Sears, Roebuck and Co.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sears, Roebuck and Co. and Charles Tharaldson Case 18-CA-4423 FINDINGS OF FACT June 9, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 1, 1975, Administrative Law Judge Benjamin K Blackburn issued the attached Decision in this proceeding Thereafter, Respondent filed ex- ceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order 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 the Respondent, Sears, Roebuck and Co, Minneapolis, Minnesota, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order DECISION STATEMENT OF THE CASE BENJAMIN K BLACKBURN, Administrative Law Judge The charge in this case was filed on December 30, 1974 I The complaint was issued on February 28, 1975 The hearing was held in Minneapolis, Minnesota, on May 20, 21, and 22, 1975 The principal issue litigated was Respondent's motive for discharging Charles Tharaldson on December 26 For the reasons set forth below, I find that it included, in substantial part, Tharaldson's engaging in protected concerted activities in October and, therefore, the dis- charge violated Section 8(a)(1) of the National Labor Rela- tions Act, as amended Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following ' Dates are 1974 unless otherwise indicated I JURISDICTION Respondent, a New York corporation, is engaged in the retail sale of merchandise in various States Among its stores is one located at 900 East Lake Street in Minneapo- lis It is the only facility of Respondent involved in this case During calendar 1974 Respondent grossed more than $500,000 from its business operations During the same pe- riod it received merchandise valued in excess of $50,000 at its Lake Street store which was shipped directly there from points outside the State of Minnesota II THE UNFAIR LABOR PRACTICES A The Problem Caused by the Death of Ralph Brix Ralph Brix worked for 30 years in Respondent's Lake Street store, rising in his later years to the top job, store manager On December 26 he discharged Charles Tharald- son, a salesman in the television-stereo department On April 5, 1975, Brix died unexpectedly, leaving behind him no record of his version of the events of this case in which he participated This case boils down to Respondent's mo- tive for discharging Tharaldson Since Respondent's mo- tive was Brix's motive, his death placed Respondent in a difficult position Consequently, on May 1, 1975, Respon- dent filed a motion to dismiss complaint and quash notice of hearing predicated on the death of Brix The motion asserted that since "the decedent, Mr Brix, was the sole official of Management present at" corrective interviews alleged as discriminatory in the complaint "without him, it will be impossible to have any meaningful adjudication of this case," and invoked, moreover, the provisions of the Minnesota "dead-man's statute," Minn S A 595 04 Ad- ministrative Law Judge Arthur Leff denied Respondent's motion on May 8, 1975 On May 13, 1975, Respondent served on the General Counsel and Tharaldson a docu- ment entitled "Notice of Testimony To Be Offered by Re- spondent at Hearing " In it, Respondent stated its inten- tion of offering the testimony of various witnesses as to hearsay statements made to them by Brix after Brix's con- frontations with Tharaldson At the hearing, after extensive legal argument and over the objection of the General Counsel, I took the noticed testimony, relying on the last two of five arguments advanced by Respondent as to why it should be admitted I stated I'm ruling in your favor, [Mr Lederer], because of your fourth and fifth arguments I'm especially relying on the Board's precedent in the cases you cited, the Wallick and Schwalm [95 NLRB 1262 (1951)] cases, that the words, that the testimony of the witness who is testifying as to what happened between him and a dead man shall be scrutinized carefully And I'm also relying on the rationale of the new rules [i e, New Federal Rules of Evidence, effective July 1, 1975], spe- cifically that part of the rule which you cited which spoke about the interest of justice will best be served [Rule 804(b)(5)(c)] I'm stating specifically, as specifi- 224 NLRB No 89 SEARS, ROEBUCK AND CO 559 cally as I can, that I think that whether I allow this evidence in or not lies within my discretion I choose to exercise my discretion in the way I have already indicated, because I think that the interest of justice will best be served in this situation if I take this testi- mony so that I can use it to scrutinize the testimony of Mr Tharaldson about what went on between him and Mr Brix on the occasions at issue I think that the reason that this ruling lies within my discretion grows out of your fifth reason, as General Counsel [has] con- ceded, that the Labor Board is not so hidebound about the rules of evidence that we can't use a little imagination, and a little innovation to try and serve the ends of justice One final word, by stating my reasons in this form I do not mean to indicate I'm taking this testimony for any limited purpose at all I am admitting it generally I will, if I am persuaded by it, rely on it to make findings of fact as to what happened between Mr Brix and Mr Tharaldson contrary to what Mr Tharaldson said happened in those conversations On the other hand, if after weighing the record as a whole I can conclude that I can rely more on Mr Tharaldson's testimony than I can on the testimony of Mr Hufnagle, Mr Pittman and Mr Jammer, my find- ings of fact will be based on Mr Tharaldson's testimo- ny as to what went on in his conversation with Mr Brix Since I haven't heard any of the testimony you are about to introduce, Mr Lederer, I may wind up with the best of all possible worlds It may well be that when I get through hearing this testimony, I really haven't any credibility conflicts at all, in which case I will start off my decision with a hallelujah, that I real- ly didn't have a problem with credibility in the first place Hallelujah? There is no real conflict between Tharaldson's version of what was said in his various con- versations with Brix and the testimony of Respondent's witnesses as to what Brix told them about those occasions However, mindful of the Board's admonition in Walhck and Schwalm, supra, that it subjects testimony relating to statements attributed to deceased persons to the closest scrutiny before deciding what weight to give it, I have not simply accepted Tharaldson's testimony in toto as to what was said when he and Brix were alone together This does not mean that I am discrediting Tharaldson in any way His demeanor on the witness stand was that of an honest man trying to live up to his oath within the limitations of human fallibility, and there is nothing inherently incredible about his testimony Rather, it simply means that, in mak- ing findings of fact as to what transpired between Tharald- son and Brix, I have limited myself to those facts as to which there is and can be no dispute I have deliberately left out statements which Tharaldson put in Bnx's mouth which might reflect Tharaldson's partisan point of view The only credibility conflict as to a fact which still must be resolved, once the record is approached in this manner, is the date on which Tharaldson's first conversation with Brix-the conversation which first caused Brix to give Tharaldson a corrective interview-took place Tharald- son, relying on a note he made at the time in his pocket diary, placed it on October 22 Roger Pittman, as operating superintendent, second in command to Brix at the Lake Street store, placed it on October 16 He relied on his recol- lection at the time he started thinking about the whole Tharaldson problem from Respondent's point of view I have accepted Tharaldson's contemporaneous note over Pittman's recollection in placing it on October 22, although it really does not matter when it took place What matters is that, as all parties agree, this pivotal conversation did take place, starting in motion the chain of events which has led up to this Decision B Facts Charles Tharaldson worked at Respondent's Lake Street store from December 1968 until December 1974 He was a big ticket salesman in division 57 Division 57 is the televi- sion-stereo department "Big ticket salesman" simply means that Tharaldson was compensated on a commission basis rather than on an hourly basis He received 6 percent of his sales Overstaffing and understocking are matters of continu- ing concern to big ticket salesmen When their department has too many salesmen, the potential commissions which each can earn are decreased When the store does not have in stock items of merchandise for which there is an imme- diate demand, they lose sales and, thus, commissions These concerns are no secret from management Conversa- tions between salesmen and managers about them are common and frequent Tharaldson had one such conversa- tion with John Hufnagle, the then operating superinten- dent of the Lake Street store, about overstaffing in division 57 several years prior to 1974 Thereafter, the number of big ticket salesmen in the TV-stereo department was, gen- erally speaking, five Harold Henry, a TV-stereo salesman, became ill in July 1974 and did not return to work until October At the time of his return, the staff consisted of three oldtimers- Charles Tharaldson, Jim Curran, and Milton Quall-and two relatively new salespersons-Robert Wiemelt and Jan Bartell Wiemelt and Ms Bartell both transferred into the department during the summer Wiemelt, like Tharaldson, Curran, and Quall, worked full time Ms Bartell was a part-timer Henry's return to work on October 7 raised the staff to six The men became concerned and began discuss- ing the staffing situation among themselves Tharaldson took it upon himself, with the tacit concurrence of the others, to carry their concerns to Ralph Brix, the store manager The opportunity presented itself on October 22 Brix spent his entire working life at the Lake Street store, one of three in Respondent's Minneapolis group The store was, apparently, his life He gloved in its successes and agonized over its failures He was proud of its reputation as the store with the best overall record in the Minneapolis group and constantly drove his managerial staff to main- tain its supremacy Each month, when detailed figures be- came available for the preceding month from all three stores, he made a department-by-department analysis He gloated over the areas in which Lake Street's figures were better than those of Brooklyn Center and St Paul He de- 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manded improvement in areas where Lake Street trailed One such staff meeting occurred not long before October 22 On that occasion, around October 14, he noted his dis- pleasure that September sales had been off in the TV-ster- eo department A few days later, around October 19, Roger Pittman, the operating superintendent, attended an area meeting at which he and other officials were instructed to pare full-time staffs at their stores to the bone When Pitt- man reported back to Brix, they discussed the various de- partments at the Lake Street store in detail During the course of this discussion they noted, once again, the TV- stereo sales figures for September, this time correlating them with the fact that Tharaldson had been the low pro- ducer in the department for the month Thus, Tharaldson's sales record was a matter recently noted by Brix when their encounter of October 22 occurred On October 22 Brix noticed some dust in the TV-stereo department and spoke about it to Tharaldson, who hap- pened to be the closest employee at the moment A few words were exchanged Tharaldson made the point that Brix was blaming the wrong person because the dust was not in the area specifically assigned as his responsibility in the division manager's standing operating procedure Brix made the point that, the division manager's SOP notwith- standing, each employee is responsible for seeing that the whole area is kept clean At the end of this brief exchange, Tharaldson asked Brix if he could speak to him in his of- fice Brix said yes Tharaldson went to Brix's office a few minutes later In the office, Tharaldson broached the subjects of over- staffing and understocking He attempted to make the point that Ms Bartell's presence in the department, cou- pled with chronic shortages of particular TV sets which sold especially well, was reducing the commissions of the full-time salesmen below an acceptable level An argument resulted In the course of it, Tharaldson said that a woman, referring to Ms Bartell, had no place in the TV depart- ment Finally, Brix ordered Tharaldson out of the office, Tharaldson refused to go until he got an answer on wheth- er the staff was going to remain at six or be cut back to five Brix warned Tharaldson he would be fired if he per- sisted Tharaldson left When he returned to the selling floor, Tharaldson told Wiemelt what had happened Brix told Pittman about his fight with Tharaldson and called for Tharaldson's personnel file Respondent has a personnel procedure known as the corrective interview A supervisor talks to an employee about his faults and then records the event on a form titled "Memorandum of Deficiency Interview" for inclusion in the employee's file The printed portion of the form reads, "The following matters which require correction have been fully discussed with the above employee " Corrective in- terviews are almost always given by the operating superin- tendent or lower level supervisors (The only interview to which Tharaldson was ever subjected before October 24, for example, was conducted by John Hufnagle in 1971 or 1972 during Hufnagle's tenure as operating superinten- dent) Brix, in his tenure as store manager, seldom con- ducted them himself He made an exception, however, in Tharaldson's case on October 24 He called Tharaldson into his office, lectured him about five matters which re- quired correction by Tharaldson, and then recorded them on a Memorandum of Deficiency Interview form thus 1 positive attitude in dept 2 improve sales 3 doing his part in keeping dept clean 4 no continuous complaining of o o s [i e , out of stock] sell mdse [i e , merchandise] we have in stock 5 complaining about too many people in department After "Date to be Interviewed Again" Brix entered "11- 12-74 " Brix and Tharaldson both signed the form, and Brix sent Tharaldson on his way Tharaldson was not inter- viewed again by Brix or anybody else on November 12 Feeling threatened, Tharaldson immediately made three telephone calls He called the Minnesota Human Rights Department He called the National Labor Relations Board He called the Retail Clerks Union Shortly after making these calls, he mistook Curtis Johnson, one of Respondent's personnel supervisors, for a representative of an agency which might come to his aid He told Johnson about his run-in with Brix and the telephone calls he had made as a result When he discovered his mistake, he asked Johnson to keep the information confidential Johnson did so On November 4 Tharaldson visited a Retail Clerks office in Minneapolis After receiving the usual lecture about em- ployee rights and organizational techniques, he left with a pack of blank authorization cards He signed up Quall on November 16 and Henry on November 29 He solicited Wiemelt on some date which does not appear in the record, presumably in November, and was turned down His union activities did not come to the attention of any of Respondent's supervisors or officials His effort to organize the Lake Street store on behalf of the Retail Clerks appar- ently died aborning On November 20 Marybelle Thurston, an employee in the auditing department, went shopping in the TV-stereo department She was interested in a small radio priced at $12 99, which is referred to in the record as an NFL radio (i e, National Football League radio, I gather, although the record is somewhat less than clear on this detail, that it resembled a Minnesota Vikings helmet) She asked Thar- aldson to wait on her Tharaldson misread the price on the one that was on display as $2 99 and was corrected by Ms Thurston Not knowing which drawer the radios were stored in, Tharaldson then courteously referred Ms Thur- ston to one of the hourly paid clerks in the record depart- ment, which is adjacent to the TV-stereo area Tharaldson, for whom November 20 was a busy day with $ 1,888 in sales, promptly forgot about the incident Not so Ms Thur- ston When she got back to the auditing department the next day, she complained to her supervisor, one Grimsley, that Tharaldson had brushed her off rather than followed Respondent's policy of waiting on customers Grimsley told Roger Jammer, at the time personnel manager of the Lake Street store Jammer told Brix Brix told Jammer to investigate and report back to him Jammer interviewed Ms Thurston He did not interview Tharaldson He gave Brix his written report on December 2 Brix told Pittman he was going to give Tharaldson another corrective inter- SEARS, ROEBUCK AND CO 561 view and warn him On December 3 Brix called Tharald- son into his office and reprimanded him for not waiting on Ms Thurston Brix started the interview by telling Thar- aldson he had "done it again " He ended it by warning Tharaldson that he would be fired if it happened again The Memorandum of Deficiency Interview which Brix pre- pared and which he and Tharaldson signed read, "Refused to sell NFL Radio for 12 99 turned customer over to part time employee in the record dept Customer indicated not at any time did Mr Tharaldson show any interest in wait- ing on her This incident took place 11-21-74 " (Brix mis- took the date on which Ms Thurston told Grimsley for the date on which the incident occurred) On December 15 Brix went over the November figures for the three stores in the Minneapolis group This time a drop in division 57's gross profit in November caught his eye He expressed the opinion that Lake Street's mark- downs (i e , the difference between an item's list selling price and the price for which it is actually sold) were out of line He asked for a check in order to find out where the gross profits were going The next day, in response to Brix request, Bud Osgood, the group merchandise manager with jurisdiction over TV's and stereos, came to the store and checked sales tick- ets in order to find out if markdowns had been handled properly He finally singled out three transactions on which he was unable to account for the selling price Two of the sales had been made by Tharaldson, the third, by Henry Osgood gave the three sales checks to Brix Brix gave them to Pittman with instructions to investigate Pitt- man gave them to Paul Mork, manager of division 57 Mork checked them against pricing data, such as no ad specials, available to him (A no ad special is a reduced price at which sale of an item has been authorized even though no advertisement has appeared Salesmen are, of course, expected to sell advertised merchandise at whatever reduced price appears in the advertisement) He de- termined that two sales, the one by Henry and one of the two by Tharaldson, had been made at the proper price He concluded as to the third, however, that Tharaldson had sold a color television set worth approximately $400 to one Richard Butcher on December 12 at a price approximately $20 less than he should have Mork passed this information back up the chain of command Pittman reported to Brix on December 19 After reviewing the sales checks and lis- tening to Pittman's comments, Brix decided to discharge Tharaldson He told Pittman he did so "because of Mr Tharaldson's previous two deficiency interviews and the fact that he had been warned on the last deficiency inter- view verbally that he would be released or let go with one more violation and the fact that Mr Tharaldson' s sales were still subpar or the poorest in the department, and the fact that even his part-time sales person was beating him out in sales and that with this sales check violation in hand, he would let Charlie go He also referred to at that time the rather angry conversation that he and Mr Tharaldson had back in October He just made reference to the fact that he remembered vividly the angry conversation held back in October with regard to Charlie Tharaldson " Brix decided to put off the discharge until after Christmas Respondent has a policy that long term employees, a category into which Tharaldson fell, cannot be discharged without first obtaining a clearance from department 707 at its home office Consequently, sometime between Decem- ber 19 and December 26, Brix contacted 707 by telephone, explained the situation, and obtained the necessary clear- ance On December 26 Brix instructed Pittman to get the nec- essary papers together for firing Tharaldson and bring them to his office for the discharge interview When all was in readiness, Tharaldson was summoned Brix reminded Tharaldson that he had recently had two corrective inter- views and that at the one on December 3 he had been warned that one more transgression would cost him his job He then showed Tharaldson the Butcher sales check and told him he was discharged because of it Tharaldson said that he had been anticipating something of the sort and had already called the Labor Board, referring to his telephone call on October 24 He explained that the mis- take had been inadvertent, growing out of a confusion in model numbers Tharaldson refused to sign a form which stated that he desired to "resign" (a line had been drawn through the printed word) because of "salescheck viola- tions (being released accordingly) " He wrote elsewhere on the form, "The term release is synonomous with being fired This is not a voluntary signing on my part Charles Tharaldson" He asked for and was refused a copy of the form He was told that the store would first have to get approval from the home office He prepared and gave to Brix, for inclusion in his file, a written explanation for the Butcher transaction It read My explanation is that the sales planner [i e, pricing guide he had used] mentioned had a modle [sic] 4072 color t v at the price I used This is not a big selling set so an error of stock number is more likely to occur than in the sets we sell in large volume When the discharge interview was over, Tharaldson ac- companied Pittman to the latter's office There he prepared a note for the home office requesting a copy of the "Rea- son for Leaving" form he had signed involuntarily It read To Sears, Roebuck & Co I request a copy reason for leaving form A copy, even a photo copy of this document was denied me at the time of my severence Please send to my home My address is On December 27 Brix sent a written report to depart- ment 707 about the discharge of Tharaldson In it, he re- ferred to his earlier telephone call and asked for a decision on Tharaldson's request for a copy of the Reason for Leav- ing form John Hufnagle, at this time an official of Respondent working out of the home office with responsibility for Respondent's employee morale surveys program, visited the Lake Street store on January 20 and 21, 1975 As Brix was driving Hufnagle to the airport at the end of his visit, Hufnagle asked Brix by how many he had reduced his complement of full-time employees This was a reference to the subject of the area conference in October which Pitt- man had attended as Brix's deputy Brix said about 40 peo- 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ple in all Hufnagle said, "Forty people, that seems like an awful lot " Brix said, "Well that does not mean 40 people left the company, some of these were going to be transferred out to Richdale, the new store Two or three of them were actual terminations, and this type of thing " Hufnagle said, "Well, is there anybody that I know9" Brix mentioned two or three names The only one Hufna- gle recognized was Tharaldson He asked if Tharaldson did not have long service with the Company Brix told him how long Hufnagle asked, "Why was Charlie released9" Brix said for selling merchandise below the recommended sales price Hufnagle asked if Brix had had the prior approval of 707, Hufnagle's department Brix said he had had the ap- proval of Jack Miles , the area field representative Hufnagle said, "Fine " Brix said, "I had quite a bit of trouble with Charlie late- ly" Hufnagle said, "Oh9" Brix said, "Yes It all started back earlier in the fall when Charlie got very upset and belligerent about the fact there was a part time employee in the television department, de- partment 57, on commission and Charlie did not think that was fair " Brix went on to explain that Tharaldson had been "very vocal about it with Mr Brix in his office " Huf- nagle asked who was the employee in question Brix said it was Jan Bartell Brix continued his explanation He told Hufnagle, in Hufnagle's words, "that Charlie was very bel- ligerent The argument went on for some period of time He could not get Charlie out of his office as the discussion should have wound down, and [it] did not happen Charlie Tharaldson was very reluctant to do so, and Mr Brix final- ly said he had to insist that Charlie leave the office He says then further on that sometime in the Christmas selling sea- son, I do not recall the date, sir, that another incident had come up with Charlie Tharaldson in waiting on a customer, an employee customer in that Charlie refused to wait on her on a radio and directed her to go over and let one of the part time employees wait on her " C Analysis and Conclusions 1 The discharge a As a violation of Section 8(a)(3) The 8 (a)(3) allegation of the complaint is predicated on the theory that Respondent's ostensible motive for treating Charles Tharaldson as it did is a pretext , and that its real motive grows out of opposition to his efforts to organize the Lake Street store for the Retail Clerks To that end the General Counsel introduced evidence as to some facts which I have not included in the section dust above He proved that only two division 57 employees other than Tharaldson were discharged in 1973-74 Lorraine Laughlin was discharged for stealing James Hill, a short -term em- ployee, was discharged for a series of incidents in which he was guilty of egregious conduct, culminating in cursing at an unoffending cashier The General Counsel also proved that Harold Henry was called in on December 26 for a discussion of the sales check he had written which was initially suspect despite the fact that he had already been exonerated (Pittman's explanation that the purpose was to set Henry's mind at ease strikes me as eminently reason- able The General Counsel, however, views it differently) From these facts as well as others which I have set forth above-for example, the fact that Brix himself seldom con- ducted corrective interviews-the General Counsel would find that Brix's reactions to the NFL radio incident and the sales check incident were contrived On the basis of the record as a whole, I would not reach such a conclusion even if I did not find company knowledge of Tharaldson's visit to the Retail Clerks office on November 4 and his union activities thereafter troublesome Evidence which, in other circumstances, might support an inference that Brix learned of Tharaldson's union activi- ties is found in the uncontroverted testimony of Tharald- son, which I credit, that he told Curtis Johnson, one of Respondent's supervisors, before November 4 that he had telephoned the Union, among others However, Tharald- son also testified he asked Johnson not to tell anybody, and there is no evidence Johnson violated his confidence (Johnson did not testify) Moreover, I credit the testimony of Pittman, Jammer, and Mork that they had no knowl- edge of Tharaldson's union activities prior to receipt of the charge in this case in which he specifically claimed that he had been terminated "because of his membership and ac- tivities in behalf of Retail Clerks Union, Local 1086, AFL- CIO " More importantly, I credit the testimony of Jammer, the personnel manager, that Mr Brix brought the charge down to my office and asked if I had seen anything on this or if I knew any- thing about it, and I read it and asked him the same question, if he had had any information regarding the charge or the union activity, and he said, "I had never known that Charlie had any activity with the union " The General Counsel has failed to prove by a preponder- ance of the evidence that Respondent had knowledge of Tharaldson's union activities before it discharged him I find, therefore, that Respondent has not violated Section 8(a)(3) of the Act b As a violation of Section 8(a)(1) Tharaldson's talking to Brix on October 22 about over- staffing and understocking is the sort of concerted activity which Section 8(a)(1) was designed to protect The subjects related to the wages and working conditions of employees Tharaldson sought Brix out for the benefit of others as well as himself Respondent does not dispute this basic finding Rather, as its able brief recognizes, the issue which is squarely presented by this record is the degree, if any, to which Brix was motivated by Tharaldson's protected con- certed activities on October 22 when Brix decided to dis- charge Tharaldson on December 19 As this extract from the introductory portion of Respondent's brief recognizes, whether the discharge of Tharaldson violates Section 8(a)(1) of the Act turns on whether, among the mix of rea- sons Brix had in his mind when he made his decision on December 19, his run-in with Tharaldson on October 24 occupied a legally significant place SEARS, ROEBUCK AND CO 563 As to the initial October incident, it is clear that Thar- aldson seized upon an opportunity to challenge Brix's authority and vent his personal defiance Thus, in that initial confrontation, Tharaldson angrily voiced a per- sonal prejudice against females, which Brix, who re- sented any prejudice, could not abide Not knowing when to quit, Tharaldson then insolently refused to leave upon Brix's request-a sure formula for com- pounding the provocation Brix was thus confronted with the problem of how to deal with an employee who, regardless of the substance of his gripes, grated on Brix's nerves Whatever protected, concerted activ- ities may have been included in that meeting, if any, were of no consequence to Brix since they were com- pletely masked by Tharaldson's compulsive, confront- ing, and obnoxious manner Logic dictates that it was Tharaldson's provocative, irritating approach, com- bined with his marginal but worsening sales record, and not any of his complaints about working condi- tions, which Brix remembered when, on December 19, 1974, he decided to discharge Tharaldson Moreover, whatever weight this October incident may have had in Brix's final discharge decision was largely overshad- owed by Tharaldson's subsequent deficient conduct, and that conduct provided the principal motivating reason for his termination This passage is also a capsule version of Respondent's argument why Tharaldson's protected concerted activities do not rise to the level of a legally significant part of Brix's motive The argument is expanded in the detailed sections of the brief which follow for example, in commenting on that portion of Pittman's testimony as to what Brix told Pittman on December 19 about his reason for deciding to discharge Tharaldson which I have set forth above, Re- spondent argues Transposing these expressed thoughts, Brix was say- ing, in effect, that the series of incidents which had occurred showed him that the way Tharaldson's entire approach towards his sales job, as indicated by his conduct in these three specific instances, coupled with his sales performance, required that he be discharged It is vitally important to note that his recollection of the October confrontation focused on the "angry" character of Tharaldson's confrontation with him, rather than the substance of that incident, and that it was this aspect that was still rankling Brix when he made this recitation to Pittman In commenting on the October 22 incident, Respondent argues Why did Brix get angry at Tharaldson9 Knowing Brix as we do, the proper question would be why wouldn't he, and for reasons wholly unrelated to pro- tected activities, if any, in which Tharaldson may have been incidentally engaged in [sic] during the diatribe he forced on Brix Tharaldson, while he may have briefly touched on matters which concerned D57 em- ployees, displayed a belligerent, persistent proclivity or a propensity of his own for simply pursuing his own subject and not listening to reason-"women have family responsibilities and have to support children as you do"-and by repeatedly refusing to leave Brix's office Whether or not the Judge would have acted as Brix did, faced with all of this provocation, is not the question, although he would have needed the patience of a saint to have acted differently here It is perfectly clear that he acted as he did because Tharaldson riled him Tharaldson's comments were born in a spirit of angry retaliation and carried out in a manner calculat- ed to offend and provoke Brix (who already knew that Tharaldson was nothing better than a marginal to poor salesperson having had close to the lowest sales per hour record in D57 for a long time) and they were accompanied by a "challenge to the top boss" tenor throughout Why wouldn't Brix have been aggravated to the point that he told Tharaldson to leave his of- fice9 It is important, at this juncture, to note that Brix called for Tharaldson's entire personnel file after this incident (T 321) In wrapping up its argument, Respondent states Imagine, Judge, how a proud store manager like Brix, steeped in the Sears tradition and loving the mer- chandise Sears sold [footnote omitted], would react to this kind of extreme provocation [i e, the provocation to which Tharaldson subjected him on October 22] How could any objective person find, unequivocally, under all the facts, that Brix's subsequent motivation was primarily because Tharaldson, during the course of his loathsome tirade, had complained about any condition of employment? Certainly, the Judge cannot since other employees voiced complained [sic] about those very conditions The only reasonable inference is that it was the way Tharaldson presented those com- plaints which sensitized Brix In sum, then, the considerations which prompted Brix to discharge Tharaldson was his realization that the way Tharaldson looked at his sales job would nev- er really improve, and his determination that Tharald- son was more interested in provoking his manager, the top man in the store, by telling him off, rather than to try to improve his own performance Neither of these two considerations constitute impermissible ones, rather, they constitute considerations which entirely and understandably would have induced a manager like Brix to feel Tharaldson should be released On this state of facts, the Judge must ask himself why wouldn't Brix have made the decision, when he did, to release Tharaldson irrespective of whether or not there were, packaged together with his worsening sales record and misconduct, complaints about work- ing conditions on the same subjects which other sales- people were complaining about with impunity? Ac- cordingly, the General Counsel has failed utterly to meet his heavy burden of establishing, by a prepon- derance of competent proof, that it was Tharaldson's mere making of complaints about working conditions which caused his discharge 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This argument, I think, carries its own death wound Where an employer has multiple reasons for discharging an employee, the discharge is illegal if the part which is pro- scribed by the Act is the primary reason in the sense that it is the moving reason Whiten Machine Works, 100 NLRB 279, 287 (1952), Midland Broadcasters, Inc, 176 NLRB 107, 117-118 (1969) As Respondent's argument concedes, the chain of events which culminated in Tharaldson's dis- charge began with Brix's reaction to Tharaldson's conduct on October 22 Tharaldson irritated Brix so badly that Brix immediately called for Tharaldson's personnel file The in- formation contained therein marked Tharaldson in Brix's mind to the point where, as evidenced by the relatively insignificant NFL radio incident, he reacted personally ev- ery time Tharaldson came to his attention thereafter As Brix admitted to Hufnagle on January 21, 1975, it all start- ed back in the fall when Tharaldson angered Brix by pro- testing overstaffing in division 57 Brix's account to Hufna- gle at that time makes it clear that Tharaldson's protected concerted activities on October 22 were very much on Brix's mind when he decided to discharge Tharaldson Respondent, in effect, concedes this point also when it argues that it was not the fact that Tharaldson was protest- ing wages and working conditions but his manner in doing so that riled Brix But an employee's right to the protection of Section 8(a)(1) when engaging in concerted activities does not depend on his doing it in a way which does not offend his employer If he would not have been discharged but for his employer's reaction to his protected concerted activities, his discharge violates the Act I have no doubt, as Respondent urges, that Brix had many things on this mind in addition to October 22 when he decided to dis- charge Tharaldson, including Tharaldson's recent record as a salesman, the NFL radio incident, and the sales ticket incident However, I am persuaded, on the record as a whole, that, but for the former, Brix would not have dis- charged Tharaldson for any or all of the latter I find, therefore, that Respondent violated Section 8(a)(1) of the Act by discharging Charles Tharaldson on December 26, 1974, for engaging in protected concerted activities 2 The corrective interviews As to the other two dates, the Memorandum of Deficien- cy Interview dated October 24 lists understocking and overstaffing as two of the five "matters which require cor- rection" that "have been fully discussed with" Tharaldson It follows that Respondent, on October 24, 1974, did im- pose corrective interview discipline on Tharaldson for en- gaging in protected concerted activities, thereby violating Section 8(a)(1) Leaving that memorandum in Tharaldson's file would contravene the policies of the Act December 3, however, is another matter On that occa- sion, Tharaldson was disciplined solely for what Respon- dent viewed as a dereliction of duty in the NFL radio inci- dent Since he was not disciplined for engaging in protected concerted activities, it follows that the interview did not violate Section 8(a)(1) The fact that discipline was administered by Brix and the Memorandum of Deficiency Interview bears his signature does not require a different conclusion, for the record does not permit a finding that Tharaldson would not have been interviewed by some less- er official once Marybelle Thurston complained about the way he had treated her Removal of that memorandum from Tharaldson's file is not required to effectuate the poli- cies of the Act Upon the foregoing findings of fact, and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Sears, Roebuck and Co is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Retail Clerks Union Local No 1086, affiliated with Retail Clerks International Association, AFL-CIO, is a la- bor organization within the meaning of Section 2(5) of the Act 3 By imposing corrective interview discipline on Charles Tharaldson on October 24, 1974, and by discharg- ing him on December 26, 1974, for engaging in protected concerted activities, Respondent has violated Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 5 The allegations of the complaint that Respondent has violated Section 8(a)(3) of the Act have not been sustained The complaint also alleges Respondent violated the Act "on or about October 24, 1974, December 3, 1974, and December 26, 1974" when it "imposed corrective interview discipline on employee Charles Tharaldson " A finding that these interviews violated Section 8(a)(3) of the Act is precluded by the General Counsel's failure to prove com- pany knowledge of Tharaldson's union activities as dis- cussed above There remains to be considered whether they constitute independent violations of Section 8(a)(1) The interview of December 26 was a discharge interview, not a corrective interview Therefore, what happened that day was not independently violative of the Act as a correc- tive interview In any event, the remedy of reinstatement will effectively expunge from Tharaldson's personnel file any derogatory documentation of the events of December 26 THE REMEDY In order to effectuate the policies of the Act, it is neces- sary that Respondent be ordered to cease and desist from the unfair labor practices found, remedy them, and post the usual notice at the store involved in this case I will, therefore, recommend that Respondent be ordered to re- move from Charles Tharaldson's personnel file the Memo- randum of Deficiency Interview dated October 24, 1974, reinstate him, and make him whole for any earnings lost as a result of his discharge on December 26, 1974, by the payment of backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962) SEARS, ROEBUCK AND CO 565 Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this case, and pur- suant to Section 10(c) of the Act, I hereby issue the follow- ing recommended ORDER' Respondent Sears, Roebuck and Co , its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Imposing corrective interview discipline on employ- ees and discharging them for engaging in protected con- certed activities (b) In any like of related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Remove from Charles Tharaldson's personnel file the Memorandum of Deficiency Interview dated October 24, 1974, offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any earnings he lost, plus interest, as a result of his discharge on December 26, 1974 (b) Preserve and, upon request, make available to the 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 analyze the amount of backpay due under the terms of this recommended Order (c) Post at its Lake Street store in Minneapolis, Minne- sota, copies of the attached notice marked "Appendix " 3 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be 2 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 3In the event that this 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 read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " taken by Respondent to Insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 18, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(3) of the Act 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 a hearing, that we violated Federal law by disciplining and discharging an employee for engaging in protected concert- ed activities, we hereby notify you that The National Labor Relations Act gives all employees these rights To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things WE WILL NOT discipline or discharge you for engag- ing in concerted activities which are protected by the National Labor Relations Act WE WILL NOT, in any like or related manner, interfere with you or attempt to restrain or coerce you in the exercise of the above rights WE WILL offer Charles Tharaldson immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any earn- ings he lost, plus interest, as a result of his discharge on December 26, 1974 WE WILL remove from Charles Tharaldson's person- nel file a Memorandum of Deficiency Interview dated October 24, 1974, which memorializes corrective inter- view discipline we imposed on him on that date SEARS, ROEBUCK AND CO