Pomeroy's Inc.

POMEROY'S INC. Transportation Lease Service, Inc. and Allied Stores of Penn-Ohio, d/b/a Pomeroy's Inc. and Edwin L. Anderson. Case 4-CA-8063 September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 31, 1977, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and General Counsel filed an answer to Respondents' exceptions. 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 exceptions and briefs and has decided to affirm the rulings, find- ings,t and conclusions of the Administrative Law Judge, to modify his remedy, 2 and to adopt his recommended Order. ORDER 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 the Respondents, Transportation Lease Service, Inc., and Allied Stores of Penn-Ohio, d/b/a Pomeroy's Inc., Willingboro, New Jersey, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondents have 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. z In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor to August 25, 1977. in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The original charge herein was filed on June 28, 1976, by Edwin L. Anderson, an individual. An amended charge was filed on August 12, 1976, and a complaint thereon was issued by the General Counsel of the National Labor Relations Board on August 30, 1976, alleging that Transportation Lease Service, Inc., and Allied Stores of Penn-Ohio, d/b/a Pomeroy's Inc., herein called respectively TLS and Pomer- oy, or collectively Respondents, discharged Anderson in violation of Section 8(aXl I) of the Act. Answers were timely filed by TLS and Pomeroy and pursuant to notice a hearing was held before the Administrative Law Judge at Philadelphia, Pennsylvania, on October 20, 21, and 22 and December 6, all in 1976. Briefs, timely filed by General Counsel and Respondents, have been duly considered. FINDINGS OF FACT I. EMPLOYERS' BUSINESSES Pomeroy is a corporation operating retail department stores in several States including the department store involved in this case at Willingboro, New Jersey. During the past 12 months the Willingboro store had gross volume of business in excess of $500,000 and received goods valued in excess of $50,000 directly from sources located outside the State of New Jersey. Based upon these facts, I conclude that Pomeroy is an employer within the meaning of Section 2(6) and (7) of the Act. TLS is a Pennsylvania corporation with headquarters at North Wales, Pennsylvania, where it is engaged in the interstate and intrastate business of leasing labor to various firms. During the past 12 months TLS had a gross volume of business in excess of $250,000 and, during the same period, received more than $50,000 for services performed outside Pennsylvania. TLS contends that the Board is without jurisdiction as to it, since it leases labor to retail stores and does not meet the Board's retail jurisdictional standard, i.e., $500,000 gross volume of business. However, I conclude that the jurisdictional facts, which are conced- ed, are sufficient for the Board to assert jurisdiction and that TLS is an employer within the meaning of Section 2(6) and (7) of the Act. 1. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that on or about April 30, 1976,1 Respondents discharged Anderson because he engaged in concerted protected activity by protesting working condi- tions on behalf of himself and another employee of Respondents in violation of Section 8(aX)(l) of the Act. 2 i All dates refer to 1976 unless otherwise indicated. 2 At the hearing General Counsel amended the complaint to allege that Respondents, through Eugene A. Fink, president of TLS, interrogated an employee about an investigation being conducted by the Board and implied that said employee could lose his job if he gave testimony unfavorable to Respondents, all in violation of Sec. 8(aX 1) of the Act. 232 NLRB No. 21 95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Facts 1. Joint employers TLS furnishes drivers and helpers to Pomeroy under a contract lease agreement (G.C. Exh. 4). These employees are hired and paid by TLS who also has the authority to discipline and discharge them. Pomeroy has the contrac- tual right to reject employees furnished by TLS but, once employed, their day-to-day activities are under the control and supervision of Pomeroy and there is little further contact with TLS. They report directly to Pomeroy each day for work and while employed they wear Pomeroy uniforms and work with trucks bearing the Pomeroy name. Occasionally, they perform work which is normally done by Pomeroy employees. They are furnished employee discount cards to make discount purchases at Pomeroy. The extent of Pomeroy's control over the work of these employees is set out in section 7 of the contract which provides: Private Carrier [Pomeroy] at all times will solely and exclusively be responsible for maintaining operational control, direction, and supervision over said drivers, such control, direction, and supervision including, but not being limited to scheduling and dispatching of the drivers, routing instructions, loading and unloading procedures, and all other matters relating to the day-to- day private carriage operation of Private Carrier. In addition, Pomeroy is also required by the contract to maintain certain insurance coverage on the vehicles, assume responsibility for the employees' compliance with Federal and state regulations, and maintain work records as required by Federal and state authorities. 2. Anderson's discharge 3 Anderson was hired in September 1974 as a truckdriver helper by Fink and assigned directly to Pomeroy where he reported to work on a daily basis. His immediate supervisor was Scott Freeman, warehouse manager for Pomeroy. For the last 8 months of his employment, except for the final 3 days, he worked as a helper on the truck driven by John Juniewicz. For the last 3 days of his employment, his driver was Paul Cronmiller. The work involved making deliveries of home furnishings to Pomeroy customers and sometimes delivering merchandise between Pomeroy stores. Pomeroy utilized two trucks for the drivers and helpers leased from TLS. These trucks usually alternated workdays since the work was insufficient to utilize two trucks. The trucks sometimes worked overtime on a daily basis, but were not paid overtime except after 40 hours per week. This I There is conflicting testimony regarding the discharge allegation and the alleged coercion. In resolving these conflicts, I have taken into consideration the apparent interests of the witnesses. In addition, I have considered the inherent probabilities; the probabilities in light of other events; corroboration or lack of it; and consistencies or inconsistencies within the testimony of each witness, and between the testimony of each and that of other witnesses with similar apparent interests. In evaluating the testimony of each witness, I rely specifically upon his or her demeanor and have made my findings accordingly. And while apart from considerations of demeanor, I have taken into account the above-noted credibility consider- system did not recognize any job seniority factor as to the driver-helper crews on the two trucks. Anderson became dissatisfied with this arrangement. He felt that the more senior crew should work every day to provide a full 40- hour workweek and an opportunity to acquire overtime over the 40 hours per week. In late 1975, Juniewicz and Anderson discussed this matter and they agreed that some effort should be made to bring this proposal to the attention of management. They decided to approach Fink with the proposal. Anderson called Fink about December 1975 and presented his proposal. Fink referred him to Pomeroy saying that it was not his decision. 4 Fink recalls being called by Anderson, but testified that after explaining the difficulties in Anderson's proposal, he turned him down. For the reasons noted above concerning credibility resolutions, I credit Anderson to the effect that he was referred to Pomeroy. Anderson made several more calls to Fink in late 1975 and early 1976. On at least one occasion Juniewicz was present when Anderson called Fink. Anderson also made his proposal several times to Freeman, who responded that he did not have full authority to make such a decision and that he would speak to his supervisor, Brown, the assistant store manager. Anderson kept Juniewicz informed of these conversations. As to the call-in system for calling in sick, the record discloses that the normal starting time for the truck crews is 8:30 a.m. In the past, if an employee was sick on a workday, he was allowed to call in sick on the same morning he was to report to work. This made it difficult for Fink to secure a replacement in timely fashion, which created delivery problems. To obviate this problem, a new procedure was begun in 1976, "possibly March," according to Anderson. 5 Fink testified that Anderson was remiss in abiding by the new reporting procedures. Fink testified that he kept a record of Anderson's latenesses and absences. (Resp. Exh. I) These disclose that for the year of 1976, prior to his discharge, Anderson was absent 3 days and late twice. The latenesses were not, however, so lengthy as to require a replacement. As to the absences, Fink testified that they were without notice to him as required by the new procedures. However, it is undisputed that, as to his final absence, proper notice was provided to Fink. With respect to the discharge incident, it appears that Anderson worked on the truck driven by Cronmiller for the last 3 days of his employment. On Thursday afternoon, April 29, Anderson was assigned to work on Saturday, May i, by Freeman. Anderson objected to this assignment on the grounds that since he had changed trucks and drivers, i.e., from Juniewicz to Cronmiller, he was entitled to work on Friday rather than Saturday, even though he had worked on Thursday. In other words, despite the ations, my failure to detail each of these is not to be deemed a failure on my part to have fully considered it. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161(1966). 4 This would appear to conform to the contract provision recited above giving scheduling authority to Pomeroy. 5 Fink testified that the new procedures were begun in the fall of 1975 and that it was Freeman who notified Pomeroy lease employees of the change at that time. Freeman did not testify and so obviously he did not corroborate this, and I credit the March 1976 date, as testified to by Anderson, as the same time he learned of the charge. 96 POMEROY'S INC. system of alternating days with the trucks, he was still entitled to work on Friday with Saturday as his day off. Cronmiller agreed with Anderson and both expressed their dissatisfaction to Freeman, whereupon Freeman told Anderson that if he did not like it, he could "go somewhere else to work." This response prompted both Anderson and Cronmiller to go to Freeman's superior, Mr. Brown. Anderson did the talking, complaining to Brown about the incident and the way Freeman had spoken to him earlier. Brown opined that Freeman's reaction may have been due to the new responsibilities Brown had given to him.6 However, the schedule was not changed and Anderson did not work on Friday. On Friday, April 30, about 6 p.m., Anderson called the delivery office at Pomeroy to report sick with the flu. He spoke to secretary Katherine Crum, telling her that he would not be in for work on Saturday. Crum asked if he wanted her to get Freeman who was in the warehouse and Anderson said, "No, that's okay; just relay the message to him." Crum's testimony corroborates Anderson as to the time and substance of the call. On Monday, May 3, Anderson received a certified letter from Fink dated and mailed April 30. The body of the letter reads: We regret to inform you, your services are no longer required with our company. Effective May 3, 1976, you will no longer report to the place of your assignment. [G.C. Exh. 3 and Resp. Exhs. 2(a)(b)(c) l Anderson's next regular workday was Tuesday, May 4. After reading the letter, Anderson called Fink to inquire about his employment status. Fink told him that he was not supposed to complain to the customer (Pomeroy); that he was supposed to bring any complaints to him (Fink); and that Anderson could cost him his contract by complaining to the customers. Fink also testified concerning the discharge incident. He stated that a couple of days before Anderson was discharged on April 30 he was called by Freeman who told him that Anderson had told Freeman that if he had to take Friday off, he was also going to take Saturday off. However, Fink testified that he took no action until Friday, April 30, after Anderson had called in sick. About 3 p.m. on Friday, Cronmiller called Fink at Fink's request. According to Cronmiller, Fink inquired about the meeting the previous day in Brown's office, and during this telephone conversation Cronmiller told Fink that Ander- son had said that he did not want to work on Saturday because of plans that he had made. At 4:30 p.m., "give or take 10 minutes," on April 30, according to Fink, his secretary, Betty Haas, received a call from Pomeroy that Anderson would be absent for work on Saturday, May 1.7 Haas reported this to Fink who then sent the termination letter of April 30 to Anderson. Fink is certain that the call was received before 5 p.m. because the post office closes at 5 p.m. and the certified letter was mailed on April 30. However, as to the time that Anderson called Pomeroy, I credit Anderson's testimony corrobo- rated by Crum, that he called Pomeroy about 5:30 p.m. In these circumstances, it would have been impossible for Fink to have known that Anderson had called in sick at Pomeroy before he sent the May 30 letter discharging him, and I so find. 3. 8(a)(1) allegations of coercion Juniewicz testified that about 3 weeks before the hearing in the instant case he was told by Cronmiller to call Fink. He did so and was asked by Fink if he had seen anyone from the National Labor Relations Board. Juniewicz denied this, although it was the truth. Fink told Juniewicz that he had heard Juniewicz had seen a Board agent, and further stated that Pomeroy did not like the "situation" and that TLS only had a 30-day contract with Pomeroy which could be terminated. In a later conversation, Fink asked Cronmiller to speak to their lawyer about the case and he agreed. Fink recalls a telephone conversation with Juniewicz concerning the pending Board matter, wherein Juniewicz expressed his concern about the security of his job. Fink testified that he told Juniewicz not to argue with the accounts and that if they had problems to go to him because the accounts had a 30-day option to cancel that contract without a reason and that they wanted the drivers to have their jobs. When asked if this matter would put the jobs of the drivers in jeopardy Fink replied that he did not know and that anythi.ig could happen. The extent that these accounts vary, I credit Juniewicz for the reasons noted above. B. Discussions and Analysis 1. Joint employers Respondents contend that TLS and Pomeroy are not joint employers, "inasmuch as governmental regulations require Pomeroy to have complete control over the activities of the employee with respect to his operation of the vehicles in question and his activities in transporta- tion." Such assertions even if correct, do not negate a joint employer finding as to TLS where, as here, TLS retains the basic elements of the employer-employee relationship, notably the authority to hire, fire, and discipline. The record also supports the joint employer status of Pomeroy since the facts show it especially by the exclusive control that Pomeroy exercises as to the employees' daily work activity. Floyd Epperson (United Dairy Farmers, Inc.), 202 NLRB 23 (1973); Manpower, Inc., of Shelby County, 164 NLRB 287 (1967). Accordingly, I conclude that TLS and Pomeroy are joint employers of the lease drivers and helpers, including Anderson. 2. Anderson's discharge The General Counsel contends that Anderson was discharged for having engaged in protected concerted 6 Brown did not testify. 97 7 Haas did not testify. DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity; to wit, protesting working conditions on behalf of himself and another employee. Respondents, on the other hand, contend that Ander- son's discharge was the result of several absences without advance notice sufficient to enable TLS to obtain a replacement. The only documentary support for this contention is a paper reporting to reflect Anderson's latenesses and absences beginning in April 1975, and ending with the date of his discharge. This document does not, on its face, disclose that the absences were without adequate notice to Fink, although Fink claims that this was the case. Indeed Fink concedes that the documents would not reflect to everyone that Anderson was an unsatisfacto- ry employee. Nothing in Fink's testimony or the entire record herein satisfies me that his record of absenteeism was unsatisfactory. Anderson's testimony which I credit was that he always called in when he was to be absent, in conformity with existing policy. In these circumstances, I cannot conclude that Anderson was discharged for failing to give TLS timely notice of his absences. Indeed, even in conceding the accuracy of Fink's records, and that Anderson was aware of the new reporting procedures in early 1976, as testified to by Fink, my conclusion would be the same, since it strains credulity to believe that Anderson would have been discharged some 2-1/2 months after his last failure to give proper notice in circumstances where it is undisputed that he did, in fact, provide timely notice with the respect to his last absence. Moreover, as I have noted above, Anderson did not call in sick until after the decision to discharge him had been made and the discharge letter sent. This supports the conclusion which I adopt that the matter of absenteeism was not the cause of Anderson's discharge. In evaluating the entire record herein, it is clear to me that Anderson was engaged in protected concerted activity. The dispute was essentially a matter of Anderson's desire to establish a system of crew seniority between the two lease crews. The result of this would have been to provide the senior crew with a full workweek and an opportunity for overtime in excess of the 40-hour workweek. These are matters directly related to the working conditions of employees and efforts to promote them are protected activity. It is equally clear to me that Anderson's actions were concerted. The crew seniority concept was the product of discussions between him and Juniewicz. Although it was primarily Anderson who confronted management with the proposals, it was done after consulta- tion with and the agreement of Juniewicz who was kept advised by Anderson of the discussions with management. Such activities are concerted as well as protected. Also in protesting the application of existing scheduling procedures just prior to his discharge, Anderson was likewise engaged in protected concerted activity on behalf of himself and Cronmiller. Direct personal authorization from other employees is not necessary to a finding that activity is concerted. Carbet Corporation, 191 NLRB 892 (1971); Diagnostic Center Hospital Corp., of Texas, 228 NLRB 1215 (1977). Respondents contend, however, that Anderson was not engaged in a protected concerted activity. Fink alludes to the existence of an unwritten TLS policy which provides that all complaints be brought to the attention of TLS, rather than brought directly by the lease employee to the customer. Respondents contend, as another reason for his discharge, that Anderson was discharged for failing to conform to this rule and thus was not engaged in protected activity. First, as noted above, TLS and Pomeroy are joint employers of Anderson. Thus, Anderson, in making his protestation to Pomeroy was only protesting to his own employer. He was not protesting to Pomeroy as a third party, as Respondents appear to contend. Further, as noted above, Anderson was engaged in protected concerted activity. Obviously, any TLS policy inhibiting Anderson's freedom to engage in such protected concerted activity is proscribed by the Act. Accordingly, it can be no defense by Respondents in this case to recite a violation by Anderson when such a policy or regulation is itself invalid. In these circumstances, I conclude that Anderson was engaged in protected concerted activity and that he was discharged for exercising that right in violation of Section 8(a)(l) of the Act. 3. 8(a)(1) allegation of coercion Viewed in its entirety, I am satisfied that Fink's conversation with Juniewicz constituted unlawful interro- gation and an implied threat of discharge for cooperating in the Board investigation. Thus, Fink, for no apparent reason, asked Juniewicz if he had seen any Board agent and when Juniewicz denied it, Fink told him that he had heard that he had done so. This was followed by remarks implying that Pomeroy did not like this situation, referring to the matter pending with the Board, and noting that Pomeroy could cancel the contract which action would cost Juniewicz' his job. Such statements voiced by one of the joint employers herein constitutes coercion within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Respondents' opera- tions described in section I, above, have a close and intimate relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in and are engaging in certain unfair labor practices, I shall recom- mend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondents discharged Edwin L. Anderson for reasons which offended the provisions of Section 8(a)( ) of the Act. I shall therefore recommend that Respondents make him whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him. The backpay provided for him shall be computed in accordance with the Board formula set 98 POMEROY'S INC. forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum computed as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Respondents TLS and Pomeroy are joint employers within the meaning of Section 2(6) and (7) of the Act. 2. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices proscribed by Section 8(a)(l) of the Act. 3. By unlawfully discharging Edwin L. Anderson on April 30, 1976, Respondents engaged in unfair labor practices within the meaning of Section 8(a)(I) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 8 The Respondents, Transportation Lease Service, Inc., and Allied Stores of Penn Ohio, d/b/a Pomeroy's Inc., their officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activity. (b) Interrogating or threatening employees in order to interfere with the rights guaranteed them to engage in protected concerted activity for their mutual aid or protection. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Edwin L. Anderson immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent job, and make him whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him 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 records and reports and all other records necessary to analyze the amounts of backpay due herein. (c) Post at their respective premises in North Wales, Pennsylvania, and Willingboro, New Jersey, copies of the attached notice marked "Appendix." 9 Copies of said notice on forms provided by the Regional Director for Region 4, after being duly signed by Respondents' authorized representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable 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 date of this Order, what steps have been taken to comply herewith. 8 In the event no exceptions are filed as provided by Sec. 102.46 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. 9 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 discharge or discriminate against any employees for engaging in protected concerted activi- ties. WE WILL NOT interrogate or threaten employees in order to interfere with their rights to engage in protected concerted activities for their mutual aid or protection. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL make Edwin L. Anderson whole for any loss of pay he may have suffered as a result of our discrimination practiced against him, and WE WILL reinstate him. TRANSPORTATION LEASE SERVICE, INC. ALLIED STORES OF PENN- OHIO, D/B/A, POMEROY'S INC. 99