Electro Mart

National Labor Relations Board - Board Decisions

Dec 10, 1973

207 N.L.R.B. 769 (N.L.R.B. 1973)

ELECTRO MART 769
J. Byron Klaue , d/b/a Electro Mart and Retail
Clerks Local 1439, affiliated with Retail Clerks
International Association, AFL-CIO. Case
19-CA-5351
December 10, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 29, 1972, Administrative Law Judge 1
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions2 and
briefs and has decided to affirm the rulings,
findings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON , Trial Examiner: This case was tried
at Spokane, Washington, on November 11, 12, and 16,
1971. The charge was filed on July 6 by Retail Clerks Local
1439, affiliated with Retail Clerks International Associa-
tion, AFL-CIO, herein called the Union, and the com-
plaint was issued on September 13 by the Regional
Director for Region 19. The issues involved in the case are
whether Vincent Rago was threatened by Supervisor
Cowell on or about April 21 with loss of his job if he
attended a union meeting scheduled for that day and
whether he was discharged on the same day because of his
union activities and concerted action with other employees
in endeavoring to obtain health insurance coverage.
Upon the entire record in the case, including careful
consideration of the briefs filed, by the General Counsel on
December 15 and by counsel for the Respondent on
December 27, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, J. Byron Klaue, a blind man, is the
owner of Electro Mart, a retail furniture and appliance
store located in Spokane, Washington. It is not disputed
and I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (5), and (6)
of the Act and meets the Board's jurisdictional standards. I
further find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, J. Byron Klaue,
d/b/a Electro Mart, Spokane, Washington, his
agents , successors , and assigns, shall take the action
set forth in the Administrative Law Judge's recom-
mended Order.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 At the direction of the United States Court of Appeals for the Ninth
Circuit, we have considered Respondent 's original exceptions as though
they were timely filed . We have also accepted and considered the additional
exceptions filed by Respondent.
3 In adopting the Administrative Law Judge's conclusion that Respon-
dent discharged Vincent Rago because of his support of the Union, we do
not, in the circumstances described in the Administrative Law Judge's
Decision , impute James Klaue 's knowledge of Rago's union activities to his
father, Byron Klaue , Respondent herein ; nor do we adopt the Administra-
tive Law Judge 's finding that Rago received a draw check for the coming 2-
week period shortly before his discharge on April 21, 1971.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In September 1970, the Respondent interviewed Rago
and hired him as a commission salesman . During the
course of the interview, Rago disclosed that in July 1970,
while working for an appliance store in Wenatchee,
Washington, an information by the county attorney was
filed against him charging that he had committed the crime
of grand larceny by "having appropriated a check in the
amount of $253.58 belonging to Sav-Mart, Inc.," his then
employer. Under date of October 30, 1970, Rago requested
leave to withdraw his plea of not guilty and to enter a plea
of guilty to the charge, which was granted. He was then
placed on probation. Later, the plea was changed from
guilty to not guilty and the matter, in Rago's words, was
"completely written off the books." Under date of October
26, 1971, the court entered an order dismissing the action
and providing that Rago "is released from all penalties and
disabilities resulting from the filing of said charge."
At the time Rago was employed the Respondent was
investigating the availability of health and accident
insurance for its employees. It appears that the lack of an
insurance program became a matter of substantial concern
to the employees. At a meeting of employees, where the
lack of an insurance program was being considered, Rago
informed the Respondent and other employees that
207 NLRB No. 131
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coverage was available through the Union, of which he was
a member, and he described it as an excellent program.
During the month of December 1970, Robert Rogers, the
sales manager, sustained an injury at the store. He was
hospitalized for approximately a week and was out of work
for about 2 weeks. When he returned Rago asked Rogers
whether the Respondent had aided him in any way to meet
his expenses, and Rogers replied that to date he had
received no assistance from the Respondent.
After discussions among themselves, the salesmen, on
April 15, decided that Walker and Rago, on their lunch
hour, should go to the Union's office and endeavor to
ascertain what the Union could do for them. The two met
with John Brack, a business representative of the Union, at
the Union's business office. Brack advised them of the
Union's insurance program and of the right of employees
to organize and designate a union as their collective-
bargaining representative. They were given authorization
cards and were told to speak to other unit employees about
having a meeting at the union hall the evening of April 21.
They did so, but it was agreed they should attempt to
conceal their activity from Klaue and Supervisors Rogers
and Cowell. Between April 15 and April 21 Rago or
Walker spoke with every salesman , clerical employee, and
delivery employee in an attempt to persuade them to
attend the union meeting-They also spoke to James Klaue,
son of the Respondent who was temporarily working at the
store due to the elder Klaue's illness.
B. The Events of April 21
On Wednesday , April 21, Rago came to work about
noon . The previous day had been his day off . When he
arrived, three employees, Vickie Rigby , Walker, and
Knudson were at the front desk engaged in a discussion
concerning the union meeting scheduled for that evening.
Rago picked up his draw check and walked to the rear of
the store to hang up his coat. While passing a point some
30 feet from the front desk , he observed Klaue standing
behind a partition . Rago listened to the discussion at the
front desk and took part in it , for approximately 10
minutes; he was attempting to persuade Miss Rigby to
attend the meeting . The discussion came abruptly to a halt
when someone said that "Mr. Klaue was right around the
comer and he can hear you."
Following this , Rago went upstairs to Miss Rigby's office
to check on his commissions . While there , Operations
Manager Cowell told Rago , "I hear you are going to that
union meeting tonight"; Rago replied in the affirmative
and Cowell remarked, so Rago testified , "Well, when you
go, you had better have some job leads handy." Rago
asked , "Are you kidding? Is it that bad?" Cowell answered,
"Yes." Thereafter, Rago continued with his usual duties
and at about 1 or 1:30 spoke to James Klaue and asked
him if he would attend the scheduled meeting. Klaue stated
he would . According to Rago , James Klaue was the last
employee told about the meeting and this occurred as
Klaue was preparing to leave the store to make a delivery.
Rago and Klaue agreed that the matter should be kept
quiet and Klaue said it should be concealed from his
father.
At approximately 3 p.m. Rago, Walker, Rigby, and
another employee, Jeanie Grow, went across the street to a
coffee shop for their customary afternoon coffee. There
they continued discussing the Union. While doing so, Rago
noticed one of the other salesmen signaling for him to
return to the store. He did so and was then told that the
elder Klaue wished to see him . Rago went to Klaue's office
and there, according to Rago's uncontradicted testimony,
Klaue stated, "you are just too good of a man to sit around
with no business coming in the door and it is not going to
be good for you." He added, "I am going to let you go
because you could do better somewhere else."' While in
Klaue's office Rago said that there was no reason to let
him go since he was the most productive salesman except
possibly for Sales Manager Rogers. He told Klaue that the
real reason for his termination was his involvement with
the Union in scheduling the meeting for that evening.
Klaue denied having any knowledge of the meeting. Rago
left Klaue's office and spoke to Kimmel, Walker, and
Knudson and asked them if they would walk out, in
accordance with a prior agreement they had made to the
effect that if one was terminated because of the Union the
rest would walk out with him. They were undecided and, in
fact, did not walk out.
Shortly after Rago was terminated Kimmel and Walker
were summoned to Klaue's office, where he questioned
them whether they would honor their commitment regard-
ing concerted activity or whether they would remain loyal
members of his "team." During the course of that meeting
Kimmel asked Klaue whether he let Rago go because of
the meeting they were going to have that night, and Klaue
replied in the negative.
At the union meeting the night of April 21, Business
Representative Brack, told Rago that he had the protection
of the Act and could file charges alleging that he had been
discriminatorily terminated. However, Rago decided not to
do so at that time and subsequently made several attempts
to obtain reinstatement , principally contacting Operations
Manager Cowell. Shortly after Rago was discharged Byron
Klaue suffered a severe heart attack and, in consequence,
his son Randy, who was in charge of the Portland facility,
assumed operational control of the Spokane store. There-
after, Rago sought to obtain reinstatement by talking to
Randy. At a luncheon meeting Randy told Rago, "With
your sales record, I don't like to see you go, but it is strictly
up to my dad." Subsequently, Rago contacted Cowell to
ascertain if reinstatement was forthcoming.
The Respondent's defense appears to be a vacillating
one. The reason given for the termination of Rago on April
21, was that he was "too good a man" to be sitting around
during a slowdown period. However, in her report to the
state employment security department, Mrs. Klaue gave as
the reason that there was a business slowdown. At that
hearing counsel for the Respondent appeared to be taking
the position that Rago was not a competent salesman, that
on occasion he was tardy, that he caused dissension among
the other employees, and that he was too "aggressive."
1 During the hearing there was reference to the fact that the sidewalk and this made it inconvenient for customers to enter the store.
pavement in front of and adjacent to the store was being torn up and that
ELECTRO MART
Counsel introduced documents to show that Rago made
clerical errors in his sales slips , that on occasion disputes
occurred between Rago and other salesmen regarding
commissions, and that on two Sundays he was late for
work after having attended church.
Rago testified that during his employment he was
complimented on several occasions with respect to his
work and that, although on occasion he was reprimanded
for smoking on the selling floor, and certain errors with
respect to his paperwork were drawn to his attention, he
was never informed that his continued employment was in
jeopardy or that the deficiencies in his paperwork were so
serious that he was in danger of being discharged.
Employee Edward Knudson, who had been employed
since February and sold organs and pianos, testified that
before Rago's discharge he and Rago engaged in a
discussion at the front desk and that Rago stated that he
nearly got fired and that he was going hire his own
secretary to draw up the contracts. On direct examination,
Knudson testified that Business Representative Brack
accompanied by an unidentified attorney for Rago,
attempted to solicit a sworn statement from Knudson to
facts which were not true. However, upon cross-examina-
tion it developed that Knudson had not only told Brack
that he was aware, prior to, the time Rago went to Klaue's
office that Rago would be discharged, but in addition he
had given a sworn statement to a Board agent to that
effect.
Rago testified that when he emerged from Klaue's office
he went downstairs and met Supervisor Cowell at the back
entrance . According to Rago, he told Cowell that he had
been fired and that Cowell replied, "I told you, I told you."
On the other hand, Cowell testified that when Rago said he
had been discharged he (Cowell) made no reply. The two
had worked together for some 7 months and the record
establishes that they had a friendly and harmonious
working relationship. Cowell admitted that he regarded
Rago as a competent and capable salesman and one of the
best closers he had ever seen. In these circumstances, it
seems highly unlikely that, upon being informed that a
fellow employee and friend had been terminated, he would
make no comment. I credit Rago's version of the
conversation.
It should also be observed that Rago was discharged
with only 5 minutes notice, after having earlier obtained a
draw check for the coming 2 week period. Although Klaue
claimed to have no knowledge of Rago's union activities, it
is perfectly clear that everyone else in the employ of the
Respondent, including Supervisor Cowell and Miss Rigby,
who served as a confidential employee and acted as
Klaue's "eyes" (it will be recalled that Klaue is blind),
knew of the upcoming union meeting and that Rago had
played a prominent role in it. In view of the knowledge of
Supervisor Cowell and Klaue's son, James, and the
statements Klaue made to Kimmel and Walker, there is no
doubt in my mind that Klaue was well aware of Rago's
activities. Upon all the evidence, I infer and find that the
Respondent terminated Rago because of his union activi-
2 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and recommended Order herein
771
ties . Moreover, it is plain that the anticipated slowdown of
business because of street repairs did not occur; in fact, the
gross volume of business was substantially in excess of
what it had been during the same period in prior years.
Accordingly, I find that Respondent violated Section
8(axl) and (3) of the Act.
CONCLUSIONS OF LAW
1. By discharging Vincent Rago on April 21, 1971,
because of his support of the Union , the Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1).
2. By interrogating employees concerning their union
and concerted activities, Respondent violated Section
8(a)(1) of the Act.
3. The foregoing unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found, and from like
or related invasions of the Section 7 rights of its employees,
and to take certain affirmative action.
The Respondent having discriminatorily discharged
Employee Vincent Rago, I find it necessary that it be
ordered to offer him immediate and full reinstatement,
with backpay computed on a quarterly basis, plus interest
at 6 percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1960) and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), from the date of the
discharge to the date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER2
Respondent, J. Byron Klaue, d/b/a Electro Mart, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Retail Clerks Local 1439, affiliat-
ed with I Retail Clerks I International Association, ' AFL-
CIO, or any other union.
(b) Coercively interrogating or threatening any employee
concerning union support or union activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Vincent Rago immediate and full reinstatement
to his former job, and if his job no longer exists, to a
substantially equivalent position, without prejudice to his
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and Order, and
all objections thereto shall be deemed waived for all purposes.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in the
section of the Trial Examiner's Decision entitled "The
Remedy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its place of business at Spokane, Washington,
copies of the attached notice marked "Appendix." 3 Copies
of the notice, on forms provided by the Regional Director
for Region 19, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
trial, that we violated Federal law by discharging Vincent
Rago for supporting a union, and by otherwise interfering
with our employees' right to join and support a union:
WE WILL offer full reinstatement to Vincent Rago,
with backpay plus 6 percent interest.
WE WILL NOT discharge any of you for supporting
Retail Clerks Union, Local 1439, affiliated with Retail
Clerks International Association, AFL-CIO, or any
other union.
WE WILL NOT coercively question you or threaten
you about union support or union activities.
WE WILL NOT unlawfully interfere with your union
activities.
J. BYRON KLAUE, D/B/A
ELECTRO MART
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
form the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 10th Floor, Republic
Building, 1511 Third Avenue, Seattle, Washington 98101,
Telephone 206-442-4532.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after