C. Markus Hardware, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1979

243 N.L.R.B. 903 (N.L.R.B. 1979)

C. MARKUS HARDWARE. INC.
C. Markus Hardware, Inc., and General Truck Driv-
ers, Warehousemen, Helpers and Automotive Em-
ployees of Contra Costa County, Teamsters Local
315 and Eva Beising and Andrea Palmer and Kath-
erine Stanley. Cases 32-CA-1049, 32 CA--1184.
32-CA-1214, and 32-CA 1220
August , 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On April 5, 1979, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
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, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
I The Administrative Law Judge declined to make findings with respect to
par. IX Z(dd} of the complaint, which alleged an additional incident of
interrogation as a violation of Sec. 8(aX 1l of the Act, on the ground that any
such finding would have "added nothing" to his recommended remedy or
Order
The General Counsel excepts to the Administrative Law Judge's failure o
make findings on this separate allegation. We agree with the Administrative
Law Judge that the finding of such violation would be cumulative and would
not affect the Order herein.
2 General Counsel excepts to the Administrative Law Judge's failure to
find a violation of Sec. 8(aXl) of the Act based upon an alleged promise ofl
benefit or threat of loss of benefit made by Supervisor Richard Baker to
employee Linda Jones. He further excepts to the Administrative Law Judge's
post-heanng striking of Jones' testimony with respect to this matter. We find
that the statements made by Baker are too ambiguous to constitute either a
promise of benefit or a threat of loss of benefit violative of Sec. 8(aX I).
Accordingly, we find it unnecessary to pass upon the appropriateness of the
Administrative Law Judge's postheanng striking of Jones' testimony
We additionally find no merit to the General Counsel's exception to the
Administrative Law Judge's failure to find that Respondent engaged in dis-
criminatory enforcement of its no-solicitation policy in violation of Sec
8(aX I). In adopting the Administrative Law Judge's conclusion, however, we
rely solely on our finding that the evidence herein is insufficient to establish
that Respondent's valid no-solicitation rule was disparately applied. Thus,
while the record reveals that on one occasion Supervisor Filipski removed an
authorization card from the hands of an employee who had been solicited by
employee Palmer, it is clear from the record, and indeed from Palmer's own
testimony. that in fact she was permitted to solicit employees both on the
sales floor and in nonsales areas.
3 In par. I(c) of his recommended Order, the Administrative Law Judge
uses the broad cease-and-desist language. "in any other manner." However.
we have considered this case in light of the standards set forth in Hickmon
Foods, Inc.. 242 NLRB 1357 (1979), and have concluded that a broad reme-
dial order is inappropriate inasmuch as it has not been shown that Respon-
dent has a proclivity to violate the Act, or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the em-
ployees' fundamental statutory rights. Accordingly, we shall modify the rec-
ommended Order to use the narrow injunctive language. "in any like or
related manner."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended. the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, C.
Markus Hardware. Inc., Concord, California. its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order. as so
modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoriCL To EMPLOYI:ES
POSI)ED BY ORDER O()F [il
NATIONAL LABOR RF.LA..oNS BOARI)
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence. the National Labor Re-
lations Board has found that we violated the law and
has ordered us to post this notice.
Section 7 of the National Labor Relations Act,
as amended. gives all employees the following
rights:
To engage n self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of' their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
WE WI.L NO)i discharge you or make your
working conditions onerous or otherwise dis-
criminate against you for supporting or engaging
in activities on behalf of General Truck Drivers.
Warehousemen, Helpers and Automotive Em-
ployees of Contra Costa County, Teamsters Lo-
cal 315, or any other labor organization.
WE WILL NOT question you about your union
sympathies or activities, threaten to discharge
you because of your union activities or sympa-
thies, promise you better terms and conditions of
employment to discourage you from supporting
a union, refuse to permit you to wear emblems
243 NLRB No. 158
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on your name tags indicating that you favor
union representation, or hire employees for the
purpose of defeating the above-named Union, or
any other union, in a National Labor Relations
Board-conducted, representation election.
WE WILI. NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the National Labor Relations Act.
WE WILL offer Andrea Palmer full and imme-
diate reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
any other rights and privileges previously en-
joyed, and WE WI.L make her whole for any loss
of earnings suffered because of our discrimina-
tion against her, plus interest.
C. MARKUS HARDWARE, INC.
DECISION
STATEMENT OF THlE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this consolidated proceeding was held November
14, 15, and 29, 1978,' and is based upon unfair labor prac-
tice charges filed against C. Markus Hardware, Inc., herein
called Respondent, by Eva Beising, Andrea Palmer, Kath-
erine Stanley, and General Truck Drivers, Warehousemen,
Helpers and Automotive Employees of Contra Costa
County, Teamsters Local 315, herein called the Union. The
charge in Case 32-CA- 1049 was filed by the Union on July
5 and amended September 6. The charge in Case 32-CA
1184 was filed by Beising on August 25. The Charge in Case
32-CA-1214 was filed by Palmer on September 8 and the
one in Case 32-CA-1220 was filed by Stanley on Septem-
ber 12. A consolidated complaint issued October 31 on be-
half of the General Counsel of the National Labor Rela-
tions Board, herein called the Board, by the Regional
Director of Region 32 alleging that Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1), (3), and (4) of the National Labor Relations
Act, as amended, herein called the Act. The complaint was
amended during the hearing. Respondent filed an answer
denying the commission of the alleged unfair labor prac-
tices.'
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Selltting
Respondent operates three retail stores in northern Cali-
fornia which sell hardware and related items to the public.
I All dates hereafter shall refer to 1978 unless otherwise specified.
2 It will effectuate the policies of the Act for the Board to assert jurisdic-
tion over these cases. The record establishes and Respondent admits it is an
employer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act and meets the Board's applicable discretionary jurisdictional stan-
dards.
The store involved in this case is situated in Concord, Cali-
fornia. During the time material it employed approximately
35 to 40 regularly scheduled full-time and part-time em-
ployees excluding the store manager, assistant store man-
ager, and night crew. David Kinsey was the store manager
from the date the store opened for business in September
1976 until June 17 when he was replaced as a manager by
Richard Baker. The assistant store manager was Greg Fi-
lipski who, on September 1, replaced Baker as store man-
ager.
In May the Union' commenced to organize the store's
employees and, after a majority of the employees signed
cards designating the Union as their exclusive collective-
bargaining representative, the Union on May 25 filed a rep-
resentative petition with the Board's Regional Director for
Region 32. It is undisputed that Respondent opposed union
representation for the store's employees and expressed its
opposition to the employees. On June 22 the Regional Di-
rector for Region 32, after having conducted a hearing on
the issues raised by the Union's representation petition, is-
sued a Decision and Direction of Election in which he di-
rected that an election be conducted on July 21 in a unit
comprised of all the full-time and regularly scheduled part-
time employees employed in the store. The election was
held as scheduled, and the tally of ballots shows that 16
employees voted for the Union, I I voted against union rep-
resentation, and the Retail Clerks Union which had inter-
vened did not receive one vote. The election results were
inclusive, however, because there were 16 challenged bal-
lots. The Union filed timely objections alleging that Re-
spondent, by its conduct, had affected the results of the
election. On September 21 the Board's Regional Director
for Region 32, after investigating the challenges and obJec-
tions, issued a report on these matters wherein he ordered
that the majority of the challenged ballots and objections be
consolidated for a hearing with the instant unfair labor
practice cases. During the hearing, at the request of the
parties, I severed the representation case from the unfair
labor practice cases and remanded the representation case
to the Regional Director.
B. The Interference, Restraint, and Coercion
I. Kathryn Bowie's conduct
Kathryn Bowie, the manager of the store's lighting de-
partment, dislikes unions intensely and during the Union's
organizational campaign was very vocal in expressing her
dislike to the employees. General Counsel contends that in
June, prior to the July 21 representation election, Bowie
threatened employees with various economic reprisals if
they supported the Union and created the impression that
the employees' union activities were being kept under sur-
veillance. Respondent takes the position it was not respon-
sible for Bowie's conduct inasmuch as she is not a supervi-
sor within the meaning of Section 2(11) of the Act.
The store's lighting department sells lighting fixtures for
homes and businesses. In 1976, when the store opened for
business, Bowie began work in this department and in July
Respondent admits and I find that the Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
904
C. MARKUS HARDWARE, INC.
1977 took over the position of department manager. In ad-
dition to Bowie, the lighting department normally employs
approximately two full-time and one part-time worker who
works 8 hours a week. Like most of the store's rank-and-file
employees, Bowie is hourly paid.4 punches a timeclock, and
is paid time and one-half when she works overtime. Bowie
spends 75 percent of her working time performing the same
duties as the others who work in the lighting department.
She waits on customers, stocks merchandise, and cleans up
the department. But Bowie also trains new lighting depart-
ment employees, assigns and directs the department's em-
ployees in their work, schedules their hours of work, and
grants them time off, but only after consulting with the
store manager,' orders merchandise for the department, and
handles some customers' complaints. However, I reject
General Counsel's contention that in addition to the forego-
ing Bowie authorizes overtime work, hires applicants, disci-
plines employees, and affectively recommends employees'
pay raises.
The record establishes that employees' overtime must be
authorized by the store manager. The only instance where
the record even arguably suggests Bowie has this authority
involves lighting department employee Thompson. On May
28 Bowie placed her signature on Thompson's timecard
thus indicating she had approved Thompson's overtime
work. The record reveals, however, that this was an excep-
tional situation and that the store manager thereafter also
placed his signature on the timecard thus indicating that he
had approved the overtime. This isolated instance, espe-
cially given the unusual circumstances, does not establish
that Bowie possesses the authority to authorize employees'
overtime.
Regarding the hiring of applicants, the record reveals
that in her 16 months as department manager Bowie inter-
viewed only one applicant. In October 1977 employee
Thompson was interviewed by Store Manager Kinsey, who
then asked Bowie to interview her. Bowie's interview of
Thompson took place in Kinsey's office in his presence.
Bowie thereafter indicated to Kinsey that Thompson had
impressed her favorably. Bowie credibly testified this was
the only applicant she has ever interviewed. Bowie's in-
volvement in Thompson's hire, inasmuch as it is an isolated
instance, does not establish that Bowie possesses the au-
thority to effectively recommend the hiring of employees.
Bowie testified that she does not possess the authority to
discipline employees. There is only one instance in Bowie's
16 months as department manager which even suggests that
Bowie has this authority. In October 1977 Bowie verbally
reprimanded employee Shaw, who worked in her depart-
ment, for incorrectly filling out sales slips, and on Novem-
ber 3, 1977, after Shaw continued making the same error,
Bowie brought the problem to the attention of Store Man-
ager Kinsey, who directed Bowie to write up a written
warning notice for Kinsey's signature. Bowie prepared such
4 Bowie is paid a higher hourly wage than the other employees in her
department but has worked for Respondent a substantially longer period of
time than the other employees.
5 The store manager has always approved the work schedules submitted
for his approval by Bowie. Likewise, her recommendations that employees
be allowed to deviate from their work schedules have always been followed.
a warning notice which Kinsey signed in the space set aside
for "supervisor's signature." Bowie signed in the space set
aside for the "signature of the person who prepared warn-
ing." Then Bowie performed the ministerial task of handing
Shaw the warning notice. This isolated instance does not
establish that Bowie possesses the authority to discipline
employees6 or to otherwise take disciplinary action against
employees which affects their employment status.
Regarding the contention that Respondent grants em-
ployees' pay raises based on Bowie's recommendation, the
sole evidence that Bowie ever recommended an employee's
pay raise involves employee Thompson. In July manage-
ment rejected Bowie's recommendation that Thompson be
granted a pay raise. In October Bowie renewed this recom-
mendation. Store Manager Filipski informed her he would
interview Thompson to determine whether she was quali-
fied for a pay raise. It was only after Thompson was inter-
viewed by Filipski that she was granted the pay raise. This
one instance involving Bowie's recommendation that
Thompson received a pay raise does not establish that Bow-
ie possesses the authority to effectively recommend pay
raises. If anything, it indicates management conducts its
own investigation to determine whether or not employees in
the lighting department warrant a pay raise. I recognize
that management asks for Bowie's opinion when it evalu-
ates an employee's work performance to determine whether
he or she merits a pay raise, however, this does not warrant
an inference that Bowie possess authority to effectively rec-
ommend such an increase where, as here, there is insuffi-
cient evidence to establish the extent, if any, which the store
manager relies upon Bowie's evaluation of the employee's
work. As indicated, supra the fact that the store manager
personally interviewed Thompson even after Bowie had
recommended that she be given a pay raise indicates that
Bowie's opinion is only one of several considerations which
the store manager normally takes into account. Thus. to the
extent that Bowie's advice is considered, it merely reflects
her experience, rather than the possession of the type of
authority contemplated by Section 2(1 1) of the Act.
Section 2(11) of the Act defines "supervisor" in the fol-
lowing manner:
The term supervisor means any individual having au-
thority in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of indepen-
dent judgment. [Emphasis supplied.]
In the instant case, the record does not justify a finding that
Bowie possesses any authority to hire, transfer, suspend, lay
off, recall, promote, discharge, reward, discipline other em-
ployees, adjust their greivances, or effectively recommend
such action. The question remains whether Bowie's author-
ity to assign work, schedule the employees' working hours,
and to direct them in their work "is not of a merely routine
* Store Manager Kinsey credibly testified that department managers can
only discipline employees with the approval of the store manager.
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or clerical nature but requires the use of independent judg-
ment." I have not resolved this question because under the
special circumstances herein Respondent is not responsible
for Bowie's antiunion conduct even assuming Bowie is a
statutory supervisor.
The Union filed its representation petition with the
Board on May 25, and on June 22 the Board's Regional
Director issued a Decision and Direction of Election direct-
ing an election in a unit of "all full time and regularly
scheduled part time employees" employed in the Concord
store, excluding supervisors, as defined by the Act. The
election was conducted July 2 .The employee list for deter-
mining voting eligibility included Bowie's name as well as
the names of other department managers. The Union chal-
lenged the votes of several department managers yet per-
mitted Bowie to vote without challenge despite the fact that
at the time of the election, Bowie was a known department
manager who openly and vociferously was voicing her op-
position to union representation and had engaged in all of
the conduct attributed to her at issue in this proceeding.
7 In
an identical situation the Board in Montgomery Ward
8 con-
cluded that when a statutory supervisor is permitted to vote
in an election that the employer is not responsible for the
supervisor's preelection, antiunion misconduct in the ab-
sence of evidence that the employer encouraged, autho-
rized, or ratified the supervisor's activities or acted in such a
manner as to lead employees reasonably to believe that the
supervisor was acting for and on behalf of management.
Since the General Counsel has made no such showing in
this case, I find that the preelection conduct of Bowie is not
chargeable to Respondent. I shall therefore recommend the
dismissal of those allegations in the complaint relating to
Bowie's preelection conduct.
2. Susan Reisfelt's conduct
The General Counsel contends that Respondent violated
Section 8(a)(l) of the Act when Department Manager Su-
san Reisfelt, early in June, threatened to discharge an em-
ployee for singing a song about the Union and on August
23 or August 24 threatened to discharge employees because
of their union activities.
'° Respondent argues it is not re-
sponsible for Reisfelt's antiunion conduct because as a de-
partment manager she was not a statutory supervisor.
Reisfelt is the manager of Respondent's home security
department sometimes referred to as the lock department or
the builders hardware department. In September 1976
when the store opened for business she was employed in
that department and in April 1977 became its manager. In
addition to Reisfelt, the department employees one of two
employees who, like Reisfelt, are paid by the hour, punch a
There is no evidence or contention that the Union permitted Bowie to
vote as the result of some sort of miscommunication or other mistake.
'Montgomery Ward & Company, Inc., 115 NLRB 645, 646 647 (1956),
enfd. 242 F.2d 497 (2d Cir. 1957).
$ A substantial part of Bowie's misconduct consisted of threats that Re-
spondent would discontinue its profit-sharing plan and close the store if the
employees selected the Union. I note this conduct did not duplicate the
conduct of Respondent's admitted representatives.
t0 On September I Reisfelt was appointed to the position of floor supervi-
sor. The illegal threat attributed to Reisfelt was made while she was still a
department manager.
timeclock, and are paid time and one-half for working over-
time. Reisfelt is paid a higher hourly rate than the other
employees. She spends the majority of her working time
performing the same duties as the other employees who
work in the department. Like the others, she attends to the
needs of customers, stocks merchandise, and keeps the mer-
chandise orderly and clean. In addition, Reisfelt trains the
new employees who work in the department, assigns and
directs the department's employees i their work, schedules
their hours of work and grants them time off, orders mer-
chandise for the department, and handles customers' com-
plaints. I reject, however, the General Counsel's contention
that besides the foregoing Reisfelt possesses the authority to
hire employees and is responsible for the towel bar section
of another department.
Regarding the hiring of employees, the record reveals
that in the 16 months Reisfelt was a department manager
she interviewed only one applicant. In November 1977
when employee Mayo applied for work, he was offered a
position in the warehouse which he declined. The home
security department was short handed at the time, and
when Reisfelt learned Mayo was experienced in this line of
work and had filed an application with the Company, she
spoke to Assistant Store Manager Filipski about Mayo. Fi-
lipski told her to interview Mayo which she did. After the
interview Reisfelt indicated to Filipski that she wanted to
offer Mayo a job in her department. Filipski authorized
Reisfelt to do this and told he she was authorized to offer
Mayo $3.50 an hour. Reisfelt followed Filipski's instruc-
tion.' In my view, the fact that in her 16 months of employ-
ment as a department manager Reisfelt was involved in
hiring one employee is insufficient to establish that she pos-
sessed the authority to hire or to effectively recommend the
hire of employees.'
Regarding the contention that Reisfelt was responsible
for the towel bar section, the record establishes that this
merchandise was located in Reisfelt's department and that
in June, James Bucklin told Reisfelt that employee Stanley,
who worked in another department, would be responsible
for maintaining this merchandise. Reisfelt communicated
this message to Stanley, which is hardly an indicia of super-
vision. The fact that on one occasion in August Reisfelt told
Stanley to stock the towel bars immediately and indicated
that she would not stand for Stanley's "insolence" does not
show supervisory authority where as here Reisfelt could not
discipline the employees, and there is no evidence that her
reprimand of Stanley would lead to the imposition of any
discipline.
In summation, the record does not justify a finding that
Reisfelt, a department manager, possessed the authority to
hire, transfer, suspend, lay off, recall, promote, discharge,
discipline other employees, adjust their grievances, or effec-
tively recommend such action. The record reflects that
Reisfelt spent most of her working time performing the
same work as the one or two other employees employed in
1 Mayo and Reisfelt testified about the circumstances surrounding Mayo's
hire. In those instances where their testimony does not jibe, I have credited
Reisfelt, who impressed me as the more credible witness.
1 It is settled that isolated or infrequent incidents of supervision do not
elevate a rank-and-file employee to supervisory level. N.L.R.B. v. Doctorv'
Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir. 1973): Westinghouse
Electric Corp. v. N.L.R.B., 424 F.2d 1151, 1157 58 (7th Cir. 1970).
906
(. MARKIIS IIAR)WARI.. IN('
her department and like them was hourly paid, punched ait
timeclock. and was paid time and one-hall tfor \working
overtime. While Reisfelt scheduled the employees' working
hours and granted them time off, she did this only ater
consulting with the assistant store manager or the store
manager who, as she testified, would tell her "either yes or
no." Although she was paid an hourly rate of pay greater
than the other employees in her department, she had
worked for the Company substantially longer than the oth-
ers." In ordering merchandise for her department. Reisfelt
had no authority to do so without the signature on the pur-
chase order of an admitted supervisor, and the record
shows that employees who admittedly are not statutory su-
pervisors also order merchandise. Likewise, employees who
are admittedly not supervisors also handle customers' com-
plaints. In short, the sole basis for concluding that Reisfelt,
while a department manager. occupied the status of a statu-
tory supervisor rests upon the undisputed fact that when
the one or two workers in her department were not waiting
on customers Reisfelt directed them in the work of shelving
merchandise in the department and keeping the merchan-
dise neat and clean. The essential question is whether Reis-
felt did this in a routine fashion without the exercise of
independent judgment. In this regard, employee Mayo.
who worked in Reisfelt's department for almost I year, tes-
tified in substance that the majority of the work in that
department was "routine," that he was without immediate
supervision two-fifths of his workweek because Reisfelt was
off work two of the days which he worked, and that it only
took him about 2 weeks to learn how to perform the work
of the department." Likewise, employee Timbrell. who
works in another department but whose duties are the same
as those of the employees in Reisfelt's department testified:
"I never really received instructions or was told day to day
what to do. I just did what was required." These circum-
stances and the record as a whole established that during
Reisfelt's tenure as department manager she assigned and
directed the performance of routine functions which did not
require the exercise of independent judgment.
Based upon the foregoing, I am satisfied and find, in
agreement with Respondent, that Reisfelt, notwithstanding
her title, ' was no more than a lead person and not a super-
visor within the meaning of the Act.'6 It is for this reason
that I shall recommend that those portions of the complaint
1 It is settled that disparity of compensation cannot be "accorded litmus
paper significance in the absence of solid evidence of the possession of super-
visory responsibility." Oil. Chemical and Atomic Workers International
Union, AFL-CIO [George A. Angle, d/b/a Kansas Refined Helium Compans'
Intervenor] v. N.LR.B., 445 F.2d 237, 242 (D.C. Cir. 1971).
, Employee Latham testified he needed no training to do the work in
Reisfelt's department.
ls It is well established that the Company's designation of an employee as
"foreman" or "department manager" cannot make a supervisor out of a
rank-and-file employee without the possession and exercise of actual supervi-
sory functions. N. L.R.B. v. Southern Bleachern, & Print Works, Inc., 257 F.2d
235, 239 (4th Cir. 1958).
t' As the Supreme Court noted in N.L. R.B v. Bell Aerospace Compoan,
416 U.S. 267, 280-281 (1974), the legislative history of Sec. 2(11) indicates
Congress intentionally distinguished between "straw bosses, leadmen, set-up
men, and other minor supervisory employees, on the one hand, and the
supervisory vested with such genuine management prerogatives as the right
to hire, or fire, discipline, or make effective recommendations with respect to
such actions." 416 U.S. at 280 281. quoting S. Rep. 105, 80th Cong.. Ist
sess., 4 (1947).
which attribute Reisfelt's antiunion conductl o Respondent
be dismissed.
3. Maril' in Zuccaro's conduct
Marilyn Zuccaro. during the time material herein until
June 17, was Respondent's head cashier and as such was
admittedly a stattutorN supervisor 'or whose conduct Re-
spondent was responsible. Andrea Palmer was one of' the
cashiers who worked under Zuccaro's supervision. General
Counsel contends that on May 27 Zuccaro threatened
Palmer with a less desirable work schedule because of
Palmer's union activities." I do not agree.
Zuccaro was a friend of Palmer's and they visited one
another outside of working hours. In May Zuccaro ob-
served that Palmer had become hostile toward Zuccaro at
work and for no apparent reason seemed to be unhappx all
of the time. On May 26 Zuccaro soke to Palmer for the
purpose of determining the cause of Palmer's apparent hos-
tility. Zuccaro asked who Palmer seemed so unhappy and
offered to discuss Palmer's problems. Palmer refused to dis-
cuss the matter, stating she was not employed to entertain
Zuccaro and just wanted to be able to work 8 hours a das
and be treated like the other employees. Zuccaro. in an
effort to determine what was bothering Palmer, asked
whether there was at problem concerning Palmer's work
schedule and reminded Palmer that Palmer's work schedule
had been chosen by Palier. Palmer indicated that she did
not care about her work schedule as long ats Zuccaro did
not assign her Sunday. ' "
There is insufficient evidence, direct or circumstancial,
that as early as Mas 27 Zuccaro or anN other compan5
representative knew that Palmer was it union adherent. In
fact. Palmer admitted that she was unable to think of ans
conduct which she had engaged in as early as Ma 27
which would have indicated to management she was a
union adherent. In any event. the record, as described
above. fails to establish that Zuccaro on May 27 threatened
to impose more onerous working conditions upon Palmer.
It is for these reasons that I shall recommend the dismissal
of the complaint insotar as it alleges that Respondent
through Zuccaro threatened to impose more onerous work-
ing conditions upon Palm,- by changing her work schedule
in order to discourage her union activities.
4. Dave Kinsey's conduct
On June 6, Charles Welch, Jr., started working at the
Concord store. On June I he had been interviewed by Store
'TThe complaint also alleges that on July 20 Respondenl violated Sec
8ta I) because on that date Zuccaro interrogated employee Seyler about her
union sympathies. Respondent contends that it is nCi, responsible for Zuc-
caro's conduct as of that date because by that time hhe was no longer a
statutory supervisor, having been replaced as head cashier. I have not re-
solved this question inasmuch as a finding that Respondent violated Sec.
8(aX I) by Zuccaro's interrogation of Seyler would add nothing to the recom-
mended remedy or Order herein.
"s Zuccaro and Palmer testified about this conversation The description in
the text is based upon Zuccaro's testimony inasmuch as she impressed me as
the more credible witness when testifying about this conversation.
1S Kinsey. who was the store manager from the time it opened until June
17, is admittedly a statutory supervisor whose conduct is attributable to
Respondent
91)7
I)('CISIONS OF NATIONAL LABOR RELA'IIONS BOARD)
Manager Kinsey. It is undisputed that during this interview
Kinsey asked what Welch's "feelings" were about unions.
Welch evaded answering the question and it is undisputed
that Kinsey warned Welch that if the store went union
Welch would probably be one of the first employees to lose
his job because he was a new hire with less seniority than
other employees. I find that by interrogating Welch about
his union sympathies and threatening him with discharge if
the Union succeeded in organizing the Company's employ-
ees that Respondent, through Kinsey, violated Section
8(a)(l) of the Act.
Andrea Palmer, a cashier, was one of the leading union
adherents. It is undisputed that by June 10 management
knew about Palmer's prounion sentiments.0 On June 9
Palmer's mother, who was ill, phoned the store and left
Palmer a message which was not relayed to Palmer. When
Palmer learned about her mother's phone call she got upset
and the next day, June 10, informed Store Manager Kinsey
that she was very upset because she had not been advised
about an emergency phone call from her mother. Kinsey
replied that if Palmer did not like working for Respondent
she could quit her job. Palmer, who apparently viewed Kin-
sey's response as being motivated by his knowledge that she
was a union adherent, told Kinsey that she was not the one
responsible for starting Respondent's "union problem."
Kinsey acknowledged this was true but told Palmer she was
"a hell of a flag waver" and warned Palmer. "you just make
one mistake and I'll can you so fast. I mean it."" Later that
day Kinsey apologized to Palmer for losing his temper.
Viewed in its context, including the fact that there is no
evidence that Kinsey had a legitimate reason for threaten-
ing Palmer with discharge or that Palmer had ever been
previously warned that management viewed her work as
being unsatisfactory, Kinsey's threat to discharge Palmer
was an implied threat to discharge Palmer because of her
union activities. By engaging in this conduct Respondent.
through Kinsey, violated Section 8(a)(1) of the Act.
The complaint alleges that late in May Respondent,
through Kinsey, "solicited employee grievances thereby by-
passing the bargaining representative" in violation of Sec-
tion 8(a)(1) of the Act. In support of this allegation, em-
ployee David Sumerlin II testified without contradiction
that on either June 14 or 15, while in the lunchroom, Kin-
sey sat down with him and asked "what was wrong."
Sumerlin replied there was nothing wrong. Kinsey stated
"there must be something wrong." Sumerlin stated "no
there wasn't." Kinsey asked "where have I let you down?"
Sumerlin stated, "you didn't." Kinsey repeated "what is
wrong" and Sumerlin stated "nothing." This was the extent
of the conversation. I reject General Counsel's contention
that Kinsey's remarks constitute "a solicitation of griev-
ances with an implied promise to remedy those grievances"
in order to discourage Sumerlin from supporting the Union.
Accordingly, I shall recommend that this portion of the
complaint be dismissed.
W0On June I Palmer informed Assistant Store Manager Filipski that she
was a union adherent.
21 Palmer and Kinsey testified about this conversation. The description set
forth in the text is based on Palmer's testimony because she impressed me as
the more credible witness when testifying about this conversation.
5. Richard Baker's conduct"2
In June. shortly after Baker became store manager, em-
ployee Seyler was called by Baker into his office. Baker
spoke to her about her work and stated that it was his
understanding she was a good employee and told her not to
be afraid to come and talk to him about her problems. In
addition, Baker asked Seyler how she felt about the Union.
Seyler stated she had talked to her parents about the matter
and did not want to discuss it with Baker. This ended the
conversation. 23 In view of Respondent's hostility to the
Union, Baker's failure to assure Seyler that there would be
no reprisals taken against her if she indicated she supported
the Union, and the lack of any legitimate reason for Baker's
interrogation of' Seyler about her union sympathies, I find
Baker's interrogation of Seyler about her union sympathies
constitutes a violation of Section 8(a)(1 ) of the Act.
The complaint at paragraph 9(i) alleges that on or about
July 15 Baker "promised employees more liberal illness-
leave policies if Respondent's employees abandoned sup-
port of the Union." No evidence was adduced in support of
this allegation, so I shall recommend that it be dismissed.
General Counsel, however, presented evidence through em-
ployee Linda Jones that on July 16 Baker told her that the
Company could make exceptions in its sick-leave policy
which the Union "wouldn't make." Specifically, Baker told
Jones that with the Union there would be 6 days of sick
leave without any exception regardless of the situation. He
also stated that Respondent's paid sick leave did not start
until an employee's second day of absence, but if the em-
ployee brought a note from the doctor excusing the first
day's absence Respondent would pay for the first day and,
he stated to Jones, "the Union wouldn't do that." General
Counsel apparently contends that the aforesaid statement
constitutes an implicit threat that the employees would lose
existing sick leave benefits if they supported the Union. As-
suming arguendo that this is a permissible inference, I am of
the view that it would be improper for me to make a finding
of a statutory violation based upon this testimony since the
subject matter is not covered by any of the allegations of
the complaint and the matter was not fully and fairly liti-
gated inasmuch as Respondent properly objected to the re-
ceipt of this evidence."
6. Greg Filipski's conduct"
Early in June, Respondent hired a night crew to work in
its warehouse. The employees for the night crew were hired
and supervised by Filipski. General Counsel contends that
in interviewing Nick Jenkins, one of the applicants for the
night crew, Filipski asked how he intended to vote in the
22 Baker was store manager from June 17 until September I and as such
was admittedly a statutory supervisor for whose conduct Respondent was
responsible.
23 The description of the aforesaid conversation between Seyler and Baker
is based upon Seyler's testimony. Baker testified he did not "recall" asking
how Seyler felt about the Union. Seyler impressed me as the more credible
witness so I have credited her testimony.
24 I erroneously overruled Respondent's objection to Jones' testimony. Ac-
cordingly, I shall now sustain this objection and strike the testimony.
i5 Filipski was assistant store manager until September I when he became
store manager. In both positions he was admittedly a statutory supervisor for
whose conduct Respondent is responsible.
908
C. MARKI'S ARI)WARf. IN(C
union representation election. General Counsel relies solely
upon the pretrial affidavit Jenkins gave the Board. In this
affidavit, Jenkins states that Filipski indicated to him that
there might he a union election in a few weeks and asked
Jenkins "how would you vote" if there were such an elec-
tion. Jenkins, who no longer works for Respondent, testified
that Filipski did not question him about his voting inten-
tions and specifically disavowed the statement contained in
his affidavit.23 General Counsel called four other persons
who started working on the night crew at the same time as
Jenkins but was unable to adduce additional evidence that
Filipski questioned any one of them about their voting in-
tentions or otherwise interrogated them about their union
sympathies.
Based upon my observation of Jenkins' demeanor, Gen-
eral Counsel's failure to present corroborating evidence
from any one of the other applicants interviewed for the
night crew at the same time as Jenkins. and the failure of
the General Counsel to offer Jenkins' affidavit into evidence
or indicate that the disputed matters contained therein were
being offered as substantive evidence. I reject General
Counsel's contention that the record establishes that Filip-
ski asked Jenkins how he would vote in the union represen-
tation election. It is for these reasons that I shall recom-
mend that this portion of the complaint be dismissed.
The complaint alleges that on June 3 Filipski interro-
gated an employee about the union activities of other em-
ployees. In support of this allegation, warehouse employee
Maybee testified that while eating lunch with Filipski on
June 3, Filipski asked "what [Maybeel thought was going
[on] in the store." Maybee stated he was without knowledge
but there were a lot of things happening that he did not
understand or like. Filipski then asked whether Maybee ob-
served anyone going to the desk in the warehouse where
employee Stanley worked. Maybee answered that both em-
ployees Reisfelt and Beising went there frequently on busi-
ness. Filipski asked if Beising went there more frequently
than others. Maybee answered that Reisfelt was back there
more often than anyone. This was the extent of the conver-
sation.
General Counsel urges that Filipski's aforesaid interroga-
tion of Maybee "created the impression of surveillance of
employees' union activity." I do not agree. There is insuffi-
cient direct or circumstancial evidence which establishes
that as early as June 3 Respondent knew that either Stanley
or Beising were union adherents. In any event, even taking
into account "the economic dependence of [Maybee] on
[Respondent], and the necessary tendency of the former,
because of the relationship, to pick up intended implica-
tions of the latter that might be more readily dismissed by a
more disinterested ear," I am unable to conclude that Fi-
lipski's remarks would have reasonably given employee
Maybee the impression that Filipski was keeping employ-
ees' union activities under surveillance. Filipski gave no in-
dication to Maybee either directly or indirectly that this
motivation in questioning him about employees visiting
"General Counsel failed to offer Jenkins' affidavit into evidence or indi-
cate that the disputed matter contained therein was being offered as substan-
tive evidence.
" N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575. 617 (1969).
Stanley pertained to employees' union activities. It is for
these reasons that I shall recommend that hli, part of the
complaint be dismissed.
7. Clifford McFarland's conduct :,
On June 17. following a store meeting of the emplosees
at which McFarland introduced Baker as the new store
manager replacing Kinsey. McFarland met privatel with
employees Stanley and Palmer, who were the two most ac-
tive union adherents in the store, and discussed the Union
with them. The General Counsel contends that during this
discussion McFarland implicitly promised better terms and
conditions of employment to discourage Palmer and Stan-
ley from supporting the Union. I agree for the following
reasons.
Palmer, Stanley, and McFarland gave testimony about
this matter. The most credible witness ot the three was
Palmer. who testified in a straightforward and convincing
manner, whose testimony in significant part was corrobo-
rated by Stanley, and whose demeanor was that ol a sincere
witness.
Palmer testified that McFarland informed them that he
was shocked at how successful the Union had been in orga-
nizing the employees without the Compan even learning
about it until the Union filed its representation petition.
McFarland blamed former Manager Kinsey for the whole
"union mess" and stated that the employees should have
gone over Kinsey's head when there were problems. lie
stated that Respondent had done a good job in staffing the
store with competent employees but made a mistake in at-
tempting to operate it by paying the employees onl\
"hand)man wages." McFarland also stated that the Com-
pany realized it "really blew it" and promised "things are
going to get better" and, in this regard, explained "that
what [Respondent] should have had was an employee con-
tract with scheduled raises and everything to begin with.
and [Respondent] would not have had to go through this
now. That [Respondent] could still do that. He said [Re-
spondent] intended to do it in the Hayward store and that
[Respondent] could still do it here and [the emploees
would not need a union to butt in." TM
McFarland testified he discussed operating the store as a
union and nonunion store and discussed generally the phi-
losophy of doing business without a union and with a union
and further testified that he stated that many employers
provided their workers with progressive wage increases
similar to the wage increases contained in union contracts
yet did not have unions representing their employees. Mc-
Farland in effect denied he ever indicated Respondent in-
tended to institute such a program at the Concord store.
As I have found, supra, Palmer's testimony provides the
more reliable description of what McFarland told Palmer
and Stanley. Accordingly, as described in detail, supra, I
find that McFarland promised them that things would get
better for the employees and in explaining this promise
2. McFarland. Respondent's vice president of finance. is admittedly an
agent of Respondent for whose conduct it is responsible.
" Stanley testified that McFarland stated the Company had made a mis-
take and that the employees could draw up their own contract as they did
not need a union to do that.
9t)9
I)I ( I I() NS ()I1 NA II() NA I )R RI IA 1 IO)NS IIt)ARi)
sllatlt 11l;11 I I 111 l l'. (ii c ltl rlil 11t ced tiiti I t.lltrcsttllattio
hccaisc RLcspOlnlldll c t ittlldct I 11Tlittite ;Ill ClllpiLce 'i1i-
IHt I t which " l d lo\ lc fhc cii plIoLSe i1 " evcrvi ting"
thcy nTecLd icIIllillgi sWcJtUlctI ia ra1i's. I 'rlherl lillnd
thtll 11te intelnded llcl of tis prOliise ol hbnelits ws;ts o
discourage tlhe celi oces hloll sIllpolrlilg the [I 'litl. v
engatgilng Illhis conlduct Respiondenlt violalted Section
X(l)( I ) o the Acl.
8. Ihe pronllse ' hbenefils
General ('ounsel contends thal on iluly 15 at a meeting of
the employees tha Store Ma nager Baker and Respondent's
l.abor Relations Representalive Moore"' promised emplov-
ees theY would receive unspecified employnment henelits if
thev abandoned their support of tile th!oi. All ev.lluation
of the evidenlc e pertainiing to this contentio fbllows."'
()n JlS 15 R esponldelnt held a meetinlg lotr all of its cm-
ployees. Prior to the neelilng tile emploees were instructed
to write their questioiis and pllace them in a box provided
tir this purpose and( were inlirnled that these questions
along with otllters oiced :at tlie tICCellng would be atlsweCred
by represenlatives ol' tle ('otpllln Ihe Imeetilng which
took place 6 dal\s hefir'e tilet shedllelled represe ntlati ion lc -
lion lasted ;bott I hol antd wra;s attended h Store Mail-
ager Baker. ssistanl Stolre Maiaget Ielipski Vice Pres-
ident of I inalnce NMcl arland, and I.ahor Relations
Representative Moore. all of sw houm answered the employ-
ees questions. A suhbstantial ntunber of the questions dealt
with the UInion's eort to represent the employees.
Baker told the employees he would like to change things
for them, that he knew things were had hut the employees
did not need a union, and asked the employees to give him
a chance. Specitically. Bakel stated that althiough mistakes
were made under Kinsex's man;ll;genment that things were
going to get better, that Respondent had "things in mind"
for the employees but he was not able to state exactly what
these "things" were because the ('ompany could not prom-
ise the employees anything on account of the law, and
promised if' he could not follow through with the "things"
he wanted to do fbr the employees he would leave the ('om-
pany.
Moore asked the employees to vote against union repre-
sentation and to give Baker a chance. She explained to the
employees that Respondent had "something in the works"
similar to the employee contract in the Oakland store32 and.
while it was not ironed out yet, promised "things were
going to be better" because Respondent had "a lot of things
for [the employees]" but could not tell them what they were
because it would be in violation of' Federal law. Moore
asked the employees to "trust" Respondent, explaining to
them that if Respondent did not "do good for you" they
could file another petition for union representation in 10
months.
3t Respondent admits that Moore, during the lime matenal herein, was
acting as an agent of' Respondent and that Respondent is responsible lor her
conduct.
1' The description set forth herein is based upon a composite of the undis-
puted testimony of employees Jones, Palmer, Seyler. and Timbrell.
12 The employees employed in the Company's Oakland store are repre-
sented by labor organizations and covered by contracts between Respondent
and these unions.
Based upon the foregoing, I find that Respoident on July
I 5 through Baker and Moore, prormised the emplo ces i -
piroveti terms and conditions of' employ meiln t to discourage
them rom voting for the .lnit;n at the July 21 representa-
tion election. By' engaging in this conduct,. Respondent io-
lated Section 8(a)( I o the Act.
9. Respondent prohibits an employee from engaging in
union solicitation and prohibits an employee rom
wearing a "vote yes" emblem
(ieneral (ounsel contends Respondent violated Section
8(a(I) hb prohibiting employee Palnmer from soliciting u
behalf oi the Union while on the store's sales floor during
business hours while. at the same time, distributing anti-
uniotn literature. Ihe evidence, which is undisputed. Iol-
lows. On June 18 Palmer. who wIas off dluty. entered the
store during business hours and solicited employees to sign
uniton aulthorization cards. She solicited employee Mayo. on
thle sales floor. to sign a card. Assistant Manager Filipski
observed this and advised her that she could not hother
emtiployees when they were attending o custonlers. Palmer
indicated she would comply with this instruction. Palmer
then \walked through the store and while on the sales floor
solicitedl three otither employees to sign union cards. Filipski
followed her to be sure she id not bother employees who
were working Also, Filipski removed one of the cards trom
the hands o' an employee.
The law is settled that an employer can prohibit union
solicitaltion and distribution in the selling areas of a retail
store even when the employees are on their own lime. .g.,
Mat I)eplaritnle / Store ( mpati', td/h/a flanlols-Barr
(Contr,n 59 N IR B 976 (I1944: Ma/rshal/ I hl & (lti',
98 NlRB 88 (1952). [his is what Filipski did in the instant
case. he aclt that managementI handed out antiunioti lit-
erature to the employees on the sales floor during business
hours does not, as contended by the General (Counsel. es-
tablish that Respondent engaged in a disparate application
of its vtalid no-solicitation policy. Accordingly, I shall rec-
ommend that this allegation of the complaint be dismissed.
General C(ounsel contends that by relusing to allow em-
ployee Timbrell to wear a "vote yes" emblem on her name
tag while allowing other employees to wear "vote no" em-
blems on their name tags Respondent violated Section
8(a)(). In this regard, the record reveals that shortly before
the July 21 representation election at least two employees
had taped "vote no" emblems on their name tags thus cov-
ering their names. Observing this, employee Timbrell. who
wore a "vote teamsters" button, covered a portion of her
name tag with a "vote yes" emblem. Shortly thereafter.
Assistant Store Manager Filipski removed the "vote yes"
emblem from Timbrell's name tag explaining to Timbrell
that she was defacing company property. Timbrell pro-
tested that the antiunion employees were doing the same
thing by affixing "vote no" emblems to their name tags.
Filipski replied that their conduct was acceptable to man-
agement whereas Timbrell's conduct was not. In view of
Respondent's disparate treatment of Timbrell, it is clear
that its refusal to allow Timbrell to wear a "vote yes" em-
blem on her name tag was not motivated by a desire to
protect company property or to maintain production or dis-
t)l(
C. MARKUS HARDWARE. INC.
cipline, but by a purpose to interfere with employees' right
of self-organization and thus violated Section 8(a)( I) of the
Act.
10. Respondent employs a night crew
During the week of June 5 Respondent for the first time
hired a night crew comprised of seven employees to work 2
nights a week 2 to 3 hours a night shelving and pricing
merchandise on the sales floor. General Counsel contends
that Respondent's decision to employ a night crew was not
motivated by legitimate business considerations but by a
desire to add employees to its payroll whom it believed
would vote against union representation. An evaluation of
the evidence pertinent to this contention follows.
The person who supposedly made the decision to employ
the night crew and who hired the employees who comprised
the night crew, Assistant Store Manager Filipski. testified
that the reason for his decision was that the warehouse em-
ployees were not able to keep the store's shelves adequately
stocked and the result was that the store employees were
forced to stock the shelves themselves which interfered with
their primary responsibility-- sales work. As Filipski testi-
fied: "Instead of doing what a warehouse man should be
doing a sales person's job is to sell . . they should not be
burdened with stocking and receiving." Filipski further tes-
tified that employees Stanley, Jones, Beising, Mayo. and
Bowie complained to him that they had insufficient time to
attend to customers because of the necessity to shelve mer-
chandise in their departments. I reject Filipski's aforesaid
testimony in its totality because when he testified about the
night crew he was not a convincing witness. His demeanor
and manner of testifying was not that of an honest witness.
In addition, he exhibited a remarkable lack of memorN
about virtually every aspect of the night crew's employ-
ment. He was vague and evasive about the date the decision
was reached to employ a night crew, the method used in
securing applicants for work on the night crew, and about
what was stated to the applicants during their job inter-
views. Finally, and most significant, was Respondent's fail-
ure to call one witness to corroborate Filipski's concluding
testimony that the sales work of the store's employees was
being interfered with by the fact that they were spending a
substanstial amount of time shelving merchandise. Quite
the opposite, employees Jones, Stanley, and Palmer. who
testified for the General Counsel, flatly contradicted Filip-
ski's testimony. They testified in substance that prior to the
employment of the night crew that the amount of time the
store employees spent shelving merchandise, although sub-
stantial, never interfered with their service to customers,
that they never complained to management that it did, nor
were they ever informed that management felt this was a
problem. As a matter of fact, they further testified that be-
cause of the employment of the night crew, store employees
had virtually nothing to do to keep busy during the fre-
quent periods when there were no customers for them to
service. It is for all of these reasons that I find the real
reason for Respondent's decision to employ the night crew
was not the one advanced by Filipski at the hearing.
I also find that the record establishes that Respondent's
real reason for employing the night crew was a part of its
antiunion campaign designed to defeat the Union's effort to
represent the Company's Concord employees. In reaching
this conclusion, in addition to the false reason advanced to
justify the night crew's employment I was influenced by
these additional considerations.
I. The decision to employ the night crew was made and
implemented hard on the heels of Respondent's knowledge
that the Union had filed a petition with the Board for a
representation election among the siore's employees.
2. Respondent's management was extremely hostile
about the Union representing the store's employees as dem-
onstrated by Respondent's unfair labor practices.
3. Respondent had reason to believe that six of lthe seven
applicants who were hired for the night crew would be op-
posed to union representation and thus vote against the
Union in a representation election. Thus. Robert Risl'hlr is
the husband of Department Manager Susan Reisfelt. who
Respondent knew was opposed to union representationl
Moreover, Robert Reisfelt worked full time for another em-
ployer as a store manager, thus leading Respondent to be-
lieve he would sympathtc with management's opposition
to union representation. (reg Zcclro is the brother of'
head cashier Marilyn Zuccaro. who Respondent kne\\ was
opposed to union representation. Mlanamint (Connel/l was
Greg Zuccaro's girlfriend and Vick .Icnkin' was a friend of'
Marilyn Zuccaro. Greg Maryann. and Nick all lived in
Marilyn Zuccaro's house and this is where Filipski spoke to
them about working on the night crew. Katin Wlallot is the
wife of employee Charles Wason, who was openl1 anti-
union. Moreover Kathy Wason works for another em-
ployer full time as a store manager. thus indicating to Re-
spondent's management that she would sympathize , itl
the Company's opposition to union representation. l.imia
Ry'an lives with and is the sister of Beverl? Ryan who at ,
time was the store's assistant head cashier who Respondent
knew was antiunion.
4. All but one l the seven emplosces initially hired to
work on the night crew voluntarilx terminated their em-
ployment less than 2 months ater the July 21 representa-
tion election.
5. In hiring the employees who initially staffed the nigh,
crew. Respondent deviated from its longstanding polico ott
not permitting members of the same 'a1iil to work at the
store. The majority of the night crew were close relatis s
(brother, sister, husband and wife) of employees currentl\
working in the store. Respondent failed to explain its reasoin
for violating company policy in hiring these close relatis c
6. Respondent usually uses local colleges as a sourl c (
job applicants for part-time work, yet Respondent dei rtcd
from this practice in employing the night crew. And., ,, icn
asked to explain how he went about securing job applic.: ii
for the night crew, Assistiht Manager Filipski had a; ip,,
of memory. His testimony was vague and evasi .Il,lrcfe
the fact that the unusual nature of the occurrence n..i iL .
subject which should have been well remembered I l C
ceived the distinct impression that Filipski was dissenmhhng
in an effort to conceal something.
7. Filipski's testimony that he was the person \IhI ,-
cided to establish the night crew is implausible. He a: !! ,
store's assistant manager who admittedly had no millh irin.
to establish a night crew without the prior appfro\.fl ,I
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
higher management." It is plain from Filipski's testimony
that he never received this approval. Thus, he admitted that
the last time he discussed the matter with his superiors, in
April, he was not given the authority to establish a night
crew but, quite the opposite, McFarland stated he needed
more information on the subject. 4
8. Filipski exhibited a remarkable lack of memory about
the date of his decision to establish a night crew. In view of
the unusual nature of the occurrence it is not the sort of'
thing that would not be well remembered, yet he testified he
reached his decision in "the middle of April" then inconsis-
tently testified "the end of May" and then changed his tes-
timony to, "the last week in May, second to the last week,
between the second to the last week in May and the last
week in the month."
In summation, I am persuaded that an evaluation of the
evidence presented by Respondent to justify the employ-
ment of the night crew reveals that in such significant areas
as the identity of the person who decided to employ the
night crew, the date this decision was reached, the reason
fir the decision and the manner in which it was imple-
nil:nted. the evidence is inconsistent, self-contradictory, im-
plausible, without corroboration where corroboration
should have been readily available, and presented by wit-
nesses who seemed to be dissembling. In addition, the rec-
ord shows that the decision to employ the night crew was
reached immediately after Respondent, which was hostile
to uniot representation as evidenced by its unfair labor
practices, learned the Union had filed a petition to a repre-
sentation election. And, in selecting applicants for employ-
ment for the night crew, Respondent did not follow its
usual hiring practices, rather it deviated from them and
hired applicants who seemed likely to be opposed to union
representation.
It is for all of the aforesaid reasons that I find Respon-
dent, in hiring the night crew, was motivated by a desire to
employ workers who would vote against union representa-
tion. Thus it violated Section 8(a)(1) of the Act.
C. The Alleged Discrimination
I. The refusal to reinstate Bruce Lichti
On July 1, Lichti, who had been employed by Respon-
dent for less than 2 months, was notified he was discharged.
He was discharged because he had fallen asleep during
work time on June 31 and was absent from work on July I
" In an effort to explain why Filipski made a decision which he clearly
was not authorized to make without higher management's approval, McFar-
land, the Company's vice president of finance, testified that effective May 31,
Store Manager Kinsey was relieved of his position and was directed to stay
away from the store, that Kinsey in fact went on a vacation at that time, and
from May 31 until June 17, when Baker took over thc position as store
manager, Filipski managed the store. I reject this testimony which is com-
pletely without corroboration by Kinsey, Filipski, other members of man-
agement, or employees. Quite the contrary, the record overwhelmingly estab-
lishes that from May 31 until June 17 Kinsey was consistently present in the
store and exercised his duties as store manager.
41 I reject McFarland's testimony that during the April conversation there
"was more or less an implied consent" that Filipski could establish a night
crew. This testimony conflicts sharply with Filipski's and, as I have indicated
supra, McFarland seems disposed to manufacture helpful testimony for Re-
spondent on matters involving the employment of the night crew.
without notifying Respondent prior to the start of his work
shift. On July 5 the Union filed the charges in Case 32 CA-
1049, which among other things, alleged that Lichti's dis-
charge violated the Act. On July 3 the Union had notified
the employees who attended a union organizational meet-
ing that it intended to file an unfair labor practice charge on
behalf of Lichti. The record establishes that by July 8 Re-
spondent knew that such a charge had been filed or knew
the Union had indicated such a charge would be filed. Gen-
eral Counsel contends that Respondent thereafter refused
to reinstate Lichti because the Union had filed an unfair
labor practice charge on his behalf.
The essential question presented for decision herein is
whether the record demonstrates that Respondent, through
Store Manager Baker, indicated to Lichti that he would be
reinstated if he secured a note from his doctor excusing his
conduct of sleeping on the job. Critical to the answer to this
question is the testimony of Lichti and Baker. Lichti testi-
fied that on Monday, July 3, he visited Baker at the store
and explained he had fallen asleep June 31 because he was
sick. Baker, according to Lichti, stated he should return to
the store with a doctor's excuse when he was all better.
Lichti further testified that on Monday, July 10, he returned
to Baker's office with a doctor's excuse and that Baker
looked at it and stated he was not able to read it, at which
point Lichti left the office without saying anything. Baker,
on the other hand, testified that on the afternoon of Satur-
day, July , Lichti came to his office and apologized for his
misconduct explaining to Baker he was not feeling well and
had been taking several kinds of medication. Baker testified
he suggested that Lichti visit a doctor if he was not feeling
well and asked Lichti to leave the office. Regarding Lichti's
subsequent visit, Baker testified that on Saturday, July 8,
Lichti came into his office declaring "here's an excuse. The
doctor has released me and I am okay to go back to work"
and threw a slip of paper on Baker's desk. Baker did not
read the paper but simply stated "no way" which ended the
conversation.
As I have described supra, there is a sharp conflict be-
tween Lichti's and Baker's testimony. I reject Lichti's testi-
mony because his manner and demeanor while testifying
was not that of a trustworthy witness. Of the two, Baker's
demeanor was the more impressive.35 Moreover, in a pre-
trial affidavit submitted to the Board on July 12, Lichti
failed to inform the Board that subsequent to his discharge
Baker had indicated he should submit a doctor's excuse or
release when he was all better. Nor is the subsequent con-
versation wherein Baker supposedly stated he could not
read Lichti's doctor's release included in the affidavit36
31 In crediting Baker over Lichti, I have considered employee Jones' testi-
mony that during the week of July 10 when she asked Baker about Lichti's
discharge that Baker, after stating why Lichti was fired, volunteered: "If
[Lichtil brings in a doctor's release I'll get with him and discuss the situ-
ation." Baker, who specifically denied making this statement, impressed me
as the more credible witness. I also am of the view that Jones' further testi-
mony, that during this conversation Baker stated he would not reinstate
Lichti because he had learned what had taken place at the July 3 union
organizational meeting, is inherently unreasonable. It does not nng true that
in the same breath Baker would indicate he intended to reinstate and not
reinstate Lichti.
I also am of the view that Lichti's testimony, that Baker stated he was
unable to read the doctor's release and that Lichti simply walked out of
Baker's office without saying a word, is inherently unreasonable. I cannot
912
C. MARKUS HARDWARE, INC.
Based upon the foregoing, I find that following Lichti's
discharge for cause Respondent did not give him reason to
believe he might be reinstated if he submitted an excuse or
release from his doctor. Nor does the record establish that
in refusing to reinstate Lichti that Respondent deviated
from its normal practice or was otherwise treating him dif-
fercntly than other employees similarly situated. It is for all
of these reasons that I find the record does not establish by
a preponderance of the evidence that Respondent's refusal
to reinstate Lichti was motivated by the fact that the Union
filed an unfair labor practice on his behalf. 7 Accordingly, I
shall recommend dismissal of that part of the complaint
which alleges that Respondent's refusal to reinstate Lichti
violated the Act.
2. The refusal to grant Stanley a pay raise
The complaint alleges that on or about June 4 Respon-
dent refused to grant employee Stanley a promised pay
raise. The evidence pertinent to an evaluation of this allega-
tion can be briefly stated.
Respondent does not give automatic pay raises. Its stated
policy is to pay the same or better wages as its competitors.
Employees' rates of pay are periodically reviewed to deter-
mine whether a particular employee merits a pay raise. Be-
fore granting such an increase the store manager or assist-
ant store manager reviews the employee's work record,
interviews the employee, and discusses the matter with the
Company's vice president of finance.
Stanley, who had worked in the store since it opened in
September 1976, received a pay raise in the middle of 1977
and was scheduled for a merit raise review the week of June
4. In the middle of May she asked Store Manager Kinsey
for a pay raise. Kinsey told her that since she had just
changed positions from selling to a nonselling warehouse
position that she had not been working in her present posi-
tion long enough for Kinsey to assess her working ability
and habits but told her that she would receive a wage re-
view during the week of June 4 with several other employ-
ees whom he did not name." This review was never held.
Nor did Stanley say anything about this until late in June,
when she spoke to Baker, who on June 17 took Kinsey's
place as store manager. Stanley asked Baker for a pay raise.
Baker told her that acting upon the advice of the Compa-
ny's lawyer he was not going to grant any pay raises at that
particular time. Stanley stated that Kinsey had previously
arranged to give her a pay raise. Baker stated he was not
responsible for Kinsey's promises. 9 Baker than conducted
believe that if this took place, Lichti would no have assisted Baker in reading
the doctor's handwriting. I note that Lichti, when questioned about his abil-
ity to read the doctor's release he submitted to Baker, incredibly testified: "1
did not really look at it."
3 The complaint also alleges that the refusal to reinstate L.ichti was moti-
vated by his union activity. General Counsel does not press this theor nor
does the record support it.
M The description of Stanley's conversation with Kinsey Is based upon
Kinsey's testimony. I have rejected Stanley's testimony that Kinsey specifi-
cally told her that effective June 4 she would receive a 40-cent-per-hour pay
raise. Kinsey impressed me as a more credible witness than Stanley on this
matter.
'9 The description of Stanley's conversation with Baker is based upon Ba-
ker's testimony I have rejected Stanley's version because Baker impressed
me as the more credible witness on this particular matter
an investigation to determine whether or not Kinsey had
promised a pay raise and could uncover no evidence that
this was a fact.
Based on the foregoing. I find the evidence fails o estah-
lish that Respondent, as alleged in the complaint. on or
about June 4. promised to grant Stanley a pas raise.
Rather, the evidence establishes that Respondent. through
Store Manager Kinsey, promised to review Stanley's wages
during the week of June 4 to deteimine whether she was
eligible for a merit pay raise. There is a lack of evidence
that if the interview had been held as scheduled. Stanle 3
would have received a pay raise. nor does the eidence es-
tablish that in not granting Stanley a pay raise that Respon-
dent treated Stanley differently than employees similarly
situated. It is for all of these reasons that I shall recommend
that dismissal of the portion of the complaint alleging that
"on or about June 4. 1978, Respondent denied its emnployee
Katherine Stanley a promised wage increase?.'
3. The written warning issued to Stanley
Employees Stanley and Palmer were the leading union
adherents employed by Respondent. On August 29 Respon-
dent issued Stanley a written disciplinary warning. \t the
time. Respondent, which was extremely hostile toward its
employees being represented by the Union, knew about
Stanley's union sympathies and activities. The complaint
alleges that the August 29 written warning was issued be-
cause of Stanley's union activities. The relevant evidence
can be briefly stated.
During the time material herein. Stanley worked in the
vanities department. Nick Baker was the department man-
ager. One of Stanley's duties was to be sure that the bath-
room sinks on display in the department had signs which
informed the customers of the price. size. and model. It is
undisputed that on Thursday, August 24. between 10 and
15 of these sinks lacked these signs and that on August 24
at about 5:45 p.m., Department Manager Baker asked
Stanley to write up signs for them. It is also undisputed that
Stanley worked for over 3 more hours August 24 8 hours
on Friday, August 25, and 8 more hours on Saturday. Au-
gust 26, yet did not perform this task which admittedly
should only have taken I-1/2 hours at the most. The record
also reveals that during these 3 days Stanley had other work
to perform. i.e.. waiting on customers and following the
direction of another department manager to stock some
merchandise. but could have found the 1-1/2 hours to per-
form the work Baker had asked her to do." Stanley was off
work Sunday, August 27, and Monday. August 28. On Au-
gust 29 she was issued a written disciplinary warning by
Assistant Manager Filipski for not performing this work.
General Counsel contends that while Stanley's failure to
make the signs for the 10 or 15 bathroom sinks may have
triggered the issuance of the written warning that it was a
trivial incident which would not have provoked such an
" Although not essential to this conclusion. I also note that there s insuf-
ficient evidence, either direct or circumstantial to establish that Repondent
knew about the union sympathies or activities of Stanley prior to the middle
of June.
1 I also find that Respondent's belief that Stanley could hae performed
the work in question during this period was a reasonable ne.
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extreme response if it had not been for Respondent's resent-
ment over Stanley's union activities. I agree that Stanley's
long tenure with the Company and the fact that she had
never been issued either a verbal or a written warning pre-
viously makes Respondent's conduct suspect. However, in
view of the lack of evidence that in receiving the disciplin-
ary warning Stanley was treated differently from other em-
ployees similarly situated, I am not prepared to second
guess Respondent and find that the issuance of the disci-
plinary warning was so severe a punishment that it indi-
cates that the penalty had its source in Stanley's union ac-
tivities.
In summation, I am of the opinion that the record estab-
lishes that Respondent had a legitimate business reason for
disciplining Stanley and the record is insufficient to estab-
lish that the reason for discipline meted out was Stanley's
union activities.
4. The discrimination against Palmer
Andrea Palmer worked for Respondent as a cashier. She
started in September 1976 when the store first opened and
worked until September II when quit.42 Palmer and em-
ployee Stanley were chosen by the employees to be their
representatives for the purpose of securing union represen-
tation. By June 18 Respondent had learned that Palmer
and Stanley were the two most active union adherents
among its employees. On June 22 Store Manager Baker
tried to persuade Palmer that before she encouraged the
employees to support the Union she should give Baker a
chance to show he could operate the store in a manner
which would satisfy them. Palmer rejected this request and
advised Baker she did not intend to change her mind about
union representation. Despite the Company's vigorous anti-
union campaign, the Union received a majority of the un-
challenged ballots cast during the July 21 Board conducted
representation election.
a. Palmer is assigned to cash register No. 7
The complaint alleges that on August 3, and continuing
thereafter, Respondent assigned Palmer to an undesirable
work station because of her union activities. The evidence
pertinent to this allegation and an evaluation of this evi-
dence follows.
Respondent's cashiers are assigned to their work stations
on a daily basis. At the start of the day they ask the head
cashier which registers they should work at for that day. On
August 3, at about noontime, Head Cashier Ryan told
Palmer to go to cash register No. 7 and work there for the
remainder of the day. Thereafter, on each day for the next
2 weeks, Palmer was assigned to cash register No. 7 either
by Head Cashier Ryan or the person who substituted for
Ryan when she was absent. At this point in time Palmer
reasonably assumed it would be futile for her to expect a
different assignment, so for the remainder of her 3 weeks of
employment she only infreqently asked Ran where to
work and automatically went to cash register No. 7. On the
42 During this penriod Palmer was employed by Respondent continuously
except for I month during the summer of 1977.
lew occasions during this period when she did ask Ryan
where to work, she was assigned to register No. 7.
The record establishes that prior to August 3 Respon-
dent's policy had been for the cashiers to rotate working at
cash register No. 7 and no cashier was assigned work at
that register for more than I working day a week. Consis-
tent with this policy Palmer, prior to August 3, worked at
cash register No. 7 only I day a week. The reason Respon-
dent rotated cash register No. 7 among the cashier was that.
as a group, the cashiers intensely disliked working at that
register because it was located by itself in the back of the
store with very little business, and as a result working time
passed very slowly. Respondent knew about the cashiers'
dislike for cash register No. 7 and as a result instituted the
foregoing work rotation system. It is undisputed that the
head cashier specifically advised newly hired cashiers that
the back cash register, register No. 7, was an undesirable
work station, that cashiers did not like to be assigned to this
station so, in order to be fair to all of the cashiers, cash
register No. 7 was rotated among the cashiers so no one had
to work there for more than I day a week.
During the middle or end or August, Palmer spoke to
Store Manager Baker on two occasions and complained to
him about being assigned permanently to work at cash reg-
ister No. 7. Palmer pointed out to Baker that previously the
work at this cash register had been rotated among the cash-
iers and that she thought she was being punished because of
her union activities. Baker did not specifically deny this
accusation but simply smiled and told Palmer that everyone
was entitled to their own opinion."
It is my view that the coalescent factors Respondent's
extreme antiunion bias as evidenced by' its unfair labor
practices previously found, its knowledge that Palmer was a
leading union adherent, its unexplained deviation from past
company policy when it assigned Palmer to work perma-
nently at cash register No. 7, its failure to give Palmer a
reason for this assignment, the onerous nature of the assign-
ment, and the timing coming as it did soon after the Union
had received a majority of the unchallenged ballots cast in
the representation election-establish prima facie that
Palmer's assignment to cash register No. 7 was attributable
to her activities on behalf of the Union. "Hence it became
incumbent upon the company, if it would avoid that result,
to come forward with a valid explanation for the discharge.
The real reason lay exclusively within its knowledge,"
N.L.R.B. v. Miller Redwood Company, 407 F.2d 1366, 1370
(9th Cir. 1969). 1 have considered the evidence presented by
Respondent and am of the view that it fails to rebut the
General Counsel's prima Jacie case but instead bolsters the
General Counsel's case."
Respondent, through the testimony of Head Cashier
Ryan, contends that the reason on August 3 that Palmer
was assigned to work at cash register No. 7 and was as-
signed there for the remaining 5 weeks of her employment
"4 Based upon Palmer's credible testimony. I reject Baker's testimony that
Palmer never complained to him about being assigned continuously to cash
register No. 7. Palmer impressed me as a more credible witness than Baker
on this subject.
" The law is settled that "the failure ol' an employer to establish a justifi-
able reason for its conduct which adversely affects an employee's employ-
mentl gives rise to an adverse inference against him " Maphiv (hapman C(r-
poration N I..R B. 368 F.2d 298. 304 (4th C(ir 1966)
914
was becatsc she did not answer tile pihone o Augu 3
when working t one o the ronllt rcgistel-. Speciicalis
Ryan testified thlat on lile mnorning t Augus t 3 Rani :id
Palmer were the onl) cashiers working al the ont cash
register at a time when the sers ice desk ;as nol being
staffed. tinder such circunmsltaces. it is thle responsibihll ol
the front c;tshiers to answer phone calls using the phones
located at the ronl registers. O()n Augustl 3 the phone ang
on several occasions and Palmer, who was bus ringing up
customer's sales, id not answer it which lef Rln, who
was apparently also ringing up customers' sales. ti a;llswC
the phone. Ryan admittedly never spoke to Painter habout
this but complained to Store Manager Baker who dIICICted
Ryan to transfer Palmer to cash register No. 7 despite the
fact that this was the first time Palmer had ever enga c in
this kind of conduct. In fiact, Palmer had ne er receivcd anL,
kind of warning either verbal or written during her 22
months at the store, nor did either Ran or Baker cvec
speak to Palmer about her August 3 conducl. B;ker admlil-
led it is company policy for the store nmaniager to speak to
an employee about complaints made hy a department nmaii-
ager which involved the employee." ('lcarl!, the foregoing
circumstances overwhelmingly establish that the reason ad-
vanced by Respondent for assigning Palmer to work con-
tinuously at cash register No. 7 is completely w ithout suh-
stance and not the real reaso)n l this oncrous ork
assignment.
Based upon the foregoing. I conclude that the movnmg
cause of Palmer's continuous assignment to cash registle
No. 7 which Respondent knew was an onerous assignment.
was her activity on behalf of the nion and that but for this
she would not have been assigned to this work station con-
tinuously. It is for this reason that I conclude that Respon-
dent violated Section 8(a)(1) and (3) of the Act b assigning
Palmer to cash register No. 7 on August 3 and for the re-
mainder of her employment.
b. 7he change in Palmer'.v vsorA schedule
The complaint alleges that in August and continuing for
the remainder of Palmer's employment, Respondent as-
signed her night-shift and Saturday work because of her
union activities. The evidence pertinent to this allegation
and an evaluation of this evidence follows.
During Palmer's approximately 22 months of employ-
ment with Respondent at the Concord store, prior to Au-
gust, she was not scheduled to work Saturday, only rarelIy
and sporadically was she scheduled to work nights.- and
since October 1977 was not scheduled to work Tuesday.
On June 30 Store Manager Baker, who has assumed this
position June 17. informed the employees that he had re-
vised their work schedules and their "permanent work
schedule" was posted on the Company bulletin board and
11 Baker's explanation for never speaking to Palmer about her failure to
answer the phone was unconvincing. He testified: "I was very husy, and just
made a decision to send her back to the back register Obviously. this does
not explain why he never spoke to Palmer aout the incident
4The store is open from 6 p.m. to 9 p.m.. Thursday and Frldas I he
record shows that in 1978. prior to the week o August 20. Palmer worked
nights on about five or six occasions, once in January. once in Febhrular.
once in March. once in June, and once or tice in July
, I I ( I It ll lo t'1 l t1 % i111iI. \ . I \ Is i Ii , i 11 I I I Il 111111.tt1 1 n:
11hs \\()1 '.I. SI . 1t , k. 1( 1 ['1c I II;J\ .Io 1, C Ih I I'. 11111 t' I t1i11
h1CI , t'. ('tllCT ;,t ?11t 111 ', I , ,,ICI e11. , it I I[ 11 1 1 li, kcl.
IS;l tt c i o(tl t 1i 11 tItc'lt, I tii \ -11t a.l I llC I.x st'ck il 'li\
gst 2 t l it tt'Itll. illli sseI.'ke t 1li. vpllSl " 1i.hIllu'Sil ,'ll Lcs t L c ! ,A Il' . A1IILI ' (11 'l1 1 k n 1 1 Hst 1LI I il
;ll1lBaker l tT 1 Itilt s hati e it l let .ei.ll tilt ilt \ sI k i ti 1 ~ll'
glSte ti rs 1 Itt lc' I'llltli \ 'ks K p t1 h c1tl ddll l\1 '11.illt
etstugh tasiiet' It tu i( titi s ts i 11 1C IC ls.' lll Ir te i tiltle' I iii
ti e sie eltei lI ,,\l II ;lctcllf .I I s ittdilC I I clucl i)11 .te tintl t ist rec I1e 1cl k , it 711 ; ,1ti1 t NLtilltl ic,1t,.'l
B,lkr ut Ilt til ;l .Ie t1 hci ttlll lltli ,uc'l s'scdu.c
ket' firt Inlc h [tillt shl l Res tI Si lt dius n' }tic T
etlgh 21| alll C 111d l. ~ITt ,[ 1l ie All Jol ' 1111! 1 ,.' J1 1 Ir
scon lllecrr. JteI M1,L.' I,,;, ,11 I-,cl ,.,,.,latlc 11s.t1 ,i]t,
andit allthe 1t il r n 11 ltI.g o ll i s l this ItIiil. I1 ,. il '
thea she rel i hl te c l her I li' k chedttt aid cl ti-
silll lt to Caisl' i C,ll \ 'iNo) 7 %ka Ih lll1iii A;tlld ;tli LkISC(
Baigker i ltsr it ill tr igC1ttsC II dId lt111 hesI sI\les It,[l it
ke ,lied ; tld Pr II C\ Le 01 \om ~;ts lltlld 1,
tleir oplilion.
w)alrii the illlttill hcrlIg Rtitrikttitt ; idtI I LCd .CCitJ
eastO S J(*r AblUp1ilJ ICtU 1lllg IPalIlncll Ito OqtMll ll/l[ %\kl
nights alet iqtllU U I11, th ll 22 [l uithi,. \ar, IIIc
hled cashir. CsNl(itId s1,C as lite JWISlll \'1,Jl M tLctidL h'
assign Pilm1t- to vork nighlts 11ld did tIlis hu.C se lI it
was unltir tor PalCI not lio work nightS 'then dl (t the
other cashiers were reqtllrcld i, do so. ('otll lr r\ R\; itn'
testimony. Store Manager Baker testtlied thlt the perlon
who changed Palmer's prnalnenl ork schdetlulc sO she
would have to work ntghts was Assistant Stoic Mnager-
Filipski. Also colntrar to Rvan's testitnony Is Baker's testi-
mony that Palmer was scheduledt to work mights noti be-
cause other cashiers were rcuirctd to do s( hbut bhecalus
Respondent (lid l iot lhale enll/tl cashiers i its cllpt to
work thei nitehl hilt w\ilit11 uirLu PailttcI I.te. Itker
aimltedl tillt tiltc sll leli nihe[ til cshillter \cr'c CT llpllutxei
during the period Whern Iaill'r wa; required to urk nlight,
as were cenllo? cd durilng the period she was not required tm
do so, thus. imlpuglitg ills prior tesuntinil, . In .111 ctliTrt It)
explairl this oh',Ius ilconsistelnc\ Baker furtlher tstitied
that the number of' cashiers employed at the store ;s
meaningless in tietermining whether it w;is necessars to
have Palmer work nights because on any workday three or
four cashiers called in sick, which left the stiore with insuffi-
cient cashiers. When asked to explain why this would re-
quire that Palmer he scheduled to work nights. Baker was
unable to answer. At this point, apparentlI reali/ing the
insubstantialitN of' his testimonny justifying Palmer's con-
tinuous assignment to the night shift. Baker changed his
testimony and now testitied that the reason tor Palmer's
sudden assignment to the night shiflt 3as that Respondent's
advertising had increased the amount of' sales made in the
store at night. And. at the end of the hearing. Respondent,
4' One ofI these week, the wcek I September 1. Plmer wus schedulcd to
work and wrked 2 ighl shlls I hrsd.s and ridias
'" is clear thit Painler wai schedul ed It w-,rk eah tlucsdas iluring hls
period ht due II . i den sl aippolnilmenl sle h.ld preslhl Ils intormed nian-
agemnent aoliul 1 a eCL used tri lrking on 1w,) 1t Ithe I esd.aIs
( MA R KZ~ I ", I k ) %`,~ I I( ')I "
DE('ISIONS OF NATIONAL ILABOR RELATIONS BOARI)
through its representative, advanced yet another reason for
changing Palmer's work schedule so she was required to
work nights, namely, that she was absent excessively. Nei-
ther Baker nor Ryan indicated that Palmer's absences had
anything to do with the change in her work schedule. Fi-
nally, neither Baker nor Ryan explained why Palmer was
suddenly scheduled to work Tuesday and Saturday. Nor
did Respondent call any other witness to explain this depar-
ture from past practice. And the person who Baker testified
supposedly made the decision to change Palmer's perma-
nent work schedule, Assistant Manager Filipski, was not
called by Respondent to testify why he took this action.
In summation, the relevant facts surrounding Palmer's
changed work schedule Respondent's extreme antiunion
bias as evidenced by its unfair labor practices previously
found, its knowledge that Palmer was a leading union ad-
herent, its assignment to Palmer of the undesirable register
No. 7 because of her union activities, the timing of the
change in work schedule coming soon after the representa-
tion election in which a majority of the unchallenged bal-
lots were cast for the Union, and coming at about the same
time as the assignment to Palmer of the undesirable register
No. 7 because of her union activities, the inconsistent and
contradictory reasons advanced by Respondent's witnesses
to justify the change in Palmer's permanent work schedule,
the inability of Respondent's witnesses to decide upon the
identity of the person who decided to change Palmer's per-
manent work schedule, the failure of Respondent to adduce
any evidence explaining its reason for suddenly assigning
Palmer to Tuesday and Saturday work, and the failure of
Respondent to call Filipski to testify about this matter even
though Baker testified he was the person who made the
decision to change Palmer's work schedule-establish that
in making Palmer's work more onerous by requiring her to
regularly work Tuesday and Saturday and nights that Re-
spondent was motivated by Palmer's union activities and
that but for these activities would not have changed her
work schedule. It is for this reason that I find that Respon-
dent violated Section 8(aXl) and (3) of the Act by changing
Palmer's work schedule thus requiring her to regularly work
Tuesday, Saturday, and nights.
c. Palmer quits her employment
On Monday, September 11, Palmer quit her employment.
General Counsel contends that Palmer's termination consti-
tutes an illegal constructive discharge. Conceptually, con-
structive discharge occurs when an employee quits "be-
cause an employer deliberately makes his or her working
conditions intolerable," Keller Manufacturing Company,
Inc., 237 NLRB 712 (1978). It becomes unlawful when this
is done because of the employee's union activity. Id. Ac-
cordingly, when it is shown that an employer imposed oner-
ous working conditions on an employee because the em-
ployee engaged in union activity and that the employer
reasonably should have foreseen that the onerous working
conditions would induce the employee to quit, a case of
illegal constructive discharge has been proven. In the in-
stant case, the record establishes that it was the bitterness,
disgust, and disquietude caused by the onerous working
conditions Respondent imposed upon Palmer because of
her union activity that was the precipitating cause of' Palm-
er's decision to quit her employment. Palmer's act of quit-
ting her employment was the direct result of Respondent's
intolerable illegal harassment. Thus, as described in detail
supra, shortly after the representation election, Respondent
embarked upon a course of illegal conduct directed against
Palmer which was clearly designed to punish Palmer for her
leading role in supporting the Union's successful organiza-
tional campaign. The consequences of such punitive action
quite naturally were employee bitterness, disquietude and.
ultimately, the termination of the employment relationship.
With Palmer's quit. Respondent attained the ultimate result
of its unlawful campaign, and it must be held to have in-
tended that such would occur. Accordingly, I conclude, in
agreement with the General Counsel, that, by causing
Palmer to quit her employment, Respondent constructively
discharged Palmer in violation of Section 8(a)( 1) and (3) of
the Act.
5. The discrimination against employee Beising
Beising was employed in Respondent's houseware de-
partment where she worked since the store opened in Sep-
tember 1976. She was the only person employed in this
department. Beising signed a union authorization card in
May and commencing in June wore a union button on her
person at work.
a. Beising is assigned to work the night shift
The store is open 7 days a week and on two of those days,
Thursday and Friday, is open until 9 p.m. Until July 10,
1978, as described infra, Beising worked Tuesday through
Friday from 9 a.m. to 6 p.m. and Saturday from 9 a.m. to
5:30 p.m. Her days off from work were Sunday and Mon-
day. On Sunday and Monday and from 6 p.m. to 9 p.m. on
Thursday and Friday employees from other departments
and cashiers attended to the houseware department inas-
much as Beising was the only person employed in that de-
partment.4 9 On June 17 Baker replaced Kinsey as store
manager and on June 30 Baker, by memo, notified Beising
and the other employees that he had posted a permanent
work schedule which would go into effect July 10. This
schedule required Beising to work from 12 noon until 9
p.m. on Thursday and Friday rather than from 9 a.m. to 6
p.m. which were the hours she had worked in the past.
In June, shortly after Baker became store manager, Ba-
ker indicated to Beising that he would be posting a perma-
nent work schedule. Beising told Baker she objected to
working either Thursday or Friday night and had never
worked those nights during her long tenure with the Com-
pany. 0 Baker's reply was noncommittal.' On the day that
'e The record establishes that early in June, Respondent hired Shelly Bal-
lock to work part time i the houseware department from 6 to 9 p.m. on
Thursday and Friday and on Sunday. In fact, however. Ballock. who worked
full time for another employer, only worked Sunday. I reject Beising's uncor-
roborated testimony that Ballock worked Thursday and Friday nights. On
this matter, Baker impressed me as the more credible witness.
5^ Previously during her approximately 22 months with the Company, Bei-
sing only worked about 5 nights, all of which she volunteered.
5m The description of this conversation between Beising and Baker is based
upon Beising's credible testimony.
916
C. MARKIlS HARI)WARF, IN(C.
the permanent schedule was posted, Beising complained to
Baker about having to work Thursday and Friday nights.
Baker stated that until the Company trained the cashier
who worked at the register immediately adjacent to the
houseware department to handle the work of that depart-
ment that Beising would have to work nights. Beising indi-
cated that she was unhappy about the situation but would
work the new schedule.'
During the rest of her employment in the houseware de-
partment, a total of about 5 weeks, from July 10 to about
August 17 when the department was eliminated, Beising
worked Thursday and Friday nights as scheduled.
In August, after having been notified that the houseware
department was being closed. Beising complained to Mc-
Farland, Respondent's vice president of finance, that she
did not feel the Company was treating her fairly because it
had closed the houseware department and her work sched-
ule had been changed. She indicated she was upset about
"the situation." McFarland indicated that if his job ever
bothered him as much as Beising indicated she felt her job
bothered her that he, McFarland, would quit as he would
not tolerate that situation."
Baker testified that the reason for his decision to change
Beising's work schedule was that the store is busier from 6
p.m. to 9 p.m. on Thursday and Friday than from 9 a.m. to
12 noon on those days and since there was no coverage in
the houseware department during the evening on Thursday
and Friday he felt it was in the best interest of the Com-
pany for Beising to work the later hours on those days.
The General Counsel, as alleged in the complaint, con-
tends that in changing Beising's work schedule so that she
was required to work nights for the first time in her 22
months of employment, that Respondent acted because of
Beising's union activity. The coalescent factors-Respon-
dent's extreme antiunion bias as evidenced by the unfair
labor practices previously found, its knowledge that Beising
was actively supporting the Union,. and the fact that dur-
ing Store Manager Baker's tenure, Respondent engaged in
similar harassing tactics to punish employee Palmer for
supporting the Union-combine to establish a prima facie
showing that but for its knowledge of Beising's union ac-
tivity Respondent would not have changed her work sched-
ule to require her to work nights. "Hence it became incum-
bent upon the Respondent, if it would avoid that result, to
come foreward with a valid explanation for [changing Bei-
sing's work schedule]. The real reason lay exclusively within
its knowledge," N.L.R.B. v. Miller Redwood Company, 407
F.2d 1366, 1370 (9th Cir. 1969).
The person who made the decision to change Beising's
work schedule, Store Manager Baker, testified that the rea-
son he changed her schedule so she was required to work
52 Insofar as there is a difference in Beising's and Baker's description of
this conversation, I have credited Baker's because while testifying about this
conversation he impressed me as the more credible witness.
13 Based on McFarland's credible testimony, he impressed me as being a
more credible witness than Beising when testifying about what was said
during this conversation.
4 Respondent's knowledge of Beising's union activity is established by the
fact that she openly wore a union button at work on her person. Baker did
not deny he observed this button or that he was without knowledge of Bei-
sing's union feelings.
Thursday and Friday nights was that it was busier in the
store at night than during the morning, thus it made good
business sense to have Beising work in the evening rather
than the morning. Baker significantl failed to explain why
for the past 16 months, since March 1977. Respondent per-
mitted Beising to work continually during the morning on
Thursday and Friday rather than the evening even though
this left the houseware department without an employee
assigned to that department in the evening. Baker failed to
furnish specifics to support his conclusionary testimony that
Respondent's past practice in this respect was bad business.
There is not an iota of evidence that Beising's absence from
the department on Thursday and Friday night for the 16-
month period prior to her changed work schedule caused
any problems for Respondent. Insofar as this record is con-
cerned, it is undisputed that during this 16-month period
the cashiers and other employees filled in for Beising during
the evening without any complaints.'" And Respondent did
not present one bit of evidence which indicates that on June
30, when Baker changed Beising's work schedule, the cash-
iers and other employees who had previously, satisfactorily
handled the houseware department in Beising's absence
were not able to continue to do so. In short, I am convinced
for the foregoing reasons that Baker's conclusionary testi-
mony, when viewed in the circumstances of this case, is
completely without substance and fails to rebut the General
Counsel's prima facie case.
Based upon the foregoing, I find that Respondent
changed Beising's work schedule so that she was required to
work Thursday and Friday nights because of er union ac-
tivity, thus violating Section 8(a)( 1) and (3) of the Act.
b. Beising quits her employment
Early in August Respondent announced it was discon-
tinuing its houseware department. During the week of Au-
gust 17 the department was finally shut down. On Thurs-
day, August 17, Store Manager Baker advised Beising that
effective Monday, August 21, she would be employed as a
cashier. Beising indicated she would prefer not to work
Sunday. Baker stated he would do his best. Later the same
day when the cashiers' work schedule was posted for the
week of August 21 it showed Beising was scheduled to work
Sunday and Thursday nights. On Monday, August 21, and
Tuesday, August 22, Beising was off from work. On August
22 she telephoned Baker and asked if she could take Sun-
day off from work in order to visit a friend. Baker, who was
busy talking with some people in his office told Beising he
would talk with her about this request the next morning
when she came to work. Beising indicated this was satisfac-
tory. The next morning, Wednesday, August 23, when Bei-
sing arrived for work she punched her timecard and, with-
out giving Baker a chance to say anything, quit her
employment. Beising testified the reason she quit was be-
5 It is significant that the sole time during the 16-month period when
Respondent concluded it was necessary to have permanent coverage in the
houseware department on Thursday and Fridays nights. instead of changing
Beising's work schedule Respondent decided to employ a part-time worker,
Shelly Ballock, for these hours. Baker failed to explain why he did not con-
sider hinng a part-time worker rather than changing Beising's work sched-
ule.
917
I)I('lSl()NS ()O NAI()ONAL I.ABOR R.l.ATIONS BOARI)
cause she was "uptight about the whole situation" and due
to this had a stomach ache and a headache.
The complaint alleges lhat on August 22 Respondent.
"refused to grant the request of employee Eva Beising hor a
weekend leave" because of her union activity and further
alleges that by virtue of this conduct and its previous con-
duct of scheduling Beising to work nights in the houseware
department because of her union activity, that Respondent
constructively caused her to terminate her employment be-
cause of her union activity. An evaluation of the evidence
pertinent to these allegations follows.
It is plain from the description of the events of August 22
and August 23, supra, that Respondent did not, as alleged
in the complaint, "refuse" to grant Beising's request "for a
weekend leave." Baker was busy when Beising initially
spoke to him about this request so with Beising's agreement
indicated he would discuss the request with her when she
came to work the following morning. There is no allegation
or evidence that Respondent's decision to transfer Beising
from the houseware department to the position of cashier
and to schedule her for work as a cashier during the week of
August 21 on a Sunday was illegally motivated.'" Nor does
the record establish that Beising's request for the weekend
off would have been a futile one. Nevertheless, Beising
chose not to discuss the matter with Baker but instead quit
her employment. Under the circumstances, I shall recom-
mend the dismissal of the portion of the complaint which
alleges that "on or about August 22, 1978, Respondent by
Baker, refused to great the request of employee Beising for
a weekend leave."
Likewise, I shall recommend the dismissal of the allega-
tion that Beising's act of quitting her employment consti-
tutes an illegal constructive discharge-the direct result of
the impermissible change in her work schedule which oc-
curred during the last 5 weeks of her employment in the
houseware department. The record does not establish that
this misconduct precipitated Beising's decision to quit. Bei-
sing did not terminate her employment when this change in
her work schedule was instituted. Rather, she accepted the
change, albeit reluctantly. It was only after Respondent
transferred her from the houseware department to the posi-
tion of cashier and assigned her to work on Sunday that
Beising quit her employment. As indicated above, there is
no allegation or evidence that in transferring Beising to the
position of cashier and in assigning her to work Sunday in
that job that Respondent was unlawfully motivated. In my
opinion, the context in which Beising's termination oc-
curred warrants a finding that the predominate reason for
Beising being "uptight" which precipitated her decision to
quit her employment was the fact that Respondent had dis-
continued the department where she had worked for almost
2 years and transferred her to the position of cashier with a
different work schedule from the one previously enjoyed.
Inasmuch as Respondent did not engage in any of this con-
S The General Counsel concedes that Respondent's elimination of its
houseware department, which did away with Beising's job in that depart-
ment, was based upon valid business considerations. Also, the record estab-
lishes that when Beising initially applied for work with Respondent that she
indicated on her application she would prefer to work as a cashier.
duct because of Beising's union activity, I shall recommend
the dismissal of the part of the complaint which alleges that
her termination constitutes an illegal constructive dis-
charge.
CO()N(CI SI()NS 0() I.AW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees about their union smpa-
thies and activities, by threatening to discharge an em-
ployee because of her union activity, by threatening an em-
ployee with discharge to discourage him from supporting
the Union, by promising employees better terms and condi-
tions of employment to discourage them from supporting
the Union, by refusing to allow an employee to wear a
"vote yes" emblem on her name tag, and by hiring employ-
ees for the purpose of defeating the Union in a Board con-
ducted representation election, Respondent violated Sec-
tion 8(a)( 1 ) of the Act.
4. By assigning employee Andrea Palmer to cash register
No. 7 and changing her work schedule because of her union
activity, Respondent violated Section 8(a)(3) and (I) of the
Act.
5. By discharging employee Andrea Palmer because of
her union activity, Respondent violated Section 8(a)(3) and
(I ) of the Act.
6. By changing the work schedule of employee Eva Bei-
sing because of her union activity, Respondent violated
Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not otherwise violated the Act.
TIlE RMEiI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3)
and (I) of the Act by discriminatorily discharging Deborah
Palmer, I shall recommend that Respondent offer to fully
and immediately reinstate her to her former job or, if that
job no longer exists, to a substantially equivalent job. I shall
also recommend that Respondent make her whole for any
loss of earnings she may have suffered by reason of the
discrimination against her, by payment of a sum of money
equal to that which she would have earned from the date of
her unlawful discharge, less her net earnings, if any, during
such period, to be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950). Interest
on the backpay shall be computed as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977). See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
91
C. MARKUS HARI)WARE. INC
ORDER"M
The Respondent. C. Markus Hardware. Inc., Concord,
California. its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, making employees working conditions
onerous. or otherwise discriminating against employees for
supporting or engaging in activities on behalf of General
Truck Drivers, Warehousemen, Helpers and Automotive
Employees of Contra Costa County, Teamsters Local 315
or any other labor organization.
(b) Questioning employees about their union sympathies
or activities, threatening to discharge employees because of
their union activities, promising employees better terms and
conditions of employment to discourage them from sup-
porting the above-described union or any other labor or-
ganization, refusing to permit employees to wear an em-
blem on their name tags, indicating they favor union
representation, and hiring employees for the purpose of de-
feating the above-named union or any other union in a
Board conducted representation election.
(c) In any other manner interfering with or attempting to
restrain or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
s? In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Offer Andrea Palmer full and immediate reinstate-
ment to her former position or, if that position no longer
exists, to a substantially equivalent position, with full se-
niority. privileges. and benefits and make her whole for an3
losses she may have suffered because of the discrimination
practiced against her, in accordance with the provisions set
forth in the section of this Decision entitled "'lhe Remned.l
(b) Post at its Concord, California, facility copies of the
attached notice marked "Appendix."5 Copies of said no-
tice. on forms provided by the Regional Director for Re-
gion 32. after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained hby it for 60 con-
secutive days thereafter, in conspicuous places. including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken' by Respondent to insure
that said notices are not altered, defaced. or covered bh
other material.
(c) Preserve and, upon request, make available to the
Board or its agent, for examination and copying. all payroll
records, social security payment records, timecards. person-
nel records and reports, and all other records necessar to
analyze the amount of backpay due and the right of rein-
statement under the terms of this Order.
(d) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURIIIR ORDERED that the complaint be dismissed
as to those allegations not specifically found herein.
18 In the evenl that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Boarde"
919