L.M. Berry and Co.

42 L. M. BERRY AND COMPANY L. M. Berry and Company and Mary Jo Downey and Barbara Culbreath. Cases 12-CA-8867, 12-CA-8932, and 12-CA-9088 January 13, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 29, 1980, Administrative Law Judge John C. Miller 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, as modified herein. 2 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, as modi- fied below, and hereby orders that the Respondent, L. M. Berry and Company, Tampa, Florida, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(d) and re- letter the subsequent paragraph accordingly: "(d) Telling employees that their union activity or union membership might be a problem in their being able to transfer to the other divisions." 2. Substitute the following for paragraph 2(b): The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge inadvertently failed to include in his recommended Order and notice a provision for the 8(aXI) violations con- cerning Stern's and Sturtz's comments to Culbreath on December 21, 1979, and January 21, 1980, respectively. We shall therefore modify the recommended Order and notice accordingly. The Administrative Law Judge ordered Respondent to "transfer" Culbreath, rather than ordering it to "offer to transfer" her as is customary. We perceive no reason to depart from our customary order and we therefore shall modify par. 2(b) of his recommended Order accordingly. We have further modified the Administrative Law Judge's notice to confirm with his recommended Order. "(b) Offer to transfer Barbara Culbreath to the New Orleans office as a telephone sales representa- tive effective April 1, 1980 (the date of hire of Donna Cook), and make her whole for any loss of wages she incurred because of Respondent's failure to transfer her, with interest as set forth in the Remedy section here, less any net interim earn- ings." APPENDIX POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT withhold benefits from em- ployees in the bargaining unit while refusing to bargain with the Union where nonorganized employees have been given such benefits. WE WILL NOT issue reprimands to employ- ees because of their union activities or support for United Food & Commercial Workers In- ternational Union, Local 1636, or any other Union. WE WILL NOT refuse to consider or refuse to transfer qualified employees because of their union activities and support for the aforemen- tioned Union or any other union. WE WILL NOT tell employees that their union activities or union membership might be a problem in their being able to transfer to other divisions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL remove and/or expunge from the personnel records of Mary Jo Downey the written reprimands given her dated November 30, 1979. WE WILL offer to transfer Barbara Cul- breath to the New Orleans office as a tele- phone sales representative and make her whole for any loss of wages she incurred because of our failure to transfer her as of April 1, 1980, with interest, less any net interim earnings. L. M. BERRY AND COMPANY DECISION STATEMENT OF THE CASE JOHN C. MILLER, Administrative Law Judge: This case was heard in Tampa, Florida, on April 28 and 29, 1980. The consolidated complaints allege that Respon- dent granted increased wages and benefits to all employ- ees except a newly certified group of telephone sales rep- 254 NLRB No. 3 L. M. BERRY AND COMPANY resentatives in the Tampa office, that Mary Jo Downey received one oral and two written reprimands because of her union or concerted protected activities, that Barbara Culbreath was discriminatorily denied a transfer to Re- spondent's New Orleans office, and that all of the above conduct was violative of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, herein called the Act. On the entire record in this case, including my obser- vations of the witnesses and their demeanor, I make the following findings: FINDINGS OF FACT 1. JURISDICTION Respondent, an Ohio corporation, has an office and place of business in Tampa, Florida, where it is engaged in the business of selling telephone directory advertising in several States. It is alleged and admitted that during the last 12 months Respondent received revenues in excess of $500,000 and has sold more than $5,000 of ad- vertising to customers in Florida who in turn meet a Board standard for the assertion of jurisdiction. On the basis of these admitted facts, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is alleged and admitted and I find that United Food and Commercial Workers International Union, Local 1636, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts In a prior case,' the Board concluded that a unit of telephone sales representatives in Respondent's Tampa office constituted an appropriate unit and found that Re- spondent's refusal to recognize and bargain with the Union was a violation of Section 8(a)(5). Respondent, re- lying on its contention that the unit is inappropriate, has thus far refused to bargain and apparently intends to test the validity of the unit finding in Federal circuit court. 1. The benefits issue: On September 18, 1979, the Union was certified as the exclusive bargaining representative of the telephone sales employees. The complaint alleges that on or about October , 1979, Respondent granted the following benefits: (a) A new dental plan applicable to all employees in the Tampa office except the employees in the telephone sales unit; (b) Increased the maximum coverage of its major medical plan from $50,000 to $100,000 for employ- ees in its Tampa office except for the employees in the telephone sales unit; (c) Increased its contribution to its Incentive Sav- ings Fund from 33-1/3 to 40% for the accounts of employees in its Tampa office except for the em- ployees in the telephone sales unit; L M. Berry and Company, 248 NLRB 1218 (1980). (d) Effective on or about November 1, 1979, Re- spondent increased coverage and limits of its pen- sion and retirement programs for all employees in its Tampa office except for the employees in the telephone sales unit. Respondent concedes that the above benefits were granted to all employees except those in the telephone sales unit and William Trip, vice president of human re- sources for Respondent, testified credibly that the bene- fits were withheld on the advice of counsel. After the in- stant charge was filed, Respondent did grant the benefits to such employees in mid-February 1980 and such bene- fits were made retroactive to the date that such benefits were initially granted to other employees. 2. Mary Jo Downey: It is undisputed that Downey re- ceived three reprimands within I week during the week ending November 30, 1979. She received an oral repri- mand from Thomas Sturtz, division manager, after a tele- phone sales supervisor, Elizabeth Widener, brought to his attention that Downey had "closed" 132 accounts in four working days the prior week, the closing week of a sales contest. Sturtz advised her that she could not ade- quately handle that many closings and properly sell the advertising. In effect, she was reprimanded for closing too many accounts. On November 30, 1979, Downey was called in and given a written reprimand for closing too few accounts for the current week, 17 at the time she was reprimanded on Friday morning. She testified credibly that, by the close of business on Friday, she had closed 42 accounts for that week. Downey also received a written repri- mand for her "insubordination" at an informal sales meeting on November 30, 1979, at the urging of Virginia Stearnes, the telephone sales manager who conducted the meeting. Her alleged misconduct involved her leafing through a magazine flyer during the course of the meet- ing. 3. Barbara Culbreath: Culbreath, who had been a tele- phone sales employee for 4 years, on January 21, 1980, made a letter request for transfer to the New Orleans office of Respondent which was forwarded by Sturtz to Green, the territorial manager. No response or action thereon was ever taken by Green although such request was received. On March 10, 1980, Culbreath wrote a second letter again inquiring about her possible transfer to New Orleans. On or about March 14, 1980, Sturtz called Elmer Smith the division manager at New Or- leans, who advised him that there were no openings at that time and that he had never to that point accepted any transfer into the New Orleans office. On March 20, 1980, Culbreath wrote another letter advising that she had not heard about her transfer request and advising that she was leaving Respondent's employ that day. 4. Respondent is engaged in the business of selling telephone directory (yellow page) advertising throughout the United States. Except for the newly certified bargain- ing unit of telephones sales in Tampa, the remainder of Respondent's operations are nonunion. Both Downey and Culbreath were active union adherents and both tes- tified in support of 8(a)(1) allegations against Respondent in June 1979 in Cases 12-CA-8443 and 12-CA-8480. 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 18, 1979, Retail Clerks International Union, Local 1636, AFL-CIO,2 was duly certified as the exclusive bargaining representative for telephone sales employees in Respondent's Tampa office. Subsequently, on a Motion for Summary Judgment, Respondent was held to have refused to bargain in good faith. (See 248 NLRB 1218.) Respondent is challenging the National Labor Relations Board's finding that such unit is appro- priate for bargaining. Downey filed one charge against Respondent on Octo- ber 30, 1979, and another on December 20, 1979. Said charges concern the matters involved in this hearing (Cases 12-CA-8867 and 12-CA-8932), namely, the fail- ure to grant benefits to telephone sales employees in the certified bargaining unit, and the reprimands given to Downey on November 26 and November 30, 1979. Cul- breath filed her charge on March 20, 1980. B. Contentions of the Parties The General Counsel contends the benefits withheld from the newly certified unit of telephone sales employ- ees is violative of Section 8(a)(1) and (3) where the em- ployer is not recognizing or bargaining with the certified union and where such benefits would have been granted to such employees but for their action in filing a repre- sentation petition and cites Florida Steel Corporation, 221 NLRB 371 (1975), 220 NLRB 1201 (1975), and 220 NLRB 260 (1975). As to Downey, the General Counsel urges that Re- spondent is seeking a means of eliminating Downey from its employ because of her past union activities and that due to her admittedly excellent work record, Respondent is attempting to establish a progressive style discipline to justify her later discharge. As to Culbreath, also admittedly an excellent employ- ee, she was told by Vivian Stearns and by Tom Sturtz, the telephone sales manager and the division manager, respectively, that they saw no problem with a transfer to Respondent's New Orleans office but for her union activ- ity. Respondent contends that under the Board's Goodrich and Shell rules3 it was privileged to grant benefit in- creases to its unorganized employees while withholding such benefits from the unit of telephone sales people in Tampa. It further contends that the minor disciplinary sanctions imposed on Downey were justified and lawful. Lastly, it contends that the General Counsel has failed to prove that the failure to transfer Culbreath was because of her union activities or otherwise violative of the Act. C. Discussion and Resolution of the Issues 1. The granting of benefits: The Company concedes and I find that Respondent granted increases in benefits to current and retired employees on October 1, 1979, and on or about November 1, 1979, and that such benefits were not granted to employees in the telephone sales 2 The Retail Clerks International Union merged and is now known as United Food and Commercial Workers International Union, Local 1636. 3 he B. F Goodrich Company, 195 NLRB 914 (1972); Shell Oil Com- pany. Incorporated and Hawaii Employers' Council, et al., 77 NLRB 1306 (1948). section of the Tampa office, a newly certified collective- bargaining unit as of September 18, 1979. Charges about the benefits were filed on or about October 30, 1979, and subsequently on or about mid-February 1980, Respon- dent granted the same benefits to the telephone sales unit at Tampa, and made them retroactive to the date they were originally granted to other employees. Under normal circumstances, Respondent's withhold- ing increased benefits to bargaining unit employees is not unlawful and in fact the unilateral granting of such bene- fits to people in a bargaining unit without consulting with or bargaining with the collective-bargaining repre- sentative might trigger a refusal-to-bargain charge. How- ever, the facts here are somewhat unique. Respondent has never recognized the Union as the collective-bargain- ing representative nor has it bargained since the date of certification. It has contended that the telephone sales unit is an inappropriate unit for bargaining and is seeking review of the Board's decision in Federal circuit court. Thus the question posed here is whether it can refuse to bargain with the Union, and then rely on the fact that the telephone sales people are represented, as a basis for denying them the same benefits. This issue was specifi- cally treated in B. F. Goodrich Co., 195 NLRB 914, 915. The Board discussed the genesis of this problem and quoted at length from Shell Oil Co., 77 NLRB 1306, 1310. In the Goodrich case, the Board stated: We conclude that the granting of new profit- sharing benefits to unorganized employees but not to represented employees is not, standing alone, prohibited discrimination. [195 NLRB 914 at 915.1 Further on in its decision, however, after finding no dis- criminatory motives and dismissing the 8(a)(3) allegation regarding such benefits, it discussed the 8(a)(l) aspects in a context where respondent was refusing to bargain and stated: By thereafter instituting the plan for its unorganized employees while unlawfully refusing to bargain with the Union as the statutory representative of its warehouse employees, Respondent deprived the latter employees of their right to bargain collective- ly with respect to obtaining this additional benefit. [195 NLRB at 915.] The same rationale applies here where Respondent is refusing to bargain, while testing the finding of the ap- propriateness of the bargaining unit, and at the same time refusing to grant the benefits to the newly certified unit. As to Respondent's motivation, I credit the testimony of William Tripp, Respondent's vice president of human resources, that the benefits were not granted to the people in the telephone sales unit on the advice of coun- sel. There is, therefore, no evidence of discriminatory motivation which would warrant finding a violation of Section 8(a)(3) of the Act. However, I do find that Re- spondent's failure to grant these benefits to the telephone sales bargaining unit employees in Tampa while refusing to bargain, constitutes a violation of Section 8(a)(1) of the Act. The subsequent granting of such benefits retro- actively does not erase the violation although it effec- 44 L. M. BERRY AND COMPANY tively removes the necessity for any make-whole order on such issue. 2. Mary Jo Downey: As to Downey, it is alleged that a verbal reprimand on November 26, 1979, for closing too many accounts, and two written reprimands on Novem- ber 30, 1979, one for closing too few accounts and one for being insubordinate at a sales meeting were discrimin- atorily motivated because of her union activities and sup- port. Each of these incidents will be treated separately hereafter. (a) The verbal reprimand of November 26, 1979: On No- vember 26, 1979, Downey was called into the office of Thomas Sturtz, Respondent's division manager, and orally reprimanded for her record of 132 account "clos- ings" in the 4-day period she worked during November 12-16. Elizabeth Widener, the telephone sales supervisor at the time, who was also involved, testified that, in view of the large amount of account "closings" in the 4-day period by Downey and because such closings figured in an office contest for a turkey, she personally verified Downey's sales contacts and found that six closings should not be included in her report because four report- ed closings were "disconnects" and two were reservice calls. She also concluded that 132 "closings" in 4 days raised a question whether these sales contacts were being done properly and brought the matter to the attention of Thomas Sturtz, division manager. Sturtz testified similarly that in his opinion there was no way anyone could adequately handle that number of closings in a 4-day period and that, in effect, Downey was making a superficial effort at contacting customers in order to qualify for and/or win the office contest for the most closings in the 3-week period. The General Counsel's Exhibit 5, Downey's diary record for 1979 of her account closings, indicates that her previous high for any I week in 1979 was 101 for the 5-day week of August 6-11, 66 for the 4-day week of February 12-16 and several weeks in March and July 1979 when she achieved closings in the 50 to 60 range. Thus by Dow- ney's own records, her performance, closing of 132 ac- counts (her diary shows 140 for that period) was signifi- cantly higher than her weekly production during the rest of 1979. Moreover, the division average was about 8.5 closings per day or approximately 42.5 closings per 5-day week. Downey averaged approximately 33 closings per day for the week in question. I conclude that it was the high number of "closings" by Downey, 132 in a 4-day period that prompted Super- visor Widener to check her figures by contacting her customers for verification of the sales contacts. Certain- ly, the fact that the results of a sales contest hung in the balance appeared to justify the inquiry. Moreover, she was not reprimanded for her relatively small error rate, 6 out of approximately 184 closings, but for her unusally large number of closings in a short period. In these cir- cumstances, I find that Respondent was properly con- cerned with the apparent superficial sales contacts by Downey and that there was a justifiable basis for the oral reprimand. Accordingly, I find that the verbal reprimand given Downey on or about November 26, 1980, was not discriminatorily motivated and I recommend dismissal of that allegation. (b) The written reprimands of November 30, 1979: On Friday, November 30, 1979, Downey received two writ- ten reprimands. One was for closing "too few" accounts during that week, 17 in number. The second written rep- rimand was for being insubordinate at a sales meeting that day where Supervisor Vivian Stearns spoke by leaf- ing through a magazine flyer during the meeting. The record discloses a number of previous instances in which Downey closed a small number of accounts and was not reprimanded. For example, she closed 12 ac- counts for the week of March 2, 22 accounts for the week of May 4, 18 accounts for the week of August 17, 11 accounts for the week of September 7, 11 accounts for the week of October 19, and 24 accounts for the week of October 26. Moreover, during 1978 and 1979, the average accounts "worked" by Downey was above the average for the Tampa sales office. For example, in 1979, the division average for accounts worked was 8.5, Downey had 8.6. For the period November through October 30, 1978, the division average was 8.6, Downey had 9. Thus statistical- ly, Downey was at least an excellent employee and per- haps more properly classified in the excellent to superior range. This is further substantiated by the General Coun- sel's Exhibits 6(a) and (b) in which she was lauded for doing a good job and rated in the first quartile, presum- ably the upper 25 percent of a sales force numbering some 14 in number. Sturtz also testified that Downey "has been one of our better employees," and was rated one of the top 3 or 4 out of 14 in the department. As to this reprimand, Sturtz testified that Stearns was upset at Downey's performance in closing 17 accounts the week ending November 30, and he felt Downey might be en- gaging in a deliberate slowdown. He admitted, however, that at a meeting with Downey on Friday she denied any work slowdown and advised him that she was work- ing on a large number of accounts that she expected to close that day. Thus, on Monday, November 26, Downey receives an "oral reprimand for too many closings" and on Friday, even before the week's production record is concluded,4 she is being reprimanded for "too few" closings. It estab- lishes to my satisfaction that Respondent is watching Downey's work performance with an eagle eye, with the object of building up a progressive record of discipline with the ultimate objective of discharging her. In view of her past 24 years of satisfactory service, her recent ac- tivity on behalf of the Union, and her testifying against the Company in a prior proceeding and the filing of new charges on October 30, 1979, 1 am convinced and find that the written reprimand for "too few" closings was prompted by her union support and related activities. Accordingly, I find this written reprimand of November 4 Downey credibly testified that she closed some 26 accounts on Friday, November 30, 1979, and that for the week her closings were 43. This is supported by her diary, the G.C. Exh. 5, for that week in Novem- ber. Respondent did not offer any evidence to dispute this although daily sales reports utilized by Downey for her diary are available to Respon- dent. Thus the reprimand was at best, premature, and certainly unwar- ranted in view of her production figures for the week. Sturtz also con- ceded that he had not personally issued warnings of this type to other employees in the telephone sales department. 45 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30, 1979, was discriminatorily motivated and violative of Section 8(a)(1), (3), and (4) of the Act. The second written reprimand was allegedly prompted by Downey's insubordination at a sales meeting on No- vember 30, 1979, in that she leafed through a magazine flyer during the course of a sales meeting. While Downey admitted the above-mentioned conduct at the sales meeting, she was not admonished or ques- tioned about her activities during the meeting. She credi- bly testified that other employees had engaged in similar conduct without being reprimanded. She stated that sales meetings are informal in nature and employees can leave during such meetings to make business calls or to pur- chase cigarettes and employees drink coffee and smoke during the meetings. Downey testified that employee Jacoby hooked a rug during a February 5, 1980, sales meeting and that employee Judy Young, blew a party "favor" throughout the meeting and neither employee was admonished. She further credibly testified that at a meeting on April 9 or 10, 1980, employees Carol Doug- las, Judy Young, and Alice Burns passed notes and con- versed during the sales meeting until a fellow employee, Chris Blackhurst, asked them to be quiet. Vivian Stearns, now retired, did not testify. In this regard Sturtz testified that Vivian Stearns, the telephone sales manager, was upset at Downey's conduct in leafing through a magazine during a sales meeting that same day (Friday morning) and told him that Downey was doing it to affront Stearns. Sturtz admitted that he had not per- sonally issued warnings of this type to other employees in the telephone sales department. Downey further testified credibly that on the after- noon of Friday, November 30, 1979, she was called in and handed two written reprimands. Although Stearns initially indicated that Downey could add her comments, Stearns tore off Downey's written comments and there- after Downey's request for copies of the reprimands was denied. I conclude that the second written reprimand (given the same day, Friday, November 30, 1979) was an over- reaction to Downey's actions at the sales meeting. Stearns did not choose to call Downey's attention to her conduct but waited and had the division manager write up a written reprimand. In view of the informal nature of the meetings, and the testimony of Downey which I credit that other employees had engaged in other activi- ties during the meetings without being admonished or reprimanded, I am convinced and find that Downey's ac- tivities were being carefully watched and she was being singled out for discipline despite her excellent employ- ment history and almost 24 years of employment with Respondent, because she had chosen to challenge man- agement by supporting the Union. I find that the second reprimand, allegedly for insubordination, was in fact, mo- tivated by a desire to impugn her excellent work record and lay the groundwork for further disciplining and ulti- mate discharge. Accordingly, I find that the giving of the second written reprimand was in fact discriminatorily motivated and violative of Section 8(a)(1), (3), and (4) of the Act. 3. Barbara Culbreath: The complaint alleges that Cul- breath was advised by Vivian Stearnes, Respondent sales manager, and by Thomas Sturtz, the division manager, on December 1979 and January 1980 that but for her union activities she could be transferred to Respondent's New Orleans office. The complaint further alleges that on March 21, 1980, and thereafter Respondent refused to transfer her because of her union activities and support. Culbreath worked for Respondent in Tampa, Florida, as a telephone sales representative from April 1976 until March 21, 1980. Sometime in December 1979, she learned that her husband was to be transferred to New Orleans and telephoned Vivian Stearnes, the telephone sales manager, and inquired about the possibility of her being transferred to Respondent's New Orleans office. According to Culbreath's undisputed and credited testi- mony, Stearnes stated that she did not see any problem at all and that I had a "very good record and she saw no reason why the company wouldn't transfer me except for the problem with the union activity." Culbreath talked to Stearnes personally the following day and again Stearnes stated she saw no reason why the company would not transfer her except for this one problem-"you know"- the fact that "I had been in the union activity." Culbreath credibly testified that she spoke to Tom Sturtz, the division manager, and personally delivered to him a letter, dated January 21, 1980, and addressed to him, requesting that she be considered for any openings in the New Orleans office after March 1, 1980. Accord- ing to Culbreath, Sturtz stated "that he didn't see any problem with my transfer-you know-the possibility of transferring there, except that-we had had the problem with the union activity and he didn't know how that would go over." Sturtz forwarded Culbreath's January 21, 1980, letter to Bill Green, the territorial manager. Green made no re- sponse to the request for transfer although Sturtz indicat- ed that Green did receive the letter. Receiving no response from her January 21, 1980, letter, Culbreath prepared a second letter, dated March 10, 1980, again addressed to Tom Sturtz, inquiring about her transfer request. Sturtz advised her a day or so later that he had a call in to Elmer Smith, the division man- ager, and he would get back to her. Later, Sturtz called Culbreath and advised her that he had talked to Smith and they had no openings at the moment. He also stated that he asked Smith if they do transfer people and he said no that they did not make transfers. She gave a third letter to Sturtz, dated March 20, 1980, noting she had received no responses from her ear- lier letters requesting a transfer to the New Orleans office, and advising that this was her last day in the Tampa Office. Both Sturtz and Smith testified. I credit Sturtz over Smith that Smith did not advise that he had a no-transfer policy, but merely he had made no transfer up to that point. In that respect, however, Smith was not correct. General Counsel's Exhibit 7(a) discloses that there were three transfers to Tampa or New Orleans within the last 2 years. Smith testified thereafter that the only transfer into the New Orleans office was a woman named Linda Stranchmore, who transferred from the Los Angeles office. He was advised by the Company's vice president 46 L. M. BERRY AND COMPANY that she was being transferred to the New Orleans office as a premise sales representative and he decided not to object or fight the transfer. The exhibit also reveals that on October 1979 a Chris Blackhurst was transferred from Bristol, Tennessee, to the Tampa office. Sturtz stated he had met her and thought she had good potential and had approved the transfer. One other woman, Rommes, was transferred from the Tampa office to Fort Myers on De- cember 1978, apparently involuntarily, as a demotion from a position as telephone sales manager to premise sales representative. I find that the comments by Stearnes, on or about De- cember 21, 1979, and similar comments by Thomas Sturtz on or about January 21, 1980, to the effect that, in view of her good record, they saw no reason she could not be transferred to New Orleans except for her union activity or union membership were clearly coercive and would inhibit Culbreath's present and future union activi- ties. Therefore, I find the comments by Stearnes and Sturtz are each separately violative of Section 8(a)(l) of the Act. With respect to whether Culbreath was discriminatori- ly denied a transfer, several key issues need to be re- solved. Respondent contends and I find that, with some exceptions, the division managers had automony in hiring employees. Several exceptions have been noted where superiors of the division manager have in effect directed certain transfers. The remaining issue is that Smith categorically denied knowing that Culbreath was involved in union activities at Tampa, until sometime in April when he was sent a copy of the charge filed by Culbreath. Respondent contends with considerable merit that, if Smith made the decision not to transfer and there is no evidence that he was aware of her past union ac- tivities, Smith's decision not to permit her to transfer could not be discriminatorily motivated. In that respect, however, Sturtz, in testifying about his conversation with Culbreath about her possible transfer, testified as follows: During the conversation, which I would say, ran about 20 minutes, the subject of the union did come up. We talked about that. I told her that I had no idea exactly-you know-how the Louisiana Divi- sion would view her being a member of-you know-the union. And, at that point in time she told me that we wouldn't have to worry about that, that she had learned her lesson, that the Union had nothing for them-the union had done nothing for them. By his testimony, Sturtz assumed that New Orleans would be informed of Culbreath's union activity and it is logical that they would be told. Certainly, if both the telephone sales manager and the division manager con- sidered it important enough to mention to Culbreath, it is highly unlikely that it would not be brought to Smith's attention in any discussion of possible transfer. Conse- quently, I infer that, in Sturtz' telephone conversation with Smith about Culbreath's possible transfer, Cul- breath's union activities were mentioned. Certainly a di- vision manager would tend to alert another division man- ager about any problem area involved in any transfer, because he would expect similar information. Moreover, the failure to advise Smith of such a problem might even get Sturtz in difficulty with his superiors. In sum, I conclude there are a number of factors which persuade me that Culbreath's union activities pre- cluded her from being considered and transferred to the New Orleans office. They include: (a) The fact that the only certified unit in the entire Company was at the Tampa office and consequently such union activity would be well known throughout the Company with the idea of alerting managerial personnel of the possibilities of unionization in their area. (b) The failure of the company hierarchy, Green, in particular, to respond to the request for transfer emcom- passed in Culbreath's January 21, 1980, letter. Certainly, Green must have been aware that Culbreath was an em- ployee in the newly certified bargaining unit. Thus, the failure to respond, is suspicious. (c) The comments of Stearnes and Sturtz, both to the effect that in view of her good record they saw no prob- lem with her transfer but for her union activities or membership. (d) In light of Sturtz' comments, it is highly unlikely that Culbreath's union activities were not mentioned in the telephone conversation between Sturtz and Elmer Smith, the New Orleans (Louisiana) division manager. I therefore conclude, by inference, that such activities were mentioned. To the extent Smith denied any knowl- edge of Culbreath's union activities, I do not credit it. (e) Smith's testimony that, even if Culbreath had ap- plied to him personally, he would not have hired her. Thus, Smith would not consider an employee with 4 years of experience who had just received a congratula- tory letter for being a top notch sales representative, but instead hired employees with no experience who were then sent to training school for 2 weeks in Dayton. Thus Smith's precluding Culbreath from any consideration is illogical and suspicious in this context. The record, the General Counsel's Exhibits 7(a), (b), and (c) and the testi- mony of Elmer Smith which I credit in this regard, es- tablished that Donna Cook was hired for telephone sales work in the New Orleans office on or about April i, 1980, and that on or about March 24, 1980, another em- ployee, Deborah Pianka, was transferred from one sec- tion identified as TSSR to telephone sales. In addition, Smith conceded that he approved the running of a help- wanted ad (G.C. Exh. 10) in the New Orleans Times Picayune of April 20, 1980, for telephone sales represen- tatives. Accordingly, I find and conclude that Respondent pre- cluded Culbreath's transfer to the New Orleans office be- cause of her past association with the Union and her union membership. I am not persuaded that Culbreath's expressed disenchantment with the Union would have persuaded Respondent to okay her transfer and face the possibility of a spread of union activities to the New Or- leans office. In light of Culbreath's very good work record, I further conclude that she would have been hired on or about April 1, 1980, but for her union activi- 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties.5 The failure to consider and to transfer Culbreath because of her union activities and association is violative of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Food and Commercial Workers International Union, Local 1636, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by withholding benefits from bargain- ing unit employees while granting them to non organized employees, and refusing to bargain with the Union, en- gaged in conduct violative of Section 8(a)(1) of the Act. 4. Respondent, by issuing two written reprimands to Mary Jo Downey, on November 30, 1979, because of her union activities, including her testimony on behalf of the Union and her filing of charges against Respondent, en- gaged in conduct violative of Section 8(a)(1), (3), and (4) of the Act. 5. Respondent, by failing to consider and transfer Bar- bara Culbreath for transfer to its New Orleans office be- cause of her union activities and support for the Union, including her testimony at a National Labor Relations Board hearing, engaged in conduct violative of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not otherwise violated the Act. THE REMEDY The recommended Order will require Respondent to cease and desist from the unfair labor practices found, and to expunge or remove the two written reprimands given Mary Jo Downey dated November 30, 1979, from her personnel records. In light of my conclusion herein that Respondent discriminatorily refused to transfer Bar- bara Culbreath, Respondent shall be ordered to transfer Barbara Culbreath to the New Orleans office as a tele- phone sales representative and make her whole for the wages she would have earned if she had been employed in lieu of Donna Cook, on or about April 1, 1980, plus interest thereon, less any interim earnings. The amounts of backpay are to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLR8 289 (1950), less any net earnings, with interest as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).6 Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER7 The Respondent, L. M. Berry and Company, Tampa, Florida, its officers, agents, successors, and assigns, shall: s In so concluding I reject any assertion or contention that the work varied from that done in the Tampa office, i.e., that sales work for Bell directories varied substantially from the work for independent directories. It was conceded that the sales work was essentially the same and only the paper work varied. In any event Respondent's training school did not distinguish between such types of work and Culbreath had had past expe- rience in working on both independent and Bell directories. 6 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 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 find- 1. Cease and desist from: (a) Refusing to give benefits to employees in the bar- gaining unit that it granted nonorganized employees while refusing to bargain with the Union. (b) Issuing reprimands to Mary Jo Downey or to any other employees because of their union activities, includ- ing testifying at Board hearings or filing unfair labor practice charges. (c) Refusing to transfer qualified employees for em- ployment in other divisions because of their union activi- ties, including testifying at Board hearings. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Remove and/or expunge from the personnel re- cords of Mary Jo Downey, the two written reprimands dated November 30, 1979. (b) Transfer Barbara Culbreath to the New Orleans office as a telephone sales representative effective April 1, 1980 (the date of hire of Donna Cook) and make her whole for any loss of wages incurred because of Respon- dent's failure to transfer her with interest as set forth in the Remedy section here, less any interim earnings. (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at Respondent's office in Tampa, Florida, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ings, 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. I In the event 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." 48