Elder-Beerman Stores Corp.

National Labor Relations Board - Board Decisions

Nov 5, 1968

173 N.L.R.B. 566 (N.L.R.B. 1968)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elder-Beerman Stores Corp . and Revosie L. Colley,
John Henry Rutledge , James E . Coleman. Cases
9-CA-4205-1, 9-CA-4205-2, and
9-CA-4264
November 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On April 3, 1968, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding,' finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Relations
Act, as amended, and recommending that the Re-
spondent cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respon-
dent had not engaged in other unfair labor practices
alleged in the complaint. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has dele-
gated 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
prejudicial error was committed.2 The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and the recommendations of
the Trial Examiner, as modified herein.
1. We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees and requesting
them to engage in surveillance and to act as informers
regarding the union activities of other employees. We
also agree that the Respondent violated Section
8(a)(3) by discharging employees Rutledge and
Colley, and violated Section 8(a)(3) or alternatively
8(a)(1) by discharging employees Coleman, Bledsoe,
Pollard, Cameron, and Lockett. In this connection,
we are satisfied that the General Counsel has affirm-
atively established unlawful motivation by prepon-
derance of the credible evidence.3 We, however, find
it unnecessary to adopt the Trial Examiner's ex-
traneous comment that the Act's protection extends
to discussing plans to engage in a slowdown.
2. The Trial Examiner found and we agree that on
February 17,1967, about 2 weeks after the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union #
957, requested recognition and filed a representation
petition, the Respondent's President Beerman, in a
speech, promised and granted benefits to employees
in violation of Section 8(a)(1) of the Act.
3. The Trial Examiner found, and the record
shows, that the Respondent repeatedly instructed
Supervisor Graham to engage in surveillance of
employees' union activities, called him a poor super-
visor, and discharged him for refusing to execute
these instructions. gsed on his inference that em-
ployees knew of the instructions and the reason for
the discharge, the Trial Examiner found that the
instructions, and the discharge for refusing to carry
them out, constituted violations of Section 8(a)(1) of
the Act. We find, in the circumstances of this case,
that this conduct was unlawful without regard to
employee knowledge.
The nature and extent of the unfair labor practices
committed by the Respondent clearly demonstrate
that the instructions issued to Supervisor Graham
were an integral part of a plan to discover the identity
of employees engaged in union activity and rid the
Respondent of union adherents, and the discharge of
Graham was designed to enforce such instructions and
thus insure the success of the plan. In the light of all
the circumstances, therefore, we find that the Re-
spondent's instructions to Graham to engage in
surveillance4 and its discharge of Graham for refusing
to carry out such instructions5 interfered with the
rights of employees guaranteed by Section 7, and
were violative of Section 8(a)(1) of the Act.
' As corrected by the errata dated April 5 and 12, 1968.
` The Respondent excepts to the Trial Examiner 's conduct of the
hearing on the grounds that he allegedly interrupted and interfered with
the Respondent 's presentation of its case, asked leading questions of
witnesses , and showed bias against the Respondent . Upon careful
examination of the record , we are satisfied that the Trial Examiner was
concerned only with his duty under Section 102.35 of the Board's
Rules and Regulations "to inquire fully into the facts... to regulate the
course of the hearing . . . to call , examine, and cross-examine witnesses.
" See Brewton Fashions, Inc., a Div. of Judy Bond, 145 NLRB 99,
100. We find the exception without merit.
3 Consequently, we need not decide whether and if so to what
extent N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S . 26, in the
173 NLRB No. 68
circumstances here present , places upon the Respondent a burden of
proof as to motivation,
4 See Cannon Electric Company, 151 NLRB 1465, 1468. We find it
unnecessary in this case to determine the effect on employees ' Section 7
rights of instructions to supervisors to engage in surveillance where
employees are not aware of instructions and they are neither executed
nor enforced by discharge . To the extent , however, that General
Engineering, Inc., etc., 131 NLRB 648, is inconsistent herewith, it is
hereby overruled.
5 See Key West Coca Cola Bottling Company, 140 NLRB 1359, 1361
enfd. in part 341 F. 2d 524 (C A. 5). Cf. N.L.R.B. v. Talladega Cotton
Factory, inc., 213 F. 2d 208 (C.A. 5 ); Better Monkey Grip Company,
115 NLRB 1120 , enfd. 243 F.2d 836 (C.A. 5).
ELDER-BEERMAN STORES CORP.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Elder-Beerman Stores
Corp., Dayton, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON ,Trial Examiner Upon a consolidated
complaint against the above-captioned Respondent issued by
the General Counsel of the Board,' a hearing was held in
Dayton, Ohio, on November 13 and 14, 1967.1 Alleged in the
complaint are certain discriminatory discharges and additional
acts of coercion in violation of Section 8(a)(1) and (3) of the
Act. Respondent denies all alleged violations. At the hearing
the parties were afforded full opportunity to present relevant
evidence, to examine and cross-examine witnesses, to argue
orally on the record, and to file briefs. The General Counsel
and Respondent submitted briefs, which have been duly
considered.
Upon the entire record in the cases, and from my
observation of the demeanor of the witnesses on the stand, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is engaged in the retail sale of merchandise at
various stores in the vicinity of Dayton, Ohio. During the year
preceding issuance of the initial complaint, it had a gross
volume of business valued in excess of $500,000 and a direct
inflow in interstate commerce of goods and products valued in
excess of $50,000. Respondent admits, and I find, that it is
engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union #957, herein
called the Union, is a labor organization within the meaning of
the Act.
1 In Cases 9 -CA-4205-1 and 4205 --2, the charges were filed on
February 27 and served on March 2 ; in Case 9-CA-4264, the charge
was filed on May 1 and served on May 3. The complaints thereon were
issued respectively on April 24 and July 28 , and consolidated on the
latter date.
2 All dates, except as specified , are in 1967.
III. THE UNFAIR LABOR PRACTICES
A. Supervisory Heirachy
567
The employees immediately involved consist of about 20
truck drivers and helpers employed in the loading area of
Respondent's Apple Street warehouse. Under separate super-
vision of Charles E. Graham, 2 or 3 shuttle drivers transport
merchandise to and from stores, and the rest make deliveries
of packages, appliances, and home furnishings to the cus-
tomers' homes. Also at Apple Street, in the main building, are
various other personnel employed in warehousing operations
and in work rooms where repair and custom jobs are
performed for customers. Lloyd Nicodemus, warehouse man-
ager, is in overall charge of the Apple Street employees. Scott
Maxwell was assistant warehouse manager in charge of the
workrooms.3 Until he assumed the latter function early in
1967, he supervised the shuttle drivers. One other warehouse
at Helena Street has no function in making deliveries to
customers. Virgil Hank, superintendent of warehousing, super-
vises both warehouses comprising as many as 200 employees.
Harry Stme, vice president of operations, has charge of all 10
retail stores and other facilities of Respondent. Max Gutman,
executive vice president and general manager, and Supervisor
Potts (duties are not otherwise defined), as well as all of the
above-mentioned supervision, were present during certain
events, as will be shown. Arthur Beerman is president and chief
executive. He is also "the executive head" of several other
enterprises. He testified that only about 10 percent of his work
is devoted to Respondent.
B. Union Activity, Summary of Issues
About November 1966, John H. Rutlege visited the Union
in quest of representation for the drivers and obtained blank
authorization cards. Thereafter, he solicited several of the
Apple Street employees to sign cards, but without substantial
success. In January, he resumed his organizational efforts
among the drivers, stressing the argument that they had to
work a "ridiculous" amount of overtime without pay. He was
able to obtain signed cards from "most of the fellows."
However, an agent of the Union advised him that the cards
were improperly signed. In early February, a meeting was
arranged and held at the union hall where certain employees
signed new cards and paid union dues in the amount of $17
each. ' By telegram on February 3, as stipulated, the Union
notified Respondent of claimed majority representation. On
February 6, the Union filed a certification petition with the
Board alleging an appropriate unit of about 20 employees,
described as "all truckdrivers, helpers, and warehousemen" at
the Apple Street warehouse. On February 17, President Arthur
Beerman , accompanied by all management officials afore-
mentioned, delivered a speech to about 20 assembled em-
3 He left Respondent's employ in November 1967.
4 The following drivers and helpers were specifically identified:
Rutledge, Colley, Metcalf, Bledsoe, Coleman , Pollard, Cameron, and
Lockett. Another driver, Woods , testified that he signed a card, but it is
not clear that he was present on this occasion at the union hall.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the loading area at the Apple Street warehouse.
Beerman's remarks, discussed infra, are in part alleged by
General Counsel as constituting unlawful promises of benefit
and direct bargaining with employees. Additional allegations
consist of coercive interrogation of employees by supervisors,
soliciting employees to report on union activities of other
employees, requesting a supervisor to engage in surveillance of
union activities, and issuing instructions to discharge em-
ployees sympathetic to the Union. On February 25, Respond-
ent discharged Rutledge and Colley on grounds that a review
of their personnel records ordered on February 17 disclosed
that each was employed in violation of certain standing
policies of Respondent On April 6, at a formal Board hearing
in the representation proceedings, the parties stipulated that
the appropriate unit comprised "all warehouse employees,
including truckdrivers and helpers," and it appeared from a list
submitted by Respondent that approximately 53 unit em-
ployees were employed as of the payroll period ending
February 5. In mid-April, President Beerman made a further
speech at the Apple Street warehouse, on this occasion to all
warehouse personnel, including the office help. He asked the
employees to "give Elder-Beerman another chance" before
they "vote for this union." By order dated April 13, the
representation petition was administratively dismissed by the
Regional Director for failure of the Union to produce a
sufficient showing of interest among the employees in the
appropriate unit. On April 25 and 26, Respondent discharged
Coleman, Bledsoe, Cameron, Pollard, Lockett and Supervisor
Graham allegedly for the reason that they engaged in a
"slowdown" on April 25. All these discharges are alleged as
unlawful.'
C. Restraint and Coercion
1. Vice President Stine
Joseph Rutledge worked for about 8 years at the Helena
Street warehouse. In September 1966, upon his referral, his
brother, John H. Rutledge, was employed at the Apple Street
warehouse, notwithstanding known practices of Respondent
against hiring relatives of present employees or employing
persons having a police record. In early February, Joseph
Rutledge was called into Stine's office, with Vice President
Gutman present. He was asked by Stine whether the em-
ployees (at Helena Street) had any problems, and he replied,
"none." He was told that Respondent had received a telegram
from the Union that morning seeking recognition on behalf of
the Apple Street employees and was asked if he knew anything
about it. He answered, "no." He was then asked if he would
accept an assignment to work at Apple Street for the purpose
of obtaining information for Respondent concerning union
activities of employees. He said it was not a good idea because
"the fellows" would know why he was there. Then he was
asked if his brother, John, was "in on it" and would John tell
him anything. He said he did not know and did not think his
brother would inform him on "anything that might be going
5 At the conclusion of General Counsel 's case in chief, in the
absence of any supporting evidence , the motion was granted to dismiss
the allegation in the complaint that Respondent awarded bonuses to
prounion employees of lesser amounts than it awarded to other
employees
6 Based on credited testimony of Joseph Rutledge In effect, Stine
admitted the interrogation, but denied generally that Rutledge "ever
spied " for him.
on down there." Finally he was requested to keep Stine
informed if he "heard anything about the situation."
A "couple of weeks later," Joseph Rutledge was again
summoned by Stine and was given a merit raise. Stine asked
hun if he heard anything concerning the Union and, receiving a
negative response, remarked, "You are a poor detective."6
Charles E. Graham testified that for 2 years he had been
supervisor of the drivers and helpers at Apple Street.7 Stine
advised Graham of Respondent's receipt of the Union's
telegram and told him to keep his eyes and ears open.
Thereafter, Stine spoke to Graham virtually every day until
mid-April seeking reports on the union activities of the
employees. Although he agreed to do so, Graham did not give
Stine the names of any employees . 8 Because of his failure to
cooperate in this fashion, he was called a "poor supervisor" by
Stine and Hank on several occasions. Graham described these
requests, viz
See if I could find a list of names. He wanted me to
fraternize with them because he heard they hung out at a
bar and to get in on their conversations, because me being a
Negro I could get in with these guys because the majority of
them were Negroes and I could be an inside man for him.
It is evident that Vice President Stine approached Joseph
Rutledge in the manner related above particularly because of
this employee's relation to John H. Rutledge. In the context, I
find that Stine acted unlawfully in interrogating Joseph
Rutledge as to his existing knowledge of the union movement
and in seeking to enlist him as an informer to obtain
information concerning the union sentiments of employees at
Apple Street It is immaterial that Joseph Rutledge was not
himself in the appropriate unit or employed at the Apple
Street location. The essential test is whether the conduct in
question reasonably tends to restrain or coerce employees in
the exercise of their Section 7 rights. 9 I so conclude, and hold
that these alleged violations of Section 8(a)(1) are sustained.' 0
There is ample showing that Supervisor Graham was given
repeated instructions by Vice President Stine during the union
campaign to engage in surveillance of employees at Apple
Street for the purpose of garnering a list of names or reporting
on the identity of union adherents. He did not comply with
these instructions. Elsewhere it is made clear that he was
sympathetic to the representation desires of the employees.
Upon all the evidence, as further shown infra, a reasonable
inference may be drawn that at some time before his discharge
Graham divulged to some employees the substance of these
instructions "which so vitally effect their interests." The Board
has held that-
... Respondent's instructions to its supervisors encroached
upon protected activities, "for a disclosure to employees
that management has set in motion a chain of events to
ascertain and identify union adherents can clearly restrain
their freedom in expressing their sentiments regarding
organization ." [Citing Daniel Construction Co. V. N.L.R.B.,
341 F. 2d 805 (C.A.4).111
Accordingly, I find in these circumstances a violation of
Section 8(a)(1).
7 During the hearing, Respondent stipulated that Graham was a
supervisor.
8 Stine denied that he asked Graham for a list of union adherents.
Graham is credited.
9 Joy Silk Mills, Inc v. N L. R. B., 185 F.2d 732 (C. A D. C.),
cert . denied 341 U.S. 914 , Struksnes Corporation , 165 NLRB No. 102.
10 E G, Sarkes Tarzian , Inc. v. N L R B. 374 F 2d 734, 736
(C A. 7)
11 Cannon Electnc Company, 151 NLRB 1465, 1468
ELDER-BEERMAN STORES CORP. 569
2. Events of February 17
President Beerman's Speech
As earlier noted, on this date Beerman made an appearance
at Apple Street, together with a full supervisory retinue, to
address an assembled group consisting essentially of the drivers
and helpers. His remarks in detail were described by several
employee witnesses for the General Counsel,12 in pertinent
part as follows: The Company had received a telegram from a
union that these employees wanted to be represented. He
understood that 14 or 15 fellows paid a union $17 of their
hard-earned money. If they could spend $17 foolishly to try to
get a union in, he could spend $17,000 to keep it out, if he
wanted to. He is a fair-minded man, and if they have any
grievances, he has 3 telephones, is available, and can be reached
at any time. It was entirely up to the employees if they wanted
a union, and no one would be in jeopardy because of his
feelings about a union. They do not need an outside
representative. If they came straight to him instead of going to
the union, he would have made things better for them. He
stated, "I know that there are discrepancies in the pay rate
here, and this will all be taken care of .... Of course, my
hands are tied right now unless you want to write-.i13 He
then proceeded to talk about benefits presently enjoyed, e.g.,
the insurance plan, the "baby bonus," and the retirement plan.
He mentioned yearly bonuses of $550 or more for drivers with
over 2 years of service, and gift certificates for those having 1
to 2 years' service. He commented that the men "look like a
bunch of thugs rather than delivery truck drivers." Their
uniforms were the wrong color, the wrong kind, and "not in
order for going to someone's house." He wanted each driver
and helper to have a new uniform immediately. "But the
discrepancies in pay can't be taken care of until this business is
cleared up .... An election is coming up, and I can't do
anything about your raises until this is over with." Beerman
also gave assurances that he did not discriminate "against the
colored man," pointing out that Graham is a supervisor and
that he had assistant managers at the store who are colored. He
invited questions from the employees.
Bledsoe said the biggest complaint among the employees
was the overtime.14 They came in at 8 a.m., at times did not
return from deliveries until 5 or 6 p.m., were again sent out on
"specials," and "many times" were not through with their
work until after 8 p.m. Beerman directly responded: "This will
cease... the next time anybody asks you to take anything
out after 5 o'clock, tell them to go to hell and call me."
Rutledge also spoke up, describing as unfair the transfer of a
driver to a different route and causing the employee to quit.
Beerman then stated that-"nobody tells him how to run his
company, he runs it like he sees fit."
Stine and Beerman were examined by Respondent, briefly,
as to the content of the speech.15 Stine testified that he could
not recall anything like the statement that $17,000 would be
spent to defeat the Union, and made a general denial that there
were promises of benefit. Beerman testified he told the
employees that the personnel department was not adhering to
the minimum starting wage, that "adjustments and increases
were not properly taken care of," and that "its being done
now"- (explaining that by "now" he meant since his
"discovery"). That morning he ordered uniforms for all
drivers. He assured them that they will not have to go out
again after 5 p.m., but he promised them nothing "at the
time," other than-"I would take a greater interest in their area
than I have probably heretofore, or something like that."
To the extent that conflict exists, I accept the detailed and
substantially corroborated account given by the employees, set
forth hereinabove, as against the vague versions of Stine and
Beerman.
Other Conduct of Beerman
Graham testified that, on February 17, before Beerman's
speech to the employees, the following colloquy took place, in
the presence of Stine, Hank, and Maxwell:
Beerman: What are these black boys trying to do to me,
bring in Black Power?
Graham: I don't know, Mr. Beerman. What do you
mean?
Beerman. About this Union, most of them are
black. 16
Graham: I don't know anything about it.
Beerman: You should. You are black too.
Graham answered that they look at him "the same way they
do [Beerman] .... A businessman."
After the speech, Graham overheard Beerman tell Stine and
Hank that-"there were too many black boys down there, to
get rid of them." Graham was about 8 feet away and no
employees were within earshot.l
Supervisor Graham
Also following Beerman's speech, Graham spoke to John H.
Rutledge in privacy. According to Rutledge, Graham inquired,
"John, are you leading these fellows?" He replied, "Yes."
Graham continued, "If you are leading them, and they want
their jobs, tell them not to pay any attention to what Beerman
said about not taking things out after 5 o'clock.... Those
people buying things need them , and so use common
sense.... tell those fellows to not do that until after they get
the union in."18 Rutledge commented that the Union was
12 Principally by John H. Rutledge and Coleman, corroborated in
material parts by Colley, Lockett , and Supervisor Graham.
13 Beerman left this statement unfinished.
14 As shown in the record , they were paid entirely on the basis of a
daily rate, without regard to the number of hours worked
15 Supervisor Hank , upon a simple query, denied that Beerman in
his speeches ever promised the employees benefits "if there was no
union ." Other employees and supervisors called by Respondent were
not questioned on this subject.
16 At a later point , Graham paraphrased his testimony , i.e., that
Beerman said "that since the majority of the employees were Negroes in
this union , that they were trying to bring in Black Power on him."
17 Beerman nor Maxwell were questioned as to the foregoing. Stine
stated a denial to the question whether Beerman ever said to him, in the
presence of others, that he should get rid of union employees. Similarly,
Hank testified he never heard Beerman instruct Stine to fire employees
who were sympathetic to the Union. In all the circumstances, I am
constrained to credit Graham.
18 Graham 's testimony , on his cross-examination , was not materially
at variance
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good for the employees and would make Graham's job
easier-to which Graham expressed agreement
Conclusions
While this question is close, I do not find as an unlawful
interrogation Graham's inquiry of Rutledge as to whether he
was leading the employees Graham's purpose, clearly under
stood by Rutledge, was to protect the employees against
possible discipline for insubordination and was not directed
primarily to the subject of the Union In my opinion,
Graham's conduct here, essentially sympathetic, would not
reasonably tend to coerce Rutledge or the employees generally
concerning their union activities 19
Respecting Beerman's conversations with Graham and those
overheard by Graham, in these instances the alleged violations
must be dismissed in the absence of any showing or reasonable
inference that such statements of management came to the
attention of employees However, the same evidence is
generally relevant insofar as it reveals the motive of Respon
dent with respect to the discriminatory issues, treated infra.
As to Beerman's speech, despite the token phrases of
neutrality, the whole setting and tenor of the talk portrayed
impressive antagonism by Respondent to the organizing drive
of this small group of employees President Beerman had
theretofore been rarely seen at the Apple Street warehouse,
more especially among the drivers and helpers in the loading
area This appearance, together with an array of supervisory
subordinates, including two vice presidents, could only signify
to the employees a sense of deep concern and alarm of top
management , for the sole and obvious reason that the Union
had made a representative claim on behalf of these employees
General Counsel's evidence as to the factual content of the
speech was substantially uncontroverted Accordingly, I find
Section 8(a)(1) violations, summarized as follows
With the real question concerning representation raised by
the Union's telegraphic demand , it is clear that Beerman
sought to undercut the Union by bargaining directly with the
employees Thus, he recognized specific grievances of the
employees as to discrepancies in their rates of pay and
uncompensated overtime work He admonished them for going
to an outside representative and not coming straight to him
Referring to his three telephones and his availability at any
time, he suggested that they bring their grievances directly to
him, imphedly for immediate adjustment
By reasonable implication at the least, these drivers and
helpers were led to believe that they were being promised
present and prospective benefits to influence their defection
from the Union Beerman's statements were explicit that
corrections in the pay rate "will all be taken care of" and that
"adjustments and increases" were being handled "now," since
his discovery of the inequities Side remarks were vaguely
interspersed by Beerman, for example, that because of the
election "coming up" and until "this business is cleared up,"
he could not do anything about their raises at present In the
context described, it cannot be regarded that the promises
were effectively neutralized or that the employees could
reasonably understand from all the remarks that these were
not promises being made to discourage their desires for union
representation, the dominant issue at hand Even upon the
assumption that in totality the statements were clear that
benefits could not be granted until after the representation
question was resolved, Beerman's remarks were nonetheless
coercive in that the employees were plainly being dissuaded
from favoring the Union by promises of subsequent adjust
ments and increases to satisfy their present grievances 20
Similarly, Beerman's order to halt the overtime after 5 p in ,
whether or not carried out, constituted an unlawful induce-
ment directed toward a major cause of complaint which
Respondent believed had prompted the employees to seek out
the Union 2'
D The Discharges
1 Rutledge
As previously noted, John H Rutledge was hired in
September 1966 as a driver at the Apple Street warehouse
upon the recommendation of his brother, Joseph, an employee
at the Helena Street warehouse The hiring interview was
conducted by Virgil Hank, superintendent of warehousing
Hank specifically questioned John and was fully informed
concerning entries on his application showing a police record
and a disability resulting from a back injury 22 He told Hank
that the amount of lifting he could do was "very limited" and
that he could drive a truck if it was not too heavy Hank
finally told John he would speak to Vice President Stine and
let him know Thereafter, his brother Joseph was advised by
Stine and Hank that, on the basis of Joseph's good standing
with the Company, John was being hired and would be
retained as long as "he kept his nose clean " Thereupon
bondage papers were made out for John's employment
At Apple Street, Rutledge worked for 2 or 3 weeks as a
shuttle driver He was then offered and he accepted a package
route on which he remained until his termination On one
occasion, before Christmas, a dispute arose with Graham
because other drivers complained that Rutledge was not being
given the heavier lifting work However, the difficulty was
resolved after a meeting was arranged at which Rutledge
explained to the men the circumstances of his back deficiency
At various times, his work was highly commended by different
supervisors
It has been shown that John H Rutledge was in fact the
leader among the employees in the union campaign , and that
Stine sought to establish a system of surveillance, including a
request of Joseph to obtain from John information concerning
union activity at Apple Street At Beerman's speech of
February 17, Rutledge was one of the spokesmen As Graham
credibly testified, after the speech Stine told him Rutledge
"seemed to be the smartest one of them and he had him
figured out to be the leader " Graham said he did not know
Graham also spoke to Rutledge after the speech, inquired if he
was "leading these fellows," and received an affirmative reply
In sum , I find that Respondent was aware of the leadership
activities of Rutledge prior to his discharge
19 See Cannon Electric Company 151 NLRB 1465 1470
20 E g Eugene Yokell and Bernard Yokell Copartners d/b/a
Crescent Art Linen Co 158 NLRB 447 enfd in pertinent part 414
F 2d 421 (C A 2)
21 I make no finding that the issuance of new uniforms constituted
a benefit or substantial change in a condition of employment
22 In July 1954 , he was convicted of burglary, placed on probation
for 5 years and released after 13 months for good behavior In the 3
prior years he had 4 different operations performed on his back and
received workmen s compensation during this period
ELDER BEERMAN STORES CORP
On February 25 (a week after the speech) John H Rutledge
was discharged by Stine, in the presence of Supervisors
Nicodemus and Maxwell at the Apple Street warehouse Stine
said, "John, we have been doing a little review of your
application, and due to your police record and back condition
the company can no longer keep you under their employ
ment " Rutledge protested that the Company knew about
these things when he was hired. Stine said that there were
certain things Rutledge did not state about his police record 21
Respondent's defense, based essentially upon testimony of
conversations between high management officials, consists in
substance as follows In latter December or early January,
President Beerman (according to his testimony) received
numerous complaints from customers concerning damaged
merchandise, returns, and poor service These were particularly
heavy around Christmas time, the busiest part of the selling
season He spoke to Stine several times on the phone about the
complaints-as it was Stine's job to be responsible for all
services and personnel On these occasions, he asked Stine to
let him see the employment records of all Apple Street
employees whose functions related to delivery and service 24
Because of "a lack of things in a company that's busy,"-
these records did not come to his office "for some time
thereafter," (i e , until late February) In January and
February, his attention was brought to the number of pickups
or returns "in the home furnishings area " On February 17, he
held the meeting at the Apple Street warehouse for the
purpose of finding out what the "problems had been," and he
did learn that "there were some inequities " Following his
speech, he "demanded" of Stine the applications of these
drivers as well as "their reference checks," which were
subsequently furnished As to Rutledge, inter alia, he discover
ed that this employee had a brother working for the Company
in violation of a definite rule, that he had a back problem
which "made him ineligible" for driving a truck, and that he
had a police record He thereupon ordered the discharge
Respondent's assigned grounds for Rutledge's discharge
appear to me to be transparently disingenuous and artificial
Much of the defensive evidence consists of vague and general
ized conclusions of Beerman and Stine, of a self servicing
character For example, no attempt was made by probative
means to show that the volume and type of customer
complaints were unusual during this Christmas season Nor is it
plausible that the intercession of a company president of a
large corporation and his requests for employment records of
personnel would remain unheeded over a period of some 2
months Indeed, such a problem was dealt with shortly after
Christmas when Superintendent Hank spoke to all warehouse
employees at Apple Street 2 5 He said that each complaint
would be investigated and where there was a clear cut showing
of negligence, the responsible employee would be given a day
23 Later that day Rutledge discussed his discharge with a union
agent Sexton at the union hall He testified that Sexton informed him
that Respondent had mentioned a fugitive warrant' against Rutledge
which did not appear on his application In his affidavit given to a Board
agent Rutledge stated Stine told me that the company could no
longer go along with my back condition and the fugitive thing the
only thing I can recall is that I was arrested for speeding in
Germantown Ohio in 1951 and was released to return four days later
to pay my fine I didn t appear and the police picked me up two days
later and I was taken back to Germantown to pay my fine '
24 Stine described this as a passing request by Beerman
25 It would appear from the testimony that Hank s speech was not
limited to the drivers and helpers but rather was made to the entire
Apple Street staff, including warehouse and work shop employees
571
off without pay as a reprimand As a result, only one employee
(Chambers) was given a day off in early January On February
17, Beerman "became quite vehement" about checking the
records of employees The ordered search, so far as evident,
was confined to the drivers and helpers at Apple Street (1 e ,
those employees assembled for the Beerman speech that day)
In addition , special investigative requests were made of the
"credit bureau and other sourcess26 for information concern
ing these employees
Q (By Trial Examiner) But the policy regarding cnmi
nal records, that was company-wide9
A (Stine) Yes, sir
Q And the policy concerning nepotism or the relative
rule, that was company wide?
A With some exceptions, where there has been a
company purchased or something to that effect
Q Yes, as already clarified 2 7
A Yes
Q Do you know whether during all your tenure with
the company, whether any similar review was made of any
store or division of the company, or such an intensive
review or complete review of records, and also engaging the
credit bureau and other sources?
A Well, the credit bureau and other sources are used on
a day to day basis also
Q Yes, but there was an additional request at that time
This information, the further information that you got, for
example the fugitive warrant, you got a result of specific
request?
A Yes No, to answer your question, I do not know of
another situation exactly like this one
* * * * * 28
Q (By General Counsel) What reason did you give John
H Rutledge for discharging him9
A (Stine) I told Mr Rutledge that there had been a re
view by other officers of the company on his application,
on his back injury, which we didn't realize the full serious
ness then, and that for the police record, which included a
fugitive charge, which we had just become aware of, and
which he didn't have on his application
Q Now this fugitive matter you are talking about, that's
something that happened back seven or eight years or
longer ago?
A I believe that's correct
Q And it was just coming to your attention in February
of 1967, is that correct9
A That's correct
Q And that's why you fired him9
A That's why he was terminated, yes, sir 29
Substantial evidence has been described herein of the events
in the union campaign among these employees, as well as
26 It was revealed for example that Respondent retained on a
part time basis officers regularly employed on the Dayton police force
infra
27 Elsewhere Stine testified that Respondent kept in its employ
quite a few people acquired with the purchase of a company who
had relatives among its existing employees As to another stated policy
it was not shown that employees thus acquired who had police records
were terminated
28 Earlier testimony
29 Stine did not attempt to describe the nature of the fugitive
charge or to contradict Rutledge that it stemmed from a traffic
violation which was cleared by his payment of a fine
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's animus and unlawful reactions thereto. From the
proffered testimony of top management, it would seem that
these occurrences relating to the Union were nonexistent.30 In
clear fact, it was solely by reason of the Union's claim in
February that President Beerman personally involved himself
in depth with these drivers and helpers. On February 17, he
came to Apple Street to make a speech and engage in other
conduct designed to eradicate the union threat in the manner
previously shown. And immediately thereafter, Respondent
undertook an intensive and unprecedented investigation of
these employees with the objective of finding grounds for
employee terminations. The latter action supports Supervisor
Graham's testimony in effect that Beerman gave instruction to
"get rid of" some of these employees. Respondent thus set in
motion a discriminatory process for the consequences of which
it must be deemed responsible, whether or not it actually knew
the union sentiments of the employee being discharged as a
result of the investigation 31 But Rutledge's union leadership
was indeed known to Respondent, which rendered this
employee especially vulnerable As to hum, the factors of the
relative rule, the police record, and the back ailment were fully
revealed at hiring and long accepted by all active supervision.
The dredging up in the investigation of a so-called fugitive
charge serves only to show the insubstantiality of Respon-
dent's defense in its seizure upon this ancient and relatively
minor infraction. Finally, the point is developed by interman-
agement conversation that the decisions of highly placed
subordinates favoring the employment of Rutledge were
superseded or revoked by President Beerman , and that this
operated to imbue the discharge action with legitimacy. The
proposition, factually and legally, is without ment.32
Upon all of the foregoing, I find that Rutledge was
discharged for discriminatory reasons, in violation of Section
8(a)(3).
2. Colley
The discharge of Colley, an Apple Street shuttle driver, was
similarly effected on February 25 purportedly on orders from
Beerman based upon the personnel data supplied to him
pursuant to the investigation, supra. In March 1966, he was
referred to Respondent by an employment agency and hired
after being interviewed by Supervisors Maxwell and Graham.
His application disclosed that he had had "an arrest." In
September 1966, he and six other Apple Street employees
were apprehended by the police. At the time, Respondent
(including Vice President Stine) was aware of the circum-
stances. Colley and Coleman were charged with carrying a
concealed weapon and, at the trial 6 to 10 weeks later, both
were convicted of a misdemeanor and given suspended
30 The observation is also noted that to an extraordinary degree
Respondent 's brief has in lengthy detail misstated the evidence, for
example, in repeatedly citing as evidence testimony explicitly stricken
from the record , and otherwise in specifying evidence which patently
does not exist Similar difficulty was encountered at the hearing at
which counsel was frequently cautioned to control witnesses who were
inclined to state their conclusions and mental processes in response to
questions requiring specific facts.
31 E g, Signal Oil and Gas Company , 160 NLRB 644, enfd. 390
F 2d 338 (C.A. 9)
32 See, e g ., N. L R. B v. Neuhoff Bros Packers, Inc, 375 F.2d
372, 376, on the applicable doctrine of respondeat superior.
33 In rebuttal at the hearing , the General Counsel sought to establish
sentences of 2 months. When informed of the results, his
immediate supervisor, Maxwell, told Colley it was good the
charge was reduced from a felony to a misdemeanor, "because
it could have meant" his job. The information was noted in the
personnel files. Testimony at some length was developed by
Respondent in support of the contention that Colley had a
"record of drinking" while at work. A supervisor at the Van
Buren store testified that "several times" he observed Colley in
a "highly intoxicated" condition at the store with his truck.
However, he never actually saw Colley drinking, and he
reported only one incident to his superior at the store, in late
January or early February. The latter, as he testified, personal-
ly verified on this occasion that Colley had been drinking, and
reported it to Supervisor Nicodemus at Apple Street. No
attempt was made to stop Colley from driving his truck away
from the Van Buren store, Nicodemus did not speak to Colley
concerning the incident, and nothing was entered on his
record. In one other incident during the same time period,
Nicodemus smelled alcohol on Colley's breath, referred the
matter to Maxwell, and Colley was sent home for the
remainder of the day Colley in his testimony denied that he
had been drinking on the job.
Colley testified that, on February 25, in the presence of
Nicodemus and Maxwell, Stine told him he was terminated
because he had been arrested during the time of this
employment and that this was against company policy. Colley
asked why they waited some 6 months after his arrest to
discharge him Stine said-"because higher authorities of the
company didn't have any knowledge of his arrest." Stine
testified he gave Colley two reasons. that he had been drinking
on the job, and that he had been convicted of carrying a
concealed weapon while he was an employee. Beerman
testified that he saw "these applications" furnished him as a
result of the investigation, and he noticed that a "week or two
before" Colley was convicted for carrying a concealed weapon
and that the reports included "some arrests on drinking." He
was willing to overlook the "various minor offenses" disclosed
as to other employees, but he considered it "very poor
judgment used on Mr. Stine's behalf in the selection of"
Rutledge and Colley, and he instructed that these two people
be released.
It is to be assumed that, as of February 25, Beerman's
knowledge of Colley's reported drinking stemmed from oral
information supplied by the supervision and not from existing
entries on Colley's employment records. Also, significantly,
Coleman was not then discharged for the same known
misdemeanor conviction in light of the asserted company
policy regarding employees with police records. Concerning
the alleged strictness of the policy on police records, it is
sufficient inter alia , to refer to the hiring of John H. Rutledge
to show that exceptions and disparities existed.3 3
by testimony that a certain employee (Chambers) at the Apple Street
warehouse had a record of felony convictions. Following discussions
with the Trial Examiner , the parties were instructed to submit by
stipulation after the hearing certified copies of this employee 's police
record , for which an exhibit was reserved . It appears that the General
Counsel , unable to arrive at a stipulation with Respondent , unilaterally
(and contrary to instruction) sent to the Trial Examiner certain police
material pertaining to this employee . Thereafter , Respondent strongly
objected and for its part submitted to the Trial Examiner affidavits and
letters to refute the implication of the General Counsel 's submission. All
these posthearing documents are placed in a rejected exhibit file The
Trial Examiner has entirely disregarded these submissions and deems it
unnecessary to pursue the matter further.
ELDER-BEERMAN STORES CORP. 573
The applicable considerations as to Colley have been
definitively set forth in the discussions above relating to
Rutledge. My findings, are, similarly, that the factors of
Colley's conviction, drinking, and prior police record were
condoned or waived and were not the true motivation for his
discharge. Colley signed a union authorization card the day
after he was first solicited by Rutledge. For the reasons shown,
it is not crucial that Respondent's actual knowledge of his
union activities be demonstrated. Respondent failed to sustain
the burden of disentangling the consequences as to Colley of
the discriminatory course of investigation which it adopted.
However, it fairly appears from the evidence of Respondent's
animus and purpose of covertly engaging in surveillance that it
was intent upon learning the identity of the prounion
employees. In all the circumstances, the inference is warranted
that Respondent at least suspected Colley's sympathy with the
Union. I conclude that Colley's discharge violated Section
8(a)(3).
3. Group discharge
Supervisor Graham and five Apple Street drivers and helpers
were discharged for the same reason given by Respondent,
which it characterized at the hearing as a "slowdown."
Numerous witnesses testified on both sides of the issue, with
the factual question presented as to whether, on the morning
of April 25, the dischargees were performing their work with
no serious departure from the norm, or were singly or
concertedly engaged in a form of misconduct significantly
disruptive of their duties and of company discipline.
The general background has been described relating to the
organizational efforts of the delivery employees, including the
factor that the representation petition was administratively
dismissed on April 13. The testimony 34 was uncontradicted
that, since the Union's telegram on February 3, Vice President
Stine came around everyday at the Apple Street warehouse,
although his appearances theretofore were "rare" or once
every 2 or 3 months. Several supervisors stated in a joint
affidavit. 31 "It has been clear that during the two-week
period prior to April 25 that these men had built up a great
deal of animosity and hostility toward the company and its
management officials. These employees never directly stated
the nature of their grievances to the company." On Sunday,
April 23 '36 the yearly party was held at which annual bonuses
were awarded by Respondent At the hearing, Respondent's
counsel specifically stated3 7 that Respondent was relying, as
basis for the discharges, upon knowledge it obtained that a
concerted plan was formed at the bonus party that the drivers
would engage in a slowdown-naming Coleman, Bledsoe,
Pollard, Graham, Lockett,3 8 and Cameron; i.e., all the
subsequent dischargees. On cross-examination, the question
was then permitted to be put to Coleman, who denied
knowledge of such a concerted plan.3 9 No evidence was
actually produced to support this firmly advanced position of
Respondent or to show the source of such information.40
Implied as a reason for the alleged plan for a slowdown was
dissatisfaction with the bonuses received.41
Starting time for the drivers and helpers was 8 a.m.42 They
had no fixed time schedule in preparing their trucks for
departure. Their regular procedure was to route their deliveries
from sales tickets, (sort them stop by stop according to street),
write up the mamfest, load their trucks, service the trucks at a
nearby gas station, and depart. The time each truck left from
and returned to the warehouse varied with the number of
deliveries and other factors. As earlier indicated, on their
return they were at times sent out again with "specials" and
were unable to complete their daily work until long after 5
p.m. Tuesday was usually "the heaviest day" in deliveries to be
made. There were no rules which restricted them from talking,
moving about, or fraternizing. In addition, for example, they
took time during the morning for a break, or for refreshment
when a concession truck stopped nearby.
On Tuesday, April 25, the delivery employees first reported
back to work following the bonus party. That morning there
were 10 drivers and 4 helpers, most of whom arrived before
starting time. 4 3 At a very early hour, management was well
represented on the scene 44
Warehouse Supervisor Nicodemus testified that, about 8:00
on April 25, he was in the delivery area and found Coleman,
Rutledge (sic),45 Lockett, Pollard all gathered in a group at
one of the writing tables. "They were milling around and
talking," first in loud and then in subdued tones for "perhaps a
half hour." Up until 8:00, and right after, the "drivers were
collecting and the mannerism was in a strained atmosphere."
Probably about 8:00, Superintendent Hank told hum not to
say anything to anyone, that he, Hank, "would handle the
situation." Vice President Stine testified he was at a meeting at
one of the stores 4-5 miles from the warehouse, when he
received a telephone call between 8:15 and 8:30 from
Nicodemus,46 who said "that the men were engaged in a
slowdown, they had a hostile and belligerent attitude, that he
couldn't control them." He told Nicodemus he would get
down there as quickly as he could. Stine made no mention of a
call from Hank. The latter testimony was given on General
Counsel's examination of Stine under rule 43(b). 47 Later,
when called by Respondent in presenting its defense, Stine
altered his testimony. Nicodemus merely said "things were
uneasy" and was just told by Stine to keep him informed. But
about 8.30, Hank called and said,-"We have got real
trouble.... They are not doing their jobs. There is a slowdown
34 Graham and Lockett
35 The joint affidavit (not offered in evidence ) was given to a Board
agent by Stine , Hank, and Nicodemus . The quoted statement was
affirmed in the testimony of Nicodemus
36 On April 24, the drivers and helpers were off, although
Supervisor Graham, among others, reported to work.
37 Upon questions of the Trial Examiner.
38 Lockett did not attend the bonus party.
39 Supervisor Graham was similarly questioned and he denied that
he told Superintendent Hank after the bonus party "that trouble might
occur." Hank was not asked to testify on this matter.
40 Respondent also alleged , but*did not establish , e.g., that at the
bonus party , Bledsoe, in a loud voice, "made a lot of inflammatory
remarks which seemed to tie in-."
41 Bledsoe and Lockett each received a net bonus of $209, and
Coleman $110, all three were employed less than 2 years . Graham's
bonus in 1967 was $520 , as compared with $ 650 in 1966.
42 Hereinafter , where convenient the morning hours will be shown
without using the "a.m.", designation.
43 Bledsoe at 7:30 -7 40, Cameron and Pollard at 7.50, and
Coleman at 8 00.
44 E.G , Nicodemus about 7:15; Hank 7 : 30, Maxwell at 7 45 Stine
said he arrived about 8:50 (in conflict as described infra).
45 Discharged February 25, supra.
46 Nicodemus gave no testimony of such phone call.
47 U S . District Court Rules of Civil Procedure
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in progress." Hank also indicated that Kelley reported being
told by Bledsoe that he was not to take his truck out that day,
and that Bledsoe would stop him. Stine told Hank not to do
anything until he got there.48 He left at 8:30 and came to the
warehouse about 8:50. After speaking to Stine, Hank instruc-
ted other supervision at the warehouse, e.g., Maxwell (but not
Graham),-to say nothing to any of the men, "to just observe
what was going on."
Continuing Nicodemus' testimony,49 he described the usual
procedures which the drivers follow in the morning. At the
tables, they sort their sales tickets for routing (half hour),
write up the manifest (15-20 minutes), and load their trucks
(1h to lth hours). On April 25, when they went to load, their
"movements were not nearly so fast as they ordinarily would
work." Asked to be specific as to what was actually said, he
responded, ".... it was more what they didn't say. These
men ... had been very willing to talk to me at all times, and
this morning there was a lack of talking with me." Their "faces
and their actions" were unusual. He said Graham came in at
8:30, his regular reporting time,50 and immediately joined
"this group." Nicodemus observed over a period of 2-2'h
hours that Graham was not trying to get the men to load
trucks and to carry out his other functions. But he said
nothing to Graham about his work performance because he
was instructed not to do so by Hank. Bledsoe was "the center
of this group," and was "slow in his work " He does not recall
what Lockett said but, in general, he was talking "loud and
belligerent" to the other drivers. Pollard was "with the
group"-which is "about the most" he could say in his case. At
9, he asked Coleman and Woods to accompany him in his
personal car to pick up their trucks, which had been repaired
at Fleming & Raney, a GMC dealer.5 i Coleman drove his truck
back to the warehouse "at a slow pace,"52 and he was "slow
in loading." Cameron was "very slowly routing his packages."
Woods left the warehouse at 9.30; Kelley at 10; Lockett and
Cameron at 10:30; Coleman around 11, and Bledsoe about
11:30, the last.
It is particularly significant to view the testimony of the
employee witnesses called by Respondent. Donald Blakely, a
driver, pointedly questioned on direct, said he heard no
statements at the bonus party as to what might happen the
following Tuesday. At 8 on April 25, Bledsoe told him, "Well,
we have sent for Beerman." At first he was busy getting his
route. Later he glanced around and saw some of the fellows
standing around "a little bit." Walter House, a helper assigned
that day for the first time to work on Coleman's truck,
testified that it seemed to him there was a little meeting at the
desk by Bledsoe, Coleman, Lockett and Pollard between 7.30
48 Hank's version contained no reference to Bledsoe and Kelley, but
added that he had told Stine then he "wanted to take some action "
49 Nicodemus has his office in the warehouse building . He testified
he is normally in and out of the delivery area checking on orders, which
consumes a total of about 35 percent of his time On April 25, he
probably spent " a little more ." His supervision of the drivers consists of
"a general walk through " between 8 and 8 .30 On this day, he did
nothing other than his normal routine duties , he did not stand and
watch , except maybe "five minutes, or so "
50 Graham testified , and was well corroborated, that he arrived at 8,
earlier than usual , because he had returns to write up which he could
not do the previous Saturday when he had to drive a truck.
5 r Nicodemus apparently said nothing to Coleman enroute concern-
ing the morning activity of the drivers.
52 Woods testified they were gone 15 or 20 minutes ,-a seemingly
conservative estimate in view of all time factors reasonably considered.
53 Coleman was terminated upon his return from deliveries on April
25. House also sought to imply that , while on the route, Coleman was
and 8:15, although he himself was continually doing his work,
and not standing and watching. He has seen employees
standing around and talking before April 25, and has done so
himself. He heard Bledsoe, Coleman and Lockett say they were
dissatisfied with their bonus.
Q. (Respondent's counsel) Did you hear anything about
a boycott, or anything like that?
A. No, but I did hear it later on, they had this
intent.... about a day later [April 261 5 3
Paul Woods, a driver, arrived at 7 20. He said, "We were all just
gathering around .... which we normally do every morning,
talking and working at the same time." Coleman and Pollard
told him,-"Before any trucks go out we want to see Mr.
Beerman ... 54 about work conditions and the way the bonus
was distributed, stuff in general that a lot of them thought
they were getting a raw deal on." While Woods was there about
45 minutes all together, he saw Bledsoe engaged in loading his
truck. John F. Jackson, a porter, had not been employed very
long and did not know the names of the drivers. Between 8
and 8:30, he came through the delivery area and saw more
than six of the men standing where they always gather every
mormng to write up the manifests. He heard Graham and
others say they were dissatisfied with their bonus. Richard
Kelley came in at 7:30 and started to work. Bledsoe came over
and told him-"there was not any trucks going out that day."
He asked what was going to stop them, and Bledsoe said, "we
are." Bledsoe, Pollard, Coleman, and Cameron went over to
the table and started talkmg-"for about an hour." He was
working inside his truck, and not watching them. As he left the
truck, he could see they just stood around doing nothing.
About 8 or 8:15, they key was missing from his truck parked
outside. He spoke to Hank about it55 and they searched for
the key It was found in the truck 20 minutes later. He
departed at 10.30 and did not see Stine at all.
Hank testified,56 inter alia, that between 8 and 8.10, he
saw Coleman, Bledsoe, Cameron and Pollard gathered around
the center table. He spoke to the men by name, e.g., "Good
mormng, Mr. Coleman," and received no response-which is
"unusual for this group of men." About 8:30, he noticed that
Graham went to the table and joined the conversation. Kelley
told him that Bledsoe said the trucks were not going out that
mormng and that the key to his truck was missing. Lockett
and Cameron had left the center table, but Bledsoe, Pollard
and Coleman were still standing there, hands in their pockets.
There was a lot of calling back and forth between Lockett and
these men. Some loud language and laughter were going on and
he heard a vulgar term used. As noted supra, he called Stine
between 8.30 and 8:45, and Stine arrived thereafter. On two
not trying to make his deliveries. For example, House repeatedly stated
that they returned to the warehouse , between 6 30 and 7 p in., with
half of their deliveries , whereas Coleman testified they returned at 4 30
p.m. with just 4 of more than 20 deliveries . And he heard Coleman
suggest that they park the truck on Third Street and not bring it back,
but he thought that was "just talk " Respondent specifically relies on
such factors in the discharge , although it could not have obtained this
information until after Coleman 's discharge Particularly in this line of
testimony, House was unconvincing and is not credited, It is noted,
inter alia, that he refused to sign a statement he gave to a Board agent
and then testified he gave no affidavit to Respondent ,- following which
Respondent stipulated it obtained an affidavit from House.
54 He was specific that Coleman did not say -"we are not going to
let any trucks out."
55 His immediate supervisor , Graham , was not consulted regarding
the missing key.
56 He stated that he generally spends 15 percent of his time in the
delivery department at Apple Street.
ELDER-BEERMAN STORES CORP. 575
or three occasions, he observed Cameron in his area, with his
hands in his pockets He was with Stine when Cameron
approached and asked why they were watching him. Stine told
Cameron "that he wasn't doing his job, and he should get that
truck loaded, that he had spoken to hum the previous week
about this .... if he wasn't happy with the job he should hit
the clock." Drivers can leave as late as 12 or 1 and return (as
late as) 7 or 8 at night. The employees in question did perform
their work during the morning of April 25.
Stine testified he arrived about 8.50. Bledsoe, Pollard and
Coleman were between their trucks and not loading. Cameron
and Lockett were standing with hands in pockets not doing
their jobs. He heard loud and boisterous talking and laughing
by the five men, but did not know what they were saying.
Graham was not friendly, he did not respond when Stine said
"hello." He then discussed the situation with Hank, who said
the men "were out of control" and wanted to fire them
immediately. Stine disagreed "at this time" and stated he "felt
for the security and safety of the building and for the people
in it." Questioned on cross in what way the conduct "was
creating some sort of disturbance," Stine explained.
It wasn't one thing, it was many things. It was a whole
room full of goings on, in this morning. It wasn't the joking,
or it wasn't the talking, or it wasn't the roaming through
the department, it wasn't the boisterous talk alone, it was
everything. It was a lot of little inconsequential things.
He was concerned about safety.5 7 About 11:40, after the last
truck had left, he telephoned Beerman, told him what had
taken place and recommended firing. Beerman did not ask the
names of the men, but said if Stine felt this was the only
solution, "then for the safety of the other people in the
building," they should be terminated as they came back from
their routes.58 Stine immediately called "a contact" at the
Dayton police station and requested that they send a repre-
sentative when he began terminating these men. On examina-
tion by the Trial Examiner, he changed his testimony to
indicate that he actually called Detective Hatton, privately
employed by Respondent when he is off duty from the
Dayton police force. Another off-duty police officer (Messer)
working part time for Respondent came out to the Company.
He, Stine, made the decision to discharge in this instance.
Before doing so, he conducted no independent investigation
and did not attempt to ask any of the dischargees what they
were doing on April 25, the reason for their alleged misbehav-
ior, or "anything of that kind." He testified that "the
happenings of the morning of the 25th were the reasons for
the discharge."59 While Stine admitted that reasons for
discharge and other vital information are entered in the
personnel. file of each employee, these were not produced by
Respondent.6 ° In the 3-month period preceding April 25, he
had spoken to only "one man here" concerning the Union's
attempt "to get in."
Each of the dischargees had a separate terminal interview
with Stine, and various other persons present.6 i The first was
Supervisor Graham about 2.30 p.m.; Cameron, Lockett and
Coleman as each returned to the warehouse on April 25;
Bledsoe and Pollard in the morning of April 26.
Graham and the employees were told the same reason for
discharge quoted by Stine in his testimony under Rule 43(b):
"Because of what happened this morning, and evidently you
are unhappy with the company, so the company is evidently
unhappy with you, and you are terminated." This version is
accepted as consistent with those individually given by the
dischargees, although Stine altered his testimony when later
called by Respondent 62 Lockett, for example, testified that
he responded "`How can a man averaging 130 to 150 stops,
packages a day, be wasting time?' Plus I had had an old beat-up
truck that wouldn't go over 20 miles an hour."
Respondent was permitted to cross-examine each of the
dischargees concerning his behavior in the morning of April
25.6 3 All in various forms denied specific questions that they
stood around in small groups joking and laughing, that they
worked slower than usual or were not doing their normal work
that day. Bledsoe testified that, about 8 when he began his
daily procedures, he saw "some of the big wheels around,"
naming Stine, Hank, Nicodemus, and Graham About 11.45 he
was summoned back from the gas station by Haiik to put a
dinette set on his truck. He said his truck was "full enough"
and could not take any more. Nicodemus showed him how to
load it, and it was done. However, in a half hour, he brought
the dinette set back as refused by the customer, who said the
instructions were to deliver it a week later. He and his helper,
Pollard, made all of their 35 to 40 stops, including pickups.
Coleman was a shuttle driver but was put on furniture delivery
that day with House assigned as his helper. As Coleman was
inexperienced on this job, Supervisor Graham had to instruct
him and prepare his routing from the sales slips. After he was
loaded up at 11, he had to wait at the service station because
there were four trucks ahead of his to get to the gas pump.
When Bledsoe was called back to the warehouse, he went along
to offer help. Stine told him that Bledsc2's truck was not his
business and ordered him back to his own truck. Of more than
20 deliveries of furniture, he brought back only four because
he did not know where the streets were. He saw Stine at the
warehouse at 8.01. Cameron testified that the whole time he
was loading his truck Stine was standing "right in the middle"
watching him. He asked Stine if he was doing something
wrong, and Stine said, "no." He made all of his deliveries that
57 However, he did not call the police then or at any time, did
nothing to follow up the trucks on the routes and, when they returned,
did not check on the condition of the trucks, the merchandise, or the
drivers and helpers.
58 Beerman testified that Stine called sometime between 9 50 and
10.30, and told him in effect that there was "almost an linisurrection
or a revolution , over at the warehouse . . a sitdown strike or some sort
of rebellion " He instructed Stine to get the people involved off the
payroll
59 At the hearing Respondent purportedly relied on many addition-
al incidents attributed to particular dischargees , as treated infra
60 Testimony on events of April 25 by Respondent's witnesses
Walter Houck and Scott Maxwell have not been set forth Houck, in
charge of bedding in the warehouse , added nothing in Respondent's
favor I do not credit Maxwell, whose regular functions lay outside the
delivery department,-as I find he was prone to overstatement,
characterization , and assumption of detailed knowledge which I do not
believe he had
61 Different combinations of Hank, Nicodemus , and Maxwell, plus a
man unknown to the employees called "Meeker" (or probably Messer).
Stine added a "Mr. Haines" (unidentified) at Coleman 's interview.
62 Here he testified that he used the same language with each of the
men-"that due to the belligerence and hostile attitude of this morning,
and due to the insubordination and the lack of respect for the
warehouse supervisors , that he evidently was too unhappy to work for
our company and we are just as unhappy with him . . . " While the issue
of what Respondent chose to tell these men is not of critical
importance , I do not credit the similar additions related by Hank,
testifying after Stine . The other supervisors nor "Meeker " or "Messer"
were questioned
63 Although the questions were beyond the scope of the General
Counsel's direct examination
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day. He denied that at this termination interview Stine referred
to his behavior on April 25 or to Stine's disappointment with
his work "during the previous week.' 164 Pollard testified he
worked no "differently this day than any other day." He
denied that he and Bledsoe told Woods "that no trucks were
going out that morning" (but he was not asked what he did tell
Woods), and that he heard conversations between the drivers
that morning "in which they stated they were angry and upset
about their bonus." Lockett testified that he had not loaded
the packages for Englewood, and Hank called him back from
the service station to put them on his truck. He explained to
Nicodemus he had 140 packages already, and in order to drop
them off in 8 hours-"why you'd got to be humping," i.e.,
moving very rapidly, "and he had an old raggedy truck that is
no good, and breaks." He did load and deliver these added
packages.
Graham testified that when he arrived at 8:00 Stine and
Hank were there. Thereafter, he saw them "just standing and
watching." They did not say a word to him, nor to the other
employees so far as he observed. The men were performing as
usual,-"just like it always was." The drivers "always holler,
... `where is what street?' and this and that information." His
function was to get the men off on time, but "there wasn't
never any time stipulation." After routing out Coleman, he
was writing up the returns and was busy throughout the
morning. Kelley, who had an out-of-town furniture route,
departed earlier than usual . Stine and Hank helped turn load 65
and kept saying, "let's get Kelley out of here." Hank
approached him about folding pads which were lying in a
corner. Hank told him-"Get Bledsoe to fold them." Bledsoe
was running into trouble preparing his route. He had to keep
running upstairs to get furniture orders that should have been
ready in the delivery area. Graham advised Bledsoe, "Go
ahead, I'll fold them myself." Hank later "jumped" Graham-
"I told you to tell that driver to fold them." Graham said,
"Mr. Hank, he was running late." Hank replied, "I don't care
how late. If he don't get back until 10 00 o'clock I want him
to fold the pads."
Conclusions
As to Coleman, Pollard , Bledsoe, Cameron and Lockett, the
broad issues appropriately raised are whether they were
discharged for conduct which constitutes protected concerted
activity under Section 8(a)(1),66 or to discourage their union
membership in violation of Section 8(a)(3). As to either theory
of violation, it is initially to be determined whether the
grounds advanced by Respondent for the group discharge
relating to the events of April 25 are substantially supported in
the evidence. As shown, considerable testimony by numerous
witnesses was adduced on both sides, giving rise to obvious
questions of credibility. In resolving these questions, I have
considered , inter alta the demeanor of the witnesses; their
candor or lack thereof; their apparent interest or prejudice, the
extent of contradiction or corroboration; leading questions of
counsel; and the character, consistency, and inherent probabili-
ty of the testimony. Concerning the pertinent events, the
record does not present a conflict between the entire line of
witnesses of General Counsel as opposed to that of Respon-
dent. Here employee witnesses who were called by Respon-
dent, as well as Supervisor Nicodemus in significant part,
effectively substantiate the factual account given by the
separate dischargees-which in light of the whole record I am
disposed to credit. Collaterally, I have observed that a vein of
dissimulation runs through much of Stine's testimony in the
case. And as to Beerman, for example, it seems inordinately
strange that he ostensibly remained in the background and
desired no details from Stine regarding the reported "insurrec-
tion" on April 25, as contrasted with his intimate personal
involvement in the discharge of Rutledge and Colley.
In my opinion, there is no believable evidence which would
remotely justify, upon ordinary standards, a basis for fear in
Respondent that the conduct of any of the dischargees posed a
threat to safety of person or property.67 Indeed, the converse
would appear. Despite the early determination and instruction
of Stine merely to observe and refrain from speaking to these
supposedly volatile miscreants, the top supervisors did not
hesitate to hover over these individuals, to bring them back
from the service station, to create or enlarge upon incidents,
and to seek out grounds for criticism of their routine functions
with no real consideration of the merits Notwithstanding
these handicaps, the dischargees did perform their day's work
as reasonably to be expected and in conformity with their
customs in the past. There was no slowdown or other
cognizable misconduct in actuality.
It can hardly be disputed from Respondent's own testi-
mony that a decision to discharge had been reached in the
mind of management virtually at, or shortly beyond, the
starting time for work of these individuals. Effectuation of the
decision was only delayed, as I find, so that Respondent could
build up more plausible appearing pretexts for the action.
Respondent's asserted reliance, at the hearing and in its brief,
upon a multiplicity of clearly fictitious grounds for the
discharges discloses rather a lack of sincerity in its defenses,
and additionally supplies an element in support of General
Counsel's prima facie showing of unlawful motivation.
From admissions of Respondent and from all the evidence,
it is fairly apparent that Respondent was alerted to avert a
demonstration of concerted action by employees in the
delivery department prior to starting time on April 25. It is also
plain that from the moment of their arrival at work on April
25, Coleman, Pollard, Bledsoe, Cameron and Lockett, as well
as Graham, were singled out for surveillance on the job by the
posted supervisors.68 These were in fact all the identified
individuals as to whom Respondent stated that it obtained
information that they had formed a concerted plan at the
bonus party on April 23 to engage in a slowdown . Indeed,
evidence of general identification of these individuals extends
considerably prior to the bonus party. In the joint affidavit,
supra, Respondent itself concedes that in the 2-week period
before the bonus party, "these men had built up a great deal of
animosity and hostility toward the company." The same
employees were at the union hall in early February, had there
signed new union authorization cards, and paid the union dues
64 Respondent 's counsel asserted that in the termination interview
Stine mentioned certain incidents of the previous week involving
Cameron However, when called , Stine did not so testify.
65 Denied by Stine and Hank.
66 Section 7, in part , accords employees the right "to engage
in . . concerted activities for the purpose of collective bargaining or
other mutual aid or protection ," and Section 8(a)(i) prohibits
employers from interfering, restraining , or coercing employees "in the
exercise of the rights guaranteed in section 7."
67 It is noted that Respondent's private police were summoned to
be present, after the events, at the discharge interviews.
68 See, e g, N.L.R B v Yale Mfg. Co, 356 F.2d 69, 74 (C.A 1),
enfg 150 NLRB 1102.
ELDER-BEERMAN STORES CORP. 577
of $17 each. Findings have already been detailed as to
Respondent 's actions to establish a system of surveillance, its
animus and coercive conduct respecting the Union , and its
discriminatory discharge of the union leader , Rutledge, and of
Colley. In addition , I attribute relevant significance to Beer-
man's remark to Stine and Hank on February 17 that "there
were too many black boys down here, to get rid of them."
Respondent 's argument is without substance that the union
campaign was over and that it could therefore have had no
discriminatory motive for discharging these employees. As
earlier noted , the representation petition had been administra-
tively dismissed on April 13 for failure of a showing of interest
based on a larger unit than originally sought by the Union. It
does not follow that such dismissal would abruptly halt the
union campaign or cause the employees to abandon their
adherence to the Union or desire for representation . Indeed, it
could well operate to the contrary. Respondent knew that
seriously felt grievances continued to exist ,-despite Beerman's
promise on February 17, his instruction to employees to refuse
work after 5 p.m., and his broad invitation that the employees
come directly to him with their grievances. Ironically, Respon-
dent precipitately decided upon the discharge action on (or
before) April 25 without even attempting to discuss with
employees the nature of their complaints . Furthermore , unfair
labor practice charges were pending since February 27, and an
initial complaint herein formally issued against Respondent on
April 24. At least in the period following dismissal of the
petition, and at the bonus party on April 23, it is reasonably
inferrable that Respondent became acutely aware or believed
there was a resurgence of activity or renewal of the union
effort by employees in the delivery department, and that the
same individuals were involved as had earlier supported the
Union . All the circumstances are substantially present to
warrant a finding that Respondent decided to seize upon an
opportunity on April 25 to administer a coup de grace to the
continuing threat of union representation among these drivers
and helpers . More especially in the full context shown, the fact
that all of these employees discharged were subscribed union
proponents creates a strong inference of unlawful discrimina-
t1on .69 Respondent failed to demonstrate legitimate and
substantial justification for the discharge . 70 Accordingly, upon
the entire record , it is my conclusion that Respondent
terminated Coleman, Pollard, Bledsoe, Cameron and Lockett
to discourage union membership and activity in violation of
Section 8(a)(3).71
In relation to the "happenings" of April 25, the essential
facts described above apply as well to Graham. Respondent
had continued for some time to take the formal position that
Graham was not a supervisor. In the complaint issued on July
28, General Counsel included Graham as an employee in the
group discharge on April 25 and 26. However, as already
shown , Respondent stipulated Graham's supervisory status
during the course of the hearing . General Counsel 's theory as
to Graham was altered at this point , although it was still
materially within the framework of the complaint . During the
pertinent period of the discharge action, Graham was not
taken into the confidence and councils of Respondent on
matters which would normally concern him as the immediate
supervisor of the employees involved in the purported acts of
misconduct . Respondent had earlier knowledge of his lack of
cooperation in its unlawful attempts to underrmne the union
campaign. Particularly, he had failed to carry out repeated
instructions to engage in surveillance and obtain the names of
union adherents during the campaign , and so incurred the
displeasure of Respondent . There are ample grounds to find
that Respondent was aware or strongly suspected the fact of
Graham's sympathy with the organizing aspirations of the
employees. For a time preceding and on April 25, Respondent
treated Graham in the same manner as it did the selected
proumon employees and finally grouped him for discharge
together with these employees. The true reason for Graham's
discharge was his sympathetic attitude toward the Union, and
as I find , in substantial part for his refusal to participate as
instructed in Respondent 's unlawful antiumon course of
conduct. Especially in view of Respondent 's known union
animus and prior acts of coercion , it is reasonable to infer that
the real grounds for Graham's discharge were fully registered
upon the employees . It was thus demonstrated to them the
extreme measures which Respondent would undertake to
thwart their self-organizational rights. Notwithstanding his
supervisory status, it is found , in accordance with settled
precedent , that Graham's discharge violated the rights of
employees under Section 8(a)(1).72
As an additional or alternative ground , I find that the
discharge of Coleman , Pollard , Bledsoe, Cameron and Lockett
independently violated Section 8(a)(1). It was peculiarly
self-serving for Respondent to characterize as a slowdown the
employee activity which it anticipated upon the asserted but
unproven information it obtained from the bonus party on
April 23. In fact there was no concerted plan, threat, or
effectuation of an organized slowdown, nor any disruption of
production or disturbance. The evidence does show, however,
that before and about starting time of 8 a.m., on April 25,
there were signs of an incipient effort by certain employees to
engage in some kind of concerted protest to Respondent
concerning their grievances . Respondent's employee witness,
Woods, gave a credible summary of the contemplated activity
before 8 a .m.-while "we were all just gathering around." He
was then told by Coleman and Pollard that, before any trucks
go out, the employees wanted to see Beerman about work
conditions , the bonuses , and "stuff in general that a lot of
them thought they were getting a raw deal on." These were
unsophisticated employees , unassisted at this time by experi-
enced advice. Their effort never reached the stage of an overt
stoppage of any kind. It was abandoned at the outset quite
probably because of Respondent 's presence and preparedness
in force.
I cannot find that Respondent was realistically expecting an
organized slowdown-which is a form of misconduct well
known in the cases to justify discharge . 73 Consistent with the
evidence , it is far more plausible, and concluded, that
Respondent was anticipating some attempt at a strike or
69 E g., N L R B v Cameo Incorporated , 340 F 2d 803 (C A 5),
Ertel Manufacturing Corp, 147 NLRB 312, enfd 352 F 2d 916 (C.A.
7)
70 N L R B. v Great Dane Trailers, Inc , 338 U.S. 26.
71 See O 'Keeffe Electric Co., 158 NLRB 434, 438, enfd . 391 F.2d
589 (C A. 9, 1968), State Electric Company, 157 NLRB 504, 513,
Arnoldware , Inc, 129 NLRB 228, 229.
72 E.g., NLRB v Talladega Cotton Factory , Inc, 213 F 2d 208
(C A 5), General Engineering , Inc, 131 NLRB 648, 650.
73 E g , N L R B. v Blades Mfg Corp, 344 F 2d 998, 1004 (C.A 8),
General Electric Company, 155 NLRB 208, 221 , Elk Lumber Company,
91 NLRB 333, 337
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted protest, and that it determined to abort any such
movement and to get rid of selected individuals as the
perpetrators. By its nature such contemplated activity by
employees is manifestly within the protection of Section 7.
The discharge of employees for the reasons based upon the
belief, even if erroneous, that they were planning or engaging
in a protected concerted activity violates Section 8(a)(1).74
Furthermore, as a fundamental matter, the discussions among
these employees of their grievances and their consideration of
a means of protest on and before April 25 constituted
protected concerted activity.75 Indeed, the protection would
clearly extend even to the discussion of plans to engage in a
concerted slowdown, short of a real threat or actual consum-
mation thereof, and so long as it remained in the area of
speech and conversation.76
"Union [or concerted] activity often engenders strong
emotions and gives rise to active rumors. A protected activity
acquires a precarious state if innocent employees can be
discharged while engaging in it, even though [as I do not find
here] the employer acts in good faith. 1177
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate and
substantial relation to trade, traffic, and to commerce among
the several States and tend to lead to labor disputes, burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. In my opinion, a broad cease
and desist order is warranted, particularly, by reason of the
discriminatory discharges.? 8
It has been found that Respondent unlawfully discharged
John A Rutledge, Revosie L. Colley, Coleman, Pollard,
Bledsoe, Cameron, Lockett, and Graham. It will therefore be
recommended that Respondent offer to these individuals
immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority
or other rights and privileges, and to make them whole for any
loss of earnings suffered by reason of their unlawful ternuna-
tion, by payment to them of a sum of money equal to that
which they normally would have earned from the date of their
discharge to the date of Respondent's offer of reinstatement,
less net earnings during such period, with backpay computed
on a quarterly basis in the manner established by the Board in
F W. Woolworth Company, 90 NLRB 289. Backpay shall
carry interest at the rate of 6 percent per annum, as set forth
in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it
will be recommended that Respondent preserve and make
available to the Board, upon request, all payroll records, social
security payment records, timecards, personnel records and
reports, and all other records necessary and useful to deter-
mine the amounts of backpay due and the rights of reinstate-
ment under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following-
CONCLUSIONS OF LAW
1. Respondent is 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 discriminatorily discharging James E. Coleman,
Charles Pollard, Millard Bledsoe, George Cameron, and
Roosevelt Lockett, thereby discouraging membership in the
Union, Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By discharging the above-named employees for engaging
in protected concerted activities, and by terminating the
employment of Charles Graham, a supervisor, Respondent has
independently interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of
the Act, and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. By the foregoing, and by other acts and conduct
interfering with, restraining and coercing employees, Respon-
dent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the cases, it
is recommended that Respondent, Elder-Beerman Stores
Corp , Dayton, Ohio, its officers, agents, successors and
assigns, shall
1 Cease and desist from.
(a) Discouraging membership in International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union #957, or in any other labor organiza-
tion, by discharging employees, or in any other manner
discnmrnating in regard to here or tenure of employment or
any term or condition of employment
(b) Discharging or otherwise disciplining employees for
engaging in concerted activities protected in Section 7 of the
Act.
74 Burnup and Sims, Inc., 379 U S. 21, Cusano d/b/a American
Shuffleboard Co v NLRB., 190 F 2d 677 (C A. 1), N L R.B v. Sea
Land Service, Inc., 356 F.2d 953 (C A 1), enfd . 146 NLRB 931
75 Indiana Gear Works, a Division of the Buehler Corporation, 156
NLRB 397, 400-401, Quaker Alloy Casting Company, 135 NLRB 805,
Gibbs Corporation, 124 NLRB 1320.
76 "The Act was designed primarily to guarantee employees the
right to organize and to engage in joint action calculated to further their
mutual interests, and it would be inconsistent with this purpose to
construe section 7 in such a way as to exclude from its protection
speech supporting such joint action." Signal Oil Co v. N L R.B, 390
F 2d 338 (C.A. 9).
77 N L R B v. Burnup and Sims, Inc., 379 U.S. 21, 23.
78 N L R B v. Express Publishing Co, 312 U.S. 426, N L. R B v.
Entwistle Mfg Co, 120 F 2d 532 (C.A 4)
ELDER-BEERMAN STORES CORP.
(c) Discharging or otherwise disciplining any supervisor
because he has failed or refused to interfere with, restrain, or
coerce employees in the exercise of their rights guaranteed in
Section 7.
(d) Coercively interrogating employees concerning union
activities or sentiments, promising or granting them benefits to
discourage their union membership or support, requesting or
instructing employees to engage in surveillance or to act as
informers regarding the union activities of other employees,
bargaining directly or individually with employees in the face
of a question concerning representation; or instructing any
supervisor to engage in surveillance or other conduct constitut-
ing coercion under Section 7.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Offer John A. Rutledge, Revosie L. Colley, James E.
Coleman, Charles Pollard, Millard Bledsoe, George Cameron,
Roosevelt Lockett, and Charles Graham immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earnings,
as set forth in "The Remedy" section of the Trial Examiner's
Decision
(b) Notify the above-named individuals if presently serving
in the Armed Forces of the United States of their right to full
reinstatement upon application, in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed
Forces.
(c) Preserve and make available to the Board or its agents
all payroll and other records, as set forth in "The Remedy"
section of the Trial Examiner's Decision.
(d) Post at its Apple Street warehouse in Dayton, Ohio,
copies of the notice attached hereto as "Appendix."79 Copies
of said notice, on forms provided by the Regional Director for
Region 9, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive days.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Trial Examiner's Decision
and Recommended Order, what steps Respondent has taken to
0
comply herewith.
79 In the event that this Recommended Order be adopted by the
Board , the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board 's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
80 In the event that this Recommended Order be 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 Respondent has taken to comply herewith "
579
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, we
hereby notify our employees that.
WE WILL NOT discharge or otherwise discriminate
against employees in order to discourage membership or
support for International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local Union
# 957, or any other labor organization.
WE WILL NOT discharge or otherwise punish any em-
ployees for talking or acting together for the purpose of
collective bargairng or other mutual aid or protection.
WE WILL NOT discharge or otherwise punish any super-
visor because he has failed or refused to spy on your union
activities or engage in other conduct interfering with your
rights under the National Labor Relations Act.
WE WILL NOT ask you anything about a union or who
is in the union or who favors the union in a manner which
would coerce you regarding your rights under the Act.
WE WILL NOT ask any employee to spy on other
employees and report to us who joins a union or who works
for it.
WE WILL NOT promise or give you any benefits in
order to discourage your union activities or membership.
WE WILL NOT instruct any supervisor to spy on your
union activities and report to us who joins a union or which
employees want or favor a union.
WE WILL NOT bargain directly or individually with you
as employees where a union has requested us to bargain
with it as your representative.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of the rights
guaranteed employees in the National Labor Relations Act.
Since it has been found that we unlawfully fired the
persons named below, WE WILL offer to give them back
their jobs and seniority, and WE WILL pay them for the
earnings they lost, plus 6 percent interest.
JAMES E. COLEMAN
CHARLES POLLARD
MILLARD BLEDSOE
GEORGE CAMERON
ROOSEVELT LOCKETT
CHARLES GRAHAM
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of any labor
organization of their choice, except to the extent that such
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as amended.
ELDER- BEERMAN STORES, CORP.
(Employer) i
Dated By
(Representative) (Title)
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE: We will notify the above-named persons if presently
serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended after discharge from the
Armed Forces.
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.
If employees have any question concerning this Notice or
compliance with its provisions , they may communicate direct-
ly with the Board 's Regional Office, Room 2407 Federal
Office Building 550 Main Street , Cincinnati , Ohio 45202 (Tel.
No. 684-3663).