Bookshop Santa Cruz

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bay Company Books, Inc. d/b/a Bookshop Santa Cruz and George Elmendorf. Case 20-CA-10644 August 3, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On May 14, 1976, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the 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, Bay Company Books, Inc. d/b/a Bookshop Santa Cruz, Santa Cruz, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. i 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 F2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On February 18, 1976, I conducted a hearing at Santa Cruz, California, to hear issues raised by a complaint issued on December 12, 1975,' pursuant to a charge filed by George Elmendorf on September 22. The complaint alleged Bay Company Books, Inc. d/b/a Bookshop Santa Cruz,2 violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter i Read 1975 after all date references omitting the year 2 Hereafter called the Company called the Act), by discharging Elmendorf for engaging in concerted activities protected by the Act.3 The Company conceded it discharged Elmendorf but denied any discrimi- natory motivation. The sole issue before me is whether or not Elmendorf was discriminatorily discharged. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, to examine and cross-examine witnesses, to argue, and to file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint alleged, the answer admitted, and I find at all times pertinent that the Company was a California corporation doing business at Santa Cruz, California, as a retail bookseller, and that during the calendar year 1974 its sales exceeded $500,000 in value and it purchased and re- ceived materials and supplies valued in excess of $50,000 from suppliers located outside the State of California. On the basis of the foregoing, I find and conclude at all times pertinent the Company was an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts At all times pertinent Neal Coonerty was the president of the Company.4 Coonerty talked to Elmendorf several times in the late summer of 1975 after he was introduced to Elmendorf by the latter's friend, Jim Smith , assistant man- ager at the Company's Aptos bookstore. In the course of those conversations, Elmendorf informed Coonerty he had been a farmer, a union organizer, and an employee of the Thunderbird Book Shop in Carmel Valley, California.5 El- mendorf also informed Coonerty he had $30,000 and was interested in investing that sum in a bookstore and that he had looked at bookstore sites but realized his capital was insufficient to open a business. Elmendorf also asked Coonerty to employ him. Coonerty informed Elmendorf he was interested in purchasing the Tides Bookstore in Sausal- ito, California, and might be interested in employing El- mendorf as a manager there if he purchased that store. Elmendorf expressed interest in going to work for Cooner- ty at Sausalito, but stated he needed and wanted a job immediately. Coonerty thereupon hired Elmendorf as a clerk at the Santa Cruz bookstore. Elmendorf began work 3 The complaint also alleged the Company committed two independent violations of Sec 8(a)(1) of the Act. The parties reached a settlement agree- ment concerning those allegations of the complaint which I approved in the early stages of the hearing ° Coonerty and his wife were the sole owners of the Company. The Com- pany operated two bookstores-one in Santa Cruz managed by Coonerty and another in Aptos managed by his wife 5 At which job he worked at a management level 225 NLRB No. 117 BOOKSHOP SANTA CRUZ 821 the first week in August. About the third week of August, Elmendorf approached Coonerty with the idea of the two going into partnership to open a second bookstore in Santa Cruz. Elmendorf informed Connerty he had been looking at property sites in Santa Cruz and had found a good loca- tion, and he thought there was a sufficient market in Santa Cruz to warrant opening a second store there . Coonerty indicated he was interested, but thought his lease might prohibit his opening another bookstore in Santa Cruz. He stated he would check this and advise Elmendorf. In the course of the conversation, Coonerty told Elmendorf an- other clerk, Rick Humm, was also interested in investing in a new bookstore. A few days later Coonerty advised Elmendorf his lease prohibited his opening a second bookstore in Santa Cruz. Coonerty asked Elmendorf if he intended to go ahead alone. Elmendorf replied he did not intend to go forward alone since he did not have enough capital. The conversa- tion ended with Coonerty requesting Elmendorf to advise him if he decided to open his own bookstore. Elmendorf agreed to advise him if he did so. Shortly before the conversation just related, Elmendorf had a conversation with Humm . Humm advised Elmen- dorf he had $ 10,000 to invest in a bookstore and was dis- satisfied with the amount of training he was receiving. El- mendorf informed Humm that their combined capital was insufficient to go into business but he would contact Humm if anything developed. By early September Elmendorf learned, in conversations with other employees, that others besides Humm were dis- satisfied with their employment. Elmendorf suggested to fellow clerk Neal Katz that the employees hold a meeting on Thursday, September 11, to discuss their grievances and develop means for resolving them. Katz agreed a meeting was desirable and agreed to contact employees he believed would be interested. Several employees whom Katz failed to invite to the meeting 6 learned of the meeting and made their resent- ment known to Katz. Katz also learned that Coonerty knew of the meeting . Katz contacted Coonerty and stated he was sorry his failure to invite some of the employees caused friction among them . Coonerty replied Katz ought to invite all the employees of the Company to the meeting. Katz stated he would invite all of the employees and subse- quently did so, including Coonerty and Jim Swanson, the assistant manager . Coonerty and Swanson declined the in- vitation, Coonerty stating he didn't think he and Swanson should attend but everyone else should. The meeting was scheduled for the evening of Saturday, September 13, at Katz' home. Prior to the time of the meet- ing Coonerty, Swanson, Humm, and Denis McGinley 7 dis- cussed Elmendorf and the scheduled meeting. Humm in- formed Coonerty of the details concerning his conversation with Elmendorf regarding the possibility of their opening a 6 Sharon Lau, a clerk who was the present owner of the building in which the bookstore was housed and the former owner of the bookstore , and Kay Stillman, another clerk 7 Dennis McGinley was Coonerty's cousin, Humm had related to Mc- Ginley his conversation with Elmendorf concerning the possibility of their opening a bookstore , and McGinley wanted Humm to advise Coonerty of that conversation bookstore. Coonerty did not inform Humm of Elmendorf's approach to him with a similar proposal. Humm stated he didn't believe Katz was working against Coonerty but sin- cerely believed working conditions at the store needed im- provement. Coonerty replied that Katz was walking on thin ice and would have to live by his actions. The meeting at Katz' home that evening was attended by Katz, Elmendorf, Humm, Paul Johnson, Lisa Jenson, Kel- sey Ramage, Laurie Cubben, and Elizabeth and Kathy McGinley. Elmendorf informed the others of his back- ground as a union organizer, informed the Company's em- ployees of their rights and protection under the Act, in- cluding their right to form an organization to bargain with the Company concerning their rates of pay, wages, hours, and working conditions , and suggested the employees form an organization to represent themselves and seek a resolu- tion of their grievances . Katz supported Elmendorf's rec- ommendations. Humm opposed them on the ground Coonerty was a good employer and they could resolve their problems without forming an organization. The McGinleys supported Humm and the question of forming an organiza- tion was dropped. The employees began discussing their grievances.' After an hour's discussion, Elmendorf stated he had to leave,10 but before parting again expressed his support for the formation of an organization to redress the employees' grievances. After his departure, the employees present decided not to form an organization but instead to seek a conference with Coonerty to discuss their griev- ances. Following the end of the meeting, Humm and Katz dined together. Humm told Katz that Coonerty was an- gered over Katz' role in scheduling the meeting and sup- porting Elmendorf, that his job was endangered, and that he better try to placate Coonerty. Katz immediately tele- phoned Coonerty and arranged to meet with him the next morning (Sunday, September 14). Coonerty and Katz met as scheduled. Katz told Cooner- ty it was not his intention to cause trouble for Coonerty by holding the meeting, that he did not want to lose his job and that it was Elmendorf' s idea to organize the employ- ees. Coonerty replied by attacking Elmendorf, stating El- mendorf intended to open a competing bookstore , Elmen- dorf was trying to create friction among the employees to ruin the Company's business, and Elmendorf was using the talk about employee organization and grievances to his own ends. Coonerty also told Katz he knew what occurred at the meeting, since he had been informed of the events there by Kathy McGinley, but nevertheless questioned Katz about what Elmendorf said at the meeting. Katz re- lated Elmendorf's statements . Coonerty told Katz he was glad the employees resisted Elmendorf's efforts to form an organization, told Katz if he had been successful he would have had to formalize practices at the store, including the installation of a timeclock, and further stated if the em- ployees had formed an organization he would have given 8 Elizabeth and Kathy McGinley were Coonerty's cousins and worked as clerks at the store 9 Low wages, lack of paid holidays, vacations, and sick leave, possible profit-sharing, Swanson's conduct as an assistant manager, etc. 10 Elmendorf was scheduled to work that evening and attended the meet- ing on his supper break 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Katz a written warning notice he had prepared and had with him but that he had decided not to give Katz the notice. He told Katz he would restore him to a 40-hour week,and suggested Katz do a good job and keep things quiet. Elmendorf was scheduled to work at the store the same day as the Katz-Coonerty conference (Sunday, September 14). Elmendorf noted a number of management people and other employees not scheduled to work coming in and out of the store that day. Coonerty conferred both with clerks Kelsey Ramage and Paul Johnson, telling both he was going to discharge Elmendorf. He informed Johnson that, while he was going to tell Elmendorf he was discharging him because the management position at the Tides Book- store was not going to materialize , 12 his real reason for discharging Elmendorf was that Elmendorf had lied to him about his plans to open a competing bookstore. Shortly after Elmendorf completed his shift (at 2 p.m.) Coonerty called Elmendorf to the basement of the bookstore and, in the presence of Swanson, handed Elmendorf a check for the current week and another check for a week's pay in lieu of notice and told Elmendorf he was discharged. He told Elmendorf he was discharged be.-use there was not going to be any management position available at the Tides Bookstore because his purchase of that store had fallen through. That same evening Coonerty held a meeting with all the employees. In the course of that meeting, he told the em- ployees he fired Elmendorf because Elmendorf lied to him about opening a competing bookstore. Lau took the floor and said Eirr.°ndorf was an evil influence and if she still owned the business she would fire all of the employees. Coonerty did not disavow her statements. Coonerty also stated he could not afford any wage increases, paid vaca- tions, holidays, or sick leave and that, if he had to put in such benefits, he would have to run a tighter business, i.e., he would have to require the employees to attend strictly to business, to stop flexible scheduling of hours, and to install rigid schedules and timeclocks, etc. Following Elmendorf's discharge, Coonerty continued to search out other bookstores -*n the area with a view to pur- chasing them, in some cases with Humm. B. Analysis and Conclusions It is clear Elmendorf was the moving force behind the employee attempt to organize collectively for the purpose of improving their rates of pay, wages, hours, and working conditions;) ' is further clear Coonerty was aware of Elmendorf's leading role and was hostile to the formation of any organization for the purpose of bargaining collec- tively with him to improve their rates of pay, wages, hours, and working conditions." 11 Katz' hours had been cut from 40 to 32 hours per week 12 Coonerty's offer to buy the assets of the Tides Bookstore was rejected on September 12 13 Elmendorf suggested the meeting to Katz to develop a list of employee demands and to form an organization to represent the employees in resoly- infl them, and urged their adoption at the meeting 1° He testified he knew what transpired at the September 13 meeting and expressed his opposition to the formation of an organization to Katz on September 14 This knowledge, the hostility, and the timing of Elmendorf's discharge lead me to the conclusion Elmen- dorf was discharged because he attempted to form an orga- nization of the Company's employees to represent them in bargaining collectively with the Company over improve- ments in their rates of pay, wages, and working conditions and that the reasons Coonerty gave for discharging him were a sham. 15 Based on the foregoing, I find and conclude that the Company by Coonerty discharged Elmendorf because El- mendorf engaged in concerted activities protected under the Act and it thereby violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all times pertinent Coonerty was a supervisor and agent of the Company acting on its behalf. 3. The Company violated Section 8(a)(1) and (3) of the Act by discharging Elmendorf for engaging in concerted activities protected under the Act. 4. The above unfair labor practice affects commerce within the meaning of the Act. THE REMEDY Having found the Company engaged in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act, I shall recommend the Company be directed to cease and desist therefrom and to take affirmative action designed to effectuate the purposes of the Act. Having found that Elmendorf was discharged on Sep- tember 14 for engaging in concerted activities protected under the Act, I shall recommend Elmendorf be offered immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority rights and other privi- leges, and that he be made whole for any wage losses he may have suffered, by payment to him of the sum of mon- ey he would have earned from the date he was discharged to the date he is reinstated, less any net earnings he has received in the interim. His lost wages shall be computed in accordance with the formula described in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum, computed in accordance with the for- mula described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- 15 Coonerty told Elmendorf he was discharging him because his attempts to purchase the Tides had fallen through He told several employees, howev- er, that he discharged Elmendorf because Elmendorf lied to him about opening a competing business In any event Elmendorf's hire was not predi- cated upon his later assumption of a managerial position at the Tides, nor does the record indicate Elmendorf lied to Coonerty On the contrary, El- mendorf discussed the possibility of opening a bookstore with Coonerty and promised to inform Coonerty if he went ahead alone, a fact Coonery did not relate to Humm or other employees BOOKSHOP SANTA CRUZ sions of law, and the enitre record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 16 Bay Company Books, Inc. d/b/a Bookshop Santa Cruz, Santa Cruz, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining its employees for seeking to form an organization for the purpose of bar- gaining collectively with the Company concerning the em- ployees' rates of pay, wages, hours, and working condi- tions. (b) In any other manner interfering with its employees' exercise of their rights under Section 7 of the Act to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choos- ing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Offer George Elmendorf reinstatement to his former position or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to his seniority and other rights and privileges. (b) Make George Elmendorf whole for any loss of earn- ings he may have suffered as a result of his discriminatory discharge in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and upon request, make available to the Board or its agents all payroll and other records necessary to compute the backpay due to George Elmendorf in the manner set forth in "The Remedy" section of this Deci- sion. (d) Post at its Santa Cruz facilities copies of the attached notice marked "Appendix." 17 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of the Company, shall be posted by the Company immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that such notices are not altered, defaced, or cov- ered by any other material. 823 (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps the Company has taken to comply herewith. 16 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 17 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 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 otherwise discipline our employees for seeking to form any labor organization, for seeking to bargain collectively through representa- tives of their choosing, or for engaging in other con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to engage in the activities enumerated above. Since the Board has determined that we discharged George Elmendorf because he sought to form an organization for the purpose of bargaining collectively with us concerning our employees' rates of pay, wages, hours, and working conditions: WE WILL offer George Elmendorf 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 and other rights and privileges, and WE WILL make George Elmendorf whole for any loss of wages or other benefits he may have suffered by reason of our discriminatory discharge of him, with interest thereon at 6 percent per annum. BAY COMPANY BOOKS, INC. d/b/a BOOKSHOP SANTA CRUZ