that he was `a company man" and that it could have gotten him fired. On the basis of my observation of the witnesses and in view of surrounding circumstances I credit Lykins' version of the testimony and find further that Penney could not seriously have believed the contrary version which it assert- ed as one of the reasons for Lykins' discharge. James had plainly authorized Noble's car to be worked on in the first instance. As Fred Terkhorn, store manager, admitted, un- der established procedure no mechanic, including Lykins, could get parts from the parts department unless he had a work order calling for parts or unless the parts department was authorized to furnish them by a company official. Terkhorn admittedly made no inquiry of the parts depart- ment as to why it issued the parts but explained that he contented himself with James' explanation that the latter knew nothing about it. under these circumstances it is even more surprising that Respondent did not call James as a witness. Moreover, Terkhorn sought to explain this appar- ently incongruous situation by suggesting that the parts Ly- kins used or some of them, might have been lying around in areas other than the parts department. Significant also is the disparate action taken with respect to Noble and Lykins with respect to this matter. Lykins was discharged. Noble, on the other hand, was not dis- charged or even disciplined even though, on his own ac- count, he would be at least equally guilty of complicity in what Penney purported to regard as a grave offense. In- stead, Noble was, not too long thereafter, promoted to the job of salesman, concededly a promotion from the job he had held at that time of the incident in question, that of attendant at the gas island. I believe and find that Noble was in effect rewarded for helping to fabricate a case for discharge of Lykins, a case which Penney knew was a transparent pretext. In sum, I find that with respect to all three incidents upon which Penney predicated the discharge of Lykins, an admittedly good mechanic, the so-called threat to Gartin, the alleged pilferage of a can of de-icer, and the giving of free merchandise to Noble, it is plainly demonstrated by a preponderance of the evidence in the record that not only were the matters in question fabricated pretexts but that the company officials involved knew that the asserted dere- lictions were without foundation. They did serve the pur- pose, however, of camouflaging Penney's real objective of ridding its work force of an outspoken union spokesman and stemming the campaign for unionization. I conclude and find that the real motivation for the dis- charge of Lykins, was because of his sympathy for, mem- bership in, and activities on behalf of the Union and in order to discourage activities and membership in the Union. Such conduct is violative of Section 8(a)(3) and (1) of the Act as alleged in the complaint. III. THE REPRESENTATION PROCEEDING The issue presented in this phase of the consolidated proceeding relates to the validity of certain objections urged by Penney to conduct affecting the results of the election conducted among the auto center employees at Penney's Springfield facility. As already noted, such an election was conducted on February 8, 1974, pursuant to a Stipulation for Certification Upon Consent Election. A majority of the ballots had been cast for the Union. On February 15, 1974, Penney filed timely objections to the conduct affecting the election and asked that the election be set aside on the ground that the Union interfered with a free election by (1) offering to waive initiation fees for those employees signing authorization cards prior to the election; (2) promising employees free cash or merchandise in return for a "Yes" vote; and (3) threatening bodily vio- lence or other reprisals. As already noted also, the matters here involved have been designated for hearing in the present consolidated proceeding for appropriate findings and recommendations. In addition to the evidence submitted herewith, Penney has argued the matter in its brief. The Union, represented by Sherman Hammergren, elected not to file a brief and Gen- eral Counsel who took no partisan position in the represen- tation proceeding also filed no brief as to the issues in- volved The objections filed by Penney are here considered seria- tim 1. Waiver of initiation fees: Employee Bill Gartin testi- fied that James Lykins approached him at a union meeting prior to the election; asked him to sign a union authoriza- tion card and told him that if he signed the card before the election, he would not have to pay the Union initiation fee of $35. Employee Terry Noble testified, in similar vein, that Lykins told him that he (Noble) would not be required 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to pay the $35 membership fee if he joined the Union be- fore the election. Employee Gary Hutchinson testified that employee Ron Hall told him that employees were being "signed up," and that the initiation fee would be $35 and the monthly payment $7.50 "if you didn't get in in time." This testimony remained unshaken on cross-examination. Gartin, Noble, and Hutchinson did sign authorization cards. Lykins, called as a witness by the Union on this phase of the case, admitted that he had solicited Noble to sign an authorization card but denied telling Noble that the latter would have to pay the initiation fee unless he signed. Ly- kins made no mention of his solicitation of Gartin. Ron Hall, who also testified on this phase of the case, did not address himself at all to his solicitation of Gary Hutchin- son except for the fact that he did give Hutchinson an authorization card which Hutchinson signed. Both Lykins and Hall testified that they had been given authorization cards by Hammergren, the union organizer, and had been instructed by him to solicit signatures. Both testified that they had some success in this regard. Hammergren, who conducted the hearing on this phase of the case on behalf of the Union sought unsuccessfully to elicit testimony that he, Hammergren, had explained the initiation fee and dues structure of the Union at a meeting of the employees and that no employees would be charged initiation fees until and unless the Union obtained a con- tract. Hammergren did not take the stand to so testify and there is a dearth of probative evidence that such a state- ment was made. Under all the circumstances I conclude that the record establishes that Lykins and Hall did make statements to fellow employees that initiation fees would be waived for those employees signing cards before the election. 10 In view of Lykins' open role as spokesman for the Union, in view of the fact that both Lykins and Hall were acting at Hammergren's direction in obtaining signatures to authori- zation cards which were in due course turned over to the Board in support of the representation petition, I find that both Lykins and Hall were acting in this regard as agents for the Union and that the Union was answerable for their conduct. International Woodworkers of America, 131 NLRB 189, 190 (1961). On this state of the record and under the square holding of the Supreme Court in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), the Union here interfered with the rights of the employees under Section 7 of the Act. I so find and conclude that this furnishes ade- quate ground on which to predicate a recommendation that the election herein be set aside. 2. Promises of benefit and threats: In view of conclusion 10 While I have heretofore discredited portions of the testimony of Gartin and Noble and also entertain some reservations as to the complete credibili- ty of Hutchinson, I credit their testimony in the respects set forth in this portion of the proceeding As Judge Learned Hand has pronounced, "It is no reason for refusing to accept everything that a witness says because you do not believe all of it, nothing is more common in all kinds of judicial decisions than to believe some and not all " N L R B v Universal Camera Corporation, 179 F.2d 749, 754 (C A 2, 1950), reversed on other grounds 340 U.S 474 ( 1951) Here the testimony of all three witnesses discloses a consis- tent pattern of behavior and such contrary evidence as is furnished is less than persuasive hereinbefore reached leading to a recommendation that the election be set aside only brief reference will be made to the two remaining objections. Bill Gartin testified that he received several anonymous telephone calls. He could not identify the callers and could fix the date of only one such call, that made on January 7, about a month before the election. On that occasion Gartin was told by someone he could not identify that the Union would go through and that "they'd deal with him later." Employer Rigney testified that Ron Hall offered him $150 to $200 around Christmas of 1973 and implied that the source of this sum was the Union. Hutchinson in his testimony made somewhat confused references to the ef- fect that Lykins, Ron Hall, or both indicated that Hutchin- son would be blackballed or otherwise gotten out of the shop. Hall denied offering financial aid to Rigney. Indeed, Rigney acknowledged that after Hall had allegedly offered him money, he went back to Hall to get some money and was unsuccessful. Hall also denied telling Hutchinson he would be "blackballed." The burden of proof as to establishing the validity of objections to conduct affecting the results of an election rests, of course, on the objecting party. In the entire con- text of the present situation, I am not satisfied that the anonymous calls to Gartin, only one of which he could fix as to date, was such as to invalidate the results of the elec- tion. Nor do I believe that the testimony of Rigney indicat- ing vaguely an attempted bribe or the confused testimony of Hutchinson that he was told he would be "blackballed" or otherwise adversely affected carries sufficient probative weight to validate a finding that there was interference with a free and fair election. In any event, however, such findings, even if warranted, would only be cumulative here inasmuch as I have previ- ously found herein that the offer to waive union initiation fees for all employees who signed authorization cards be- fore the election would, under Savair, require that the elec- tion be set aside. CONCLUSIONS OF LAW 1. By threatening employees with layoff and replace- ment if they did not abandon the Union, Penney violated Section 8(a)(1) of the National Labor Relations Act, as amended. 2. By promising and granting benefits to employees to discourage their adherence to the Union, Penney violated Section 8(a)(1) of that Act. 3. By identifying an employee as a union proponent and threatening to discharge him, Penney violated Section 8(a)(1) of that Act. 4. By promising an employee a promotion conditioned on his abandonment of union activity, Penney violated Section 8(a)(1) of that Act. 5. By discharging employee James Lykins because of his sympathy for, membership in and activities on behalf of the Union and in order to discourage activities and mem- bership in the Union, Penney violated Section 8(a)(3) and (1) of that Act. 6. By promising employees that the union initiation fee would be waived for them if they signed authorization J. C. PENNEY COMPANY, INC. cards before the election, the Union interfered with the conduct of a free Board-conducted election for the desig- nation of a bargaining representative. REMEDY In addition to directing Penney to cease and desist from engaging in the several unfair labor practices here found, the character and scope of those violations make appropn- ate a further order directing Penney to refrain from trench- ing in any manner on the the rights guaranteed its employ- ees under Section 7 of the Act. Affirmative relief is also appropriate here. Penney will be directed to offer James Lykins reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent job, and to make Lykins whole for lost earnings computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of his wrongful termination to the date reinstatement is offered. Customary provisions regarding recordkeeping, notice posting, and reporting requirements will also be included. Finally, I shall recommend that the election in Case 9- RC-10379 be set aside and that the Board take further appropriate action as required. Upon the foregoing findings of fact and conclusions of law, upon the entire record and pursuant to Section 10(c) of the Act, I recommend the following recommended: ORDER II J. C. Penney Company, Inc., its officers, agents, succes- sors, and assigns, shall- 1. Cease and desist from: (a) Threatening its employees with discharge and re- placement for not abandoning their union sympathies or activities. (b) Promising or granting benefits to its employees to discourage their adherence to unionization. (c) Accusing employees of union advocacy and threat- ening to discharge them for that advocacy. (d) Promising employees promotions in exchange for their abandonment of union advocacy (e) Discharging or otherwise discriminating against any of its employees to discourage their union activities or sym- pathies. (f) In any other manner interfering with the rights of its employees under Section 7 of the National Labor Rela- tions Act, as amended, to organize and/or bargain collec- tively under the aegis of Retail Clerks International Associ- ation, Retail Clerks Union, Local 1552, AFL-CIO, or any other labor organization, or to refrain from such activities. 2. Take the following affirmative action necessary to ef- fectuate the policy of the Act: (a) Offer to James Lykins immediate and full reinstate- ment to his former job, or, if such job is no longer avail- able, to a substantially equivalent job without prejudice to his seniority or other rights and privileges, and make James Lykins whole for lost earnings in the manner described in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the 453 Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to compute the amount of lost earnings due under the terms of this Order. (c) Post at its place of business in Springfield, Ohio, cop- ies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized repre- sentative or representatives of J. C Penney Company, Inc., shall be posted by said company immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the company named herein to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days of the date of this Order, what steps the Company named herein has taken to comply therewith. IT IS FURTHER RECOMMENDED that the election in Case 9- RC-10379 be set aside and that the Board take such fur- ther action in that case as it deems appropriate in the cir- cumstances. " In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 12 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with discharge or replacement because they do not abandon their union sympathies or activities. WE WILL NOT promise or grant benefits to employees to discourage them from joining a union. WE WILL NOT accuse employees of encouraging unionization and threaten to discharge them for doing so. WE WILL NOT promise employees promotions to get them to abandon their support of a union. WE WILL NOT discharge or take other action against employees to discourage their union activities or sym- pathies. WE WILL NOT in any other manner interfere with the rights of our employees under the law to organize and/or bargain collectively through Retail Clerks In- ternational Association, Retail Clerks Union, Local 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1552, AFL-CIO, or any other labor organization, or we will pay him for the earnings he lost as a result of to refrain from such activities . our having discharged him. WE WILL offer James Lykins his old job back, and J. C. PENNEY COMPANY, INC.