Food Fair, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 222 (N.L.R.B. 1970)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. M. Fields Inc., of Florida and the Ideal Shoe
Co., wholly owned subsidiaries of Food Fair, Inc.
and Retail Store Employees Union , Local 345,
AFL-CIO Retail Clerks International Association.
Cases 3-CA-3746-2 and 3-CA-3847
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On May 5, 1970, Trial Examiner Marion C. Ladwig
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed 'exceptions to the Decision and a supporting
brief limited to the Trial Examiner's finding a violation
of Section 8(a)(3) of the Act with respect to the
discharge of Filomena Marianetti. The General Coun-
sel filed exceptions and a supporting brief to the
Trial Examiner's failure to find that Respondent vio-
lated Section 8(a)(1) of the Act by creating an impres-
sion of surveillance of its employees' union activities.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, with the addition noted in the
margin.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
' The Trial Examiner found that Respondent coercively interrogated
employee Causyn by stating to him that Respondent knew he was passing
out union cards and asking how many others were doing so, and also
by asking employee Marianetti to report any union activity to Respondent
The General Counsel excepts to the Trial Examiner's failure to find
that these interrogations also tended to create an impression of surveillance
We find merit in this exception, and accordingly find Respondent's
aforesaid conduct also violative of Sec 8(a)(1) for that additional reason
See Plasticard Company, 168 NLRB No 26, fn 3, Sackett Transportation,
etc, 169 NLRB No 57
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as modified below,
and hereby orders that Respondent, J. M. Fields,
Inc., of Florida and the Ideal Shoe Co., wholly owned
subsidiaries of Food Fair, Inc., Gates, New York,
their officers, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Under paragraph 1 of the Order, change subpara-
graph (f) to (g) and subparagraph (g) to (h), and
substitute as (f) the phrase "creating an impression
of surveillance of the union activities of employees."
2. Insert as the next to the last paragraph of
the notice: "We will not create an impression of
surveillance of the union activities of our employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C . LADWIG , Trial Examiner: These consolidated
cases were tried at Rochester , New York, on October
21-22, 1969,' and on January 6-7, 1970, pursuant to charges
filed by Retail Store Employees Union , Local 345, AFL-
CIO, Retail Clerks International Association , herein called
the Union , on April 3 (amended July 16) and on August
4, and pursuant to a consolidated complaint issued on
September 24 (and amended at the trial ). The primary
issues are whether the Respondents , J. M. Fields Inc.,
of Florida and the Ideal Shoe Co., wholly owned subsidiaries
of Food Fair , Inc., herein called the Company (or Fields
and Ideal when referred to separately) (a) restrained and
coerced employees during the Union 's organizing drive
by unlawful interrogation, warnings , threats, and other
conduct , (b) discriminatorily discharged three union sup-
porters, and (c) unlawfully discharged a supervisor to give
a color of validity to one of the alleged discriminatory
discharges , in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consideration
of the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
Fields and Ideal are wholly owned subsidiaries of Food
Fairs, Inc. Fields, a Florida corporation, maintains its princi-
pal office in New York City; operates an interstate chain
of discount retail stores, including the Gates, New York,
store involved in this proceeding; annually sells and distrib-
utes goods and products valued in excess of $1 million;
and annually receives at its stores goods and products
valued in excess of $50,000 directly from other States.
' All dates, unless otherwise indicated, are in 1969
185 NLRB No. 73
J M FIELDS INC, OF FLORIDA
Ideal, a Pennsylvania corporation, maintains its principal
office in Philadelphia; manufactures, sells, and distributes
shoes and related products; operates (as a joint employer
with Fields) a retail shoe outlet in the Fields' Gates, New
York, store; annually manufactures, sells, and distributes
products valued in excess of $1 million, and annually ships
products valued in excess of $50,000 from outside the
State of New York directly into that State. Fields and
Ideal admit, and I find, that they are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act
iI THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On March 19, a group of Gates store employees quit
working and went to the front of the store, planning to
go on strike over working conditions. Department Manager
Filomena Mananetti (later discharged on July 7) was in
the group. After some discussion, the employees decided
to call the Union instead of striking, and returned to
work. The next day, March 20, Department Manager Wil-
liam Essig (discharged March 29) and Department Manager
John Causyn (who quit in May) met with union representa-
tives, and returned to the store with authorization cards,
which they and Department Manager Marianetti thereafter
solicited employees to sign. (The Company admitted at
the trial that these department manager were employees,
and not supervisors as defined in the Act The complaint
alleges that the discharges of Department Managers Essig
and Mananetti, and two other persons, were discriminatorily
motivated.)
On March 19 or 20, the union activity was reported
to Fields Vice President of Industrial Relations Jerome
Walker, who assumed personal charge of the Company's
efforts to keep out the Union. (The Company had successful-
ly opposed each previous organizational drive in its multi-
state chain of about 60 nonunion discount retail stores )
After giving preliminary instructions over the telephone,
and directing that no employee would be discharged without
his personal sanction, Walker went to the Gates store
on March 21 and joined with store, district, and regional
management in the campaign (discussed hereafter) to dis-
suade the department managers, as "supervisors," from
supporting the union activities, and in otherwise countering
the organizational efforts. A vigorous election campaign
followed, and on July 3, the employees voted 82 to 25
against union representation.
The complaint alleges that the Company unlawfully inter-
fered with the employees' organizational rights by interrogat-
ing, warning, and threatening the department managers,
and by other conduct.
B. Alleged 8(a)(1) Violations
I Involving department managers
a. Interrogation
223
On March 20, the day before Vice President Walker
arrived at the Gates store, Fields District Manager Donald
Bleecker went to Department Manager Marianetti's depart-
ment. According to Marianetti's credited and undisputed
testimony, Bleecker said he had heard a union was trying
to get in the store and asked her "if I knew anything
about it, and at the time I told him that I didn't." (This
conversation occurred the same morning that Department
Managers Essig and Causyn met with the union representa-
tives. Union cards were brought to the store at noon
that day.) Bleecker "told me to listen and see if I could
find out what was going on and I told him I would."
That afternoon, Bleecker returned to Marianetti's depart-
ment and asked her, "Did you hear anything about union
activity?" She answered yes, and he "asked me who was
involved and if cards were being passed out, who
was collecting cards and I said I didn't know who was
collecting the cards." I find that this interrogation of the
admittedly nonsupervisory employee was coercive, and vio-
lated Section 8(a)(1) of the Act.
At noon on March 20, an hour before he was scheduled
to report to work, Department Manager John Causyn
arrived at the store from the union meeting and began
passing out union authorization cards in the lunchroom.
That afternoon, as credibly testified by Causyn (who
impressed me as an honest witness), District Manager
Bleecker talked to him in Security Supervisor Herbert Court-
wright's office, telling him that someone had reported that
he was passing out union cards in the store. Causyn denied
it. Later that day, Causyn was called into Store Manager
Andrew Psilopoulos' office where Bleecker stated, "We
know you're definitely passing out union cards," and that
"as of now you are fired." However, Bleecker then motioned
to Psilopoulos to take Causyn into the next office, and
Causyn overheard Bleecker placing a call to Vice President
Walker. In the next office, Psilopoulos interrogated Causyn
about "why I was doing it." Then (in Causyn's words),
"Mr. Bleecker called us back to Mr. Psilopoulos' office
and told him that he couldn't fire me and he said that
he wanted to know how many cards I had and I told
him about twenty... He asked me if there was anybody
else soliciting from the Union and I told him I Sh'dn't
know." Causyn was then sent back to work, after being
cautioned about the Company's no-solicitation rule (which
lawfully prohibited solicitation "during working time" if
it "interferes with work or normal store procedures and
operations") The next day, March 21, Psilopoulos sent
the store employees a letter which began:
Mr. Causyn, Department Manager of Health and
Beauty Aids, has advised me that he has obtained
the signatures of a few people on cards authorizing
a union. I felt that several points should be made
clear to all of you.
First, Mr. Causyn is a supervisor-a part of manage-
ment of the store. In his position he has no legal
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to be getting signatures for a union. THIS IS
A VIOLATION OF THE LAW. We did not give
him permission to do this.
(The letter also stated that anyone who had signed a
card "HAS A LEGAL RIGHT TO DEMAND THAT
IT BE GIVEN BACK. If you are one of the few who
signed and you have second thoughts , you can demand
that the card be returned to you.") Bleecker was not
called as a witness. Psilopoulos did not specifically deny
the interrogation, nor that Bleecker first told Causyn that
he was discharged, and he did not detail what transpired
when Causyn was called to the office. He testified that
he and Bleecker telephoned Walker before the interview,
and Walker "advised us to speak to Mr. Causyn and
advise him of our solicitation policy." However the March
21 company letter, which nowhere mentioned the no-solicita-
tion rule, tends to corroborate Causyn's version by showing
that the Company's major concern was with having this
department manager , as a so-called supervisor, not soliciting
at all for the Union. Moreover, Causyn impressed me
as the more trustworthy witness, and I credit his version
of what happened. I find that Psilopoulos' and Bleecker's
interrogation of Causyn concerning his union sympathy,
the number of cards he had, and whether anybody else
was soliciting for the Union violated Section 8(a)(1) of
the Act as alleged in the complaint. I further find that
this interrogation of the admittedly nonsupervisory employee
was particularly coercive, in view of the facts that it occurred
after he was told he was discharged, and that the following
day he was singled out in the company letter and accused
of violating the law by getting signatures for the Union.
b. Warnings and Threats
On March 21, the day after Department Managers Causyn
and Marianetti were interrogated, Vice President Walker
held a meeting with the department managers in the store.
As credibly testified by Causyn, Walker informed the depart-
ment managers that "it was against the Taft-Hartley Law"
for them to solicit for the Union. Confirming that this
was said, Store Manager Psilopoulos testified that Walker
told the department managers that "they were an arm
of management and explained the Taft-Hartley
Law . . . That management . . could not solicit "
Department Manager Essig credibly testified that Walker
stated that the department managers, being supervisors,
could not take part in the Union, and that he was explaining
this "because he felt that we could get in trouble " Although
Walker denied telling the department managers they were
supervisors and were not permitted to solicit union cards as
it was a violation of the Taft-Hartley Act, he
admitted-after being shown his pretrial affidavit-that he
told them that supervisors were not permitted to solicit
union cards. At one point, he testified that he told the
department managers that he had heard "one of the
principal solicitors of cards [Department Manager Causyn]
was a supervisor in the store." As previously indicated, it
was on thissame, day, March 21, that Psilopoulos informed
the store employees by letter that it was a violation of the
law for Causyn, as a "supervisor," to get signatures for a
union
Similarly, Department Manager Essig credibly testified
that sometime the following week (about March 25, 4
days before his discharge on Saturday, March 29), Fields
Regional Personnel Director Richard Bengraff, in the pres-
ence of Psilopoulos and District Manager Bleecker in Psilo-
poulos' office, told him that he could not join the Union,
and could not solicit for the Union "because of the Taft-
Hartley Law which states that supervisors could not solicit
for or against the union," to which Essig responded that
he did not consider himself a supervisor. (Bengraff, who
did not directly deny talking to Essig about his being
a supervisor , testified that Essig stated "he was not saying
he was soliciting but if he had been soliciting he would
continue ." Psilopoulos appeared to be fabricating what hap-
pened when he testified, "We discussed with Mr. Essig
the solicitation of union cards on company time and told
him that we had a no-solicitation rule and that we wished
him to stop He . told us . he had every right to,
if he wished to. I interpreted this to mean that he would
not stop. However, we did explain to him that we had
a no-solicitation policy and we did wish him to stop."
Whether anything was said in this particular conference
about soliciting on company time, as claimed by Bengraff
and Psilopoulos but denied by Essig, I credit Essig's testimo-
ny that Bengraff told him in the presence of Psilopoulos
and Bleecker that he could not solicit for the Union because
of the Taft-Hartley Act.)
On Friday, March 28, District Manager Bleecker and
Store Manager Psilopoulos approached Department Manag-
er Marianetti and asked her about the company she had
the night before. (Marianetti testified that on that Thursday
evening, James Columbo, a representative of the Union,
had visited her in her home "and the following morning
when I went to work I mentioned to a few employees
that I had signed a card and apparently one of them
told Mr. Psilopoulos.") She told them she had signed a
union card. Psilopoulos "said I couldn't belong to the
Union because I was a department manager ." Marianetti
stated, "I've known Jim Columbo for a long time and
he explained to me that I could belong to the Union
because I couldn't hire or fire." She added, "Jim Columbo
wouldn't lie to me If he says I could belong to it then
I could " (Psilopoulos did not deny this conversation.
Bleecker, who no longer works for Fields, did not testify.)
Accordingly, I find, as alleged in the complaint, that
the Company advised and warned employees (department
managers) that they could not join or engage in activities
on behalf of the Union, in violation of Section 8(a)(1)
of the Act.
Concerning the further allegation that the Company
threatened employees with discharge if they gave any assist-
ance or support to the Union, Department Manager Causyn
credibly testified that following Vice President Walker's
March 21 meeting with the department managers, Causyn
went to the store manager's office and "I told Mr. Psilopou-
los I was sorry it all started . . So [Assistant Store
Manager] Borssuk said, `Why don't you go up and clear
yourself with Mr. Walker ' " Causyn then met with Walker,
explained why he was organizing for the Union, and Walker
said (in Causyn's words), "I could have been dismissed for
soliciting because it was against the Taft-Hartley Law "
J M FIELDS INC, OF FLORIDA
Causyn stated that the way he understood it, he could
not have been fired for it. Walker responded, "I'll fire
your out of here in three seconds as proof to you." They
continued to talk, and Walker did not discharge him
(As previously indicated, Causyn thereafter quit) Walker
did not deny using these words, or threatening to discharge
Causyn, but he claimed that Causyn admitted soliciting
union cards on company time Causyn appeared to be
the more trustworthy witness, and I credit his version
of what happened. Accordingly, I find that the Company
threatened an employee with discharge if he solicited for
the Union, thereby violating Section 8(a)(1) of the Act.
Although admitting in its brief "that in the very early
stages of the organizing campaign the Company proceeded
on the assumption that the Department Managers were
`supervisors' within the meaning of the Act and on that
basis sought to discourage them from participating in the
solicitation of cards," the Company contends that "this
situation was speedily corrected and at an early date, the
Department Managers and all other employees were clearly
advised by Walker and others as to their rights under
the Act." I reject this contention as unsupported by the
evidence However, even if the Company did in some way
at some undisclosed time advise the employees of the depart-
ment managers' organizational rights, the Company indi-
cates no justification for its wrongful "assumption" that
nonsupervisory department managers were supervisors, and
its discouragement of their union activity at a time when
they were taking a leading role in the organizational drive
Moreover, the coercive effect of the unlawful interrogation,
warnings, and threats was compounded when the Company
incorrectly advised all the employees in writing that a
department manager "has no legal right to be getting signa-
tures for a union," and emphasized that "THIS IS A
VIOLATION OF THE LAW"-thereby wrongfully label-
ing lawful organizational efforts as a violation of the law
in the same letter in which the Company was emphasizing
that any card signer had a "LEGAL RIGHT" to demand
his card back. I also note, as discussed hereafter, the
Company permitted an antiunion department manager to
violate the no-solicitation rule the following week by asking
employees during their working time if they wanted their
union cards back, and that on March 27, Store Manager
Psilopoulos wrote the employees another antiunion letter
in which he stated, "The fact is that nearly all of the
people who signed cards last week have asked to get them
back." I find that even if the Company's unsupported
contention were true, the asserted belated advice to the
employees would not in these circumstances remedy the
above-found Section 8(a)(1) violations.
2. Other alleged interference
The General Counsel failed to prove that the Company
created the impression of engaging in surveillance of the
employees' union activities, and that Store Manager Psilo-
poulos' meetings with small groups of employees were
coercive.
The alleged discriminatory issuance of a warning slip
to employee Joseph Libertore is discussed next.
C. Discharge of Employees and Supervisor
1. Discriminatory motivation revealed
225
On Saturday morning, March 29, Ideal District Manager
Neal Delaney (the supervisor later discharged by Fields
District Manager Bleecker), went to the Gates store to
visit Ideal's shoe department there. While in the store,
he went to the office and had a conversation with Store
Manager Psilopoulos about the union activity As Delaney
credibly testified, Psilopoulos "made the remark that it
was only a matter of time until the people who were prounion
in the store would be out. " Then Psilopoulos stated that
employee Joseph Libertore, in the shoe department, had
been "shooting off his mouth" about the Union, and Psilo-
poulos instructed Delaney to "start laying the groundwork
for getting rid of Mr. Libertore " (Psilopoulos testified "I
really don't recall" saying much more to Delaney in the
discussion than there appeared to be union activity in
the store, and "I don't believe" the names of individual
employees were discussed. He denied giving Delaney any
instruction concerning what to do concerning individual
employees Upon closely observing Psilopoulos' demeanor
on the stand, while giving this testimony and the testimony
concerning the later discharges, I concluded that he was
not doing his best to be a candid witness. Delaney impressed
me as an honest, forthwright witness, and I credit his
version of what transpired Emphasis supplied )
Later that morning, Delaney gave employee Libertore
a formal warning in writing for habitual tardiness When
asked on cross-examination about the nature of the problem
that led to Libertore' s warning , Delaney credibly testified
that Libertore was habitually late to work (arriving late
and working late), but that "Probably if Mr Libertore
had not been involved in the conversation regarding the
Union his tardiness would have been tolerated indefinitely "
Although there is no evidence that any employee overheard,
or was aware of, Psilopoulos' instructions to lay the ground-
work to get rid of Libertore for talking about the Union,
the Company had permitted Libertore to work the staggered
hours for months, until his union talk began. I therefore
find that, because of the timing of the discriminatonly
motivated warning, it tended to interfere with the employees'
exercise of their Section 7 right to support the Union,
and that the Company violated Section 8(a)(1) by issuing
it.
I have considered the Company's discriminatory motiva-
tion for issuing this written warning, and also Store Manager
Psilopoulos' remark about there being only a matter of
time until the prounion employees in the store would be
out, in determining the Company's motivation for discharg-
ing Essig later that day, and for discharging Mananetti
and Armon shortly after the election. The Company admits
in its brief that "there is no question concerning the fact
that the Company had full and complete knowledge concern-
ing the union sympathies and activities of the three dis-
charged employees, to wit: Essig, Marianetti, and Armon."
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Discharge of William Essig and that he usually did this without prior approval, filling
out the markdown papers later . When placed in charge
of the sporting goods department in November 1967, he
was. instructed not to miss a sale if the merchandise was
.damaged. He had never been warned or reprimanded about
the way he handled markdowns On this occasion, his
assistant was at lunch and he had not had time to fill
out the markdown papers. There was apparently no problem
in his department of an inventory shortage caused by failing
to record markdowns , inasmuch as there was an inventory
overage.
Psilopoulos , who had been transferred to the Gates store
as store manager on March 3, testified, "I do not know
what the situation was on markdowns prior to my arrival,"
and that he was not aware of any previous markdown
violation by Essig, who he testified had an inventory overage.
He testified that he had a policy of taking corrective meas-
ures before discharge : "However, it was dust a week or
so prior to the incident that we had a department manager's
meeting at which I did explain the markdown policies."
The credible evidence shows that markdowns had been
discusssd in one of the routine meetings , but that nothing
was said about obtaining prior approval for markdowns
on individual soiled or damaged items. Instead , Psilopoulos
had described the procedure for making markdowns on
multiple items, such as ad merchandise : telling them (as
Psilopoulos himself testified) that the merchandise must
be listed on the markdown form, approved in writing by
the store manager , taken to the stockroom and reticketed,
and returned to the floor at the markdown price.
Psilopoulos ' conduct at the time of the discharge demon-
strated that he was not concerned with having the markdown
procedure (including the stockroom reticketing ) applied
to the sale of a display item such as Essig sold Delaney.
It is evident that he made no investigation , and took no
action against the front supervisor who approved the mark-
down on the bicycle bearing Essig 's handwritten price tag,
because Psilopoulos was not even aware at the trial that
the employee purchase record showed only a $4 markdown
(from $24.97 to $20.97), with the 5 percent employee dis-
count accounting for the other $1. When asked at the
trial what he knew of the incident which led to Essig's
discharge , Psilopoulos testified, "Essig put a price of $19.95
on the bike and Mr. Delaney took the bike and went
to our employee register and received an additional 5%
at the $19.95 price." (Emphasis supplied .) Thus, Psilopoulos
summarily discharged Essig , the first person he discharged
at the Gates store for such a violation , without investigating
why a written approval was given at the employee register
for a markdown on an item not bearing an official stockroom
ticket
Moreover, when asked what procedure Essig should have
followed, Psilopoulos made it clear that he had not intended
for the procedure outlined to the department managers
(including the requirement that the merchandise be reticket-
ed in the stockroom) to be applied to the sale of a display
item He testified that Essig , after recording the markdown
and getting it approved , then "should have reticketed the
bike in question and then sold it at the markdown price "
(Later , as an apparent afterthought, Psilopoulos testified
that he told the department managers that all markdowns
Sporting Goods Department Manager Essig (discharged
on March 29) was one of the employees who met with
the union representatives on March 20, brought union
cards to the store at noon that day, and ' began passing
them out. Although admittedly a nonsupervisory employee,
the Company attempted to stop his union solicitations,
Vice President Walker telling him in a group meeting
on March 21 , and Personnel Director Bengraff telling him
personally about March 25 (in the presence of District
Manager Bleecker and Store Manager Psilopoulos), that
he could not as a supervisor solicit for the Union Thereafter,
Psilopoulos talked to him in the office about violating
the no-solicitation rule. Psilopoulos restricted him to the
sporting goods department , except for lunch and breaks,
and assigned Security Supervisor Courtwright to watch
him "to see he stayed in his area and did not solicit
on company time ," and to learn what caused Essig to
have an overage in his department inventory.
Essig's actions were still being observed by Courtwright
on Saturday morning, March 29 , when Store Manager
Psilopoulos was talking in the office to Ideal District Manag-
er Delaney about " laying the groundwork for getting nd"
of a prounion shoe department employee, and about it
being "only a matter of time " until the prounion people
in the store "would be out ." Sometime that morning, a
customer asked for a particular bicycle with trainer wheels.
There was one on display, but it was shopworn , having
been on the floor for about 2 months. Courtwright went
to the stockroom with Essig to look for another, but found
only one which was damaged . The customer refused to
buy the bicycle.
Around lunchtime , Ideal District Manager Delaney went
to the sporting goods department and asked for the same
model bicycle. In the presence of Courtwright, Essig offered
to sell the display bicycle (which cost$18.25) at the "sale
price" of $19.97 ($5 off the $24.97 regular price), telling
Delaney it was the only one in stock . Delaney said he
would take it. Essig wrote out a tag for the reduced
price, and told Delaney to take it through the employees'
cash register Delaney did, and the transaction was shown
on the employee purchase record as a gross sale of $20.97,
employee discount of $1, and a net sale of $19.97. Delaney
then signed the record, and the person acting as front
supervisor added her signature in the column for "authorized
approval."
Without saying anything to Essig or Delaney, Security
Supervisor Courtwnght went to the office and reported
the markdown to Store Manager Psilopoulos and District
Manager Bleecker . Psilopoulos immediately telephoned Vice
President Walker, and received authorization to discharge
Essig for taking an unauthorized markdown . About 15
minutes after the sale, Psilopoulos summoned Essig to
the office and questioned him in Courtwright 's presence.
Psilopoulos asked whether Essig had sold a bicycle, what
the retail price was, and what he sold it for. Essig explained
that it was a display item . Psilopoulos told him , "You're
discharged for violation of company policy "
Essig credibly testified that he had customarily given
a customer a markdown on shopworn display merchandise,
J M FIELDS INC, OF FLORIDA
require written authorization of management. Even if this
disputed testimony were credited, it would not have placed
Essig and other department managers on notice that prior
authorization would be required for each individual mark-
down, and that the management would no longer permit
Essig's customary practice of making the sale of soiled
display items and later filling out the markdown papers.)
Despite Psilopoulos' assertion that Essig should have
marked down the bicycle and sold it after receiving written
authorization for the markdown, both Psilopoulos and Vice
President Walker thereafter testified that point-of-sale mark-
downs were forbidden. Psilopoulos testified, "I'm stating
that to my knowledge we adhere to the company policy
which states there is no point-of-sale markdown. . . .
We would not give the authorization for the point-of-
sale markdown for a customer." Vice President Walker
testified that it is a company policy that "markdowns
at the point-of-sale is prohibited " However, such a rule
is not specifically mentioned in the company manual for
supervisors, and Bernard Pincus, the store manager immedi-
ately before Psilopoulos, testified that tloor samples are
occasionally marked down, and "If a department manager
is approached by a customer and wants a markdown on
a display merchandise, the department manager is to get
permission from one of the managers " When testifying
that there was a companywide rule against point-of-sale
markdowns, both Psilopoulos and Walker appeared to be
giving fabrications, in an effort to strengthen the Company's
case.
It is not disputed that Essig violated the Company's
rule against unauthorized markdowns, and it was stipulated
that in a number of the other stores, employees have
been discharged "for violation of markdown procedures."
On the other hand, the credible evidence clearly shows
that not only Essig but a number of other department
managers in this store had been making point-of-sale mark-
downs without prior authonzation-as Essig openly did
on this occasion.
The question here is not, as contended in the Company's
brief, whether Essig violated the markdown policy, but
whether Essig's violation of the rule requiring prior authori-
zation for markdowns was the real reason for his discharge.
The General Counsel argues that the assigned reason
was a pretext, citing the Company's animus against union
activity, company knowledge of Essig's union support,
Essig's following of "established markdown practice" at
this store, the "entire candidness" of the sale, this being
the initial such discharge at this store, and "the undenied
remarks made to employee Armon by Psilopoulos that
Essig's discharge was related to the fact that he was passing
out cards for the Union." The last alleged factor is based
on the testimony by employee Pamela Armon (discharged
July 8), who testified that after Essig's discharge, she told
Store Manager Psilopoulos "that Bill Essig got a raw
deal . that every department manager in the store
should get fired for the same reason . . . I know of a
customer that came in the store and the department
manager marked $15 off an article." Psilopoulos
commented that he "didn't know about it." When asked if
Psilopoulos made any further comment about Essig,
Armon answered, "He said that Bill was passing cards out
227
for the union, right?" Evidently Armon was not giving the
entire conversation, and the context of the comment is not
sufficiently clear I therefore do not rely on this purported
comment as a basis for determining the Company's
motivation
In its brief, the Company argues- "In evaluating whether
or not the Company discharged Mr. Essig on a pretext,
it is worthwhile to consider whether or not the Company
needed such a pretext in his case"-citing Essig's violation
of the no-solicitation rule. However, credited testimony
given by Essig shows a good reason for the Company
not having discharged him for that reason The Company
was permitting an antiunion department manager to violate
the no-solicitation rule by asking employees during their
working time if they wanted their union cards back. Essig
testified (on direct and cross-examination) that during the
week before his discharge on Saturday, March 29, he
observed department manager Rose Rizzari with a list,
going through the store and talking to employees during
working hours, soliciting them to get their signed union
cards back, and stating "it was perfectly legal to do so."
(Later in the trial, Rizzan and other employees testified
about Rizzari's antiunion activity, but this additional testi-
mony was offered by the General Counsel only to challenge
her credibility as a company witness on the markdown
practice in the store.) The evidence further shows that
on March 27 of that week, Store Manager Psilopoulos
advised the employees that "nearly all of the people who
signed cards last week have asked to get them back."
(Psilopoulos did not inform the employees from whom
he received the information.) The fact that the Company
did, at the least, permit the antiunion solicitation on working
time was established by Essig's credited and undisputed
testimony that notice was given to Security Supervisor
Courtwright, whom Psilopoulos had assigned to observe
Essig to see that he did not engage in prounion solicitation
on company time. Essig mentioned Rizzan's antiunion solici-
tation to Courtwnght twice, stating "she couldn't do that,"
but both times, Courtwright "kind of ignored me." Court-
wright was not called to testify Although the Company
denied in its answer that Courtwnght was a supervisor,
Vice President Walker testified that where the security
man was not "under an embargo such as I imposed [against
any employee being discharged during the organizing drive
without Walker's personal sanction], the security would
have the right to discharge anybody." Courtwnght, whom
Walker called "the security man" and Essig call "the security
guard," was present in Walker's separate meeting on March
21 with Regional Personnel Director Bengraff and the
store supervisors He was likewise treated as part of manage-
ment when he was used as a witness in various conferences
with individual employees, pursuant to Walker's instructions
in the March 21 supervisors ' meeting , that "no employee
was to be spoken with privately " I find that the
evidence shows that Security Supervisor Courtwnght had
been given the authority to discharge employees, and was
therefore a supervisor as defined in the Act, and that
he was acting as a part of management in the Company's
antiunion campaign.
Ignoring Essig's testimony that he had customarily given
a customer a markdown on shopworn display merchandise,
and that he usually did this without prior approval, the
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company further argues in its brief "It would almost
appear from the circumstances of this case that Mr. Essig
was deliberately going out of his way to court discharge
since his actions in regard to the bicycle incident, in front
of the security officer, are not explainable on any other
basis " I do not agree. Rather than courting discharge,
Essig was following his customary practice. (In this connec-
tion, I note that Essig's testimony is undisputed, that he
had sold without prior authorization a $5 damaged fishing
box for $3 to the night security guard, Mr. Palermo.)
Yet Psilopoulos summarily discharged Essig without any
prior warning, without making any investigation of the
store practice, and without considering the fact that the
display bicycle (which had been rejected by another customer
that morning) was still sold at a small profit
Having considered all the evidence and circumstances,
including Psilopoulos' discriminatory motivation expressed
that same morning to Ideal District Manager Delaney,
I find that the Company (Store Manager Psilopoulos and
Vice President Walker) seized on the markdown rule viola-
tion as a pretext for discharging this union supporter,
and discharged Essig because of his union activities in
violation of Section 8(a)(3) of the Act.
3. Discharge of Neal Delaney
On April 1, Ideal District Manager Delaney (the supervi-
sor who purchased the display bicycle from Essig on March
29) was discharged by Fields District Manager Bleecker.
The General Counsel contends that Delaney's discharge
violated Section 8(a)(1) of the Act because it was motivated
by a desire "to give a color of validity" to the discriminatory
discharge of employee Essig, citing J. B. Martin Co., 164
NLRB 460, enfd. 395 F.2d 690 (C.A. 4, 1968) The Company
contends that "The record as a whole makes it clear that
Delaney's discharge did not in any way relate to the union
situation in the store."
If credited, Delaney's testimony shows that there was
such a relationship. Delaney testified that Bleecker
told me that I was part of the management and I
had made an error in judgment by not reporting this
infraction, and I knew there was union activity and
I shouldn't have gotten involved with Bill Essig. What
he meant by involved I still don't know. His conversa-
tion was that I had made an error in judgment by
not reporting Mr. Essig to the store manager. This
was a violation of the store policy and he said I
was being discharged because of prior trouble with
the Company. [Emphasis supplied ]
Bleecker did not testify.
Ideal Northern Regional Supervisor Frank Jaffe, Dela-
ney's immediate supervisor, was present in this conference.
Although he gave a similar account of what Bleecker said,
he denied that there was any mention of the Union, and
testified that Delaney "said he knew it was wrong and
felt everyone was doing it and that in his mind that made
it right . and with the security man standing there, the
security man was condoning it too " Delaney, an
extremely alert person, impressed me as an honest,
trustworthy witness. I discredit Jaffe's denial, and credit
Delaney's testimony that Bleecker mentioned the union
activity in the store and made the statement about Delaney
getting involved with Essig. Accordingly, I find that Essig's
discriminatory discharge was involved in the decision to
discharge Delaney and also find, as contended by the Gener-
al Counsel, that "Delaney was a victim of the plan to
get rid of Essig," and that the Company "had to discharge
him in order to lend credibility to its position that Essig
was discharged for a serious infraction of company policy."
The company witnesses appeared less than candid when
testifying about the decision to discharge Delaney. Ideal
Executive Vice President Jack L. Weissman testified that
on Monday morning, March 31, he spoke to District Manag-
er Bleecker or Store Manager Psilopoulos, got the story
about the Saturday markdown incident, concluded that
it was a breach of security regulations, discussed it with
Ideal Regional Supervisor Jaffe who was in his office at
the time, and "told Mr. Jaffe to make arrangements to
meet Mr Delaney and see that he was discharged." (Weiss-
man offered no explanation for Bleecker, a Fields manager,
discharging Delaney.) Jaffe had a different version (but
still no explanation why Bleecker did the discharging)
Jaffe testified that on Sunday evening, March 30, Weissman
called, said "I was to discharge Mr Delaney," and that
he already "had spoken to Fields' people and made his
decision." The explanation for Bleecker's participation in
the discharge comes from the testimony of Store Manager
Psilopoulos. He testified that Bleecker was present in his
office on Saturday, March 29, was aware at the time
that Delaney was involved in the Essig incident, and "we
in turn called Mr. Walker for his advice. Mr Bleecker
terminated Mr. Delaney ..the following week." (Emphasis
supplied.) Thus, Bleecker discharged Delaney after getting
the "advice" of Fields Vice President Walker, who had
assumed personal charge of the Company's efforts to keep
out the Union. As already found, Walker gave his authoriza-
tion over the telephone that Saturday for the discriminatory
discharge of Essig. I further find that when talking with
Bleecker about Delaney's involvement in the incident, Walk-
er decided to have Delaney discharged, and that the above-
noted conflicts between Weissman's and Jaffe's testimony
resulted from their attempts to conceal this decision, which
Weissman and the "Fields people" were discussing that
weekend.
As justification for the April 1 discharge of Delaney,
the Company cites various reasons Ideal had for discharging
him in December 1968, when it sent him to an industrial
psychologist. Delaney was having marital troubles, was
heavily in debt, and had run up a high rental car bill
while accepting a car allowance. His bad credit rating
prevented him from buying a new car, and he owed Ideal
over $2,000 (for an unpaid loan and the unauthorized
car rentals). However, Ideal had not discharged him. After
the psychologist found him to be "an extremely bright
young man," Ideal in December purchased him a new
car to drive, in February increased the number of stores
(shoe department) under his jurisdiction from five to eight,
and gave him a $1,000 a year salary increase, and on
March 19 gave him an additional $303 loan for his lawyer
in his bankruptcy matter.
Delaney had previously worked for a shoe company
for over 6 years, and had been serving as assistant operations
J M. FIELDS INC, OF FLORIDA 229
manager when he left that employment . Ideal Executive
Vice President Weissman described his work as "very satis-
factory" and "generally good ." His only written reprimand
about his work was an intercompany memo written to
him by Fields District Manager Bleecker on March 6,
for not keeping Bleecker 's office advised of his weekly
itinerary . However , Weissman and Regional Supervisor Jaffe
gave the dubious testimony that Weissman orally gave
Delaney a final warning in February (when his jurisdiction
and salary were increased), and Weissman testified that
the markdown incident was the "straw that broke the
camel's back." Weissman conceded that "None of my people
had ever been fired for receiving anything but authorized
markdowns prior to Mr. Delaney." In its brief, the Company
also argues that Delaney 's acceptance of the $ 5 markdown
had ramifications that went far beyond the $5 because
he was responsible for thousands of dollars of markdowns,
and "He was aware , or should have been aware, of the
Company's policy in regard to unauthorized markdowns
and the Company could hardly condone his actions in
this situation and still expect him to be responsible for
following markdown procedures for his own department."
The Company offered no evidence of any problem of unau-
thorized markdowns in the shoe departments , and offered
no explanation how Delaney would be involved in such
markdowns (which evidently would be under the control
of the store security and supervision .) I find that these
arguments are mere afterthoughts, and that the real reason
for Delaney 's discharge was the Company's attempt to
conceal its discriminatory motivation for discharging Essig.
Accordingly , I find that as alleged in the complaint,
the Company discharged Delaney to give a color of validity
to the discharge of employee Essig, and thereby interfered
with the employees ' organizational rights in violation of
Section 8(a)(1) of the Act.
4 Discharge of Filomena Mananetti
In its brief, the Company admits knowledge that Mrs.
Marianetti was "one of the employees in the forefront
of organizing activity at the store ." She was department
manager over the infant and girls department , and was
the highest paid department manager Vice President Walker
testified that during the time he was in the store prior
to the July 3 election , he observed her on the floor and
she was doing better than average. When Assistant Store
Manager Albert Borssuk was asked if she was generally
a good worker , he answered , "Very good worker."
She was on a 2-week vacation at the time of the election.
When she 'reported back to work on Monday, July 7,
Store Manager Psilopoulos discharged her According to
her testimony , "He . . . told me that he was sorry he
had to let me go and I said , `What for? . . The union
talk is all over , what 's the difference9 ' He said , `I'm firing
you for insubordination .' I said , `For what?' He said, `For
the past two weeks .' Well, I said, `What insubordination
in the past two weeks?' He said , `Against me , Mr. White
and Mr . Borssuk ' " Marianetti further testified that she
had been in the store several times during her vacation.
She denied having any conversation during that time with
Assistant Store Manager Raymond White (who later testified
as a company witness, but who gave no testimony about
Mananetti ever being insubordinate to him) Mananetti
testified that she did have a conversation with Assistant
Store Manager Borssuk during her vacation , but indicated
that she had not said anything insubordinate to him . (Bors-
suk later testified in detail about his conversations with
Marianetti during the election campaign , but nowhere stated
that she had been insubordinate .) Mananetti then testified,
"Another day I walked in the store while on vacation
and I stopped to talk to Mickey Lawrence and Mr. Psilopou-
los came in and walked over to me and says, `Fran, quit
talking to the employees .' I said , `All I did was stop
to ask Mickey to meet me at the restaurant after she
gets through at 1.00 ' He said , "I would appreciate it
if you don't talk to her."
When Psilopoulos testified, the Company introduced into
evidence his notes of the July 7 discharge conference.
They indicated that he terminated Fran Mananetti for
"Insubordination to me and Mr . White During union
activity Fran found it necessary when asked to do something
to make remarks such as `get lost ' `get off my back' while
other employees were present." The notes do not indicate
when she made such remarks, or to whom . When questioned
about his conversations with Marianetti , he testified that
he had a number of conversations with her , and that
he made a report of each conversation and put it in her
folder . " I had one conversation , at which time I'm not
sure, about her general attitude toward me . . .
I've had Mrs Marianetti tell me to get off her back
and to get lost when giving her instructions . Therefore,
would have discussed insubordination with her. . . I'd
say that is what I would have reported at specific times
in her folder . Again , the dates I'm not sure of." (He
appeared to be deliberately vague.) The Company introduced
the six intercompany memos in Marianetti 's personnel fold-
er. All of them seem to be related to her union activity
during the campaign . Three were written by Borssuk, on
April 9 and 10 , and three were written by Psilopoulos,
on April 14 , May 15, and May 31. Not a word is mentioned
in any of them about Marianetti being insubordinate to
any supervisor , about her attitude toward Psilopoulos, or
about her telling him or any other supervisor to "get
off her back" or to "get lost ." Thus, neither the testimony
of Assistant Managers White and Borssuk , nor the reports
to Marianetti 's folder , support Psilopoulos ' claim that she
had been insubordinate . I note that the first four memos
to Marianetti 's folder were written shortly after Psilopoulos
revealed the Company 's discriminatory motivation by telling
Ideal District Manager Delaney "it was only a matter
of time until the people who were prounion in the store
would be out," and telling him to "start laying the ground-
work for getting rid" of a prounion shoe department employ-
ee. It is clear from both Psilopoulos ' and Walker 's testimony
that Psilopoulos wanted to discharge Mananetti during
the election campaign , but was restrained by Vice President
Walker Under these circumstances , it would appear that
if Marianetti had been insubordinate before going on vaca-
tion , she would have been reprimanded for it and a memo
would have been added to her personnel folder, as "ground-
work" for her discharge . She positively denied that she
had been accused of insubordination Having found Psilo-
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poulos not to have been a trustworthy witness, I discredit
his testimony that she had been insubordinate , and that
he had discussed it with her . (He conceded on cross-
examination that insubordination had not been mentioned
in any of the memos in her personnel folder.)
When later questioned about what happened while Mar-
ianetti was on vacation , Store Manager Psilopoulos testified,
"I had occasion to tell Mrs Marianetti not to bother
our employees on working time . . and this would occasion
a remark like, `Get off my back' or `Get lost' from Mrs.
Marianetti ." From the way he testified , it seemed that
this was a mere repetition of earlier such remarks, and
that it did not make enough impression on him for him
to recall just what was said . Having found that he fabricated
testimony about earlier insubordination , and having noted
that his assistants , White and Borssuk , did not corroborate
his claim that Marianetti had been insubordinate to one
or both of them , I have considerable doubt in my mind
whether or not this testimony is likewise fabricated . Howev-
er, even assuming that Marianetti did make such a remark
to Psilopoulos while she was on vacation , I find from
all the evidence and circumstances , including the Company's
discriminatory motivation and union animus, that Psilopou-
los and Vice President Walker were then seeking a pretext
for discharging this leading union supporter , and that the
Company did discharge her on her first workday after
the election (at a time when the discharge could not be
used as a basis for setting aside the election) in order
to discourage future union activity.
The Company contends, though, that the thing which
precipitated Marianetti 's discharge was her conduct in call-
ing Vice President Walker a "son-of-a-bitch" at the preelec-
tion conference on July 3, after Walker had objected to
her being a second union observer at the election. But
in making this contention (based on Walker 's and Psilopou-
los' testimony at the trial ), the Company offers no explana-
tion why this accusation was nowhere mentioned in Store
Manager Psilopoulos ' discharge conference notes, which
confirm Marianetti 's testimony that when Psilopoulos dis-
charged her , he accused her of being insubordinate to
only the store supervision . The Company 's election observer,
who Walker testified had overheard the remark , was not
called as a witness to corroborate Walker 's and Psilopoulos'
testimony . Psilopoulos (who testified that he was not present
to hear the remark) claimed that Walker was quite upset
afterwards and "told me that Mrs Marianetti was to be
dismissed when she returned from vacation for insubordina-
tion toward him, " yet gave no explanation for not carrying
out Walker 's purported instructions . (Emphasis supplied.)
When recalled to rebut Walker and Psilopoulos' testimony,
Marianetti positively denied making the remark , and the
union representative at the preelection conference testified
that he did not hear it. I find that this purported reason
for the discharge is a mere fabrication , belatedly added
by Walker and Psilopoulos in the hope of strengthening
the Company 's defense.
The Company also contends that it "had what it feels
was more than adequate grounds for discharging Mananetti"
earlier but "deferred disciplinary action prior to the election
in order to insofar as possible preserve the laboratory
type conditions mandated by the Board," and further, that
Vice President Walker had refused to permit Store Manager
Psilopoulos to discharge her because of the policy established
on March 19 that Walker would not permit any personnel
actions which "would tend to upset the equilibrium of
the work force ." These arguments ignore the direct evidence
of the Company's discriminatory motivation , as expressed
by Psilopoulos to a supervisor (Delaney) before his dis-
charge. Furthermore, as found above, Walker authorized
on March 29 the discriminatory discharge of Department
Manager Essig , a leading organizer for the Union. (This
discharge, as well as Delaney 's April 1 discharge , occurred
in the early part of the organizing drive, before the petition
for an election was filed Of course, any discriminatory
discharge occurring in the period between the filing of
the election petition and holding of the election could
result in the setting aside of the election , upon the filing
of timely election objections.) Moreover , having considered
all the evidence , I have concluded that Psilopoulos was
attempting to lay the ground work for a pretextual discharge
of Mananetti.
Accordingly, I find that the Company discharged
Marianetti because of her active union support , and that
the discharge violated Section 8(a)(3) of the Act as alleged
in the complaint.
5. Discharge of Pamela Armon
Employee Armon (who was discharged on July 7) had
been employed about 3-1/2 years as a cashier and courtesy
desk clerk . During the organizing campaign, she openly
supported the Union . At one employee meeting conducted
by Store Manager Psilopoulos , she disputed some of the
information he was giving, and in another meeting when
he said , "this should be one happy family," she spoke
up, "Well , this used to be one happy family but it's not
any more, it's like Sing Sing now."
On April 3 (6 days after Psilopoulos instructed Ideal
District Manager Delaney to start laying the groundwork
for getting rid of a prounion employee), Assistant Store
Manager White began writing memos to Armon's personnel
folder for being tardy (The store opened at 10 o'clock,
and for months she had been reporting to work late almost
every morning-sometimes as much as 15, 30, or more
minutes after her 9 o'clock starting time. ) She had not
heeded repeated verbal reprimands . She refused to sign
the April 3 memo, and continued to report late, despite
continued warnings . Even after her starting time was
changed from 9 to 12 o'clock , she was tardy about half
of the time (from 1 to 9 minutes, except 23 minutes
once on a Saturday).
Prior to the union activity in the store , Armon had
been reprimanded for arguing with , and being discourteous
to, customers . In February , as credibly testified by Assistant
Manager Borssuk , she told a customer, "Goddamn it, I
don't have to put up with this. You didn 't buy this particular
merchandise in the store and I 'm not going to accept
it as a return from you."
On May 22, Borssuk overheard Front Supervisor Beihler
request Armon not to open her register but to relieve
the girl on the courtesy desk for the lunch hour . In front
of customers , Armon responded, "This goddamn store,
J M FIELDS INC, OF FLORIDA 231
I have to put up with this everytime I come in here.
I see no reason why this has to go on." This was reported
to Assistant Manager White, who wrote his fourth memo
to her personnel folder, for "being late & her bad attitude
toward customers & employees." (The first three memos,
dated April 3, 18, and May 1, were for tardiness.) On
Saturday, May 24, White overheard Armon complaining,
in front of customers and other cashiers and customers,
to Beihler about his asking her to go from one register
to another. Armon admitted telling Beihler that "nobody
knows what they're doing around here," and "I probably
have to wind up cleaning that register before I work on
it," and that this was a poor place to work. (Armon
testified, "I was angry. I had been pushed around that
store from the beginning to the end, believe me ") White
suspended her for the rest of the day, and on the following
Monday, when Store Manager Psilopoulos returned, he
suspended her for the week (When asked about the disci-
pline, she testified, "I didn't think we were in school
that we had to be disciplined. Okay, what was the reason
I was laid off for a week, because I was bad?")
On July 3, Armon was the union observer at the election,
which the Union lost. On Monday, July 7, when Armon
heard about department manager Manonetti's discharge,
she called in that she was sick, and did not work that
day. On Tuesday, July 8, she got into an argument with
a customer soon after arriving at work. As credibly testified
by Assistant Manager White, the customer thereafter com-
plained to him that when she was going through Armon's
register with an article which had no price ticket, Armon
asked her why she buys clothes with no tickets The customer
"didn't like it," and Armon told her to "stick them up
her-." (Armon denied making the remark However, White
impressed me as an honest witness, and I discredit the
denial.) White reported the incident to Store Manager Psilo-
poulos, who (after checking with Vice President Walker)
discharged Armon for the incident, for continued tardiness,
and insubordination.
Having considered all the evidence and circumstances,
I find that the General Counsel has failed to prove by
a preponderance of the evidence that the assigned reasons
for Armon's discharge, including her serious misconduct
on the day of her discharge, were not the real reasons
for her termination. I shall therefore recommend dismissal
of the allegation that Armon was unlawfully discharged.
CONCLUSIONS OF LAW
1 By discriminatonly discharging William Essig on
March 29 and Filomena Mananetti on July 7, 1969, to
discourage membership in the Union, the Company engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
2. By discharging Neal Delaney on April 1, 1969, to
give a color of validity to the discriminatory discharge
of Essig, the Company interfered with, restrained, and
coerced its employees in the exercise of their Section 7
rights, in violation of Section 8(a)(1) of the Act.
3. By coercively interrogating nonsupervisory department
managers, by advising and warning them that they could
not join a union or engage in union activity, by threatening
one of them with discharge if he solicited for the Union,
and by issuing an employee a written warning for tardiness
in order to lay the groundwork for discriminatorily discharg-
ing the employee, the Company further interfered with
the exercise of its employees' Section 7 rights, in violation
of Section 8(a)(1) of the Act.
4. The General Counsel failed to prove that the discharge
of Pamela Armon violated the Act.
5 The General Counsel failed to prove that the Company
violated the Act by creating the impression of surveillance
of union activities, or by conducting interviews with small
groups of employees
THE REMEDY
I shall recommend that the Respondents be ordered
to cease and desist from the unfair labor practices found
and from like or related invasions of the employees' Section
7 rights; to take certain affirmative action designed to
effectuate the policies of the Act, to offer reinstatement
to William Essig, Filomena Marianetti, and Neal Delaney,
with backpay computed in a manner set forth in F. W
Woolworth Company, 90 NLRB 289, plus interest at 6
percent per annum as prescribed in Isis Plumbing & Heating
Co., 138 NLRB 716; and to post appropriate notices.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend pursuant
to Section 10(c) of the Act issuance of the following:
ORDER
Respondents, J. M. Fields Inc., of Florida and the Ideal
Shoe Co., wholly owned subsidiaries of Food Fair, Inc.,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discharging or otherwise discriminating against any
employee because of his membership in or activity on
behalf of Retail Store Employees Union, Local 345, AFL-
CIO, Retail Clerks International Association, or any other
labor organization.
(b) Discharging any supervisor in order to give a color
of validity to the discriminatory discharge of an employee.
(c) Coercively interrogating any of its employees about
employees' union sympathy or union activity.
(d) Advising or warning any nonsupervisory department
manager that he cannot join a union or engage in union
activity
(e) Threaten any nonsupervisory department manager
with discharge if he solicits for a union
(f) Issue any employee a written warning for a purpose
of laying the groundwork for discriminatorily discharging
the employee.
(g) In any like or related manner interfering with, restrain-
ing, 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 William Essig, Filomena Marianetti, and Neal
Delaney immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole in the
manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy "
(b) 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 Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Expunge from his personnel records, and disregard,
the written warning issued to Joseph Libertore on March
29, 1969.
(d) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this recom-
mended Order
(e) Post in its Gates, New York, store copies of the
attached notice marked "Appendix "2 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being duly signed by an authorized representative
of the Respondents, shall be posted by the Respondents
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply herewith'
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found
for the earnings lost as a result of their discharge
in 1969, plus 6 percent interest.
WE WILL NOT discharge or discriminate against
any employee for supporting the Retail Store Employees
Union, Local 345, AFL-CIO, Retail Clerks Interna-
tional Association, or any other union.
WE WILL NOT discharge any supervisor in an effort
to conceal a discriminatory motivation for discharging
an employee.
WE WILL NOT coercively interrogate any employee
about our employees' union sympathies or union activi-
ties
WE WILL NOT tell any nonsupervisory department
manager he cannot join a union or engage in union
activity.
WE WILL NOT threaten any nonsupervisory depart-
ment manager with discharge if he solicits for a union.
WE WILL NOT issue any employee a warning to
lay the groundwork for discriminating against him.
WE WILL withdraw from his folder, and disregard,
the written warning given to Joseph Libertore on March
29, 1969.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
J M. FIELDS INC.,
OF FLORIDA AND
THE IDEAL SHOE CO.,
WHOLLY OWNED SUBSIDIARIES
OF FOOD FAIR, INC.
(Employers)
' In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions and order,
and all objections thereto shall be deemed waived for all purposes
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 "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 3, in writing, within 10 days from the date of this Order,
what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL OFFER William Essig, Filomena Marianetti,
and Neal Delaney full reinstatement , and pay them
Dated By
(Representative)
(Title)
Note: We will notify the three above-named discharged
persons if presently 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 Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo,
New York .14202, Telephone 716-842-3100.