Fashion Fair, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1967

163 N.L.R.B. 97 (N.L.R.B. 1967)

APPENDIX A
TEXAS GULF SULPHUR COMPANY
(INCORPORATED)
FASHION FAIR, INC. 97
FRASCH SULPHUR DIVISION
NEWGULF, WHARTON COUNTY, TEXAS 77462
MARCH 17, 1966
As you know, paid union organizers have started a
campaign to try and get you Texas Gulf Sulphur
employees at Spindletop to turn your affairs over to their
Oil Workers Union.
Union organizing tactics are new to us and probably to
many of you; but, we are told that we can look for the
following five regular propaganda techniques:
1. "Good Guy" approach-The union will wrap itself
in the flag and cite religious leaders and politicians for
support.
2. "Fear" approach-The union will try to scare you
through insinuations about lack of security, loss of
jobs, favoritism, and threats about what can happen if
you don't join or support the union.
3. "Band Wagon" approach-Union supporters will
claim that a lot of employees have already signed up,
why don't you.
4. ":Som.eth.ing ./or Nothing" approach-Since
everyone likes a bargain, the union will hold out it will
get you more-more wages, more benefits, etc.-and,
it won't cost you anything or at least not much.
5. "Half-truth" approach-Union propaganda will
give only part of the story, obviously the part that puts
it in the most favorable light.
The Oil Workers has already caused dissension between
some of our employees, has circulated rumors trying to
make our men fearful of their jobs at Texas Gulf, and has
caused the discharge of one supervisor. Bickering and
trouble, the playing of one man against another, and the
separation of men from their company is the food on which
unions feed. Is this what you want as a steady diet? We
don't think so.
Any employee of "Texas Gulf Sulphur Company has a right
to believe as he sees fit, including being for or against a
union. It is against the law and against the policy of Texas
Gulf Sulphur Company to discharge or discriminate
against any non-supervisory employee because he is either
for or against a union. Whether you have signed a union
card, have attended union meetings, or have actively
supported the Oil Workers Union cannot, and will not,
have any effect on your job at Texas Gulf Sulphur
Company. But, the Company should and does expect its
supervisors not to actively support and organize for a
union.
APPENDIX B
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, as amended, we hereby notify our
employees that:
WE WILL NOT , by granting or announcing a wage
increase or other benefit for our employees , or by any
like or related act, attempt to induce our employees to
refrain from becoming or remaining members of Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization , or from
giving any assistance or support to such a labor
organization.
WE WILL NOT in any like or similar manner
interfere with, restrain , or coerce our employees in
the exercise of their right to self-organization, to form
labor organizations , to join any labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in any other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all such activity.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization.
TEXAS GULF SULPHUR
COMPANY
(Employer)
Dated By
(Representative) (Title)
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
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Fashion Fair , Inc., Cinbo, Inc., and Lois Price
of Ohio, Inc. and Retail Clerks Union Local
No. 445, Retail Clerks International
Association , AFL-CIO. Case 25-CA-2329.
February 23, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 6, 1966, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
163 NLRB No. 22
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief. Respondent
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Fashion Fair, Inc.,
Cinbo, Inc., and Lois Price of Ohio, Inc.,
Owensboro, Kentucky, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
' Respondent ' s motion to dismiss on the ground that the
General Counsel's exceptions do not conform to the requirement
for page citations contained in Section 102.46(b) of the Board
Rules and Regulations is denied The General Counsel's
supporting bnef does contain such citations in accord with rule
102.46(c) and these references are applicable to the exceptions
and are sufficient to meet the requirements of 102.46(b)
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Fashion Fair, Inc., an Ohio corporation, is engaged in
the operation of discount department stores in Ohio,
Kentucky, and Indiana, including the store involved in this
proceeding which is located at 2621 Frederica Street,
Owensboro, Kentucky, herein referred to as the
Owensboro Store. Cinbo, Inc., an Ohio corporation, is
engaged in the business of operating shoe, houseware, and
toy departments in discount department stores, including
the Owensboro Store. Lois Price of Ohio, Inc., an Ohio
corporation, is engaged in the business of operating
women's, children's, and infants' departments in discount
department stores, including the Owensboro Store. It is
admitted, and I find, that by virtue of their common
control of the incidents of employment, Respondents
Cinbo and Price, together with Respondent Fashion Fair,
are joint employers of the employees in the leased
departments at the Owensboro Store; that Respondent
Fashion Fair is the exclusive employer of the remaining
employees at the Owensboro Store; and that these
Respondents constitute a single employer under the Act.
During the past year, each Respondent sold at retail
goods valued in excess of $500,000, and purchased and
caused to be delivered to their various locations from other
States goods and materials valued in excess of $50,000.,
Respondents admit, and I find, that they are engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: Upon charges
filed by Retail'Clerks Union Local No. 445, Retail Clerks
International Association, AFL-CIO, herein called the
Union, on September 21, November 16, and November 18,
1965,' a complaint, dated December 8, was issued against
Fashion Fair, Inc., Cinbo, Inc., and Lois Price of Ohio,
Inc., herein collectively referred to as the Company,
alleging that the Respondents had engaged in and were
engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (4) of the Act. The Respondents
filed an answer which generally denies that they had
engaged in the alleged unfair labor practices. A hearing in
this proceeding was held before me in Owensboro,
Kentucky, on April 12, 13, and 14, 1966. Thereafter,
briefs were filed on behalf of the General Counsel and
the Respondents.
' All dates, unless otherwise specifically stated, refer to the
year 1965.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Fashion Fair operates a chain of 15 retail
discount department stores. Only its Owensboro Store is
involved in this proceeding. The complaint, as amended at
the hearing, alleges that between August 16 and
September 21 Respondents discriminated against five
employees and, in addition, that Respondents engaged in
further violations of Section 8(a)(1) of the Act by conduct of
successive store managers; namely, Jack Hardin, who
assumed the position on May 11, and his immediate
predecessor, Mr. Switzer. The allegation involving Switzer
has been abandoned by General Counsel because the
evidence does not establish that the conduct of which he is
accused occurred within 6 months preceding the filing and
service of the initial charge herein. As to the remaining
8(a)(1) violations, Hardin is alleged to have unlawfully
interrogated employees, to have threatened employees
with discharge or other reprisals if they join or assist the
Union, and to have promulgated an unlawful no-
solicitation rule. I find no evidentiary support in the record
for the allegations of unlawful interrogations or threats and
I shall recommend dismissal of those portions of the
FASHION FAIR, INC.
complaint.2 However, for reasons discussed below, I find
that the allegation concerning the promulgation of an
unlawful no-solicitation rule has been proved.
In regard to the alleged discriminations, General
Counsel requests that notice be taken of the Board's
decision in a prior proceeding, also involving the
Owensboro Store, which is reported at 157 NLRB 1645. In
that case the Board found that the Respondents had
violated Section 8(a)(1), (3), and (5) of the Act by
discriminatorily discharging James Black, the initiator of
organizational activities and the most active union
supporter among the employees, threatening employees
with discharge for engaging in organizational activities,
unlawfully interrogating employees, promising and
granting employees benefits to induce them to withhold
support from the Union in order to gain time in which to
undermine the Union's majority. The incidents litigated in
that case occurred between early fall 1964, when the
Union commenced an organizational campaign among the
store's employees, and December 28, 1964, when a
representation election was held. Although the persons
who were acting as manager and assistant manager of the
store in 1964 were no longer working there when the
events with which this proceeding is concerned took place
and played no part (at least so far as the evidence shows) in
the alleged discriminations, nevertheless, as the unfair
labor practices found in the prior case have not been
remedied, I will assume that Respondents' hostility to the
Union and discriminatory disposition continued during the
times material hereto.
Also of significance in this case, particularly in relation
to the alleged discriminations , is the temperament of Jack
Hardin, who was principally responsible for the conduct of
which Respondents are accused in this case. Hardin in his
relations with the employees at the store tended to be
impatient, excitable, easily angered, prone to reprimand,
and inconsiderate of their sensitivities. Thus, Kenneth
Grissom, the assistant manager of the store, who also had
worked for Hardin at another store, described Hardin as
"a demanding man." Ima Jean Brown testified that when
she was promoted to the position of head cashier Hardin
instructed her to keep the other cashiers "in line and give
them a hard way to go." She was of the opinion that Hardin
was not happy unless he was bawling out somebody.
Similarly, Jean Tipton testified that Hardin was bawling
out somebody most of the time and on some occasions
even bawled her out in the presence of customers.3 Beulah
Young also testified regarding Hardin's propensity for
berating employees. Several employees testified about
incidents where they were upbraided by Hardin in such a
manner that they began to cry. On one occasion, about
August 14, 1965, Hardin reproved Lucy Hatfield so
severely in the presence of other employees that not only
Hatfield but also some of the other employees began to
cry. Martha Mosley testified that she cried "[b]ecause
2 In his brief , without any further elaboration , General Counsel
states that he "takes the position that Respondents violated
Section 8(a)(1) by . unlawful interrogation of Ima Jean Brown by
Jack Hardin, and threats to Jean Tipton by Jack Hardin (TR 73,
L 22-TR 74, L 8 and elsewhere ) " Upon review of the testimony
of, and concerning , Ima Jean Brown , I perceive no evidence of
unlawful interrogation . Regarding the alleged threat directed to
Jean Tipton , the evidence to which General Counsel refers is
testimony by Tipton that in the summer of 1965 Hardin asked her
whether she thought Hardin was going to discharge her, to which
she replied , "No." This testimony , even if construed as a threat of
discharge , does not prove that the threat had any relationship to
union membership , support, or activity Furthermore , Tipton was
99
Mr. Hardin talked to Lucy in such a way. She was a good
friend of mine. He had talked very hateful to her."
However, the evidence shows that Hardin's scoldings of
and unpleasant manner with employees were general and
were not directed only to union adherents.
The complaint in paragraph numbered 7 alleges that on
or about September 8 employees Martha L. Mosley and
Sharon A. Clark ceased working concertedly and went out
on strike and have been continuously on strike since said
date and that such strike was caused by Respondents'
unfair labor practices. Mosley and Clark, according to
their testimony, decided to leave their jobs because
another employee had been discharged in circumstances
which they believed were unfair and they were of the
opinion that "it could possibly happen to us next." In
addition, both were of the opinion that Clark, who was a
part-time employee, was not being fairly treated in regard
to the number of hours of work which the Company had
been assigning to her. However, both Mosley and Clark
testified that they had quit their jobs and had had no
intention of returning to work for Respondents. As both
employees voluntarily quit their jobs and intended
permanently to sever their employment relationships with
the Respondents, they cannot be deemed to have been
strikers, despite the fact that they both quit at the same
time for the same reasons . Accordingly, I hereby grant
Respondents' motion to strike paragraph numbered 7 from
the complaint, as to which motion I reserved decision at
the hearing.
B. The No-solicitation Rule
About September 1, Store Manager Hardin held a
meeting of the employees. According to his testimony,
which I credit, among other things he said was the
following:
I didn't think it was fair for the people in the store to
talk about the union on company time; that I didn't
think it was fair to an Employer to take their money,
while they were supposed to be working on the job,
and to try to promote the union on company time.
I also said that I thought it was their privilege, if they
wanted to belong to a union, this was their
privilege ... but not to do it on company time. If they
are going to do it I told them to do it outside the store
I made mention that they could rent a tent and
hold a big meeting if they wanted to as long as it was
out of the store but I didn't feel it was fair to do it in
the store on company time.
Various employees testified that they understood from
Hardin's statements they they were not permitted to
discuss the Union within the confines of the store.
In their brief Respondents assert that Hardin's
statement of policy was inartfully worded but "it was
merely a statement of the existing Board policy in regard
a supervisor and it would not have been a violation of the Act for
Respondents to have threatened her with discharge for engaging
in union activities If General Counsel intends to suggest that the
threat was related to the fact that Tipton , on July 15, gave
testimony adverse to the Respondents in a prior Board
proceeding , he has failed to prove that the incident occurred on or
after said date
Some of these incidents occurred before July 15, so that such
incidents cannot be related to any wish on the part of
Respondents or Hardin to retaliate against Tipton for having given
testimony adverse to the Respondents in the prior unfair labor
practice proceeding.
295 -269 0-69-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to solicitation in retail establishments , to-wit: that
solicitation and organization activities by employees are
not permitted during store hours on the retail sales floor of
the employer." The difficulty with argument is that it does
not comport with the facts . The rule enunciated by Hardin
is subject to the interpretation that employees are
forbidden to discuss the Union within the store premises.
If there is any ambiguity as to the meaning of the rule "the
risk of ambiguity must be held against the
promulgator . .."' Accordingly , I find that the no-
solicitation rule promulgated by Hardin about
September 1 was unlawfully restrictive and that
Respondents thereby have violated Section 8(a)(1) of the
Act.
C. The Termination of Jean Tipton
Jean Tipton, a supervisor as defined in the Act, was in
charge of several departments of the store, including the
men's, boys', and domestics departments, from sometime
in 1961 until she left Respondents' employ on
September 24. On July 15, at the hearing in the prior
unfair labor practice proceeding, she gave testimony
adverse to the Company's case. Two witnesses for General
Counsel testified that while Tipton was still on the witness
stand they overheard an attorney for Respondents whisper
to an officer of the Company to get Tipton "out of the
store."
Tipton quit her job on Friday, September 24. According
to Tipton, when she reported for work, about 1 p.m. on
that day, the only person who was then working in her
department, a recently hired employee, was having
difficulty finding merchandise for the customers shopping
in the department and Tipton observed that the
department was "in a real bad mess" because there was
stock still on the floor which should have been removed
from cartons and put away in their proper places between
the time she had left work the previous day and the time
she returned on the day in question. Soon after reporting
to work Tipton clocked out and then told Store Manager
Hardin that she was quitting, to which Hardin responded
that it was her privilege. In his brief "General Counsel
takes the position that Hardin deliberately carried out a
plan to get rid of Tipton after she testified by making the
conditions of her employment more and more intolerable;
by adding to her work; by getting rid of her experienced
Union help; by taking Tipton's experienced help out of her
department; by giving Tipton new help to do the big jobs;
then finally Tipton's hours were cut from 44 hours per
week to 40 hours per week in July 1965 (Tr. 98, LL 3-7).
And all of this was pursuant to Counsel Katz's order to
Respondents' Vice President Lass-'get rid of her,' given
July 15, 1965, the day Tipton testified for the General
Counsel."
Two periods of time are significant as dates of reference
in connection with General Counsel's argument that
Tipton was constructively discharged. First, June 12,
when Tipton returned to work following a sick leave
absence of 1 week because of an operation and, second,
July 15, when she testified at the previous hearing.
Tipton gave the following explanation for quitting her
position:
Because I had fell behind in my work and I couldn't
keep my department up like I had in the past and I
didn't have anybody in the department to work and
this bothered me a lot.
' N L R B. v Miller Charles & Co , 341 F 2d 870 (C A 2)
Her testimony as to how the situation developed so that
she could not keep up the department as in the past is
vague and confused . Her principal complaint appears to
be that she didn't have sufficient assistants . She testified
that at least once or twice a week beginning upon her
return to work on June 12 she asked Hardin for more help
for her department. According to Tipton, Hardin's
customary response was "that he would give more help.
He realized that we needed more help in that department
and I had asked almost every week from the time, or prior
to the time that I came off of sick leave and on up until I
left Fashion Fair." However, these promises were not
fulfilled. Thus, Tipton's testimony regarding insufficient
personnel shows that the problem developed more than a
month before July 15.
Another complaint by Tipton was a reduction in her
hours of work. Her testimony in this regard is uncertain.
Upon examination by General Counsel, she testified that
her hours of work had been reduced to 40 hours per week
and that "prior to the last of July or the first of June,
somewhere in along in there ... I was working 44, perhaps
48 hours a week." Upon further examination by General
Counsel, Tipton testified that she discussed her reduction
of hours with Hardin who told her, "he thought that 40
hours was enough for you to work." On cross-examination,
Tipton testified as follows:
Q. Now, you said that you were working so hard
that you just had to quit, is that right?
A. That is right.
Q. Isn't it a fact that your hours were reduced to 40
hours ?
A. But I still was doing as much in 40 hours as I
was doing in 48 hours or more.
Q. And Mr. Hardin did reduce your hours so you
wouldn't have so much work to do, isn't that right?
A. I had more work to do.
Q. In what respects did you have more work?
A. Because I couldn't get it out in those hours that
I had to get it out in and no one could help me get it
out.
As Tipton's testimony, given both on direct and cross-
examination, was obscure regarding when her hours of
work were reduced and in what way she was called on to
work harder, the Trial Examiner sought to clarify her
testimony in those respects. Upon questions put to her by
the Trial Examiner she affirmed that the reduction in her
hours of work to 40 hours per week occurred upon her
return to work following her sick leave period in early
June. She also repeated that after the reduction in her
hours she was working harder than before. However, she
was completely unable to explain this assertion.
Another complaint by Tipton is that she was receiving
less assistance in lifting heavy articles . Here, too, her
testimony shows that this change occurred in May or after
her return to work following her sick leave in June, but in
any case prior to July 15.
While Tipton testified that she left the store on
September 24 because the "department was in a real bad
mess," when pressed to explain whether she found the
condition of the department different than it was during
the 4 years she had been in charge, she testified, "It may
not have been any different but it was just in as bad a
condition, if not worse." Although she testified that in
September 1965 she considered her work too hard and
"didn't feel I could do it anymore ... I wasn't in any
condition to do it," this was a situation which, according to
FASHION FAIR, INC.
her testimony , had persisted continuously at least since
May 1965.
Returning again to Tipton 's asserted reasons for quitting
her employ, she also testified as follows:
Q. In other words you were working harder
physically but you were falling behind and that was
troubling you, is that what you are telling me?
A. It troubled me, yes, because I had been able to
keep it up before.
Q. You didn't like the idea of falling behind?
A. I didn't like the idea of falling behind.
Q. Did Mr. Hardin reprimand you because you
were falling behind?
A. Not tome.
Tipton further testified that in September 1965 she was
criticized less by Hardin than in prior months and the
condition of her departments was no worse in September
than in prior months.
General Counsel had not proved that there was any
change in Tipton's conditions of employment after July 15.
There is no evidence that Tipton was called upon
personally to do any more work or to perform any more
onerous tasks after July 15 than prior to said date; nor is
there any evidence that she was subjected to personal
harassment or abuse between the date when she testified
at the earlier hearing and the date when she quit her job.
Upon consideration of all the evidence, including such
evidence as suggests that the Company may have desired
Tipton's removal from its employ,5 I find that General
Counsel has not established by a preponderance of the
evidence that Jean Tipton was discriminatorily treated in
regard to any.term or condition of her employment or was
constructively discharged.
D. The Termination of Ima Jean Brown
Ima Jean Brown began working as a cashier for
Respondents in December 1963. On May 24, 1965, shortly
after Jack Hardin became manager of the store, he
discharged Joyce Roberts, who then was the head cashier,
and promoted Brown to the position , at the same time
increasing her wages by more than 20 percent from $1.15
per hour to $1.40 per hour. Brown had supported the
Union in its 1964 organizational campaign and at the prior
hearing, on May 6, 1965, testified for General Counsel and
identified her union card.
According to Brown, about a week after she had been
promoted to the supervisory position of head cashier,
S While, on the one hand, the Company's union hostility,
demonstrated by the Board's findings in the earlier case, the
alleged remark by Respondents ' counsel during the trial of said
case, plus Tipton 's testimony that subsequent to July 15 Hardin
"told me that he realized that I was for the union and that my
husband was a union official, and some way or another that he
would have to win me over to the Company's side" suggest a
possible discriminatory disposition on the part of Respondents
towards Tipton; on the other hand, there is evidence that the
Company may have considered Tipton an unsatisfactory
supervisor Ima Jean Brown , a witness for the General Counsel in
this proceeding , testified that while Jean Tipton was absent on
sick leave Hardin said to Brown that Tipton "didn't finish her
work before she took her sick leave and he was going to fire her."
This latter incident occurred more than a month before Tipton
testified at the previous hearing.
s Brown testified that during this conversation she asked
Hardin "if he thought I was stupid and he said no, I don't think
you are stupid and I said, well you don't think I would be dumb
enough to let Mr. Rosner know if I was for or against the union, do
you9" However, at the time of the conversation between Brown
101
Hardin told her that a former store manager , Mr. Rosner,
had advised him that Brown was "one of the main girls for
the union and [on] the date the election was held and the
union lost that [Brown ] threw a fit at the service desk."
Hardin also said to Brown that "if I find out later that I
have been wrong in choosing you as head cashier, I am
going to look like a fool." e
Brown quit her job as head cashier on September 21
immediately following an incident where she was severely
upbraided by Hardin. Referring to that incident and
several prior incidents where Brown also had been
reproved by Hardin, General Counsel, in his brief, "takes
the position that store manager Hardin imposed the above
repeated and continued intolerable treatment on Brown
after she testified for the General Counsel (May 6,
1965-TR 503, LL 17-20) and after he knew shei was `one of
the main girls for the Union' (TR 317, LL 5-8). Such
intolerable conduct , unexplained on any other basis except
discriminatory motivation, constituted a constructive
discharge of employee Brown and a violation of Section
8(a)(4), 8(a)(3), and 8(a)(1) of the Act." Thus, according to
General Counsel's argument, Hardin first promoted
Brown to the position of head cashier, increased her wages
substantially, and then proceeded to make her situation in
the store intolerable so that she was compelled to quit.7
This is hardly plausible in the circumstances of the case.8
Furthermore , inconsistent with General Counsel's theory
is the fact that Hardin promoted Sharon Hardman Jones to
the position of head cashier after Brown quit, although the
former had also testified at the earlier hearing, on May 6,•
that she had signed a union card . In any case , I find that
General Counsel has not proved that Hardin created
intolerable conditions of employment for Brown.
General Counsel refers to the following incidents to
support his argument that Hardin made Brown's
employment situation intolerable:
1. According to Brown, in July 1965, when Hardin
overheard her placing a telephone call to a customer about
a bad check, Hardin in a loud and angry voice told her she
wasn't using the correct procedure and "that I was trying
to go over his head and do things my way and that I had
better not try to go over his head and try to do anything my'
way.
2. About July 24 Hardin asked Brown to do some typing
for him. When she replied that she could not type Hardin
said, "I'll just get someone in the office who does know
how to type ..."9 The conversation turned to the work that
and Hardin , Brown had already testified at the earlier hearing that
she had signed a union card so that her union sympathies had
already become a matter of public record . Brown also testified
that Hardin told her that "when Mr. Rosner found out that
[Hardin] had chosen [Brown ] as cashier , he told [Hardin] that
he couldn't trust me, that I might turn on him at any time "
I There is no evidence that Brown continued to support the
Union after her promotion to the position of head cashier.
Furthermore , it would not have been improper for Respondents to
have forbidden Brown, after her promotion to the supervisory
position of head cashier, to engage in union activities
" General Counsel does not argue, and there is no basis in the
record to support such argument, that Respondents, to rid
themselves of a union adherent with minimum risk of being
charged with unfair labor practices , had first promoted Brown to a
supervisory position, thus seeking to remove her from the
protection of the Act.
" According to Brown she had advised Hardin that she could
not type before she accepted the position of head cashier, and
Hardin on that occasion had said that typing was not one of the
requirements for the)ob
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown was doing and Hardin in a loud voice said, "[You]
might stand here and argue with Foskey, Rosner and
Switzer (former managers of the store), but you are not
going to stand here and argue with me. . ."
3. About this same period of time Hardin upbraided
Brown and Shirley Hancock for the procedure they were
following regarding notices to customers concerning
layaway purchases. According to Brown, he accused them
of being "lazy and irresponsible."
4. Following a general meeting of the store's employees,
which was held early in September, Hardin scolded Brown
for having asked a question about whether employees
would be permitted to accept personal telephone calls of a
business nature or long distance telephone calls.
According to Brown, Hardin said to her, "Jean, I think that
was a ridiculous question that you asked me this morning
at the meeting, don't you? ... I know what you are trying
to do to me and I (Brown) said , I just wanted to clear it up
about personal calls for the employees and he (Hardin)
said it is not your place to clear anything up-you don't
have the authority to clear anything up-you are just the
head cashier and don't you try to go over my head about
anything and that's all that was said."10
The final incident occurred on September 21. Hardin,
who was in the automotive department in the back of the
store, telephoned the office using the store's
intercommunication system. Brown answered the
telephone. Hardin asked, "[I] s Mr. Grissom ( the assistant
manager) there." She said, "Yes, he is." Hardin waited for
Grissom to answer the telephone. After waiting for awhile
Hardin hung up the telephone and called again. Brown
answered. Hardin said, " Jean is Mr. Grissom there." She
replied, "[Y]es he is, do you want to talk to him?" Hardin
said, "[Y] es I guess I do, what do you think I called there
for him if I didn't want to talk to him." When Grissom
came to the telephone, Hardin asked him whether Brown
was laughing. According to Hardin, "I heard her laughing
on the phone before she left the phone and he said, yes she
is." Hardin went immediately to the office. He testified, "I
was angry. I was mad. I went into the office and I walked
around Ken's (Grissom's) desk over to Jean and I told her
that that was a stupid thing to do, for a person in her
position as the head cashier of the store, as a person in the
store who was supposed to set an example for the other
people, for her to leave me hanging on this phone and not
call Ken to the phone; to stand there and laugh. I heard her
laugh. It was ridiculous and she said something and I just
told her I didn't want to hear anymore about it, and I told
her don't you ever let that happen to me again, and I
turned around and walked out of the office."11
Brown left the store shortly after the above incident. As
she was leaving she informed Hardin that she would return
Friday morning to pick up her pay. Contrary to General
Counsel, I do not find that the evidence establishes that
Hardin or the Company made intolerable Brown's
conditions of employment. Furthermore, taking into
account Hardin' s temperament and personality, it does not
appear from the record that Brown was treated more
severely than other employees. Moreover, in regard to the
September 21 incident, Brown was far from innocent. The
manner in which she handled the telephone calls from
Hardin and her laughter when she called Grissom to
the telephone was calculated to provoke Hardin to
anger. In these circumstances she had little cause
for feeling outraged when she was scolded by Hardin
for her behavior. I find that the General Counsel has
not proved that Ima Jean Brown was constructively
discharged in violation of the Act.
E. The Discharge of Ruth Hawkins
Ruth Hawkins was employed as a salesperson in the
children's and ladies' ready-to-wear departments from
September 1961 until she was discharged on September 8,
1965. Her supervisor was Beulah Randolph. Hawkins
appeared as a witness for the General Counsel in the
earlier case and at the hearing, held on May 6, testified
that she had signed a union card. At the hearing in the
instant case she testified that in July 1965 she solicited
Sharon Clark to sign a union card and, in addition, during
1965 spoke about the Union with Ray Bickett, the janitor,
and Jean Edwards, another saleslady, and during breaks
discussed the Union with other employees. She also
testified that several times during the summer of 1965 she
waited on Mrs. Von Bokern George, an international
representative of the Union who was active in organizing
the store's employees, and was observed doing so by a
supervisor.
In July 1965, Hawkins asked Hardin for a transfer from
Beulah Randolph's departments to departments
supervised by Jean Tipton, but the request was denied.
Hawkins testified that she was dissatisfied because of the
denial of her transfer request. She further testified that in
early August her supervisor, Beulah Randolph, informed
her that "Mr. Hardin wasn't satisfied with my work."
Later the same day Hawkins approached Hardin to speak
to him about the subject. In the course of their discussion
Hardin told her that she "should have a better attitude."
About August 14 there was an incident where Hardin
went into a tirade in the presence of various employees,
including Ruth Hawkins. The incident was precipitated by
a request Lucy Hatfield had made to another employee to
ask Hardin whether Hatfield would be paid for an absence
occasioned by a family bereavement. During the meeting,
according to Martha Mosley, "Lucy said that she had
asked Ruth Hawkins about being paid when she was off
for her grandmother's funeral and Lucy said that she had
been paid and Mr. Hardin said he would like to know why
Ruth Hawkins was always mixed up in everything or
something to that effect and he said it hurt him to think
that the employees would talk to each other and discuss
things that they should be coming to him and talking to
him about."
Sharon Clark testified that about 2 days before the
foregoing incident she had a discussion with Hardin about
her performance. According to Clark, Hardin said "that
my attitude was not right where I was working and that
none of the ladies in the department except Mrs. Randolph
were doing their best job and that people had been talking
to us in the department and influencing us and that the
10 Not referred to by General Counsel in his brief was an
incident, which occurred soon after Brown was promoted to head
cashier and followed a meeting with representatives of a finance
'company, where Hardin reprimanded Brown for having asked a
question which Hardin said made him look ridiculous, and
another incident where Hardin reproved Brown for having
improperly used the store 's loudspeaker
i i Brown's version of the incident is not substantially different
from Hardin 's. However, because Hardin impressed me as being
a forthright and reliable witness, I credit his version of the
incident.
FASHION FAIR, INC.
work was not being done the way it should be ... [H]e
said there was a trouble maker in our department and that
I didn't have to say who it was because he already knew it
was Ruth Hawkins."
On September 8, Hawkins had a conversation with
Randolph about obtaining a reference for another position.
Randolph reported the conversation to Hardin who called
Hawkins to the office. According to Hardin, when
Hawkins arrived he said to her, "Mrs. Randolph tells me
that you are going to be interviewed for a different job this
afternoon and that you asked her for a reference for the
job." Hesitatingly, Hawkins replied in the affirmative.
Thereupon Hardin advised Hawkins she was being
discharged.12
Sharon Hardman Jones, another witness called by
General Counsel, testified that she had a conversation
with Hardin about Hawkins. Hardin asked her if she had
heard that Hawkins had been discharged. Jones said,
"No." Hardin then said he would tell her in detail what
had happened. Hardin said that Hawkins had asked for a
letter of recommendation for another job while she was
still working in the store. At this point in their conversation
Jean Brown came out of the office and asked Hardin a
question. Hardin answered the question and then turned
to Jones and said that Brown had asked him "a sort of
stupid question and she should have known the answer
before she asked him." Then Hardin said, "[T] here were
a lot of stupid things going on in the store and that Ruth
Hawkins had been the first fired and a few, he didn't
mention who would be the next, and before he was through
there would be five." Hardin indicated by looking towards
the office door that Jean Brown would be included in the
number who would be discharged.
General Counsel argues that "Respondents' discharge
of employee Hawkins purportedly for the above frivolous
reason really was because Hawkins testified for the
General Counsel in 1965 ... Hardin is picking off the
Union people and on most tenuous grounds." While the
record in this cases raises some possible suspicion that
Respondents might have wanted to rid union adherents
from their employ, nevertheless, General Counsel has not
adduced evidence sufficient to enable me to find that
Respondents in fact were pursuing such plan. Contrary to
General Counsel, I find that he has not established by a
preponderance of the evidence that Hawkins' union
sympathies, union activities, or the fact that she testified
for the General Counsel in the earlier case contributed to
Respondents' decision to discharge her. The evidence
shows that Hardin did not consider Hawkins a good
employee and it is quite consistent for a man with his
personality to discharge an employee for seeking another
job. Accordingly, I find no violation of the Act by reason of
Hawkins' discharge.
F. The Discharge of Shirley Hancock
Shirley Hancock worked as a cashier for Respondents
from November 1963 until her discharge on August 16,
it I credit Hardin's version of his conversation with Hawkins
rather than the version given by Hawkins whom I consider to have
been a much less reliable witness. According to Hawkins, she did
not have any appointment for a job interview and did not make
any such statement either to Randolph or to Hardin Her version
is that she asked Randolph whether she could use Randolph's
name as a reference merely as a point of information However, in
103
1965.13 On May 6, as a witness at the prior hearing, she
testified that she had signed a union card.
Hancock was not considered a good employee. She
testified that although Hardin had not at any time
specifically told her that her work was unsatisfactory
"[h]e was always finding mistakes and things that he
didn't like the way they were done." Ima Jean Brown
testified that as head cashier she "told Mr. Hardin that
Shirley Hancock was slow, was a slow worker, which she
was," and that Hancock's mistakes at the service desk
were making Brown's work more difficult. Brown also
testified that Hardin had complained to her about
Hancock being a poor worker and making mistakes.
Hancock was discharged following an incident involving
a personal telephone call which she received while at the
service desk. According to Hardin, about 2 weeks after he
became store manager , he informed the employees at a
meeting that "they could have personal phone calls but not
to abuse the privilege." However, according to Hardin,
there were many occasions when he told Hancock "to quit
having so many phone calls."
According to Hardin, the circumstances leading to
Hancock's dismissal were the following:
I was in the domestics department which is about half
way back in the store and I saw Shirley on the phone
and I walked towards the front of the store ... to see
how long she was going to be on the phone .... I
walked up to her and I said, Shirley, is that a business
call? and she said, yes it is and I said, well here I'll
take it and she hung the phone up.
Hardin testified that he observed Hancock talking on the
phone on this occasion about 4 or 5 minutes and while she
was talking there was a boy waiting at the service desk.
Hardin went to the office and then sent for Hancock.
When she arrived, according to Hardin, "I told her I had
asked her dozens of times please not to use the phone so
much, please not to have personal calls .... I told her that
if she could not stop having personal phone calls and wait
on her customers that she would just have to resign and
she told me, well I am not going to resign , you can fire me
if you want to, and I said , okay, if that's the way you want
it, you're fired and I fired her." 14
General Counsel argues that Hardin "abruptly fired
Mrs. Hancock, without warning, for doing something he
had permitted her to do all along-after he discovered that
she, too, was a member of ... the Union." I do not agree
with this analysis. Hancock had been advised that she was
abusing the telephone privilege. Furthermore, her
discharge was not abrupt in the sense that without warning
Hancock was discharged for a trivial offense. What
happened was that she was reprimanded by Hardin for an
offending act, she in effect challenged Hardin to discharge
her. It is not unreasonable that an individual as excitable
as Hardin would accept such challenge-particularly from
Hancock who was considered a marginal employee at best.
I find that General Counsel did not prove by a
preponderance of the evidence that Hancock' s union
activities were a contributing factor to Respondents'
decision to discharge her.
a pretrial affidavit, Hawkins averred that the reason she did so
was merely to aggravate Randolph and at the hearing herein she
said she knew that it would aggravate Randolph
" She worked in the ladies' department for 3 months between
January and April 1964.
i4 To the extent that Hancock's version of the foregoing
incident differs from Hardin's, I credit Hardin
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Alleged Discrimination Against Sharon Clark
Sharon Clark was hired as a part-time salesclerk in
March 1965 and quit her employ on September 8. The
complaint alleges that Respondents discriminated against
Clark by providing her with less employment than she
normally would have received during the period from
July 24, 1965, to and including September 8, 1965. After
reviewing the evidence in the record concerning Sharon
Clark and carefully reading the brief of General Counsel in
regard to the alleged discrimination against Sharon Clark,
I find that General Counsel has failed to prove by a
preponderance of the evidence either that Respondents
had learned that Clark joined or was sympathetic with the
Union or that there was any abnormal reduction in her
hours of work during the periods referred to in the
complaint. Accordingly, I shall recommend dismissal of
the allegations of the complaint relating to the
discrimination against Sharon Clark.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with Respondents' operations,
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and 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
Although in this case I have found that Respondents
committed only a single violation of the Act, nevertheless,
I deem it necessary that an appropriate remedial order be
issued. "Whether a single violation of the Act is so
insignificant as will not justify the exercise by the Board of
its remedial processes depends not upon the fact that it
happened only once but upon whether (1) infringement of
employees' statutory rights have been trivial and
unimportant and (2) whether, under the circumstances
demonstrated in the case, the Respondent is unlikely to
epeat such conduct in the future." 15 A rule which
prohibits employees from discussing self-organizational
matters at any time on company property is not a trivial or
unimportant infringement of employees' statutory rights
because it substantially impairs the employees'
opportunity to communicate with one another about such
subjects and contravenes a stated purpose of the Act of
"protecting the exercise by workers of full freedom of
association [and] self-organization." Furthermore, in view
of the unremedied unfair labor practices found in the prior
case, reported at 157 NLRB 1645, it may be anticipated
that the Respondents might in the future engage in
misconduct similar to the statutorily offensive action
found in this case. Accordingly, having found that the
Respondents have engaged in unfair labor practices, I
shall recommend that they cease and desist therefrom and
15 United Papermakers and Paperworkers , Local No 321,
AFL-CIO (Philip Carey Mfg Company), 159 NLRB 193
11 In the event that this Recommended Order is adopted by toe
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 is enforced by
a decree of a United States Court of Appeals , the words "a Decree
that they take certain affirmative action in order to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By promulgating a rule prohibiting employees during
nonworking time from engaging in union solicitation or
discussions about unions anywhere in the Owensboro
Store, Respondents have interfered with, restrained, and
coerced employees in the exercise of their rights
guaranteed by Section 7 of the Act, and thereby have
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. Respondents have not engaged in any violations of
the Act by reason of conduct alleged in the complaint to
have constituted unfair labor practices except insofar as
such conduct hereinabove has been found to have violated
Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby recommend that
Respondents, Fashion Fair, Inc., Cinbo, Inc., and Lois
Price of Ohio, Inc., their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining , or enforcing any policy
or rule prohibiting employees during nonworking time
from engaging in union solicitation or union discussions in
nonpublic areas of Respondents' Owensboro Store.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post at their Owensboro Store copies of the attached
notice marked "Appendix."16 Copies of such notice to be
furnished by the Regional Director for Region 25, after
being duly signed by an authorized representative of the
Respondents, shall be posted by the Respondents,
immediately upon receipt thereof, and maintained by them
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
their employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify said Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
Respondents have taken to comply herewith. 17
I FURTHER RECOMMEND that the complaint be
dismissed as to violations of the Act alleged but not found
herein.
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
7 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
HENRY COLDER COMPANY 105
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, as amended, we hereby notify our
employees that:
WE WILL NOT promulgate, maintain, or enforce any
rule prohibiting employees during nonworking time
from engaging in union solicitation or union
discussions in the nonpublic areas of our store.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed by Section 7 of the
Act.
FASHION FAIR, INC., CINBO,
INC., AND Lois PRICE OF
OHIO, INC.
(Employer)
Dated By
(Representative ) (Title)
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
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 633-8921.
Henry Colder Company and Retail Store
Employees Local No. 444, affiliated with
Retail Clerks International Association,
AFL-CIO.
Colder Company Employees Association and
Retail Store Employees Local No. 444,
affiliated with Retail Clerks International
Association , AFL-CIO. Cases 30-CA-124,
30-CA-167, and 30-CB-29.
February 24, 1967
DECISION AND ORDER
On November 19, 1965, Trial Examiner Maurice
S. Bush issued his Decision in the above-entitled
consolidated proceeding, finding that Henry Colder
Company and Colder Company Employees
Association, herein respectively called the
Respondent Employer and the Respondent Union,
had engaged in and were engaging in certain unfair
' We find no merit in the Respondent Employer's contentions
that the Trial Examiner' s initial Decision on its face shows bias
and prejudice and that the hearing was not fairly conducted
Accordingly, we deny the Respondent Employer's request to
disregard the Trial Examiner' s Decision and to decide the case on
labor practices and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent
Employer had not engaged in other unfair labor
practices alleged in the consolidated amended
complaint. The Respondent Union, the Charging
Party (Local No. 444), and the General Counsel filed
no exceptions, but exceptions to the Decision and a
supporting brief were filed by the Respondent
Employer.
On June 20, 1966, the Board, having duly
considered the Respondent Employer's exceptions,
ordered that the record in this proceeding be
reopened, and that a further hearing be held before
the Trial Examiner for the purpose of adducing
further evidence bearing on the question of
authenticity of purported employees' signatures on
certain union authorization cards, which the Trial
Examiner had found were properly authenticated
and therefore countable toward establishing Local
No. 444's majority status. The Board also ordered
that, upon conclusion of such further hearing, the
Trial Examiner issue a Supplemental Decision
containing findings of fact, conclusions of law, and
recommendations upon the evidence received.
Following a supplemental hearing, conducted
pursuant to the above Order, the Trial Examiner
issued, on September 28, 1966, his Supplemental
Decision, reaffirming his finding in his initial
Decision that a majority of Respondent Employer's
employees in an appropriate unit had signed cards
authorizing Local No. 444 to represent them for
purposes of collective bargaining, and his
recommendation that the Respondent be ordered to
bargain with Local No. 444, as set forth in the
attached Trial Examiner's Supplemental Dcision.
Thereafter, the Respondent Employer filed
exceptions to the Trial Examiner's Supplemental
Decision.
The Board has reviewed the rulings made by the
Trial Examiner at the initial and supplemental
hearings and finds that no prejudicial error was
committed.' The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision
and Supplemental Decision, the exceptions and
brief, and the entire record in this case, and hereby
adopts the Trial Examiner's findings,2 conclusions,
and recommendations, except as modified
hereinafter in our Order.
1. We agree with the Trial Examiner, for the
reasons stated in his Decision and Supplemental
Decision, that the Respondent Employer violated
Section 8(a)(1), (3), and (5).
2. The Trial Examiner found, and we agree, that
the Respondent Employer dominated and interfered
the basis of the pleadings and transcript alone . Brewton Fashions,
Inc, 145 NLRB 99, 100, fn 3
2 In the absence of exceptions thereto, we shall adopt, pro
,forma, the Trial Examiner 's finding that the Respondent Union
violated Section 8(b)(1)(A)
163 NLRB No. 13