Brooks Cameras, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1980

250 N.L.R.B. 820 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brooks Cameras, Inc. and Warehouse Union Local
6, International Longshoremen's and Warehou-
semen's Union. Case 20-CA-13922
July 21, 1980
DECISION AND ORDER
On July 30, 1979, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and the Re-
spondent filed a reply brief in response to the Gen-
eral Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint alleged that Respondent violated
Section 8(a)(1), (3), and (5) of the Act by interro-
gating employees concerning union-related matters,
discharging employees for union-related reasons,
and by failing and refusing to bargain with the
Union upon demand. The Administrative Law
Judge concluded, however, that Respondent had
not violated the Act as alleged and recommended
that the complaint be dismissed. We agree with the
General Counsel that the Administrative Law
Judge erred in reaching his results.
The Union Campaign and Respondent's
Reaction
Respondent sells and services photographic
equipment at retail stores and outlets that it owns
and operates in the San Francisco and surrounding
Bay area. Its organization includes a warehousing
operation and an equipment repair department. In
May 1978,1 Charles Wheeler, a warehouseman,
contacted the Union for the purpose of organizing
his fellow warehouse employees. The Union and
Wheeler worked together thereafter and by June
23 had secured 14 signed authorization cards out of
a unit of 16 employees. 2 On June 26, Lannon, a
union representative, went to Respondent's offices
to see its president, Dee, who was, according to his
secretary, in a meeting and unavailable. However,
I Unless otherwise stated. all dates are in 1978
2 At the hearing, the parties stipulaied that the bargaining unit consist-
ed of:
All warehouse and service employees employed hb Ihe Respondent
at its warehouse facility in South San FrancisLo,o Califorinia. includ.
ing shipping and receising clerks. order clerks, camera repair clerks,.
truckdrivers. and leadmen. hut excluding all office clerical cmploves,
guards and supervisors as defined in Ihe Act
250 NLRB No. 116
the secretary did interrupt the meeting to tell Dee
of Lannon's presence and his claim that the Union
represented a majority of Respondent's warehouse
and service employees. Dee, nevertheless, refused
to see Lannon. Later that same day-June 26-the
Union sent Respondent a telegram in which it
claimed to represent a majority of unit employes
and requested that Respondent begin negotiations.
The same day, Respondent replied by letter to the
Union's bargaining demand. It questioned the
Union's majority status, refused recognition, and
suggested that the Board be used to "resolve this
dispute." The Union filed its petition on June 28.
The previous day-June 27-Dee had asked Op-
erations Manager Jaramillo to find out "what was
the problem in the warehouse." Jaramillo spoke to
his supervisors about the Union and learned that
employee Wheeler probably was involved. Among
those he spoke to was Hunter, a warehouse em-
ployee whom Respondent considered a supervi-
sor.3 He told Hunter he knew there was a problem
in the warehouse, indicated that Wheeler was
behind it, and asked what were the employees'
complaints. Hunter replied it was a matter of pay
or money. Then, on June 29, Respondent held an
employee meeting at its main store during which
Dee talked about the Union's request for recogni-
tion, and expressed shock and surprise that the
warehouse employees would want a union. He also
stated that since employee wages were Respond-
ent's major expense, a union would make it difficult
to meet expenses and could cause changes in exist-
ing benefits including the Employee Stock Owner-
ship Plan.
Also that day, word reached Respondent that
Steven Lane, a cash auditor in the accounting de-
partment, intended to organize the clerical employ-
ees. Richmond, vice president in charge of finance,
called Lane to his office, stated that Lane had pre-
sented Respondent with a "terrible dilemma," and
told him that for economic reasons Respondent had
intended to place in effect on June 30 a reduction
in force which would have included Lane but that
now if it discharged Lane on that date, it could be
concluded that "the firing was entirely a retaliation
for the threat to unionize the office." To forestall
such a conclusion, he added, it had been decided to
discharge Lane immediately. In reply to Lane's
question as to why he was included in the reduc-
tion, Richmond explained it was due to his poor at-
tendance and failure to get along with his supervi-
sor. Lane was paid off and was asked-and he
agreed-to say nothing to the other employees as
:' For Ihe reasons scl forlh ill his I)cisiorl. c a;gree its h Iht Adminlis-
trali;se Ias Judge thai Hunter is an cimpIl)Ce ailld 10t 1 sLlpcrlerisor
82)
BROOKS CAMERAS, INC
the staff reduction had not been announced. Never-
theless, Richmond, according to his own testimony,
felt uneasy about the demoralizing effect on other
employees once they learned of Lane's discharge
and as a consequence of discussions with Dee, it
was decided that the employee reduction plan
would go into effect that afternoon. Shortly there-
after, 13 more employees were discharged-7 being
in the warehouse-service unit4 for which the Union
had demanded recognition only 3 days earlier. Ac-
cording to Respondent, the warehouse-service em-
ployees were selected for discharge on the basis of
seniority; while the selection of other employees
was based on competence or other factors affecting
the individual's worth as an employee.
The Unfair Labor Practices
The 8(a)(1) violation: The General Counsel con-
tends that Manager Jaramillo's questioning of em-
ployee Hunter the day after the Union made its
bargaining demand concerning what the warehouse
employees wanted violated Section 8(a)(1) of the
Act and requires the usual 8(a)(1) type remedy.
The Administrative Law Judge found, and the
record shows, that Jaramillo did question Hunter
about the union activity of his fellow workers and
that there was no justification for such questioning
which implied a "threat of hostile retaliation" and
"normally" would be considered illegal interfer-
ence. Nevertheless, the Administrative Law Judge
recommended that the allegation be dismissed and
no order issue because the interrogation "while
technically violative" was "isolated and minimal."
We agree with the Administrative Law Judge that
the interrogation constituted illegal interference,
however, and, contrary to the Administrative Law
Judge, we find that such an interrogation violates
Section 8(a)(1) of the Act and requires an appropri-
ate remedy. 5 Additionally, we note that while the
interrogation was addressed to only one employee,
it was concerned with all warehouse employees
and sought information that could be used by Re-
spondent to discourage or prevent by both lawful
and unlawful means the unionization of those em-
ployees. Thus, the characterization of the interro-
gation as "isolated and minimal" is not only irrele-
vant but also inaccurate as well. In any event, for
the reasons given above, we find that Respondent,
I Actually only six of Ihe warehou-se-rserice emploees were dis-
charged (on the 29th: the seenth , is ahent and was discharged when he
came into work the followAing day
' Clinionl ei'wd%. Inc.. d/hi'u rl,,r'on IG tO,4 bdli,l.,r. 237 NLRH btt7
(1978), Caureltn Amnriucan Inc 1 219 NL RB 457 (1975); see also
Iltrnuttional ntiot. Unoited A.utnomobileh . ri pucc and -grttultural Impl-
net W'orkers oJ 4.litru /L-1 i14) Oretni Spcitra. In I N\ L R B. 427
F2d 1330 l 6sth Cr l9to7)
through Jaramillo's questioning of Hunter on June
27, violated Section 8(a)(l) of the Act.
The 8(a)(3) and (1) Violation: The General Coun-
sel contends that the discharge of the seven ware-
house-repair employees on June 29 and 30 was
prompted primarily by their union activity includ-
ing the Union's June 26 bargaining demand, and
was thus unlawful. The Administrative Law Judge,
accepting Respondent's explanation of events, con-
cluded that the decision to discharge the seven was
settled in all particulars before Respondent was
aware of the union activity and that the specific
discharges were made for wholly economic rea-
sons, and consequently that Respondent did not
violate the Act as alleged.
The background to the discharges here in dis-
pute does show that the Respondent, as early as
September 1977, was considering methods of in-
creasing the efficiency of its operations, including a
reduction in force, and that Respondent, in May
and June 1978, just prior to the union activities
here involved, began taking certain steps towards a
reorganization including such a reduction. Howev-
er, the facts outlined above also show that Re-
spondent was strongly opposed to its employees'
union activities. Indeed, it expressed shock and sur-
prise that they would want a union and once
having learned of the Union's presence set out sys-
tematically through various means, including un-
lawful interrogation, to determine the leadership
and extent of employee unrest in the warehouse.
Respondent's antagonism to its employees' union
activities is further shown by its immediate dis-
charge of employee Lane when he threatened to
organize the clerical workers6 and by its use of
that discharge as a justification for accelerating,
inter alia, the discharge of the seven warehouse-
service employees including their principal union
activist, Wheeler.7 Thus we are faced here with
s Respondent sought to justify its acceleration of Lane's discharge on
the ground that his discharge on June 30. the original planned date for
the reduction in force, would appear as retaliation for the threat to orga-
nize while apparently his immediate discharge would not The Adminis-
trative Law Judge appears to have accepted this explanation as a valid
reason for acceleration of this discharge However. the justification is an
unequivocal assertion that Lane was discharged on June 29 for making a
threat to organize clerical employees and thus even under Respondenl's
version of the events Lane was discharged on that date for discriminalo-
ry reasons However. the proposed justification is so absurd-i e.. there is
no basis whatsoecer. and none offered. for beliesting an immediale dir-
charge would appear to he lawful and one delayed a day appear unllaw-
ful--hat we are constrained to reject it as pretext and rind that Lane sas,
summarily discharged to remove the threat of unionilzitioin of the cleri-
cals
: Respondent claims that it acelerated the general reduction im ftornc
becaus it feared thuat once knoi tiledge of Lane's dicharge got out. em-
plo)ees waould hcvome demosralicd uhile watililg Io see if the Itoo
Xwould he discharged or laid off hu,. Respondent ctmloleiids that the ac-
celerilotn of the reducll in ii forc. e w as a consequence of II dicha rgc of
a.ite But i , anies. discharge as nimotls ti!ed h li allltnion collnitderiiotn,,
('Oitiliud
821
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances showing not simply a bona fide,
good-faith attempt by Respondent to reorganize its
operation for economic reasons, but rather with
circumstances revealing Respondent's open hostil-
ity to unionization of its employees and disclosing a
proclivity by Respondent to engage in illegal an-
tiunion conduct" intended to counteract and pre-
vent union activity by and among its employees.
Turning now to the alleged unlawful discharges,
we have not only a background of hostility to
unionization but also circumstances surrounding
the discharges which raise serious questions con-
cerning the legality of the discharges. The dis-
charges occurred just 3 days after the Union made
its demand; Respondent's reduction in force dispro-
portionately affected the employees involved in
union activities; and the discharges included one of
the best employees in the department, the employ-
ee who was primarily responsible for the union or-
ganization of the warehouse-service employees. Re-
spondent, as indicated above, offers a number of
explanations for these and other perplexing aspects
of the discharges all to the effect that the operative
decisions were made prior to knowledge of union
activity and wholly for sound economic reasons.
The Administrative Law Judge, as we have stated,
basically accepted them; in the circumstances we
find these explanations unconvincing.
Thus, with respect to the timing of the decision
to, and selection of employees for, discharge, Re-
spondent's vice president, Anderson, testified that
he announced at the June 16 executive meeting
that a firm decision had been made to cut back per-
sonnel, and that prior to the June 26 executive
meeting it had been decided which particular em-
ployees to discharge-a decision accepted as final
at that meeting. As the record shows, Anderson
usually took comprehensive notes of what tran-
it necessarily follows that the acceleration of the reduction in force was
also for such reason Furthermore, despite the contrary position taken by
the Administrative Law Judge, we are disinclined to accept Respondent's
asserted reason for accelerating the reduction. The record is devoid of
any evidence to support Respondent's assertion that employees would
become demoralized if they learned of Lane's discharge, or that an accel-
erated reduction would avoid demoralization. Indeed, we are being asked
to accept a doubly subjective explanation of Respondent's conduct; i.e..
that it was based on Richmond's alleged fears that employees would
become upset. Such explanation is essentially incapable of being affirmed
or denied by any objective evidence and. though necessarily uncontra-
dicted, it is not, even though accepted by the Administrative Law Judge.
conclusive as to Respondent's reason for accelerating the reduction in
force. Rather, we reject Respondent's explanation and find that the re-
duction was accelerated for the same reason that Lane's discharge was
accelerated-to get the union activists out of Respondent's employ See
fn. 15 infro.
" The complaint does not allege, nor does the General Counsel con-
tend, that the acceleration in the discharges of Lane and the wvarehouse-
service employees violated the Act. Nevertheless the discriminatory mo-
tives behind the acceleration of those discharges carl properly he consid.
ered as hackground in evaluating the legality (of the alleged unlawful dis-
charges of the warehiouse-selsice employees See Curtis Manufucruring
Co.. Inc.. 172 NLRB 1094 (196t8)
spired at executive group meetings. 9 However,
none was produced to support his version of what
occurred at the June 16 and 26 meetings, because,
he testified, none was taken 0 as the employees
might learn from them of the upcoming reduction
and suffer a severe drop in morale waiting for the
announcement designating who was to go. Further,
Kretschmann, the warehouse supervisor who had
been asked to make suggestions for reorganization
of the warehouse, including a reduction in force,
and who indeed had made tentative suggestions
and was still working on a reorganization at the
time of the discharge, was never notified" before
the time of the discharges that any decisions had
been made with respect to his warehouse employ-
ees because, according to Operations Manager Jar-
amillo, Kretschmann would have been extremely
upset on learning of the extent of the warehouse
reductions.'2 Also, despite the extensive testimony
relating to the June 26 meeting, none of Respond-
ent's witnesses who attended, except Anderson,
had any clear recollection that a final decision as to
the particular employees to be discharged was
made or in essence ratified at that time. Indeed,
what may be considered the sole objective evi-
dence relating to the timing of that decision was a
document submitted by Respondent which checked
off the names of the persons to be discharged. But
the only date appearing on that document was
June 28, 1978-2 days after the Union made its
demand and the day after the Respondent had sys-
tematically investigated the problem troubling its
warehouse employees. Respondent asserts that the
June 28 notation refers to the date it was decided
to discharge the employees and not to the date spe-
cific persons were selected for discharge. But there
is nothing to substantiate that claim. In any event,
these various explanations bearing on the timing of
the decisions in issue here patently appear to us to
be essentially vacuous, uncorroborated, self-serving
statements not consistent with such objective evi-
dence as the date on the discharge document and
the failure of Respondent to inform Kretschmann
a Anderson kept these notes in a "black book " II is noteworthy that
all of the documents concerning staff reduction were contained in a por-
iion of the black book under the category designated "union "
"' Actually on the 26th an atypical cursory half page of notes was
taken on matters not concerned in this proceeding-but none assertedly
was taken with respect to the impending reduction in force which ap-
pears from various testimony to have beern the principal topic under con-
sideration.
iI Neither was Repair Department Supervisor Powers given any ad-
vance notification
12 We might note in passing that se fail to see why informing
Kre'schmann in advance concerning the size of the warehouse reduction
would have made him any more upset than presenting him with a fail
uccomnph as was done. especially in siew of the fact that he had been led
to beliecs that manlagemenit wanted his ideas aind suggestions concerning
what would be an effective reorganizaltion
X822
1ROOKS CAMERAS. INC
at the time the initial decision allegedly was made
of the impending discharge of about half his crew.
Consequently, in view of the inherent difficulties
with these explanations and the background of hos-
tility towards the Union, we find that the Adminis-
trative Law Judge erred in accepting these state-
ments as having established that the reduction-in-
force decisions concerning the warehouse-service
employees had been made prior to the time Re-
spondent had knowledge of union activity among
those employees. ' 3
Much the same type of unsatisfactory explana-
tion exists concerning the reasons why the reduc-
tion fell so heavily on the organized warehouse-
service employees and why certain employees and
not others were selected for discharge. Respond-
ent's underlying explanation in this area is, in
effect, that considerations of efficiency required
that sales-associated employees be retained and that
the major reductions be borne by administrative
and other employees, of whom the warehouse-serv-
ice employees constituted a sizable part, and who,
therefore, suffered the brunt of the reduction.
However, Respondent's concern for efficiency as
the primary consideration in the warehouse-service
reduction is considerably diluted in that while ad-
ministrative employees were selected for discharge
on grounds related to their competence, ware-
house-service selection was not based on compe-
tence but rather on seniority, the consequence of
which was that the two least competent employ-
ees-at least as gauged by Kretschmann-were re-
tained while Wheeler, one of the most competent,
was discharged. The Respondent seeks to explain
away this departure from competence standards on
the ground that there were too many employees in
the warehouse departments to apply effectively a
competence or performance criterion. But the va-
lidity of this explanation is hardly self-evident, es-
pecially as the warehouse covered only 16 employ-
ees and, as noted above, Warehouse Manager
13 We expressly reject the Administrative Law Judge's finding that the
final decision as to which employees would be discharged was made at
the meeting of June 16. as well as his reliance on Resp Exh 10 and An-
derson's accompanying testimony Anderson testified that Exh 10. which
is undated, was prepared on June 15 or 16. That exhibit consists of a list
of the general and administrative employees, showing the allegedly final
reductions by job functions rather than hb identifying the employees to
be terminated by name. Three notations appearing on the face of Exh 10
indicate that the exhibit could not have been prepared until sometime on
or after June 20 Two of the notations state that two particular employ-
ees "left last week'" The record reveals that those employees' separation
dales from Respondent's employ were June 14 and 15, respectivsely The
third notation stales that Gary Hunter "asked for a leave of absence start-
ing sometime in July " As found by the Administrative Law Judge. and
confirmed by our independent examination of the record, Hunter did nol
notify Respondenl's personnel department of his request for a lease aof ab-
sence until June 20 Thus, an examination of the documents on their face
reveals that Resp Exh 10 could not have been prepared until on or
about June 21, at the earliest
Kretschmann felt able to judge the competency of
employees working for him, recommending two
for discharge and one for promotion to supervisor.
Also left hanging by Respondent's proffered justifi-
cations is why precisely seven rather than some
lesser or larger number of warehouse-repair em-
ployees were discharged-a fact that usually would
be of small consequence except that the seventh
employee on the seniority list happened to be
Wheeler, the cause of all of Respondent's union
problems. In any event, these proffered explana-
tions concerning the impact of the reduction on
warehouse-service employees and the basis for se-
lection of employees for discharge are essentially
no more than self-serving statements, lacking con-
sistency and substance; and we find, contrary to
the Administrative Law Judge, that they are un-
worthy of acceptance and belief especially in view
of the antiunion context in which the relevant
events occurred.' 4 Rather, it seems apparent to us,
as urged by the General Counsel, that Respondent
contrived the execution of its asserted "economic"
reduction in force so that its impact would fall
heavily on the warehouse-service employees and
thereby undermine the union's strength among
those employees and result in the dismissal of the
union activist.
Our conclusion in this regard is buttressed by an
examination of Respondent's work force following
the subject terminations. Thus, Respondent opened
and staffed new retail outlets immediately after the
June 29 terminations. It is uncontroverted that
these new positions were unskilled, that Respond-
ent had difficulty retaining competent amd trust-
worthy employees in these jobs, and that the dis-
charged employees were familiar with applicable
paperwork and procedures. Nevertheless, Respond-
ent failed to even consider the alleged discrimina-
tees for these positions. Moreover, Respondent
failed to effectively respond to record evidence
that, following the discharge of the seven alleged
discriminatees, it was forced to rely upon tempo-
'4 The Board is not bound lo treat Respondent's uncontradicted self-
serving statements, especially in view of their infirmities, as conclusive in
establishing its motives with respect to the discharge of the seven ware-
house service employees. Rather, where motive or intent is to be estab-
lished, all circumstances of the case must be considered. and motne or
intent clearly cannot be established solely by crediting a respondent's ex-
planation or justification for its own alleged unlawful activities See
.\'L. RB. s Pacific Grinding Wheel Co.. 572 F.2d 1343. 1347 (l)th Clr
1978). and the courl's language there that the Board in determining good
faith In bargaining "vas required to consider all the circumstancesr nol
just the testimony credited by the Administrative Law Judge" and
adding that the "Board was free to draw its own inferences from all the
evidence presented, giving whatever weight it felt appropriate 1o the
company's self-,erving explanations " Consequently. asRespondenl' self-
serving testimony is essentlillsl c'ncerned with assertions as Il Repond-
ent's intent. we find that their ecidentiar\ weight mustl hbe determined on
the hasis of all the circumstailnes anid not simpl: onll the hasis of the Ad-
minivtratiie I as. Judge's credibilils finding, coinceriing them
823
I)t CISI()NS (): NA I IONAI LABO)R RELA TIONS BOARD
rary help, newly hired employees, and employees
and manager trainees who were transferred to the
warehouse from other of Respondent's establish-
ments (management trainees had never before been
used in the warehouse).
In sum, in light of all the circumstances of the
case, and, especially, as outlined above, the back-
ground revealing Respondent's hostility to union
activity, its proclivity for illegal and discriminatory
conduct concerning such activity, the inadequacies
and essentially inconsistent and self-serving nature
of its proffered explanations for its actions concern-
ing the reduction in force as it affected the ware-
house-service employees, and the timing and
impact of those actions with respect to the union
activity of those employees, we find that the deci-
sion with respect to the discharge of the ware-
house-service employees was made subsequent to
the time of, and as a response to, the Union's bar-
gaining demand; that recourse to seniority in the
selection of those employees for discharge was
prompted by Respondent's desire to get rid of
Wheeler, the union activist; and that the extent of
the impact on the warehouse-service employees
was determined both by the goal of undermining
the Union's position among such employees and
the aim to cleanse its operations of the employee
responsible for instigating the union activity among
its employees. Accordingly, we find that the Re-
spondent discharged the seven warehouse-service
employees on June 29, 1978, for union-related rea-
sons'5 and that it thereby violated Section 8(a)(3)
and (1) of the Act.
The 8(a)(5) Violation: As outlined above, by June
23 the Union had secured 14 authorization cards
out of a stipulated unit of 16 employees and on
June 26 notified Respondent that it represented a
majority of the unit employees and requested Re-
spondent begin negotiations. Also on that latter
date Respondent denied the request for recognition
and suggested that this Board be used to "resolve
this dispute." We have found, further, that shortly
thereafter Respondent embarked on a course of dis-
criminatory and illegal conduct culminating in the
unlawful discharge of approximately one-half of
the unit employees, including the employee direct-
ly responsible for the organizing of the unit em-
ployees. We find such immediate discriminatory
conduct taken in retaliation to its employees' union
activities, rendered and continues to render impos-
i 11I so holding, we are not concluding that had Respondent proceed-
ed lawfully it would not have discharged any warehouse-service employ
ees as part of its planned reduction il force But we are holding that
there is no evidenlce that a la. fully conducted reduction would hasc in-
cluded seveln employc>c. that is about half ,of all the varehousc-ser icc
cmplo> ees. or that it would e alv inclded any of the employees actuall 3
dischalrgcd Rather such evidence ils there is indicates the colitrarr y t, ould
hasc behl rue
sible the conduct of a fair election. Consequently,
as the Respondent has precluded the holding of a
fair, free election, we find that the duly signed au-
thorization cards represent the best available ex-
pression of employee desires concerning union rep-
resentation, and that a majority of employees had
signed such cards by June 23, 1978. Accordingly,
we further find that Respondent violated Section
8(a)(5) and (1) of the Act by its refusal on June 26
and thereafter to recognize and bargain with the
Union, as the latter requested.
CONCLUSIONS OF LAW
1. Respondent Brooks Camera, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Warehouse Union Local 6, International
Longshoremen's and Warehousemen's Union, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating an employee concerning the
union activities of other employees, Respondent
violated Section 8(a)(l) of the Act.
4. By discharging employees Louis Fernandez,
Robert Fernley, Mike Torres, John Wallace, Jr.,
Charles Wheeler, Walter Cleveland, and Sal Russo
for union-related reasons, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
5. The following employees of the Respondent
constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All warehouse and service employees em-
ployed by the Respondent at its warehouse fa-
cility in South San Francisco, California, in-
cluding shipping and receiving clerks, order
clerks, camera repair clerks, truckdrivers, and
leadmen, but excluding all office clerical em-
ployees, guards and supervisors as defined in
the Act.
6. The above-named labor organization is, and
has been since June 23, 1978, the exclusive bargain-
ing representative of all employees in the appropri-
ate unit within the meaning of Section 9(a) of the
Act.
7. By failing and refusing to recognize and to
bargain with the Union on and after June 26, 1978,
as the exclusive representative of the employees in
the appropriate unit, Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
824
IROOKS CAM[SRAS. INC
THMI Ri M HI)Y
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies
of the Act.
We shall order Respondent to offer Louis Fer-
nandez, Robert Fernley, Mike Torres, John Wal-
lace, Jr., Charles Wheeler, Walter Cleveland, and
Sal Russo immediate and full reinstatement to their
former positions or, in the event those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed. We shall also
order Respondent to make each of them whole for
any loss of wages or other benefits suffered by
reason of the discrimination against them in the
manner set forth in F. I. Woolworth Company, 90
NLRB 289 (1950), with interest thereon computed
in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977); see, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
We shall also order that upon request the Re-
spondent recognize and bargain with the Union as
the exclusive representative of all employees in the
stipulated, appropriate unit.
Finally in view of the egregious nature of Re-
spondent's swift, retaliatory unlawful conduct di-
rected at its employees because of their union-relat-
ed activities and its attempt through unlawful dis-
charges to undermine and destroy the Union's rep-
resentative status among unit employees, we find
that Respondent's conduct demonstrates a general
disregard of its employees' fundamental statutory
rights and warrants a broad remedial order. See
Hickmott Foods, Inc., 242 NLRB No. 177 (1979).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Brooks Cameras, Inc., South San Francisco, Cali-
fornia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning union ac-
tivities.
(b) Failing or refusing to recognize and bargain
collectively with Warehouse Union Local 6, Inter-
national Longshoremen's and Warehousemen's
Union, as the collective-bargaining representative
of its employees in the following appropriate unit:
All warehouse and service employees em-
ployed by the Respondent at its warehouse fa-
cility in South San Francisco, California, in-
cluding shipping and receiving clerks. order
clerks, camera repair clerks, truckdrivers. and
leadmen, but excluding all office clerical em-
ployees, guards, and supervisors as defined in
the Act.
(c) Discharging employees because they engage
in union activities or for any other union-related
reasons.
(d) In any other manner interfering with. re-
straining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which
will effectuate the policies of the Act:
(a) Upon request, bargain with the Union as the
exclusive representative of all employees in the ap-
propriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer Louis Fernandez, Robert Fernley, Mike
Torres, John Wallace, Jr., Charles Wheeler, Walter
Cleveland, and Sal Russo immediate and full rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority and
other rights and privileges and make them w hole
for any losses they may have suffered by reason of
Respondent's discrimination against them in the
manner set forth in the section of this Decision en-
titled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its business copies of the attached
notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 20, after being duly signed by Re-
spondent representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employes are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20.
in writing, within 20 days from the date of this
~ Ill Ihe zc.li Ihal this ()rdcr i, crnfrrccd b a, JudglnCl lt I11l 1[ lltted
Sialcs <- url of Appeakl,. ihc n ord, illn the lll'tL r.ailiig i'P-t'd th\
OrdCr ilf til Naltlllio l I .libor Rclila ll l, Board" .1lhlI rCall "J0i' 1' P)Hkili
.1n1 to a JtIudgmIlcll f tI C 'iled SIatet C Utrt 't A\ppAl.lx Lnlt.l c
()rdcr of ilh( N inwmil I ;hoer Rcl.alitn Bl.oartd"
DI)tCISI()NS ()F NAI I()NAL IAH()OR REIA'I'IONS IIO()ARI)
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
NoTrICE To EMPLOYE.ES
PoSTED BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
We will not coercively interrogate our em-
ployees concerning their union activities.
WE Wl.L NOT discharge any of our employ-
ees because they engage in union activities or
for any other union-related reasons.
WE WI L NOT fail or refuse to recognize
and bargain collectively with Warehouse
Union Local 6, International Longshoremen's
and Warehousemen's Union, as the exclusive
representative of our employees in the bargain-
ing unit described below.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce our employees in ex-
ercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Louis Fernandez, Robert
Fernley, Mike Torres, John Wallace, Jr.,
Charles Wheeler, Walter Cleveland, and Sal
Russo reinstatement to their former positions
or, if those positions no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority and to their other rights
and privileges previously enjoyed and WE
WILL make them whole for any loss of earn-
ings they may have suffered by reason of their
unlawful discharges, together with interest
thereon.
WE WILL, upon request, bargain with the
above-named Union as the exclusive repre-
sentative of all our employees in the bargain-
ing unit described below, with respect to rates
of pay, wages, hours, and other terms and con-
ditions of employment, and, if an understand-
ing is reached, embody such understanding in
a signed agreement. The bargaining unit is:
All warehouse and service employees em-
ployed by the Respondent at its warehouse
facility in South San Francisco, California,
including shipping and receiving clerks,
order clerks, camera repair clerks, truck-
drivers, and leadmen, but excluding all
office clerical employees, guards and super-
visors as defined in the Act.
BROOKS CAMERAS, INC.
DECISION
S'IA I. MIMNI OF -iH.I CASE
GORDON J. MYATT, Administrative Law Judge: Upon
a charge filed on July 3, 1978, L by Warehouse Union
Local 6, International Longshoremen's and Warehouse-
men's Union (hereinafter called the Union), against
Brooks Cameras, Inc. (hereinafter called the Respond-
ent), 2 the Regional Director for Region 20 issued a com-
plaint and notice of hearing on August 18.
A hearing was held on this matter on November 14
through 17, 1978, in San Francisco, California. All par-
ties were represented by counsel and were afforded full
opportunity to examine and cross-examine witnesses and
present material and relevant evidence and testimony on
the issues involved. Briefs were submitted by counsel
and have been duly considered. On the entire record in
this case, including my observation of the witnesses and
their demeanor while testifying, I make the following:
FINDINGS 01 FACT
1. JURISDIC lION
The Respondent is, and has been at all times material
herein, a California corporation engaged in the business
of retail sales and servicing of cameras and photographic
equipment. The Respondent's corporate offices and
warehouse is located in South San Francisco, California,
and its main retail store is located in the city of San
Francisco. In addition to the main store, the Respondent
maintains and operates other retail stores and outlets
throughout the Bay Area of San Francisco. During the
past calendar year, in the course of its business oper-
ations, the Respondent purchased and received goods
valued in excess of $10,000 directly from suppliers locat-
ed outside the State of California. On the basis of the
pleadings I find that the Respondent is, and has been at
all times material herein, an employer within the mean-
ing of Section 2(2) of the Act engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse Union Local 6, International Longshore-
men's and Warehousemen's Union is a labor organization
within the meaning of Section 2(5) of the Act.
i The name of the Respondent appears as amended at the hearing
2 Unless otherwise indicated. all dates herein refer to the fear 1978
The complaint alleges that the Respondent violated Sec 8(a)(1). (31. and
(5) of the National Labor Relations Act. as amended. 29 U.S.C §151 el
seq (hereinafter called the Act) More specifically. the complaint alleges
that the Respondent discharged seven employees because they engaged in
union and/or other protected concerted actiities. The complaint also al-
leges that since June 23 the Union has been the representative of a major-
ity of the employees in an appropriate unit and since June 26 the Re-
spondent has refused and co(ltinues to refuse to bargain collectively 'with
the LUnion as such representative The Respondent filed an answer admit-
ting certain allegations of the complaint. denying others, and specificalls
den ing the commissionr of any unfair labor practices
826
BR()()KS CAME RAS, INC
III. 1 HI i AlI l.itI) L NI IMR I SHOR PRAC I ICt
A. Backgrounld Fac's
The Respondent operated as a single retail store in
downtown San Francisco until approximately June 1972.
At that time, it embarked upon a program of expansion
through acquisition of existing camera stores as well as
opening new branch stores throughout the San Francisco
Bay Area. Until 1977, the Respondent's corporate offices
were located at the main store in San Francisco, and all
merchandise and equipment were received and ware-
housed there. Daily shipments of merchandise and equip-
ment were sent from the San Francisco store to the
branch stores, and all repairs of cameras and equipment
were either made at the main store or shipped from there
to vendors.
On November 1, 1977, the Respondent moved its cor-
porate offices to a new facility in South San Francisco.
This facility contained the accounting department, the
advertising department, the industrial sales showroom as
well as the corporate headquarters. In addition, all ware-
housing of merchandise and equipment received from
vendors and distributed to the Respondent's stores was
transferred from the main store to the South San Fran-
cisco facility. Initially, the inventory of merchandise con-
tained at the main store in San Francisco was not moved
to South San Francisco. However, in early January 1978,
all of the existing inventory warehoused at the main
store was transferred to the South San Francisco facility.
Between November 1977 and January 1978, all newly re-
ceived merchandise was shipped directly to South San
Francisco where it was priced, stocked, warehoused, and
subsequently shipped to the various stores.
When the South San Francisco warehouse became
operational in November 1977, Michael Powers was the
warehouse manager. He was in charge of the shipping,
receiving, pricing, and transfer departments and super-
vised the stocking of merchandise in the warehouse itself
as well as the work of the Respondent's truckdrivers.
Sometime during the early part of March 1978, John
Kretschmann was transferred from the main store in San
Francisco, where he worked as the merchandise man-
ager, to succeed Powers as the warehouse manager.
Powers in turn became the manager of the repairs de-
partment at South San Francisco.
The Respondent's executive hierarchy at the time of
the move to the corporate headquarters in South San
Francisco consisted of: Joseph Dee, president and chief
executive officer; Ben Vaissade, executive vice president
in charge of sales; Victor Richmond, vice president in
charge of finance; William Hall, purchasing manager;
Jerry Jaramillo, operations manager;3 Sydney Behrendt,
personnel manager; and Hunter Anderson, advertising
manager and assistant to the president. The record dis-
closes that this group met as an executive committee
each Monday morning with Dee to discuss the operation
of the Respondent's business.
One unique feature regarding the stock ownership of
the Respondent deserves mention here. In 1970, Joseph
a KrelKchmann and Powers were directrl responosihle Ito Jaramillo for
the operalion of Iheir respecti.e departmenls
Dee, current chairman of the board, president and chief
executive officer of the Respondent, owned a 15-percent
interest in Brooks. The majority shareholder at that time
wanted to sell his interest in the Company, and Dee de-
vised a means whereby the employees could purchase
the Company. As a part of this method of purchase, Dee
set up the Employees Stock Ownership Plan (ESOP)
Dee maintained his 15-percent interest in the Company
and a program was initiated whereby an amount up to 25
percent of the salary of each qualified employee was
placed in a trust for purposes of acquiring stock in the
Company each fiscal year. Thus, theoretically, the Re-
spondent is owned by Dee and the employees, although
there is no question but that Dee is the chief executive
official controlling the operation of the Company.
B. The Organizing Effort of the ULOion
Charles Wheeler, one of the alleged discriminatees.
testified that he worked as a warehouseman at Respond-
ent's South San Francisco facility. Wheeler was trans-
ferred from the main store in San Francisco to the South
San Francisco warehouse sometime in March 1978.
Wheeler worked in the pricing department and his pri-
mary duty was to make price tags for the merchandise
received. As a part of his duties, Wheeler would get the
purchase orders to determine the quantity and the price
of the merchandise which was to be received. He would
then stamp out the price tags on a machine and place
price stickers to the tags.4 The price tags were then filed
for use by the receiving department when the merchan-
dise arrived. The employees working in the receiving de-
partment would then affix the price tags to the merchan-
dise.
Wheeler testified that during the month of May he had
been discussing with his coworkers the possibility of
having a union represent them in the warehouse. He
made contact with representatives of the Union and met
with them several times before setting up a meeting be-
tween them and a group of employees on June 16. On
that date Albert Lannon, a business representative of the
Union, passed out authorization cards and 10 of the em-
ployees signed them. Wheeler subsequently solicited the
signature of another employee, and the following week
he and Lannon met with two other warehouse employ-
ees who signed authorization cards.
On June 26, Lannon went to the South San Francisco
office of the Respondent and asked to see Joseph Dee.
The secretary informed Lannon that Dee was in a meet-
ing and was expected to go to another appointment im-
mediately following that. Lannon told the secretary that
the Union represented a majority of the warehouse and
service employees5 and asked that Dee's meeting be in-
' At the time Wheeler 'uas employed in the pricing departmenl. the
Respondent used a "theater licker" type of price lag The tag, had Io he
slamped out on an addressograph t' pe machine utilizing a foot pedal op-
erati oh
* Ii was stipulated at the hearing that Ihe Respondent employed I1
warehouse and service emploees ai its South San Francisco facility and
that lhe hargaining unit colsi~sled of
All warehouse anid seriace cmplo)ees emnployed h) the Respondent
ati is warehouse facliih in South San Francisco. California, Includ
Conlltnuc d
8)t CISI()NS ()O NATI[ONAL I.AI()R RELATIONS BOARD
terrupted to inform him of this fact. The secretary went
into the meeting and conveyed the message to Dee. She
returned and told Lannon that Dee would not see the
union representative. Lannon then advised the secretary
that the Union intended to file a representation petition
with the Board, and cautioned the Respondent about en-
gaging in harassment or reprisals against the employees
because of their union activities.
That same afternoon, Lannon sent a letter to the Re-
spondent asserting that the Union represented a majority
of the employees for purposes of collective bargaining.
Lannon requested negotiations with the Respondent at
its earliest convenience. (G.C. Exh. 3.) Dee responded
by letter that same day in which he questioned the
Union's majority status and refused recognition. He told
the Union the Board was "the appropriate agency for re-
solving a matter of this sort." (G.C. Exh. 4.) On June 28,
the Union filed a representation petition with the Board.
C. The Organization of the Warehouse
Kretschmann testified that he had been told by Jara-
millo in early June that there would have to be a reduc-
tion in the warehouse personnel and the warehouse
would have to operate more efficiently. According to
Kretschmann, Jaramillo did not tell him the extent to
which the warehouse staff would have to be reduced. In
accordance with these instructions, Kretschmann drafted
a handwritten proposed reorganization of the warehouse
staff in which he realigned the job duties of the employ-
ees. Although Kretschmann testified that he considered
John Wallace, Jr., and Bill Reid to be the least produc-
tive of the employees, the first draft of the proposed re-
organization utilized the services of all existing employ-
ees. (Resp. Exh. 14.)
Kretschmann testified that, on the basis of the hand-
written proposal, he met with all of the warehouse em-
ployees on June 16 and told them of the proposed
changes in their work assignments. Under this plan,
Kretschmann assigned a supervisor to each department
in the warehouse even though in some instances the
person so assigned was the only employee working in
that particular department. Thus, Fernley was to be su-
pervisor of the receiving department with one full-time
employee (Torres), one part-time employee (Russell), and
one employee (Wallace, Jr.) working 2 days a week. Fer-
nandez was listed as supervisor of the transfer or mer-
chandise distribution department. Bill Reid was the only
full-time employee assigned to that department and Wal-
lace, Jr., was scheduled to work there 3 days a week.
Russell Beauchene was assigned as a warehouse employ-
ee and listed as supervisor for that position. However, no
other employee was assigned to work with Beauchene
and he was scheduled to assist in the receiving depart-
ment as needed. John Wallace, Sr., was assigned as su-
pervisor of the shipping department, but no other em-
ployee was assigned to work with him. Similarly,
Charles Wheeler was classified as supervisor of the pric-
ing department but was the only employee assigned to
ing shipping and receivilg clerks, order clerks, camera repair clerks,
Iruckdri vers and leadmen. but excluding all orfice clerical employee.,
guards and supervisor, as defined in Ihe Act
work there. Fred Diaz was to be supervisor of the truck-
drivers which consisted of Diaz and Steve Friedman.
However, Diaz was to assist in the transfer department
when not operating a truck and Friedman was to assist
in the shipping department. Finally, Gary Hunter, the
most senior of the employees in the receiving depart-
ment, was assigned as "overall supervisor," Hunter was
to fill in wherever needed, process incoming transfers
from the branch stores, and to assist with any problems
which arose in the various departments.
Kretschmann testified that the first part of the follow-
ing week Hunter informed him that he intended to take
an extended leave of absence. Kretschmann stated he ad-
vised Hunter to put his request in writing and submit it
to higher management. Because of this development,
Kretschmann stated he drafted another handwritten pro-
posal reorganizing the duties of the warehouse employ-
ees. (Resp. Exh. 15.) 6 The names of Wallace, Jr., and
Reid were omitted from this second proposed reorgani-
zation plan.
The former warehouse employees testified, however,
that the meeting with Kretschmann occurred on June 22
rather than on June 16. Fernley and Wheeler testified
that Kretschmann mentioned at the meeting that Hunter
was going to leave and would not be replaced. In all
other respects, their testimony about the reorganization
plan was the same as that of Kretschmann. Wheeler testi-
fied that he was aware on June 20 or 21 that Hunter in-
tended to leave, and he asked Kretschmann for Hunter's
job. Kretschmann, according to Wheeler, stated that
Greg Stevens, an employee working in the warehouse at
the main store in San Francisco, was next in line to suc-
ceed Hunter because of his seniority. Wheeler testified,
however, that Kretschmann stated he (Wheeler) was the
logical choice for the job.
On June 26, Kretschmann typed up a final copy of his
reorganization proposal for the warehouse and submitted
it to Jaramillo. This proposal (G.C. Exh. 13) designated
Wheeler as the warehouse supervisor-the position first
assigned to Hunter-and placed Fernley and Torres in
the receiving department. Reid and Fernandez were in
the transfer or merchandise distribution department, and
in all other respects the proposal was identical to the
second handwritten proposal Kretschmann drafted after
Hunter announced his intention to leave. Thus, the
names of Wallace, Jr. (the employee considered the least
productive by Kretschmann), and Hunter (whose leave
of absence was to be effective July 14), were omitted
from the final proposal. Jaramillo told Kretschmann that
he had some objections to Wheeler becoming the ware-
' Kretschmann"s handwritten proposals were introduced into evidence,
Although Respondent made its records available to the General Counsel
for inspeclion pursuant to a subpoena. ihese Iv,( items were not seen by
counsel for the G(eneral Counsel until the evening before Kretschmann
lestified at this hearing According to Krelschmann, he did not have a
desk at the svarehouse and the documenls had been placed in a box in his
van Hie stated he did niot disc.over their whereabouts until the evening
before he ,as to tetify Although I indicated at the hearing that I did
not deem this late discovery of Ihe documents to be an effort to frustrate
the intent or the (General Counsels, suhpena by withholding material re-
questled I dio deem it proper to conlsider ihe circumstanelcs under which
the documenls ',ere brought forssard in determining the weight to be as-
signed ito them
828
HROOKS CAMEFRAS. INC
house supervisor, but would review the proposal and get
back to him. Nothing was said at this time about termi-
nating any specific warehouse employees.
Hunter testified that on June 27 he was called into Jar-
amillo's office. Jaramillo wanted to know the reason why
he was asking for a leave of absence. Hunter replied that
he merely wanted to get away for a while. According to
Hunter, Jaramillio then stated that he was aware of
union activity taking place among the warehouse em-
ployees. Hunter testified that Jaramillo asked if he knew
anything about it. Hunter stated that he was not involved
in the union activity and did not want to choose sides,
since he intended to leave inJuly. Hunter testified that
Jaramillo then asked what were the gripes of the ware-
house employees, and he replied that it was money. Jara-
millo then stated, according to Hunter, that he under-
stood Wheeler was responsible for the organizing effort
and asked what were Wheeler's specific gripes. Hunter
again replied that it was a matter of money. Hunter testi-
fied that Jaramillo ended the conversation by stating that
the Respondent had no set policy of granting leave of
absences to employees, and he did not know if Hunter's
request would be honored.
D. The Respondent's Reaction to the Organizing
Activity
Dee testified that the day following the Union's re-
quest for recognition he instructed Jaramillo to talk with
his supervisors to determine "what the problem was out
in the warehouse."7 Jaramillo testified that he talked to
each of the supervisors separately on June 27 about the
union activity. During the course of his conversation
with Kretschmann, Jaramillo stated that the latter indi-
cated that "Wheeler might know something about it."
Hunter apparently was the last called in by Jaramillo.
Jaramillo testified that he informed Hunter that there
was a problem in the warehouse and that he understood
Wheeler was organizing "some union activity," Jaramillo
asked Hunter what the problem was among the employ-
ees and confirmed that Hunter said it was a matter of
pay. According to Jaramillo, he asked Hunter why he
had not come to him earlier and given management an
opportunity to talk about it. Jaramillo testified that
Hunter indicated he was afraid to do so, and Jaramillo
assured him that he need not be afraid to bring any kind
of problem to management.
Fernley and Wheeler testified that a coworker, Russell
Beauchene, told them that he had set up a meeting with
Dee for the morning of June 28. There is no indication
in the record that such a meeting ever took place. How-
ever, Dee's secretary came into the warehouse on June
28 and informed the employees there would be a manda-
tory meeting with Dee the following morning. She later
returned and told the employees the meeting had been
canceled.
Greg Stevens, employed at the main store in San Fran-
cisco, testified that on June 29, he was scheduled to have
a day off. The prior afternoon the store manager in-
formed him that he should be available for a meeting
t D)c .taild Ihal. twhcii he rcferrcd It, '.upcurior,.r he meanl for Jara-
milllto o tlalk to Krcl\ hnilann. Pot', cr\,, aid luntler
with management on June 29. When Stevens protested
that it sas his day off, he was told that it ,was important.
Stevens testified that Dee, Vaissade, and Anderson met
with the employees of the main store on June 29 as
scheduled. According to Stevens' testimony, Dee in-
formed the employees of the Union's request for recogni-
tion and stated that he was shocked and surprised. Ste-
vens testified that Dee told the employees the greatest
portion of the Respondent's expense was its payroll and
there would be difficulty in meeting expenses, if the
Union were successful in representing the employees.
Stevens recalled that Dee also stated that existing bene-
fits might have to be altered to provide for any changes
that might be caused by the Union, and this included the
ESOP program.
E. The Discharges on June 29
Steven Lane, a cash sales auditor who worked in the
accounting department at the South San Francisco of-
fices, testified that Beauchene informed him of the orga-
nizing activity taking place among the warehouse em-
ployees. Lane stated that it was a "hush hush" matter
but later became common knowledge among the employ-
ees. Lane then decided that he would attempt to orga-
nize the Respondent's clerical employees. On June 29, he
informed Sydney Behrendt, then personnel director, of
his intentions because he was dissatisfied with the work-
ing conditions in the office. Behrendt advised Lane that
he was telling the wrong person, as she would not be
employed by the Respondent after June 30. Lane then
told Mark Gottlieb, the manager of the accounting de-
partment, of his intentions. Gottlieb then went into Rich-
mond's office and told him in a very excited manner that
Lane was intending to organize the clerical employees.
Gottlieb stated that Lane had been scheduled to be ter-
minated at the conclusion of the following day and that
he was aware the Respondent could not fire anyone for
union activity. Gottlieb told Richmond he felt the Re-
spondent could not go through with its reduction-in-
force plan because of Lane's intention to engage in a
union organizing effort.
Richmond had Gottlieb bring Lane into his office and
told the employee that he had just been informed of his
intention to unionize the office. According to the testi-
mony of Richmond, he told Lane that "you put me in a
terrible dilemma." He advised Lane that the Respondent
has devised a plan for companywide staff reductions
which were to be put into effect the following day, and
that Lane was included in that reduction. Richmond ex-
plained that he could not fire anyone for union activity
and if he did fire Lane the following day, it would lead
to "the conclusion that the firing was entirely a retali-
ation for the threat to unionize the office." He told the
employee that a part of the dilemma was that Richmond
now had to prematurely reveal management's plan to
Lane prior to the actual reductions taking place. Lane
questioned why he had been selected to be terminated.
and Richmond explained that it was because of his poor
attendance record and his reluctance to accept supervi-
sion from Sheryl Philpott, his immediate superior in the
accounting office. Richmond concluded by announcing
929
DECISIONS ()F NATIONAI. LABOR RELATIONS BOARD
to Lane that he thought he had no alternative but to dis-
charge the employee immediately in order to avoid an
accusation that he was being discharged for engaging in
union activity. He told the employee that, since he had
been scheduled for termination the following day, the
Respondent did not want to be in the position of having
to keep him on when it intended to discharge him for
other reasons. Richmond instructed Gottlieb to get
Lane's final paycheck which was made out for the pay
period ending June 30, when the employee was original-
ly scheduled to be terminated. Lane then asked what
kind of reference he could get from the Respondent be-
cause he felt it would affect his future employment.
Richmond promised that no reason would be stated for
the discharge in the event any inquiries were made by
any new employers. He asked Lane not to say anything
about his discharge to any other employee until the fol-
lowing day, since the Respondent's plan for a staff re-
duction had not been revealed generally to the employ-
ees. Lane agreed to this and gathered his belongings and
left the Respondent's premises.8
After the the discharge of Lane, Richmond attempted
to contact Dee because he felt it would have a demoral-
izing effect on the other employees once they learned of
the reasons for Lane's termination and waited for the
general staff reduction to be put into effect. When Rich-
mond contacted Dee and Vaissade, he urged that the
staff reductions be effectuated that same day rather than
wait until the end of the workday on June 30. Dee
agreed and directed that the reductions in the work force
be made that same afternoon.
The testimony indicates that Jaramillo contacted
Kretschmann and asked him to bring five warehouse em-
ployees to his office. These employees were Wheeler,
Fernley, Wallace, Jr., Torres, and Fernandez. All of the
employees testified that Jaramillo stated he was the
"bearer of bad tidings." He told the employees that they
were being terminated for economic reasons and that sal-
aried employees as well as timecard employees were
being let go by the Respondent. According to the testi-
mony of the employees, Jaramillo stated they were not
eligible for rehire. Jaramillo told the employees they
would be paid through the end of the workweek and
would receive any overtime pay due them from working
during the inventory the prior weekend. Jaramillo told
the employees that the terminations were based on se-
niority and asked Kretschmann to show them to the
door.
As the employees left, Kretschmann told them that he
had not been given advance notice that they were going
to be terminated. He described the employees as the
"best bunch" he had worked with, and offered to give
them a favorable recommendation for future employ-
ment.
After terminating the warehouse employees, Jaramillo
had Powers bring in Cleveland from the repair depart-
ment. 9 According to the testimony of Cleveland, Jara-
millo stated he was being terminated for economic rea-
s Lane'% discharge was not alleged by the General Counsel to hbe a vio-
lation or the Act
9 Jaramillio also intended discharging Russo. another repair departmeni
employee. Ihat same day. but he was home ill.
sons and there was no chance of rehire. When Cleveland
was given his paycheck by Jaramillo, he asked if his job
performance had been unsatisfactory. He stated that Jar-
amillo refused to discuss the matter any further. Cleve-
land then asked if he could reapply for employment
when conditions changed, and Jaramillo stated he could
not. Jaramillo instructed Powers to escort the employee
out of the building. According to Cleveland, Powers
seemed puzzled and as they left Jaramillo's office,
Powers stated that he would give the employee a good
recommendation and personal reference if he needed
one.
As noted, Armand (Sal) Russo was absent from his job
in the repair department on June 29. When Russo report-
ed to work the next morning, Powers told the employee
that he was to go to Jaramillo's office. Jaramillo was tied
up in meetings and Russo had to wait for him. While he
was waiting, Russo asked Powers what the problem was
since he noticed that Cleveland was not in the repair de-
partment. Powers finally told Russo that Jaramillo was
going to terminate him, but that he should not give any
indication that he had been told in advance when he
spoke with Jaramillo. Russo testified that while he was
waiting Powers asked if he had heard about the Union.
The employee replied that he had.'°
When Russo finally got in to see Jaramillo, he was ad-
vised that he was being terminated for economic reasons
and that it had nothing to do with the quality of his
work. According to Russo, Jaramillo stated that the Re-
spondent had no intention of rehiring him and he was
paid to the end of the workday on June 30.
Powers testified that on June 30 when Russo reported
to work, he instructed the employee to go to Jaramillo's
office. Since Jaramillo was involved in a meeting, Russo
returned to the repair department to wait. According to
Powers, Russo began to question the absence of Cleve-
land from the repair department, and he told Russo
about the layoffs and that the employee would also be
terminated. He confirms that he asked Russo not to let
on that he had been given this information in advance
when he spoke with Jaramillo. Powers denied making
any statement to Russo about the union organizing activ-
ity or questioning the employee about his involvement in
that activity.
Sometime in September 1978, Russo had occasion to
go into a restaurant called The New York Deli in San
Francisco with a friend. As they entered, they observed
Powers sitting at a table with a lady. According to the
testimony of Russo, Powers recognized them as they ap-
proached his table. Russo stated that Powers introduced
the lady sitting with him as his wife, and in the course of
the introduction said, "This is Sal, who was unfortunate-
ly involved in the Union and was fired." Powers and
Russo discussed a camera the latter left with the Re-
"I In Russo's affidavit. he stated that "none of Ihe bosses eser talked to
me aho ul the Union " Ruso teslfied on cross,-examinlation that he ".as
lneser asked this question by the ttowird ageni taking the affida it. and he
just s.oluniecred this infiormatio
X830
1R()()KS CAMI RAS, INC
spondent for repairs, and made arrangements for him to
pick it up. "
Powers acknowledged that he saw Russo and Morris
in September at the restaurant in San Francisco. He
stated that he was separated from his wife at the time
and was with a woman companion. While he admits that
he introduced Russo to his friend, he denies he indicated
Russo was fired because of involvement with the Union.
He stated he merely inquired as to whether Russo had
found subsequent employment and it was a brief conver-
satl ion.
In addition to the warehouse and repair department
employees, the Respondent terminated the services of
several other employees in other departments. Noble, the
credit manager and Gaviola, a clerk in the credit depart-
ment were terminated. Behrendt, the personnel manager,
was terminated on June 30, and Weeks, a warehouseman
at the main store in San Francisco, was also terminated.
Shortly after the terminations, at some time not speci-
fied in the record, Dee spoke to all of the employees
about the Union's organizing effort. He mentioned that
the Union had filed charges against the Respondent
which he considered to be false, and that picketing had
taken place at the main store in San Francisco. In the
course of the speech, Dee stated that the Union was at-
tempting to force the Respondent to bargain with it
without having the benefit of a Board-conducted elec-
tion. The text of this speech was reprinted in the Re-
spondent's newsletter to the employees, issued for the
combined months of July and August. (G.C. Exh. 10.)
Bill Reid took issue with the statements made by Dee
in the newsletter. He wrote to the editor of the newslet-
ter enclosing an article taking issue with Dee's com-
ments. (G.C. Exh. 12(b).) Reid asked that his article be
printed in the next edition of the newsletter. When he re-
ceived no response to his request, Reid contacted the
editor and asked about the printing of his article. Reid
was informed that all articles had to be approved by
Joseph Dee, and that his article had been forwarded to
Dee for this purpose. No action was ever taken on
Reid's request following his conversation with the editor
of the newsletter.
A week before the end of August, Reid informed
Kretschmann that he was quitting on August 31. Jara-
millo called Reid into his office on August 29 and asked
why he was leaving. Reid told Jaramillo that he was dis-
satisfied with the way things were going at the Respond-
ent's South San Francisco facility. That same afternoon,
Kretschmann came up to Reid in the warehouse and
gave him his paycheck which included wages through
August 31. Kretschmann told Reid he need not report to
work the remaining 2 days, and Reid's services were ter-
minated at that point.
F. The Status of Gary Hunter
Hunter was employed by the Respondent from July
1973 until he left voluntarily on July 14, 1978. He trans-
' Ruso,', tC'stinmlnl) ilh clrrmlhoiratcd bh the Iinm1nil oe, f l rallk
Morris, the friend %aho accomp anict d him tI Ihe rcsrlaulrant Morri Ictti-
fled he ais IIt I inlroduced it, I'oci ers' u lfC allheough he ha d nlmct Pl IXcr
previously at a parily \ilh Russ,) lluicser. Niorri, alserts, hle \ks tind-
ing at the ilah. aild oe crheard the inlrodulctilll
ferred from a branch store to the main store in San Fran-
cisco in July 1977, where he initially worked in the pric-
ing department and was subsequently assigned to the re-
ceiving department. When the corporate warehouse was
opened in South San Francisco in November 1977,
Hunter was transferred to that facility as a warehouse
clerk in the receiving department.
According to Hunter's testimony, Powers was the
warehouse manager at the time and an employee named
Bowerman was in charge of receiving. Hunter stated that
he was "pretty much on his own" in terms of performing
his job duties, while Bowerman handled all of the paper-
work. Sometime prior to March 1978, Hunter went to
Jaramillo and threatened to quit if he did not receive a
wage increase. He was advised that Kretschmann was
going to become warehouse manager and he should wait
for a few weeks until this change had taken place.
Bowerman left shortly after Kretschmann assumed his
duties as warehouse manager and Hunter became the
head of the receiving department.
On April 3, Kretschmann conducted a job perform-
ance evaluation of Hunter's work and recommended that
he receive a pay increase. Hunter testified that he was
unable to recall whether Kretschmann informed him that
he was a supervisor in the warehouse. Kretschmann, on
the other hand, states that during the evaluation inter-
view he discussed the prospects of Hunter assuming a su-
pervisorial role in the receiving department. He stated
that he outlined Hunter's authority to him, and put
through a request for personnel action changing Hunter's
status from warehouse receiving clerk to warehouse su-
pervisor. Behrendt, the then personnel manager, ap-
proved this request in writing and Hunter received a
$90-a-month pay increase. Thus, his salary was increased
from $710 to $800 a month. Hunter testified that all
transfers and promotions were customarily posted on the
employees' bulletin board. However, no such posting
took place when Hunter received his pay raise after the
evaluation by Kretschmann.
According to Kretschmann, Hunter was to be a
"working supervisor" in charge of the receiving depart-
ment, and he was to share responsibility with Kretsch-
mann for the security of the warehouse. Kretschmann
stated that Hunter had one part-time and two full-time
employees working in his department. He also testified
that Hunter had authority to change, and did in fact
change the procedures in the receiving department with-
out consulting with him in advance. Kretschmann stated
that Hunter determined that the work could be per-
formed more efficiently if he assigned the priority to the
shipments to be worked on by the employees in the re-
ceiving department and the manner in which the mer-
chandise would be "staged" for the transfer department
or storage in the warehouse. Kretschmann also stated
that whenever a problem arose involving the accounting,
purchasing, or transfer and shipping departments con-
cerning materials that were received or should have been
received, Hunter handled these matters. According to
Kretschmann, he only became involved w.hen Hunter
could not resolve the problem. Kretschmann testified
that Hunter came to him sshenercr he needed additional
I)ECISI()NS ()O NATI()NAl I ABOR RE ATIONS 13()ARD
help ire the receiving department Although Hunter
would not specify any particular employee by name,
Kretschmann always honored his request for assistance.
Hunter and all of the former warehouse employees tes-
tified that 90 percent of Hunter's time was spent phys-
ically working with the merchandise being processed
through receiving. According to their testimony, Hunter
only spent approximately 10 percent of his time perform-
ing paperwork involving the receipt of the merchandise.
Hunter punched a timeclock as did all of the other
hourly employees, and he did not attend any manage-
ment or supervisorial meetings. Hunter could not transfer
employees from the other departments to assist him in
the receiving department nor could he assign overtime
work to any employees. If he deemed overtime was nec-
essary, he had to take the request to Kretschmann who
would then determine if it should be granted. Hunter ac-
knowledged that he changed the procedure involving the
assignment of work in the receiving department. He
stated he felt the work could be handled more efficiently
if employees were assigned to shipments on a priority
basis rather than each employee handling a shipment as it
came in. However, Hunter and the former employees
testified that if any employee questioned Hunter's judg-
ment as to which shipment was to be handled, they did
not hesitate to question his decision and discuss the
matter. All the employees indicated that, when they
were going to be late for work, they called in directly to
Kretschmann. Kretschmann made out the work sched-
ules and transferred the employees from one department
to another, granted employees time off when requested,
and initialed the employees' timecards. Hunter denied
that he had any responsibility for the warehouse security
and stated that only on one occasion did he ever lock up
the warehouse. He testified that Kretschmann left work
early that particular day and Hunter had to make certain
that everything was secure. After he completed the lock-
ing up of the warehouse, however, he had to report to
another management official so it could be determined
that the job was properly done. Hunter testified that he
was the most senior employee in terms of service in the
receiving department and the second most senior em-
ployee in the warehouse itself. For this reason, employ-
ees in the receiving department came to him when they
encountered problems in processing the merchandise.
In spite of the fact that Hunter had made a formal re-
quest on June 20 for a leave of absence to become effec-
tive July 14, he received a job evaluation from Kretsch-
mann during the first week in July. During the course of
this evaluation Kretschmann informed Hunter that he
was recommending a $200-a-month raise for him. The
following week, Hunter received his paycheck and noted
that the raise was not reflected in it. He spoke with
Kretschmann and was told that the raise would be retro-
active when the entire matter with the Union was over.
On July 14, the date Hunter was scheduled to leave Re-
spondent's employ, he was called into Jaramillo's office
and told that there was no official company policy on
leaves of absence. Jaramillo told the employee to come
back after his leave and the Respondent would find
something for him, as there would be a job waiting. Jara-
millo directed Hunter to Dee's office. Dee told the em-
ployee that there would be a job available whenever he
returned, since he was considered to be a satisfactory
employee. Dee told Hunter that when he returned he
would receive a raise which would increase his monthly
salary to $900 or $1,000. At the time of the hearing,
Hunter had not returned to the Respondent's employ.
G. The Respondent ' Business Justification for
Carrying Out the Discharges
Numerous documents and records were introduced
into the record and were supported by testimony of Re-
spondent's officials regarding the economic difficulties
encountered by the Respondent since its expansion pro-
gram began in June 1972. Hunter Anderson, who was
the advertising manager and assistant to the president
during this period, testified that he took the most exten-
sive and copious notes during the regular Monday morn-
ing executive committee meetings. Because of this, he
followed a practice of having his notes zeroxed by the
secretary and distributed to the various other members of
the executive group for their information and action on
the matters discussed. Anderson also kept a copy of his
notes of the executive committee meetings in a yellow
binder, which he called "the yellow book." These notes
reflect that as early as September 19, 1977, Dee told the
executive committee that the purpose of building the
corporate warehouse and headquarters was to make the
operation more efficient and to allow the Respondent to
function with fewer employees. The notes for the Sep-
tember 26 executive committee meeting indicate that
Dee set a goal for his management officials regarding a
reduction in the work force. This reduction was to in-
clude all selling and nonselling employees, and Dee
wanted the entire work force reduced to 175 employees.
In the course of their discussion, it was decided that
management should wait to see what developed after the
move into the new facilities in South San Francisco on
November 1, 1977. On November 14, 1977, Dee estab-
lished a goal at the executive committee meeting of
$10,000 sales per month for every person employed by
the Respondent; this included the nonselling employees,
who were described in the record as general and admin-
istrative (G & A) employees. At that time, the Respond-
ent had a total work force of 187 employees. The testi-
mony of Anderson, Dee, Jaramillo, and Richmond indi-
cate that at each succeeding executive committee meet-
ing, Dee continued to impress upon the members of the
executive committee the need to reduce payroll expenses
and to operate each department more efficiently. Rich-
mond testified that as part of this effort, the Respondent
sought to computerize much of its business and ware-
house records by utilizing the services of an outside com-
puter company. During this time, the Respondent had
what it called "Sycor" employees who were in fact key-
punch operators transmitting information into the com-
puter. Various other methods were instituted and tried
on a trial basis in order to control the inventory, the
flow of work through the warehouse, the manner in
which orders or requests from the various stores were
processed, and the method by which material was deliv-
ered or back-ordered for future shipment.
832
HR()OOKS CAMERAS, INC
In spite of Dee's strong urgings, the number of em-
ployees continued to increase. Anderson's notes indicate
that at the March 13 meeting, Dee informed his execu-
tive committee that the Respondent's total staff had note
reached the level of 210 employees. Dee stated this was
at least 10 percent too high and more use should be
made of part-time employees throughout the operation.
The March 27 executive committee meeting indicates
that Dee again demanded that his executive officials
bring about a reduction in personnel by 10 percent.
On May 15, Dee became completely dissatisfied with
the failure of Behrendt, the personnel director, to carry
out his objectives in reducing the number of employees
on the payroll. Prior to this time, Behrendt reported di-
rectly to Dee. In order to make certain that his direc-
tives for a reduction in personnel were going to be car-
ried out, Dee reassigned Anderson from advertising to
vice president for personnel. After the reassignment of
Anderson, Behrendt was to report directly to him rather
than to Dee. Anderson was instructed by Dee to reduce
the payroll expenses and since the sales employees were
the ones who generated the income, the G & A employ-
ees were considered the most likely group to be cut
back. According to Anderson, he was instructed to
reduce the G & A expenses to 5 percent of the sales
starting July 1.12 Anderson testified that after he as-
sumed his personnel duties, he immediately started plan-
ning for the reduction-in-force as well as learning the
personnel operation. This caused Anderson to meet fre-
quently with the other members of the executive com-
mittee in order to find out how their departments were
staffed and to draw up tentative proposals for planned
reductions.
Anderson's notes indicate that on June 12 Dee in-
formed the members of the committee that his proposal
for the utilization of part-time employees was not work-
ing as intended. Dee complained that the various manag-
ers were using part-time employees so extensively that
they were expanding their hours to equal that of full-
time employees, thereby increasing the payroll expense.
Dee stated to the members of the executive committee
that the ratio of the payroll to sales was far too high. He
reiterated that the goal to be achieved was a reduction in
G & A expenses to 5 percent of the monthly sales
income. In order to meet the goals set by Dee, Anderson
constructed a proposed budget which he submitted to
Richmond on June 16. He also worked up several
models of projected sales expenses for each month based
on current payroll to determine where the reductions
should take place. (Resp. Exhs. 8 and 9.) These working
models indicated that in order to achieve the 5-percent
goal for G & A expenses, the Respondent would have to
reduce its payroll in that area by $8,000 for the month of
July, $7,000 for the month of August, and $6,081 for
September.
The executive committee was scheduled to meet on
June 16 to make the final decision on the reduction in
personnel. In preparation for this meeting, Anderson tes-
tified that he set up a list of all of the G & A employees
la The Respondentli fiscal year ran from July I to June 30 of the fol-
lowing Near
with proposed reductions in each department. (Resp.
Exh. 10.) This listing did not indicate employees by
name but merely by job function. Anderson testified that
originally he had sought to identify the employees who
were to be terminated by means of "cherry picking."
Anderson explained this meant identifying those employ-
ees who were the least productive and eliminating them
from the Respondent's payroll. According to Anderson,
the discussions among the members of the executive
committee resulted in their dealing with individuals and
personalities rather than effectively selecting those em-
ployees who were to be terminated. As a result, Dee di-
rected that the executive committee deal with job func-
tions and categories rather than with individual employ-
ees. Anderson testified that no minutes or notes were
taken during the June 16 meeting. He explained that Dee
instructed the members of the executive committee to
keep the reduction-in-force an absolute secret. Anderson
felt if he took notes of this meeting and reproduced them
for the members of the committee, there was a possibility
that some of the employees might see the notes while
they were being circulated or left unattended on one of
the executives' desks.
Anderson, Jaramillo, and Richmond testified that once
the number of employees to be terminated in each job
category was established, the least productive employees
were selected for termination in all of the departments
with the exception of the warehouse. As Richmond ex-
plained, the accounting department and all of the other
departments were extremely small and the least produc-
tive employees could be easily identified. In the ware-
house, however, because of the larger work force, Dee
directed that the reductions be made on the basis of se-
niority.' 3
On June 21, Anderson sent a memo to Richmond indi-
cating the planned reductions in the staff of the account-
ing and credit departments. (Resp. Exh. 11.) This list in-
cluded the position of the credit manager. Richmond and
Anderson testified that the credit manager was being se-
lected for termination because it was felt that he was not
carrying weight. His duties were to be performed by
other employees working in the credit department. The
list also disclosed that the total payroll for these two de-
partments was $25,991. By grouping the planned reduc-
tions, ending employment of personnel provided by an
outside agency, and taking into account employees who
had terminated their employment or were scheduled to
do so, Anderson projected that the Respondent would
save $6,432 in payroll expense.
Anderson testified that on June 23 or early in the
morning on June 26, prior to the scheduled meeting of
the executive committee, he prepared a final reduction
list. (Resp. Exh. 12.) This final list indicated the employ-
ees scheduled for termination by job function and by
name, department, and store location. The final list in-
t' It is apparent that the discussion regarding the number of employees
to be terminated In the Wvarehouse 'a, not passed on to Kret'.hmann or
Povers by Jaramillo Thus. Kretschmann "as independently working up
hi. own reorganization plan withoul benefit of the decision, made hb
upper-leel managemenl at Ihe execuii\e commitiee meetings Jaramillo
testified that if he had informed Kretchmann ofr he extent of the reduc-
tlion in Ihe .arehoue. Krertchmann .sould ha',e been extremely upset
DI) CISI()NS OF) NA TIONAI I.AB()R RFI A FI()NS B()ARD
cluded Behrendt, the persoinnel manager, along with the
credit manager." One clerk (Gaviola) was discharged
front the credit department and replaced by an adminis-
trative clerk (McAllister) from the purchasing depart-
ment. The list also included the name of a clerk in the
accounting department who left the Respondent's
employ earlier that month. As noted, Weeks, listed as a
warehouseman at the main store in San Francisco, was
also terminated. The list further indicated that seven em-
ployees were to be terminated from the South San Fran-
cisco warehouse. The Respondent also made a radical
change in the truck service from the South San Francis-
co warehouse to the various stores. One truck was taken
out of operation altogether and sold by the Respondent.
The remaining truck delivery schedule was modified
from a daily delivery to one delivery a week to each of
the branch stores and two deliveries a week to the main
store in San Francisco.
It was decided at this meeting on June 26 ,i5 that the
staff reduction plan would be implemented on June 30.
All of the management participants at this meeting who
testified stated that there was no discussion at this point
regarding the individuals to be terminated, as this deci-
sion had already been arrived at during the course of the
meeting on June 16. The management officials testified
that because Lane announced his intention to organize
the clerical employees on June 29, thereby accelerating
his discharge by I day, it was decided that all of the ter-
minations would be made on June 29 rather than on June
30. Anderson testified that he was entirely unfamiliar
with the procedures and the forms used by the personnel
department. As a result, he used the first personnel
action form that he came across for the termination of
the warehouse employees. This form was one of three
which the Respondent had used for personnel actions
over a period of time. On the form used by Anderson,
there was no provision for any statement as to whether
the terminated employee would be considered for rehire
by the Respondent. (G.C. Exh. 34.) In contrast, howev-
er, the personnel action form used by the main store in
San Francisco for Weeks' termination did provide for
such a comment. This was apparently the form custom-
arily used by the Respondent for personnel actions.
(G.C. Exh. 30.)
In addition to the staff reductions, the testimony indi-
cates that the Respondent was initiating various pro-
grams to make its operation more efficient. As noted, the
delivery schedule was changed and one of the delivery
trucks was sold. The record evidence also indicates that
the Respondent was negotiating for an in-house comput-
er which would allow it to have terminals in the pur-
chasing and accounting departments. In addition, elec-
tronic cash registers were being installed in all of the
stores and were tied into the computer, thereby allowing
for a reduction in the purchasing and accounting depart-
ments. Jaramillo testified that various forms were being
devised in order to control the flow of merchandise and
" The record diwtlosed that Behrendt was the only person selected for
lermination who received notice to this effect in advance of her dis-
charge
'' As previously noted, the Union made its demand for recognition on
June 26.
inventory by feeding that information directly into the
computer. Changes were made in the receiving depart-
ment whereby goods received no longer had to be un-
packaged, labeled, and priced, and held in a staging area
prior to being placed in the storage area of the ware-
house. By using the new forms and the computer prin-
touts, the Respondent is now developing the capability
of having incoming shipments opened in the receiving
department in order to expedite filling back-orders and
current orders from the stores, without first having to
warehouse the merchandise. The ordered merchandise is
taken directly from receiving to the transfer or shipping
departments, and only inventory stock is placed in the
warehouse. As a further economy move, the repair oper-
ation at the South San Francisco facility was reduced by
having the main store in San Francisco handle its own
repairs and send equipment directly to vendor repair
facilities for work. Prior to this, the main store and the
branch stores had to send their cameras to the South San
Francisco facility who in turn had to ship them out.
When the repaired equipment is returned, it is sent di-
rectly to the South San Francisco facility and included
in the next delivery to the originating store.
The Respondent's records indicate that subsequent to
the large staff reduction in June, few if any new employ-
ees were hired. In order to take up the slack, the Re-
spondent shifted employees from various locations in-
cluding the main store in San Francisco. Thus, Greg Ste-
vens was assigned to replace Hunter at the South San
Francisco facility. In addition, the Respondent used man-
agement trainees who spent time in the various depart-
ments at the South San Francisco facility, including the
repair department, and they were subsequently trans-
ferred to the main store and other stores to become man-
agers of departments. In October the Respondent con-
ducted another inventory and hired some employees on a
temporary basis. Once the inventory was completed,
however, these new hires were terminated. Anderson's
records reveal that by September 1978, the Respondent's
payroll had only increased by three employees overall.
He stated this became necessary because of the changes
made by the computer equipment and procedures that
resulted in the creation of three new positions. It was
also indicated that September was the commencement of
the stocking of new inventory in preparation for the
holiday season. Overall, however, the Respondent's offi-
cials maintained that they have been able to run a more
efficient operation with less personnel.
Concluding Findings
One of the threshold issues to be resolved here is the
status of Gary Hunter during the period of the Union's
organizing effort. The testimony of the Respondent's
witnesses clearly indicates that management considered
Hunter to be a supervisor in the warehouse. Indeed, this
was the job title set forth on the personnel action form
when Hunter received a wage increase in April 1978.
However, a job title, alone, is not determinative of super-
visory status. Golden West Broadcasters-KTLA., 215
NLRB 760, 761 (1974). The critical question is "whether
there is evidence that the individual actually possesses
BRO()(KS CAME RAS. INC
any of the powers enumerated in Section 2(11)" of the
Act.'" The U'cstcrnl 'Union i'elegraph Comnpany, 242
NLRB No. 128 (1979).
In my judgment the record testimony belies the claim
that Hunter was a supervisor among the warehouse em-
ployees. Despite Kretschmann's assertion that he told
Hunter he was a supervisor and outlined his authority
and duties to him during the April 3 evaluation inter-
view, it is evident that Hunter did not consider himself a
supervisor nor did the employees working in the receiv-
ing, transfer, or shipping departments in the warehouse.
Hunter testified that he could not hire or fire employees
nor could he discipline employees. The testimony of all
witnesses, including Kretschmann, indicates that when
Hunter felt there was a need to work overtime in his de-
partment he had to take his request to Kretschmann,
who would then make a determination whether overtime
was necessary and assign the work to the employees.
Similarly, when assistance was needed in the shipping
department, Hunter had to go to Kretschmann with a re-
quest for help. Kretschmann would then determine
which employees from the other departments would be
assigned to assist Hunter. Concededly, the testimony in-
dicates that sometime in April Hunter changed the pro-
cedures in the receiving department by assigning priority
to certain incoming shipments and having employees
work on them rather than handling each shipment as it
came in. It is clear that Hunter did so without first con-
sulting with Kretschmann. However, it is equally clear
that Hunter's assignment of priority to the shipments was
subject to question by the employees. This was indicated
by the testimony of Fernley that if he disagreed with
Hunter's selection of a priority, he would not hesitate to
call it into question. All of the employees testified that
Kretschmann scheduled their work assignments and ini-
tialed their timecards. Hunter could not grant any em-
ployee time off from work, and when employees were
going to be late or unable to report to work, they called
in directly to Kretschmann. Although Hunter received a
$90-a-month pay increase effective April 3, the record
discloses that Hunter's salary was not the highest among
the warehouse employees. Thus, even though Hunter
was the most senior employee in the receiving depart-
ment and the second most senior among all of the ware-
house employees, his salary was less than that of each of
the truckdrivers.
On the basis of the above, I find that Hunter did not
possess any of the statutory indicia of supervisory status.
The single instance of the exercise of independent judg-
ment in assigning priority to incoming shipments of mer-
chandise is not sufficient, in my judgment, to support a
conclusion that Hunter consistently exercised independ-
ent judgment in the course of his duties. Accordingly, I
'i Sec 2(11) provides that
The term -supervisor" means any individual having authorit), in the
interest of the employer. to hire, transfer, suspend, lay off. recall.
promote, discharge, assign, reward, or discipline other employees, or
responsibl) to direct Ihem. or to adjust their grievances, or effectivc-
ly tn recommend such action. if in connection with the foregoing Ihe
exercise of such authority i, not of a merely routine or clricail
nature. hut require, the use of independent judgment
conclude that Hunter is not a supervisor within the
meaning of Section 2(1t1) of the Act.
Having found that Hunter '*as not a supervisor within
the meaning of the Act, the next issue is wshether his
consversation with Jaramillo on June 27 was a violation
of the Act as alleged in the complaint. There is no seri-
ous dispute regarding this conversation or the circum-
stances under which it took place. The day following the
Union's request for recognition, Dee instructed Jaramillo
to talk to the supervisors under him in order to deter-
mine "what was going on in the warehouse." It is appar-
ent from the testimony that management considered
Hunter to be a part of the supervisory structure, even
though the evidence reveals that he never possessed or
exercised the statutory duties and functions of a supervi-
sor. Thus, Jaramillo's remarks to Hunter were based on
the mistaken, but good-faith belief that he was convers-
ing with an individual he understood to be a supervisor.
It is in this context that the interrogation must be consid-
ered.
Jaramillo indicated to Hunter that he understood
Wheeler was behind the organizing effort and asked
what the employees' gripes were. It is evident that Jara-
millo was not questioning Hunter about his own involve-
ment in the union activity, but rather was seeking to as-
certain information on the union activity of the other
warehouse employees. Thus, it cannot be said that Jara-
millo was questioning Hunter in order to protect the Re-
spondent from union activity by its supervisors. Pillows of
California, 207 NLRB 369 (1973) Accordingly, there
was no justification for Jaramillo's interrogation except
to determine the extent of the union activities among the
employees and which of the employees were involved.
By directing such questions to an employee who was
purported to be a supervisor, but was in fact not, the in-
terrogation of Hunter by Jaramillo would ordinarily be
considered coercive. There was an implied threat of hos-
tile retaliation in the interrogation and normally it would
constitute an interference in the exercise of the Section 6
rights of the employees. Dependable Lists. Inc., 239
NLRB 1304 (1978); Campbell Soup Company, 225 NLRB
222 (1976).
But in the circumstances of this case, I find that the
interrogation was isolated and constituted a minimal in-
terference with the statutory rights of the employees. In
arriving at this conclusion, I note, as will be discussed
infra, that this was the only incident of interrogation of
an employee by a supervisor or by management person-
nel. Furthermore, the interrogation took place in Jaramil-
lo's office and none of the other unit employees were
present. Nor is there any indication in this record that
Hunter communicated the fact that he had been ques-
tioned about the employees' union activity to any of his
coworkers. Although Jaramillo, along with the other
management officials, was mistaken in his belief regard-
ing Hunter's supervisory status, this mistaken belief is
nonetheless a factor to be considered in weighing the
extent of the interference with the statutory rights of the
employees. It is on this basis that I find that the interro-
gation, while technically violative. was so isolated and
minimal in its effect that it does not warrant a remedial
I)t'ItSIt)NS ()0I NA 'I()NAL I.AOlt)R R I.ATI(NS BO()ARI)
oiderl anld should he disnissed. Iarn Intera'rltioona. Inc..
Ifg',o ) oodsr Div)ision, 209 NLRBI 232, fn. 1 (1974). Cf.
Pepsi-Cola Bolli,,ng Co. oj' Los l4ge/les, 211 NLRB 870,
872 (1974); 1 oodiaker. Ilnc.. dl//a Jacki-ii-the-Box, 199
NL RB 10,1 1() (1972).
Turning now to the discharges, I find that the General
Counsel has failed to establish by a preponderance of the
evidence in this record that the discharges were motivat-
ed for reasons which violated the Act. Considered at
first blush, it would appear that the General Counsel has
presented sufficient evidence to give rise to a strong sus-
picion that the discharges were precipitated by the union
activity of the employees. The Union made a demand for
recognition on June 26, supported by cards signed by a
majority of the warehouse and repair department em-
ployees. The Respondent not only rejected this demand,
but there is undisputed evidence of union animus as re-
flected in Dee's speech to the San Francisco store em-
ployees on June 29 and in the subsequent printed version
in the Respondent's newsletter to all employees. The dis-
charges were effectuated on June 29, and the Respond-
ent's lower level supervisors were not made aware of the
extent of the discharges until shortly before they oc-
curred. If this were all, clearly it could be said that the
General Counsel had established that the discharges
were for discriminatory reasons.
But the strong suspicion created by the above circum-
stances is, in my judgment, completely overcome by the
well-documented evidence and credited testimony that
the discharges were effectuated solely for business rea-
sons. It is apparent from the notes taken by Anderson
and the testimony of management's officials that long
before the move from the main store in San Francisco to
the corporate headquarters and warehouse in South San
Francisco, the members of the executive committee were
being constantly prodded by Dee to reduce the level of
personnel and run a more efficient operation. Thus, the
evidence indicates that, as early as September 1977, Dee
voiced concern to his managers that the Respondent's
payroll costs were far too high and the level of person-
nel was expand;ng too rapidly; thereby reducing the
profitability of the Respondent's operation. The testimo-
ny and the record evidence indicates that the move to
the South San Francisco facility was viewed as a means
of allowing the Respondent to operate more efficiently
with fewer employees. But, once the move to the new
facility was finally completed in January 1978, the de-
sired result was not achieved. The level of personnel
continued to climb with a corresponding increase in the
Respondent's payroll costs-the major portion of the Re-
spondent's operating expense. Because of this, new forms
were devised to transmit information and speed the flow,
of the merchandise through the warehouse with fewer
individuals handling the merchandise or the paper work.
Dee ordered the increased use of part-time employees
during peak periods, and efforts were made to refine the
computerization of Respondent's records and flow of in-
formation in order to control inventory, transfer of mer-
chandise to stores, and shipments of orders. In spite of
these efforts, the Respondent found its level of personnel
continued to increase to a point where Dee deemed it
unacceptable. The use of part-time employees expanded
in terms of hours until they were virtually full-time em-
ployees and the total number of employees continued to
rise. For this reason, Dee removed the primary personnel
responsibility from his personnel manager (Behrendt) and
placed it in the hands of Anderson on May 15. Anderson
was operating on instructions that the work force, which
had reached 210 employees, had to be reduced by 10
percent before the commencement of the Respondent's
new fiscal year beginning July 1.
Thus, it is clear that for months preceding the demand
for recognition by the Union and the involvement of the
employees in activities on behalf of the Union, the Re-
spondent's officials were considering serious staff reduc-
tions and were searching about for means to accomplish
this objective. I find the testimony persuasive the general
and administrative employees constituted the logical
place to effectuate the bulk of the reductions in the work
force. As Anderson indicated, the Respondent's revenue
was generated by sales and the most appropriate place to
reduce staff was among the nonselling personnel. I fully
credit the testimony of the Respondent's officials that,
after Anderson was charged with the personnel responsi-
bility, he began to immediately prod them regarding the
cutbacks they could make in each of their respective de-
partments. I further credit the testimony of the manage-
ment officials that after a series of tentative proposals
were considered, the final decision as to the specific re-
ductions was made at the meeting on June 16. It was
during the course of this meeting that Anderson pro-
duced a list of the G & A employees showing the reduc-
tions by job functions rather than by identifying the em-
ployees to be terminated by name. (Resp. Exh.10.) This
substantiates Anderson's testimony that on June 26, the
date that the Union made its request for recognition, the
executive committee had before it a final list which re-
flected the decision made on June 16, and this list identi-
fied each of the employees to be terminated by name as
well as job function. (Resp. Exh. 12.)
In so concluding, I am not unmindful that while the
executive committee was deliberating about the staff re-
ductions, Kretschmann was simultaneously devising a
proposed reorganization of the warehouse pursuant to
orders from Jaramillo. I find persuasive Jaramillo's expla-
nation that he chose not to tell his warehouse manager,
or for that matter, his repair department manager, about
the extent of the reductions or the employees to be ter-
minated because Kretschmann "would have gotten very
upset." In these circumstances, I draw no adverse infer-
ence from the fact that Jaramillo was aware that five
warehouse employees were selected on the basis of se-
niority to be terminated while Kretschmann was propos-
ing a reorganization which envisioned termination of two
warehouse employees he considered the least produc-
tive. 7 Therefore, the evidence fully supports the Re-
t In so concluding I do nol take into accounl the fact that Kreisch-
mann testified Ihat he announced his reorganization plan to the employ-
ees on June 16, and the filrmer employee witnesses testified that he made
the announcement on June 22 The resolution of this conflict is not pivot-
al nor is it necessery to a decision on the issues presented by this case
What is important is the substance (of the plan announced to the employ-
ees arid in this regard. Kreischmann's testimony comports with the testi-
mony of Ihe employee witnreses
BROOKS CAMIRAS, INC
spondent's claim that the decision to reduce the G & A
staff was made prior to the time that the Respondent
became aware of the union activity among its employees,
and the extent of the staff reduction was determined
before the Union made its request for recognition. Thus,
while the timing of the discharges, i.e., occurring after
the Union's request for recognition, appears on the sur-
face to be suspect, it is apparent from the record that the
decision to effectuate the discharges was made prior to
the Union's arrival on the scene.
The manner in which the discharges were effectuated
on June 29 is also a matter in dispute here. The employ-
ees testified that they were informed they would not be
eligible for rehire by the Respondent. Jaramillo, on the
other hand, testified that he informed the employees they
were part of a permanent staff reduction and would not
be recalled. In resolving this conflict, I take into account
the fact that other than the one isolated conversation
with Hunter about the union activity of the employees,
there is no evidence that Jaramillo or any other manage-
ment official engaged in any unlawful conduct after be-
coming aware of the organizing effort. Thus, I deem it
highly unlikely that at the termination interview, Jara-
millo would have told the employees they would not be
eligible for rehire thereby giving rise to the inference
that they were ineligible because they became involved
with the Union. Rather, I find that Jaramillo told the
employees they would not be recalled because it was a
permanent reduction in force. But even if I were to find
that Jaramillo used the word "rehire," it is clear from
the circumstances in this case that he was attempting to
convey to the employees they were not being temporar-
ily laid off and that the Respondent was experiencing a
permanent staff reduction.
Nor do I read into the fact that the employees were
discharged on June 29 rather than June 30, as contem-
plated by the decision of the executive committee, to be
of sufficient moment to give rise to an unlawful motive
for the discharges. It was evident that after Lane advised
Gottlieb he was going to organize the accounting depart-
ment employees, the Respondent's officials determined it
would he necessary to effectuate the discharges immedi-
ately to avoid the very claim which is being litigated in
this case; i.e., that the discharges were for the reason that
the employees engaged in activity on behalf of the
Union. Richmond fully expressed the dilemma in w hich
the Respondent found itself when he informed l.ane that
a decision had already been made to discharge him and
that the Respondent did not want to be placed in a posi-
tion of having to retain an employee it had previousl\
decided to discharge, simply because the employee wsas
involved in union activity. This incident acceleralted by I
day the discharge of the warehouse and repair depart-
ment employees. I fully credit this explanation on the
part of management officials that the decision to acceler-
ate effectuation of the discharges was made solely out of
a concern that Lane's discharge would prematurely
reveal Respondent's intention to carry out a large staff
reduction and adversely affect the morale of its person-
nel.
Finally, while the testimony of Russo was calculated
to demonstrate that he subsequently learned in Septem-
ber from Powers that his discharge was motivated for
unlawful reasons, I find this to be unpersuasive. In spite
of the testimony of Russo and Morris, I credit the testi-
mony of Powers, that when he introduced Russo to his
female companion, he made no reference to the fact that
Russo was discharged because he became involved with
the Union. In my judgment the testimony of Russo and
Morris was contrived and I discredit them completely.
In sum, while the evidence presented by the General
Counsel gives rise to a suspicion of unlas ful conduct,
this evidence has been completely overcome by the hard
evidence presented by the Respondent showing the busi-
ness justification for the discharges and the fact that the
decision to make the discharges was arrived at prior to
the advent of the union activity, Capital Bakers. Inc., 236
NLRB 1053 (1978); Syncro Corporation, 234 NLRB 550
(1977).
[Recommended Order for dismissal omitted from pub-
lication,]
X17