Donaldson's Barber Shops

National Labor Relations Board - Board Decisions

Mar 3, 1971

188 N.L.R.B. 811 (N.L.R.B. 1971)

DONALDSON'S BARBER SHOP
Donaldson 's Barber Shops and Journeymen Barbers,
Hairdressers, Cosmetologists and Proprietors Inter-
national Union of America , AFL-CIO. Case 10-
CA-8310
March 3, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On November 6, 1970, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices alleged
in the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that Respondent had
not engaged in certain other alleged unfair labor prac-
tices, and recommended that the complaint be dis-
missed as to them. Thereafter Respondent filed
exceptions to the Decision and a brief in support
thereof.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
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
Order of the Trial Examiner and hereby orders that
Respondent, Donaldson's Barber Shops, Fort Ben-
ning, Georgia, its officers, agents, successors, and as-
signs , shall take the action set forth in the Trial
Examiner's recommended Order .2
1 Respondent filed no exceptions to the Trial Examiner's findings of inde-
pendent 8(a)(l) violations We therefore adopt them pro forma
2 In Footnote 24 of the Trial Examiner's Decision , substitute "20" for "10"
days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
811
ROBERT E. MULLIN, Trial Examiner: This case I was heard
in Columbus, Georgia, on August 25, 1970, pursuant to a
charge duly filed and served and a complaint issued on
July 2, 1970. The complaint presents questions as to whether
the Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended. In its answer, duly
filed, the Respondent conceded certain facts with respect to
its business operations, but it denied that it was engaged in
commerce within the meaning of the Act and it denied all
allegations that it had committed any unfair labor practices.
The General Counsel and the Respondent were repre-
sented throughout the hearing by counsel. All counsel were
given full opportunity to examine and cross-examine wit-
nesses, to introduce relevant evidence, to argue orally at the
close of the hearing, and to file briefs. The parties waived
oral argument. On October 1, 1970, able briefs were re-
ceived from both the General Counsel and the Re-
spondent. 3
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the demeanor of the
witnesses when they appeared and testified, the Trial Exam-
iner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent , a sole propnetorship owned by G. C.
Donaldson , with offices and places of business located at
Fort Benning, Georgia , and Fort Rucker , Alabama, is en-
gaged at those sites in the operation of barber shops under
concession contracts with the United States Government.
During the 12 months prior to the issuance of the complaint,
a representative period , the Respondent received in excess
of $500,000 for services performed pursuant to its contracts
at the two above-named military installations . Durinthe
same period the Respondent purchased and received at-Fort
Benning, Georgia, goods valued in excess of $3,400 which
were shipped directl from suppliers located outside the
State of Georgia . Onlyy the Respondent's operations at Fort
Benning are involved in this proceeding.
The foregoing facts with respect to the Respondent's
business are not in dispute , but the Respondent denies that
it is engaged in commerce within the meaning of the Act.
The Board, however , has held to the contrary on facts very
similar to those involved in the present proceeding. Gino
Morena Enterprises, 181 NLRB No. 128 . Consequently, the
Trial Examiner concludes and finds that in the instant case
the Respondent , Donaldson 's Barber Shops, is en aged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
Journeymen Barbers, Hairdressers, Cosmetologists and
Proprietors International Union of America, AFL-CIO
(herein called Union), is a labor organization within the
meaning of the Act.
1 By letter, dated September 3, 1970, Carmell & Charone moved that it be
permitted to enter an appearance in this case as counsel for the Charging
Union. This motion is granted
2 The charge was filed on May 4, 1970
3 On October 12, 1970, the Trial Examiner issued an order correcting
certain minor inaccuracies in the transcript.
188 NLRB No. 120
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent operates all the barber shops maintained
on the military post of Fort Benning. It provides this service
under a contract with the Army Exchange Service which
latter organization closely regulates the manner in which the
Respondent supplies barber shop services to the military
personnel stationed at Fort Benning.
G. C. Donaldson, the proprietor and owner of the Re-
spondent herein, testified that he had operated as many as
18 barber shops at the post, but that due to a decline in
business during the early part of 1970, the number of shops
in operation had been cut to 9 at the time of the hearing.
Similarly, at that time, the number of barbers on the payroll
had declined to about 28 from a high of as many as 50 in
prior years.
The main post shop was the largest in the Respondent's
chain. During the time in question, it had 10 barber chairs
and normally had from 8 to 9 barbers. This was the shop
where Leon G. Kirkland, the dischargee here involved, was
assigned . Each barber was paid a commission based on his
gross receipts from customers. He received no other com-
pensation in wages or salary.
Most of the events here in question occurred between
October 1969 and May 1970. -'nor to September 1969,
Deron Wilson was the Respondent's general manager. After
that date and until about May 1, 1970, James J. Lewis was
the general manager.4 In addition to the general manager,
some of the individual shops had a shop manager who had
day-to-day managerial responsibilities and who also worked
as a barber. Hagger Davis, manager of the main post shop
at all times material herein, testified that he did not have
authority to hire or fire, but that he made reports of any
infractions to the general manager and relied on the latter
to handle such disciplinary matters . Each of the barbers and
the shop manager had a regular day off during the course
of each week. When Davis was off he relied on Malcom
Mobley, one of the other barbers, to open and close the shop
and handle the day' s receipts . At one time, the Respondent
had a duly designated assistant manager in this shop and
compensated him at a slightly higher rate than the rank-
and-file barbers. At some time prior to 1969 the Respondent
discontinued this practice. The status of Mobley is an issue
in this case.
In April 1970,5 the Union initiated an organizational
campaign among the Respondent's employees at Fort Ben-
ning . On April 24, Kirkland was terminated. The General
Counsel contends that he was discriminatonly dismissed for
union activities. This allegation is denied by the Respondent
in its entirety, and, affirmatively, the Respondent avers that
Kirkland was discharged for having been absent from the
job without having notified anyone.
B. The Discharge of Kirkland
Leon G. Kirkland was hired in the fall of 1965 and
worked for the Respondent continuously from that date
until his dismissal in April 1970. For a considerable period
prior to his termination Kirkland was assigned to the main
post shop. The Respondent voiced no criticism of his profi-
ciency. Hager Davis, manager of the main post shop, de-
scribed Kirkland's work as average and a coworker
4 Since the latter date Wilson and Lewis have served as comanagers of the
Respondent's operations
5 All dates herein are for the year 1970, unless otherwise specifically noted
described him as a "good average barber." During 1969,
Kirkland earned approximately $7,100 and completed an
average of over 56 haircuts a day. G. C. Donaldson, the
owner, testified that 50 haircuts per day was a good average
and that in 1969 any amount above $6,800 was a better than
average income for one of his barbers. Donaldson conceded
that prior to Kirkland's discharge he knew of no complaint
as to the employee's work record .6
During the month of October 1969, and in the course of
a visit to the main post shop, Donaldson had a conversation
with Kirkland at which General Manager Lewis and Seth
Elliott, one of the barbers in the main shop, were present.
Kirkland complained to the owner about the fact that for
several years the price of haircuts had not been raised.7
After Donaldson told the employee that he had requested
the Army Exchange Service authorities for permission to
raise the price, Kirkland brought up the subject of a union.
According to Kirkland, he told Donaldson that the employ-
ees were talking about forming a union, that they wanted to
hold a meeting, and that they would like to have him attend.
Kirkland testified that Donaldson told him that he "did not
want any part of it." When on the stand, Donaldson con-
ceded that he had had a conversation with Kirkland at the
time and place in question, that Kirkland had mentioned a
union, and that the latter invited him to attend the projected
meeting of the employees. Donaldson denied, however, that
he had expressed any objection to a labor organization.
Some months after his conversation with Donaldson,
Kirkland contacted a union organizer in Columbus who
recommended that he talk with Jack Ayers, the local repre-
sentative of a union which represented the restaurant work-
ers at the Fort Bening Post Exchange. Kirkland testified
that on or about April 1 he had a telephone conversation
with Ayers and that the latter promised to help him organize
the Donaldson employees in the Barbers' Union. About
April 11, Ayers met Kirkland in the parking lot near the
main post barber shop and during the course of the day
contacted about nine of the barbers there and in the coffee
shop nearby. The next evening, according to Kirkland's
credible and undenied testimony, Ayers met with about five
or six of the barbers at an office on the post and told them
that he would contact a representative of the Barbers' Un-
ion on their behalf. Kirkland testified that on or about April
17, Ayers telephoned to tell him that a Mr. Freeman, repre-
senting the Barbers' Union, would meet with the Donaldson
employees within a few days. Thereafter Kirkland made
arrangements to hold the organizational meeting at the club
room of the Veterans of Foreign Wars, adjacent to the post.
This meeting was held on the evening of April 22. Of the 11
Donaldson barbers present, 9 of them, including Kirkland,
signed union authorization cards that night.
About April 8, and before he talked with any of the
Donaldson employees other than Kirkland, Ayers called on
General Manager Lewis and told him that he proposed to
contact the employees about joining a unions Shortly there-
6 Kirkland conceded that on one occasion when Wilson had been the
general manager he had been reprimanded for leaving the shop early. Ac-
cording to Kirkland, after his reprimand by Wilson nothing further was said
to him This was in substantial accord with the account which Wilson gave.
According to the latter, at some time in August 1969, he reprimanded Kirk-
land for walking out of the shop. Wilson testified that thereafter , in a discus-
sion with the employee, Kirkland told him that he had become exasperated
with the work, or with a customer, on that day and conceded that he had
made a mistake Wilson testified that the matter was closed when Kirkland
assured him that there would be no repetition of the incident.
' Since the barbers received a percentage of the gross receipts as compensa-
tion, their income was directly related to the price of haircuts.
8 Lewis testified that it was in "January, February, or March" that Ayers
had this conversation with him Lewis' recollection in connection with the
DONALDSON'S BARBER SHOP
after Lewis held a meeting with the barbers at the main shop
immediately after the close of business one day. At this time
he spoke to them about the likelihood that a union organizer
would be contacting them. About nine of the barbers were
present . Lewis told the employees that they could talk with
the organizer on their lunch hour and during regular breaks,
but that they could not talk with him inside the shop during
working hours.
Kirkland testified that during the course of Lewis' re-
marks he stated "I can tell you right now Mr. Donaldson
don't approve of [the Union]]." After Lewis had spoken for
a few minutes , Seth Elliott, one of the barbers present,
commented that he was not interested in a union . When this
occurred, Kirkland stated to all present that because of the
attitude displayed by those not interested in a union the
barbers were "cutting hair for 95 cents a head . . . ." Shortly
thereafter Kirkland himself left the meeting to go home, but
not until he had declared to Lewis that the reason the bar-
bers were earning so little was because "no one's ever stood
up or tried to seek any outside help" and that he was going
to inquire further into the union question because he was
interested? After Kirkland's departure, Lewis commented
to those who remained that he hoped that Kirkland would
quit "before he fired him."10
On or about April 14, and after, Lewis had spoken to the
employees about the Employer's policy on union solicita-
tion during working hours, Mr. Donaldson and a represent-
ative of an insurance company spent some time with the
employees at the main post shop." It was undenied that
during this visit, which took place during worktime, the
insurance representative described to the barbers various
features of a new group insurance policy that his company
was prepared to offer them. There was also testimony that
while at the shop that day, Donaldson questioned employee
Elliott as to the identity of the one who was attempting to
organize a union.12 According to Elliott, Mr. Donaldson
asked him "who in here is pushing the Union?" After Elliott
denied having any such knowledge, Donaldson then asked
what Lewis had told the employees when he had spoken
to them a short while before. Elliott testified that he told
Donaldson that during Lewis' speech to the barbers the
general manager stated that Mr. Donaldson was opposed to
the union, but did not disclose how he himself felt about the
matter . According to Elliott, Donaldson then smiled and
commented " . well, he had better start saying if he
intends to continue to run my business."
Donaldson denied that on this occasion he had discussed
the Union with any of the employees or that he questioned
anyone as to what Lewis said. After a consideration of the
sharp conflict in the testimony of these two witnesses as to
this issue , it is the conclusion of the Trial Examiner that
Elliott was the more credible. This is based on the fact that,
throughout an extended cross-examination by able counsel
for the Respondent, Elliott gave the appearance of complete
date of this meeting was extremely hazy and far from candid Ayers, on the
other hand, credibly testified that it was his custom to keep a daily log of such
meetings and that, from his reference to this diary, he could testify that the
meeting occurred on April 8.
9 The foregoing findings and quotations are from the credible, undenied
testimony of Kirkland and Seth Elliott
10 The foregoing quotation is from the credible and undenied testimony of
Shop Manager Davis who was called as a witness for the Respondent Elliott
corroborated Davis as to this aspect of his testimony
11 The date of this particular visit, as found above, is based on Donaldson's
testimony
12 In addition to having stated at Lewis' meeting a few days earlier that he
was not interested in a union, Elliott was the brother-in-law of Shop Manager
Davis
813
honesty and candor. Moreover, he was an employee of al-
most 10 years' standing with the Respondent who, at the
time of the hearing, was still on its payroll. Under these
circumstances, it seems unlikely that he would fabricate the
foregoing testimony which so intimately involved the man
for whom he was still working. Consequently, it is the con-
clusion of the Trial Examiner that the conversation attri-
buted to Donaldson occurred substantially as Elliott de-
scribed.
On the morning of April 22, Kirkland was delayed in
getting to work because of an automotive breakdown. He
testified that when this occurred he telephoned his wife and
asked that she call the main post shop to report that he
would be late. About 10:30, when Kirkland still had not
managed to repair his car satisfactorily, he telephoned the
shop. Manager Davis was out at the time, but Mobley an-
swered. According to Davis, "I told him my troubles and he
said `that's all right. Just take your time. We're not busy and
everything's all right."' Thereafter Kirkland took his car to
a garage where it was finally repaired and he reached the
shop about 2 p.m. Kirkland testified that when he arrived
at the main post shop four or five of the barbers were seated
and not working, so he invited one of them to visit the coffee
shop with him.
Kirkland testified that upon returning to the shop he
suggested to Manager Davis that since it appeared that the
barbers were not very busy that afternoon he would take off
the rest of the day. According to Kirkland, when Davis
agreed that he would not be needed, he went home. Davis'
testimony as to the events of this day did not differ material-
ly from that of Kirkland. Davis testified that when Kirkland
came in that afternoon, "we weren't crowded," and that the
barbers "were not rushed" that day. Although he further
testified that Kirkland did not request his permission to
leave early, he stated that he did not consider Kirkland's
departure out of order and he conceded that at the time it
occurred "I didn't think too much about it."
General Manager Lewis followed Kirkland's movements
very closely on this particular day. Davis testified that about
10 o'clock that morning Lewis was in the main post shop
and inquired as to Kirkland's whereabouts. Lewis himself
testified that about noon that day he telephoned Davis and,
after an inquiry as to whether Kirkland had reported for
work, Davis told him that Kirkland had telephoned that he
had had car trouble and would be in later. Lewis further
testified that about 3 p.m. he again telephoned Davis, as he
put it, "just to check and see if he (Kirkland) had car trou-
ble." At that point Davis told him that Kirkland had been
at the shop a short while and had left.
On the evening of April 22, as found earlier, Kirkland
attended the union organizational meeting and signed an
authorization card. When Kirkland returned home that
night his wife informed him that in his absence Lewis had
to ephoned and left the message that he was to report to the
general manager's office the next morning. According to
Kirkland, this was the first time in over 4 years of employ-
ment with the Respondent that a general manager had
telephoned his home for any reason.
About 8:30 a.m. on April 23, Kirkland reported to Lewis'
office. According to the employee, Lewis demanded an ex-
planation as to where he had been the day before. Kirkland
testified that thereafter he explained to the general manager
what had happened, told him that he had been in contact
with Manager Davis and thereafter had gone to the main
post shop. Kirkland testified that Lewis then told him that
13 As noted earlier, the barbers received a straight commission on receipts
and were not paid for any time spent in the shop when they were not cutting
hair
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from then on if Kirkland wanted to get any time off he
would have to contact him and no one else . According to
Kirkland when he remonstrated that Lewis was frequently
away from his office and difficult to contact, Lewis brushed
aside this objection with the declaration "that's all right.
You notify me. "14
After leaving Lewis' office, Kirkland telephoned his
home and, according to his testimony, found that his wife
was ill . Kirkland testified that he thereupon decided to visit
his home since it was on the route to the main shop and
when he did so, he found his wife in need of medical assist-
ance . According to Kirkland, he then sought to secure a
doctor and, because no other adult was in the house, he
decided to remain at home until medical aid could be ob-
tained.
Kirkland testified that he then attempted to contact Lew-
is' office by telephone, but was unsuccessful. 15 He there-
upon telephoned the shop. That particular day, Shop Man-
ager Davis was off duty. As a result, Kirkland talked with
Mobley, the one whom both he and Elliott described as the
assistant manager in Davis' absence . According to Kirk-
land, he told Mobley that that morning Lewis had warned
him that he would have to call the general manager's office
to get permission to be off, that he had been unable to get
Lewis' office on the telephone, and that he, therefore, want-
ed to tell Mobley about the situation with which he (Kirk-
land) was confronted. Kirkland testified that Mobley
assured him that if Lewis came to the main post shop he
would tell him about Kirkland's call and that in the
meantime , everything would be all right.
In the middle of the afternoon that day, Kirkland again
telephoned the main post shop and in a conversation with
Mobley told the latter that he would be at home for the rest
of the day and that if the shop needed him that he could
report within 20 minutes. According to Kirkland, Mobley
assured him that they were not busy.16 Kirkland testified
that in this same conversation Mobley also told him that he
had talked with Lewis subsequent to their earlier conversa-
tion and had told the general manager the reason which
Kirkland had given for being absent from work.
In the mid-afternoon Lewis telephoned Kirkland at his
home and told him that he wanted to see him at his office
immediately. Kirkland at first assured the general manager
that he would come at once and concluded the conversation
with the promise that he would be at Lewis' office shortly.
A few minutes later , Kirkland telephoned Lewis and told
him that he would be unable to get to the office that af-
ternoon , but that he could get there the next morning. Lewis
agreed to this change and concluded the conversation.l"
14 Lewis' version of this conversation was in substantial accord with that
of Kirkland , except that Lewis testified that after Kirkland explained that his
absence the day before had been caused by car trouble , Kirkland then
complained that Lewis was "picking" on him and singling him out for criti-
cism . Lewis also testified that he told Kirkland that "from here on out if you
want off you check with Mr. Davis or myself ." Lewis was not a persuasive
witness and insofar as his version of this conversation differs from that of
Kirkland , the Trial Examiner concludes and finds that the account of the
employee is the more accurate . At the same time , Lewis' own version of the
conversation is significant in that the general manager did not testify that he
made any reference to past practices or established reporting procedure, but
instead declared to Kirkland that henceforward "from here on out" a new
rule would apply to him.
15 There was some evidence that, at times, overloading of the lines of the
Fort Bening telephone system made it difficult to contact Lewis' office
16 On cross-examination, G. C. Donaldson testified that although he was
not at Fort Benning this particular week , he knew that business was off
during that period.
17 At the hearing , Kirkland testified that between the first and second
telephone conversation he learned that a relative, on whom he relied to stay
The following morning when Kirkland reported at Lewis'
office the general manager told him that he was fired and
handed him his separation notice and final check.
Lewis testified that on the morning of April 23 and after
having talked with Kirkland he telephoned the main post
shop and told Mobley that Kirkland was then on his way
to work. According to Lewis, early that afternoon he again
telephoned the main post shop and, upon asking Mobley as
to what Kirkland was doing, discovered that the employee
had not yet reported. However, he conceded that Mobley
told him that Kirkland had telephoned to explain his ab-
sence and to suggest that if he was needed later in the day
he could be contacted at his home. Lewis testified that after
this conversation with Mobley he telephoned Kirkland at
his house and told him to report to the office.18
After Kirkland's discharge, and in conformity with a re-
quirement of the military authorities that a concessionaire
explain, in writing, any dismissal, Lewis filed a report on
Kirkland 's termination with the Army Exchange service.
Lewis asserted therein that during the 16 months prior to his
discharge Kirkland had been tardy 43 times. At the hearing,
however, Lewis conceded that he did not check any records
on Kirkland for the purpose of preparing this report until
after he had discharged the employee. Moreover, he further
conceded that prior to April 23 he really had no complaints
about Kirkland taking off too much time . Thus, when Lewis
was asked the following question, he gave the answer which
appears below:
Q. Now ... prior to April 23 did you have any
complaints about Mr. Kirkland taking too much time
off?
A. No, sir. Not really and truly, no.
Kirkland credibly testified that in the year prior to his
discharge he had never been late without permission from
the shop manager. He also testified, credibly, that it was not
unusual, in his experience, to report to the sho , find that
business was slow, and then secure permission from either
the manager or his assistant to leave early.
Lewis conceded that Kirkland was the first and only bar-
ber he had ever fired. Wilson, Lewis' predecessor in the post
of general manager, testified that on one occasion several
years earlier he had discharged two barbers for taking off
almost 4 hours for lunch one day. Elliott, an employee of
with his wife , would not be available for the balance of the day and that
under those circumstances he did not feel that he could leave the house.
However, in his second conversation with Lewis he did not give this explana-
tion to the general manager.
15 The Respondent denied throughout the hearing that Mobley was a
supervisor. Nevertheless , it is clear from the testimony of witnesses for both
the General Counsel and the Respondent that Mobley obviously had a status
above that of the other employees when Davis was not present in the shop.
Davis testified that on those days when he was scheduled to be off, it was
Mobley who opened and closed the shop and handled the day's cash receipts
Elliott testified that when he knew he would be late for work , on any day that
Davis was off, it was his practice to telephone the shop and so inform Mobley
"because he was in charge ." Elliott also testified that when he wanted to get
off early on such days it was Mobley from whom he secured permission.
Kirkland testified to the same effect and described Mobley as the assistant
manager . Significantly , this practice of the employees in according a special
standing to Mobley when Davis was not on duty, was likewise followed by
the Respondent's management . Thus, Lewis testified that when he tele-
phoned the main post shop on April 23, one of the other barbers (one Fenn)
answered, but immediately volunteered to put Mobley on the line . According
to Lewis , when this was done , "I told Mr . Mobley that he [Kirkland] ...
would be on his way over, that I had ,lust talked to him .... An so that was
that." Whereas Mobley may not have been a supervisor within the meaning
of the Act, on this record, it is clear , and the Trial Examiner finds, that when
Davis was not on duty, Mobley had "at least apparent authority to speak for
management." Solo Cup Company, 114 NLRB 121, 123, enfd 237 F.2d 521
(C.A 8), Mississippi Products, Inc, 103 NLRB 1388, 1393, enfd 213 F.2d 670,
673 (CA 5), S D Cohoon & Son, 101 NLRB 966
DONALDSON'S BARBER SHOP
the Respondent for almost 10 years, could only recall the
discharge of one barber during that period and that had
been for alcoholism.
Davis testified that there had been occasions when a bar-
ber came in late without offering any excuse and would
simply go to work when he finally arrived at the shop. He
also testified about two employees who had been absent
without permission in the early part of 197019 and whom he
reported to Lewis. Davis conceded that thereafter the Re-
spondent imposed no penalty on either of these individuals
for their unauthorized absence from duty. Lewis likewise
conceded that he himself pursued a lenient policy if an
employee was off work and did not call in, but offered a
legitimate excuse the next day 20
Concluding Findings
In its brief the Respondent asserts, correctly, that the
General Counsel has the burden of proving discrimination,
and that the Respondent does not have the burden of estab-
lishing the contrary. N.L.R.B. v. Kaiser Aluminum & Chemi-
cal Corp., 217 F.2d 366 (C.A. 9); N.L.R.B. v. McGahey, 233
F.2d 406, 413 (C.A. 5). See also N.L.R.B. v. Soft Water
Laundry Co., 346 F.2d 930, 936 (C.A. 5). Moreover, the
burden of proof never shifts from the General Counsel and
the Respondent does not have the burden of proving that
it discharged an employee for the reason which it asserts. As
was said by a court of appeals in an early case, so long as
the provisions of the Act are not violated, an employer may
discharge an employee for "a good reason, a poor reason or
no reason at all." Budd Mfg. Co. v. N.L.R.B., 138 F.2d 86,
90 (C.A. 3), cert. denied 32 1 U.S. 773. At the same time, it
is also true, that an employer does not ordinarily discharge
an employee for "no reason at all," and that support for a
finding of unlawful motivation "is augmented when] the
explanation of the discharge offered by the respondent
[does] not stand up under scrutiny." N.L.R.B. v. Bird Ma-
chine Company, 161 F.2d 589, 592 (C.A. 1).
The discharge of a barber in the Respondent's organiza-
tion did not occur often, and Lewis testified that Kirkland
was the first he had ever dismissed. As found earlier herein,
Lewis conceded that prior to April 23, Kirkland had not
been a problem employee as to tardiness or absenteeism.
Moreover, it is apparent from the record that the Respon-
dent had a loose practice as to tardiness and absences. It
had no printed rules on the subject and the testimony of
Lewis on the question was confused and contradictory. Un-
der these circumstances and in view of Kirkland's satisfac-
tory work record over a period of several years, Lewis'
explanation that the employee was discharged as a result of
the events of April 23 does not "stand up under scrutiny."
Kirkland was the most active union proponent among the
employees and this interest on his part was known to the
Respondent. It first came to the Respondent's attention in
October 1969 when Kirkland engaged Donaldson in a dis-
cussion of the need for a union among the barbers at Fort
Benning and the Respondent's owner demonstrated his an-
tipathy for any such organization. The following April,
Kirkland was instrumental in getting a union campaign
started and after he had done so, Lewis held a meeting of
19 These employees were named Fenn and Webb
20 Thus, in response to the following question , Lewis gave the answer which
appears below
Q ... if a man doesn 't report to work and doesn 't call in and you
can contact him the next day and he gives you a legitimate excuse, it's
all right Is that what your testimony is?
A . Look, if a man took off and he had an emergency to come up,
do you think I 'm going to fire him over that9 No, I don't "
815
the employees to announce the Respondent's opposition to
their contacts with union organizers during working hours.
At this time, after Lewis told them that Donaldson did not
approve of their Joining a labor organization, Kirkland en-
gaged in an exchange with him on the subject and again
disclosed his interest in a union . A few minutes later, when
Kirkland left the group, Lewis commented to those still in
the room that he hoped Kirkland would quit before he had
to fire him. About April 14, Donaldson himself was at the
main post shop and questioned Elliott as to "who in here is
pushing the Union?' Then, on April 22, when car trouble
caused Kirkland to be several hours late in getting to work,
Lewis inquired as to Kirkland's whereabouts while visiting
the shop, and thereafter throughout the course of the day
made several telephone calls to check on whether Kirkland
had arrived and on whether he had, in fact, had difficulty
with his automobile. That evening when Kirkland was at the
union meeting at which he and many of his coworkers
signed authorization cards, Lewis telephoned Kirkland's
wife to inquire about him and to tell her that her husband
was to report to his office the next morning. The next day
when Kirkland reported to the general manager 's office in
compliance with this order, Lewis instituted a new and spe-
cial rule as to Kirkland by telling him that "from here on
out" when Kirkland wanted to get off work it would be
necessary to secure a specific authorization from Lewis him-
self. Thereafter that morning, when , because of his wife's
illness , Kirkland called Lewis to solicit such approval, he
was unable to contact the general manager. He thereupon
telephoned Mobley, who, in Davis' absence, was treated by
both the employees and Lewis as the acting head of the
main post shop, and asked that Mobley relay his message
to Lewis, the general manager . Notwithstanding the fact
that, at the hearing, Lewis conceded that during the course
of the day Mobley told him about the message for him from
Kirkland, Lewis was not satisfied. Shortly thereafter Lewis
telephoned Kirkland at his home and ordered that he report
to the Respondent's headquarters. Lewis did not ask Kirk-
land for an explanation of his absence from work either then
or later and when the employee reported to his office the
next morning, Lewis, having had a termination notice and
final pay check prepared beforehand, peremptorily and
without warning announced the employee's discharge.
The celerity with which General Manager Lewis moved
to terminate Kirkland, an employee with an admittedly sat-
isfactory prior work record for an alleged violation of a
reporting rule which Lewis had announced to Kirkland the
day before, was not normal or natural.21 It is the Trial
Examiner's conclusion, on the facts present here, that
Lewis' purported concern that Kirkland had not secured the
general manager's authorization to be absent on April 23
was a pretext and that the real reason for the employee's
precipitate termination was his union activities. N.L.R.B. v.
General Industries Electronics Company, supra; N.L.R.B. v.
D'Armigene, Inc., 353 F.2d 406,409 (C.A. 2); Sag inaw Furni-
ture Shops v. N. L. R. B., 343 F.2d 515, 518 (C.A. 7); Time-O-
Matic, Inc. v. N.L.R.B., 264 F.2d 96, 102 (C.A. 7). Conse-
quently, the Trial Examiner concludes and finds that by its
dismissal of Kirkland, the Respondent violated Section
21 Cf E Anthony & Sons v N L R B, 163 F 2d 22, 26 (C.A D C.), cert.
denied 332 U S 773, where the court there said , in sustaining the Board's
finding of a discriminatory termination " these employees had been
long-time, responsible and faithful employees All were discharged
summarily, without prelimmatory warning, admonition or opportunity to
change the act or practice complained of Such action on the part of an
employer is not, natural " See also N.L R B v. General Industries Electronics
Company, 401 F 2d 297, 301 (C.A. 8). ("The demand for &tnet compliance
[with the rule] here is more consistent with antipathy for union activity than
concern over the plant rules ")
816
8(a)(3) and (1) of the Act 22
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Violations of Section 8(a) (1); Findings
and Conclusions with Respect Thereto
1. The no-solicitation rule
The General Counsel alleged that on about April 17,
General Manager Lewis promulgated a rule that unlawfully
prohibited union solicitation on the Respondent's premises
at Fort Benning.
This, of course, is based on the occasion in mid-April
when Lewis met with the employees to tell them that he
assumed that a union representative would be contacting
them in the near future and that when this occurred they
could not talk to the organizer during working hours in the
barber shop, but that they could talk to him at lunchtime
and during their coffee breaks.
There was evidence that the Respondent permitted vari-
ous salesmen to contact the employees during worktime.
Thus, Elliott testified that a barber equipment salesman
visited them regularly while at their work stations 23 and
that, periodically, a book salesman came to the shop to
solicit orders for Bibles. It was also undemed that shortly
after Lewis announced the ban on any visits from the union
organizer, Mr. Donaldson came to the main post shop with
an insurance agent who spent some time with all the barbers
discussing the salient features of a new group insurance
policy which his Company could provide them.
When on the stand, Mr. Donaldson conceded that where-
as book salesmen and insurance agents were free to contact
the barbers while at work, he felt that a different rule should
apply as to contacts by a union agent . Thus, he testified:
If a fellow wanted to take out some insurance, or if
someone came by about a Bible, . . . that's perfectly all
right .... But this union bit that you are talking about
. I felt like it should be transacted during the off duty
hours ...."
The Respondent, of course, could have banned all solic-
itations during working time. Peyton Packing Company, Inc.,
49 NLRB 828, 843-844, enfd. 142 F.2d 1009 (C.A. 5)
("Working time is for work.") But this it did not do. Where-
as it had a practice which allowed book salesmen and in-
surance agents to meet with the employees on the premises
and during working time, when the organizational cam-
paign began, General Manager Lewis announced a rule that
prohibited union agents from exercising a similar freedom.
Under the present case law, the promulgation and enforce-
22 In its brief the Respondent also relies on the testimony of Seth Elliott
as to a conversation had with Kirkland at the union meeting on April 22
During this discussion , according to Elliott, he warned Kirkland that if he
was not careful Lewis would fire him, whereupon Kirkland commented that
that was exactly what he wanted Lewis to do. Elliott was a credible witness
and his testimony in this regard was undemed. At the same time , it is likewise
significant that Elliott also testified that prior to Kirkland' s termination he
never related this conversation to anyone in management
The Trial Examiner has considered this testimony with respect to its bear-
ing on Kirkland 's credibility and with reference to the Respondent 's motive
for effecting his discharge Kirkland was an aggressive and voluble exponent
of the Union and the remark which Elliott attributed to him may have
reflected an air of personal bravura which he chose to display to his cowork-
ers at the union meeting On the other hand, since Elliott conceded that
before Kirkland's discharge he never relayed this comment to Lewis or to any
other supervisor, it could have played no part in Lewis' decision to terminate
the employee Accordingly, the Trial Examiner has concluded that the testi-
mony in question is irrelevant to the issue as to whether Lewis' action was
discriminatorily motivated
23 The barbers were responsible for the purchase and maintenance of their
own equipment.
ment of such a rule must be held discriminatory and unlaw-
ful. Consequently , the Trial Examiner concludes and finds
that the Respondent 's announcement and enforcement of
this rule constituted interference , restraint, and coercion
within the meaning of the Act, and a violation of Section
8(a)(1) thereof . Revere Camera Co. v. N. L.R.B., 304 F.2d
162, 165 (C.A. 7).
2. Other alleged violations of Section 8(a)(1)
The General Counsel alleged that Mr . Donaldson unlaw-
fully interrogated the employees about their union member-
ship and the union activities of other employees. This
allegation is based on the testimony of employee Elliott to
the effect that about April 14, Donaldson questioned him
as to which of his coworkers was "pushing the Union." For
the reasons set forth earlier, the Trial Examiner has found
Elliott's testimony credible . It is the further conclusion of
the Trial Examiner that Donaldson 's inquiry as to the
identity of those employees who were union proponents,
under the circumstances present here , constituted a viola-
tion of Section 8(a)(1).
As found earlier herein , about April 23 , General Manager
Lewis directed that Kirkland 's absences were to be reported
only to him . Since this was contrary to past practice which
provided for the employee to report absences to the general
manager , the shop manager, or, when he was off duty, to the
shop manager's designee, the application of such a require-
ment to Kirkland was discriminatory . On the facts as found
above the imposition of such a working rule on Kirkland
constituted interference and restraint within the meaning of
Section 8(a)(l) of the Act.
The General Counsel also alleged that about A ppril 30 the
Respondent discriminatorily directed that empkoyees ob-
tain permission for time off and report absences from work
to General Manager Lewis or Shop Manager Davis. This
allegation is based on certain testimony of employee Elliott
wherein the latter testified that on about April 30, Davis
told him that Donaldson had stated to the shop managers
that thereafter when any employee wanted to get off he
would have to contact either the shop manager or the gener-
al manager . This testimony was not corroborated by any
other witnesses . Further, there was testimony that on or
about May 1, because of a decline in business and the
closing of several of its shops , the Respondent instituted a
reorganization of its supervisory staff, reemployed Deron
Wilson and appointed him and Lewis to act as co-managers
of Donaldson s operations at Fort Bening . At the same
time Wilson was given the additional duty of being the
full-time manager of the main post shop and Davis was
relegated to an employee role except on the one day a week
when Wilson was off duty . On such occasions , Davis acted
in Wilson's stead as the shop manager. There was no evi-
dence that these organizational changes were dictated by
any considerations other than a drastic decline in the
Respondent's business volume . Although Elliott testified
that Davis described the work rule on reporting absences as
a new policy , the entire subject at this point was so inter-
twined with the revision of the supervisorial hierarchy and
the contraction of the Respondent 's operations that the
Trial Examiner concludes that there is insufficient evidence
to substantiate the above-described allegation of the Gener-
al Counsel . Accordingly, the Trial Examiner will recom-
mend that it be dismissed.
CONCLUSIONS OF LAW
1. The Respondent i` -ngaged in commerce and the Un-
DONALDSON'S BARBER SHOP
ion is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
Leon G. Kirkland, thereby discouraging membership in the
Union, the Respondent has engaged, and is engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
3. By applying discnminatonly a rule against solicitation
during working hours in order to discourage union activity
among its employees, by questioning its employees as to the
union activities of their fellow employees, and by interfering
with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respon-
dent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair laborpractices affecting commerce within the meaning of Section2(6) and (7) of the Act.
5. The Respondent has not engaged in any unfair labor
practices other than those herein specifically found.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, the Trial Examiner will recommend
that the Respondent be ordered to cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that the Respondent discriminatorily ter-
minated Leon G. Kirkland on April 24, 1970, the Trial
Examiner will recommend that the Respondent be ordered
to offer Kirkland immediate and full reinstatement, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered from the time of his discharge to the date of the
Respondent's offer of reinstatement. The backpay for the
foregoing employee shall be computed in accordance with
the formula approved in F. W. Woolworth Company, 90
NLRB 289, with interest computed in the manner and
amount prescribed in Isis Plumbing & Heating Co, 138
NLRB 716, 717-721. It will also be recommended that the
said Respondent be ordered to preserve and, upon request,
make available to the Board, or its agents, payroll and other
records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4).
817
other manner discriminating against them in regard to hire
or tenure of employment or any term or condition of em-
ployment.
(b) Coercively, or otherwise unlawfully, interrogating its
employees as to their union activities, or about the union
activities of other employees.
(c) Applying discriminatorily a rule against solicitation
during working hours in order to discourage union activity
among its employees.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or protec-
tion, and to refrain from any and all such activities.
2. Take the following affirmative action which is neces-
sa to effectuate the policies of the Act:
(a) Offer to Leon G. Kirkland immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges.
(b) Notify Leon G. Kirkland, if presently serving in the
Armed Forces of the United States, of his right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces,
(c) Make whole Leon G. Kirkland in the manner set forth
in the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
or a propriate to analyze the amount of backpay due.
(e) ost at its shops at Fort Benning, Georggia, copies of
the attached notice marked "Appendix."24 Copies of the
said notice, on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized repre-
sentative of the Respondent, shall be posted immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the said Regional Director, in writing, within
20 days from the date of this recommended Order, as to
what steps have been taken to comply herewith 25
The complaint is dismissed in respect to all other allega-
tions not herein found.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of 24 In the event no exceptions are filed as provided by Sec 102 46 of the
the Act, the Trial Examiner hereby issues the following Rules and Regulations of the National Labor Relations Board , the findings,
recommended: conclusions, recommendations, and recommended Order herein shall, as
ORDER
Respondent , Donaldson 's Barber Shops, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Journeymen Barbers,
Hairdressers , Cosmetologists and Proprietors International
Union of America , AFL-CIO , or in any other labor organi-
zation of its employees , by discharging employees, or in any
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 In the event that the Board's
Order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted by Order of the National Labor Rela-
tions Board" shall be changed to read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National labor
Relations Board "
25 In the event that this recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the Respon-
dent has taken to comply herewith "
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS B OARD
An Agency of the United States Government
WE WILL NOT discourage membership in Journeymen
Barbers, Hairdressers, Cosmetologists and Proprietors
International Union of America, AFL-CIO, or in any
other labor organization of our employees, by
discharging any of our employees, or by discriminating
against them in any other manner in regard to their hire
or tenure, or any other term or condition of their em-
ployment.
WE WILL NOT coercively, or otherwise unlawfully,
question employees as to the union activities of other
emWloyees.
E WILL NOT apply discriminatonly our rule against
solicitation during working hours in order to
discourage union activities among our employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL offer Leon G. Kirkland immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of pay suffered as a result of discrimination against
him.
DONALDSON'S BARBER SHOPS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building, Room 701, 730 Peachtree Street, NE.,
Atlanta, Georgia 30308, Telephone 404-526-5760.