Frenchy's K & T

National Labor Relations Board - Board Decisions

Feb 20, 1980

247 N.L.R.B. 1212 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earl Kuhns d/b/a Frenchy's K & T and Earl's News
Stand and Retail Clerks Union, Local 648, United
Food and Commercial Workers International
Union, AFL-CIO.' Cases 20-CA-14319 and 20-
CA-14456
February 20, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 25, 1979, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith and to adopt his
recommended Order, as modified herein.
We agree with the Administrative Law Judge's
conclusions that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging employees Alaura,
Kulick, Gabagat, and Prashad; that Respondent
violated Section 8(a)(4), (3), and (1) of the Act by
discharging employees Garrard and Hale; and that
Respondent committed numerous violations of Section
8(a)(1) of the Act. The General Counsel has excepted,
however, to the Administrative Law Judge's failure to
make any findings regarding the allegations in the
complaint that Respondent also violated the Act by
assigning Garrard and Hale more onerous working
conditions by transferring Garrard and Hale to a less
desirable work location by reducing Garrard's work
hours and by reducing the hours of all of its employees
through its refusal to assign overtime work. For the
reasons set forth below we find merit in the first three
exceptions mentioned above, but we have concluded
that there is insufficient evidence to find that Respon-
dent reduced the hours of all of its employees by
refusing to assign overtime work. The General Coun-
sel has also excepted to the Administrative Law
Judge's failure to order reinstatement of discharged
employee Prashad and to the Administrative Law
Judge's dismissal of the allegation in the complaint
' The name of the Charging Party, formerly Retail Clerks Union. Local
648. Retail Clerks International Union, AFL-CIO, is amended to reflect the
change resulting from the merging of Retail Clerks International Union and
Amalgamated Meatcutters and Butcher Workermen of North America on
June 7. 1979.
regarding the discharge of employee Erwin. Contrary
to the Administrative Law Judge and for the reasons
set forth below, we find that Respondent's discharge
of Erwin also violated Section 8(a)(3) and (1) of the
Act2 and that discharged employee Prashad is entitled
to be reinstated with backpay.
1. The Administrative Law Judge made the follow-
ing findings regarding the events leading up to
Respondent's discharge of Garrard. On January 19,
1979, Garrard, who was a known union supporter,
testified in the representation case hearing concerning
Respondent's employees. After she returned from the
hearing Respondent attempted to fire her using as a
pretext a false accusation that she had overstayed a
break and come back to work drunk on January 17.
When the employee who had witnessed Garrard's
return from break on January 17 refused to sign a
statement supporting Respondent's accusation Re-
spondent did not discharge Garrard. On January 22
Garrard testified again at the representation hearing.
On January 23, when Garrard reported as usual to the
Taylor Street store to find out what her new shift was,
she was advised that she had been transferred to the
South San Francisco store as the only clerk on the
evening shift; that the store closing hour tere had just
that day been extended from midnight to I a.m.; that
she was to start work there at 6 a.m. and clock out at 2
a.m.; and that she was to perform certain janitorial
duties there such as cleaning the toilet, mopping the
floor, and scrubbing the screens in the movie room.
Before this transfer, Garrard had averaged 60 to 65
hours per week at the Taylor Street store, but her new
schedule was only 40 hours per week. Further, at the
Taylor Street store Garrard had never been required
to perform any janitorial duties or to work alone at
night. Finally, although Respondent was aware that
Garrard had no transportation and that the last public
transportation back to San Francisco left South San
Francisco about 1:30 a.m., Respondent assigned Gar-
rard to work at the most remote of its stores, extended
the store hours, and required Garrard to leave after
the last bus was scheduled to leave. While the
Administrative Law Judge found that Respondent
purposely "decided to make it nearly impossible for
Garrard to tolerate the transfer" and also found
Garrard's discharge after she reported for work at the
South San Francisco store to be a violation of Section
8(a)(4), (3), and (1) of the Act, he neglected to make
any specific findings regarding the further allegations
that Respondent violated Section 8(a)(4), (3), and (1)
of the Act by transferring Garrard, assigning her more
onerous working conditions, and reducing her work
I Member Penello does not agree with the majority's conclusion that
Erwin's discharge was unlawful. His dissent on this issue is set forth in fn. 9,
infra.
247 NLRB No. 167
1212
FRENCHY'S K & T AND EARL'S NEWS STAND
hours. Inasmuch as Respondent clearly committed
these acts in retaliation for Garrard's union activities
and because she testified at a Board hearing, we find
that Respondent thereby violated Section 8(a)(4), (3),
and (1) of the Act, and we shall modify the Adminis-
trative Law Judge's recommended Order and notice
accordingly.
2. With regard to the events leading up to Hale's
discharge, the Administrative Law Judge made the
following findings. Hale, like Garrard, was a known
union supporter and also testified at the representation
case hearing on January 19, 1979. On January 24, the
day after Garrard's discharge, Respondent told Hale
to report to the South San Francisco store because
Garrard had been fired. Until that time Hale had been
working at the Mason Street store. Like Garrard, Hale
was told not to clock out before 2 a.m., even though
Respondent knew that he had no transportation and
the last bus back to San Francisco left before 2 a.m.
Further, Hale was required to scrub the movie booths
and movie machines at the South San Francisco store,
a job which employees considered distasteful and one
which he had not been required to do at the Mason
Street store. Although the Administrative Law Judge
found that Respondent "expected [Hale] to balk at the
transfer" and also found Hale's discharge after Hale
"unexpectedly remained on the job" for 2 weeks to be
a violation of Section 8(a)(4), (3), and (1) of the Act,
he again failed to make any specific findings regarding
the allegations that Respondent also violated Section
8(a)(4), (3), and (1) of the Act by transferring Hale
and assigning Hale more onerous working conditions.
Since Respondent committed these acts in retaliation
for Hale's union activities and testimony at the Board
hearing, we find that Respondent thereby violated
Section 8(a)(4), (3), and (1) of the Act, and we shall
modify the Administrative Law Judge's recommended
Order and notice accordingly.
3. The Administrative Law Judge made no findings
regarding the allegation in the complaint that on or
about January 19, 1979, Respondent reduced the
hours of all of its employees by refusing to assign
overtime work. The only evidence which the General
Counsel offered as to this allegation indicates that
employees Fleming, Garrard, and Saccomano each
had their work schedules reduced from about 45, 60,
and 56 hours per week, respectively, to 40 hours per
week with no overtime in late January or early
February 1979. This evidence, which relates to only 3
employees out of a total work force of more than 25, is
' Although Respondent witness Bansraj testified that Respondent decided
to cut back on its use of overtime hours by using a new schedule effective
January 23. 1979, and also read certain aggregate figures into the record
which were the total amounts of overtime wages paid to employees during
December 197g, and January. February. and March 1979. these figures do not
reveal a substantial decrease in the amount of overtime wages paid. While
there was a drop in the total amount of overtime wages after January 25, 1979,
clearly insufficient to support a finding that Respon-
dent reduced the hours of all of its employees.'
Furthermore, we have already found that Respondent
violated Section 8(a)(4), (3), and (1) of the Act by
reducing Garrard's hours based on a separate allega-
tion in the complaint. We shall, therefore, dismiss this
allegation of the complaint.
4. As to the discharge of employee Prashad, the
Administrative Law Judge made the following find-
ings. Prashad was a senior employee whom Respon-
dent trusted. A day or two after the union election on
March 15, 1979, Respondent's manager, Garrett,
asked Prashad if he had voted in the election, and
Prashad said yes. Garrett then asked him how he had
voted, and Prashad said he had voted for the Union.
On March 29 the ballots were counted and Respon-
dent learned the Union had won the election. On
March 30 Garrett informed Prashad he was dis-
charged. When Prashad asked why Garrett said,
"Your time card"; however, when Prashad asked to
see the timecard Garrett refused, stating he would see
Prashad in court. Respondent contended that Prashad
was discharged for cheating on his timecard, but the
Administrative Law Judge discredited Garrett's testi-
mony that he had warned Prashad on March 20 about
writing in the times on his timecard and that he had
decided to discharge Prashad because of a problem
with Prashad's timecard for March 26. Rather, the
Administrative Law Judge found that Garrett "had no
reason to believe Prashad was cheating on his time-
cards until after [Garrett] had obtained the burglar-
alarm company monthly record" showing when the
burglar alarm had been set each night for the 16th
Street store where Prashad was responsible for closing
up, since that record was the only method Garrett had
for checking the accuracy of the times which Prashad
had handwritten on his timecards. Further, the
Administrative Law Judge found that Garrett did not
receive the burglar alarm company monthly record for
March until the end of the month, after he had
discharged Prashad. Therefore, the Administrative
Law Judge concluded Prashad's discharge violated
Section 8(a)(3) and (1) of the Act.
Although we agree that Respondent decided to
discharge Prashad because of his admission that he
had voted for the Union and therefore his discharge
violated Section 8(a)(3) and (1) of the Act, in coming
to this conclusion we do not rely on the Administra-
tive Law Judge's statement that Respondent's dis-
charge of Prashad "was motivated principally by
there was a corresponding drop in the total amount of regular wages paid also.
presumably due in part to Respondent's unlawful discharges of numerous
employees. Further. the amount of overtime wages paid during certain weeks
in January 1979 was higher than the overtime wages paid during the weeks in
December 1978. In any event. we do not find this evidence sufficient to
support the allegation that Respondent refused to assign overtime work.
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antiunion considerations." In light of the Administra-
tive Law Judge's finding that Respondent did not
know that Prashad was cheating on his timecards until
after he had already been discharged, it is clear that
Respondent's contention that he was discharged
because of his timecard was merely a pretext. Thus,
we conclude that Respondent's sole motivation for his
discharge was antiunion considerations, especially
noting the timing of his discharge so soon after the
interrogation and immediately after Respondent
learned the results of the election and the fact that
Prashad was one of Respondent's most senior and
trusted employees.
While the Administrative Law Judge found that
Prashad's discharge violated Section 8(a)(3) and (1) of
the Act, he did not recommend the usual remedy of
reinstatement with full backpay. Rather, he found that
Prashad was entitled to backpay only from the date of
his discharge to the date he would have been fired over
the timecard matter, with the exact date to be
determined at the compliance stage. The Administra-
tive Law Judge stated as the reason for his denial of
the usual reinstatement remedy that he had no doubt
Prashad's dishonest timecards would have been dis-
covered shortly after the discharge and Prashad would
have been fired at that time. However, he did not
point to any evidence in the record which would
support his conclusion that in the absence of its illegal
motivation Respondent would have fired Prashad
when it later discovered this misconduct.
It is well established that in order to avoid the
normal order requiring reinstatement with full back-
pay for an unlawfully discharged employee the respon-
dent has the burden of proving that the discharged
employee would have been terminated at a later date
for nondiscriminatory reasons.4 There is no evidence
in the record to indicate that Respondent had a well-
established disciplinary system or any past practice as
to discipline for employee misconduct relating to
cheating on timecards or leaving work early. Rather,
the record evidence indicates that Respondent had
tolerated some laxity among its employees in this
regard. Thus, it is undisputed that Respondent had
experienced numerous malfunctions over a period of
more than 6 months in two successive timeclocks at
the 16th Street store where Prashad worked and that
this had led Respondent to conclude that someone was
tampering with the timeclock there. Respondent took
no steps, however, to determine who was doing this
tampering or to determine whether any employees
were taking advantage of the malfunctions to cheat on
' Msco Products. Inc.. 198 NLRB 424 (1972); irico Products Corporation
195 NLRB 1053 (1972), enforcement denied 489 F.2d 347 (7th Cir. 1973).
' It should be noted that the evidence presented by Respondent shows that
Prashad altered his timecard on only four occasions involving a total of about
4 hours. Since Prashad's hourly wage was 4.25. his misconduct only
represented a loss to Respondent of about $17.
their timecards until after Prashad had been dis-
charged and it needed a rationale to support his
discharge. Since the Administrative Law Judge discre-
dited Garrett's testimony as to Respondent's stated
reasons for discharging Prashad and Respondent
presented no further evidence to indicate that Prashad
or any other employee would have been discharged for
the same offense at a later time, the question as to
whether Respondent would have discharged Prashad
when it discovered later that he actually had been
cheating on his timecard is at the least conjectural.'
Inasmuch as the unlawful reason for the discharge
cannot be disentangled from Respondent's conjectural
action at a later time and as Respondent has the
burden of proof on this issue, we find that Respondent
rather than the employee must assume the risk of any
uncertainty.' Therefore, we do not adopt the Adminis-
trative Law Judge's recommended remedy with regard
to Prashad, but rather we shall provide the usual
remedy of reinstatement with full backpay for Prashad
along with the other unlawfully discharged employees
and shall modify the Administrative Law Judge's
recommended Order and notice accordingly.
5. The Administrative Law Judge dismissed the
allegation of the complaint relating to employee
Erwin's discharge because he concluded that Respon-
dent had good cause for Erwin's discharge. He made
the following findings of fact about the events preced-
ing Erwin's discharge. Erwin attended the union
organizing meeting on December 28, 1978, and singed
a card. Employee Sam Kearns, who became a supervi-
sor during January 1979, also attended this meeting.
On January 24, 1979, Respondent's manager, Garrett,
asked Erwin if he had signed a union card. When
Erwin said he had not Garrett responded, "[you]
better not be lying." Garrett asked Erwin the same
question three more times that day and told Erwin
that if he had signed a card he had better get it back.
On January 25 Garrett again asked Erwin if he had
signed a union card and also asked how he would vote
if it came to an election. Erwin replied he did not
know. Garrett then remarked that another employee
had better get his union card back "or else" and also
asked Erwin who had signed cards. In the same
conversation Garrett promised Erwin a 50-cent-per-
hour pay increase because he had not signed a union
card. Erwin actually received a 25-cent-per-hour pay
increase in his next paycheck. On January 30 Garrett
told Erwin that (unlawfully discharged employee)
Garrard was not likely to find work in the industry in
San Francisco anymore because of a blacklist. In early
' The Lima Lumber Company, 176 NLRH 696 (1969)., enfd. 437 F.2d 455
(6th Cir. 1971). See also Harry Magnusen d/b/a North Star Refrigerator Co.,
207 NLRB 500, 504 at fn. 19 (1973), enforcement denied 523 F.2d 643 (9th
Cir 1975).
1214
FRENCHY'S K & T AND EARL'S NEWS STAND
February Garrett asked Erwin several more times who
else had signed union cards and what he thought the
Union's chances were in an election.
The Administrative Law Judge also found that
Respondent's owner, Kuhns, told another employee in
mid-February that he knew which clerks had joined
the Union and he was getting rid of them not because
of the Union but because they were not doing their
jobs and were stealing from him. The Administrative
Law Judge concluded that this was "a not very veiled
threat to discharge union activists--even going so far
as to imply [Kuhns] would find pretexts for doing so
... ." Further, the Administrative Law Judge found
that in late February Garrett asked an employee what
number he was on the union list. The Administrative
Law Judge concluded that Garrett was apparently
referring to the attendance roll taken by the Union at
its December 28 meeting, since Respondent had
presumably learned about this list from its new
supervisor, Kearnes, who had signed it at the meeting.
The Administrative Law Judge found that Respon-
dent must have known by about early March that
Erwin had signed a card at the union meeting. He
noted that in early March Garrett began requiring
Erwin to perform cleanup work and to paint projec-
tion booths, which jobs had previously been assigned
to other employees or outside contractors for addition-
al pay. Despite these findings, however, the Adminis-
trative Law Judge concluded that Respondent had
little animus toward Erwin.
On March 3 Erwin was assigned to train a new
employee on the night shift at the Stockton store.
Erwin had never worked at the store before and was
given no instructions as to the procedures there. When
closing up the store at the end of the shift Erwin
followed the practice at the Taylor Street store and
merely closed the safe door after depositing the shift
receipts in it rather than actually locking it. Erwin did,
however, set the burglar alarm and lock the door to
the store as he was leaving. The next morning, when
employee Flores arrived to open the store, he discov-
ered the front door unlocked and the cash missing
from the safe. Flores reported the burglary to the
police about 10 a.m. and also informed Respondent's
manager, Bansraj. Respondent did not contact Erwin
and apparently made no effort to investigate the
circumstances surrounding the burglary other than
checking with the burglar alarm company as to
whether the alarm was set and when it went off. When
' Although the Administrative Law Judge did not find the incidents
comparable, stating that Erwin was responsible for a burglary while Ceniceros
was a more sympathetic figure because he was forcibly robbed, we disagree
with this characterization of the two incidents. The facts regarding the
"robbery" are as follows. Employee Ceniceros was responsible for locking up
the Mason Street store. After closing the store one evening Ceniceros went out
drinking with a couple of customers he had just met at the store. Apparently,
he may have allowed the customers to watch him close the store. Ceniceros
Erwin learned of the burglary from another employee
on March 4 he told the employee to have Bansraj call
him when Bansraj arrived at the store. Bansraj called
Erwin about an hour later and asked what had
happened. Erwin said he had locked the front door
and that the trainee, Roger McFarris, had seen him
lock up. Erwin also offered to take a polygraph test to
prove his innocence, noting he had taken two previ-
ously. Bansraj told Erwin the burglar alarm records
showed that the first entry had occurred at 9:15 a.m.,
and Erwin said it seemed strange that a burglary
would occur in daylight. Bansraj ended the conversa-
tion by saying he would get in touch with Erwin if
necessary but otherwise Erwin should just report for
work as scheduled. When Erwin reported for work on
March 6 Garrett had him do some work at the 16th
Street store, where Respondent's business office is
located. After Owner Kuhns arrived and spoke with
Garrett, Garrett told Erwin he was fired because he
should have locked the door to the store. Erwin stated
he did lock the door and McFarris could verify it, but
Garrett just said he was sorry.
There is no evidence in the record to indicate that
Respondent made any attempt to confirm or deny
Erwin's story by asking employee McFarris what had
happened. Respondent also did not accept Erwin's
offer to take a polygraph test, which apparently was
the method that had been used in the past to
investigate thefts since Erwin had taken two such tests
previously. Nor is there any evidence that Respondent
questioned employee Flores about the incident, even
though the entry was made in broad daylight only 45
minutes before Flores reported the theft. The only
evidence indicating that any investigation was made of
the incident consists of Bansraj's statement about the
burglar alarm records, and these records corroborate
Erwin's statement that he had set the burglar alarm.
Although the Administrative Law Judge found that
"Erwin's admission that he had failed to lock the safe
clearly pointed the finger at him," there is no evidence
in the record that this was not the standard practice at
the Stockton store. Further, it is undisputed that
before the union organizational campaign began Re-
spondent had retained an employee after a major theft
occurred for which the employee Was "indirectly
responsible," according to Manager Garrett.' While
the Administrative Law Judge noted that there was
not much evidence in the record about this other theft,
this is so only because the Administrative Law Judge
got so drunk with the customers that he passed out, and the customers then
took his keys to the store. They used his keys to open the store and stole all of
the shift receipts. The record is unclear as to whether the money was locked in
a safe to which the thieves had the key or whether Ceniceros also left the safe
unlocked. On these facts, we do not find that Ceniceros was a more
sympathetic figure than Erwin even if Erwin did fail to lock the door to the
store, as Respondent claims.
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained Respondent's objection to the admission of
testimony on this subject. However, the testimony
offered by the General Counsel consisted of employee
Kulick's account of what Manager Bansraj stated to
him about what had occurred on that occasion, which
would clearly constitute an admission by an agent of
Respondent as to its knowledge of the events in that
case.
We conclude that Respondent used the burglary as
a pretextual excuse to fire Erwin and that the real
reason for his discharge was his known support for the
Union. In so concluding, we note that Respondent had
repeatedly interrogated Erwin about signing a card;
that Respondent had indicated an intention to use
pretexts to fire union activists; that Respondent
became aware from its Supervisor Kearns that Erwin
had signed a card at the union meeting; that Respon-
dent indicated animus toward Erwin by assigning him
additional work; that Respondent made no attempt to
investigate the circumstances surrounding the burgla-
ry despite Erwin's denial of any wrongdoing' and
despite the suspicious circumstances of the break-in
which implicated Flores at least as much as Erwin;
and that Respondent treated Erwin disparately com-
pared to Ceniceros, who was not fired for similar
negligence leading to a major theft. Therefore, we find
that Respondent discharged Erwin in violation of
Section 8(a)(3) and (1) of the Act, and we shall modify
the Administrative Law Judge's recommended Order
and notice accordingly.9
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(4),
(3), and (1) of the Act, we shall order Respondent to
cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the purposes of the
Act. Specifically, we shall order that Respondent
immediately offer James Alaura, William Kulick,
Emilio Gabagat, Hannalore Garrard, Robert Hale,
Mahendra Prashad, and James Erwin full reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions
without prejudice to their seniority or any other rights
and privileges previously enjoyed, discharging if neces-
sary any replacements hired. In this regard we shall
specifically order that Respondent offer Hannalore
Garrard and Robert Hale reinstatement to the posi-
tions they occupied before they were unlawfully
transferred to the South San Francisco store."0 We
shall further order that Respondent make James
Alaura, William Kulick, Emilio Gabagat, Hannalore
Garrard, Robert Hale, Mahendra Prashad, and James
Erwin whole for any loss of earnings or other benefits
they suffered by reason of Respondent's unlawful
conduct. Their loss of earnings shall be computed as
prescribed in F: W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in
accordance with Florida Steel Corporation, 231 NLRB
651 (1977)."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Earl
Kuhns d/b/a Frenchy's K & T and Earl's News
Stand, San Francisco, California, his officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Add the following as paragraph l(c) and reletter
the present paragraph (c) as (d):
"(c) Transferring employees, assigning employees
more onerous working conditions, and reducing em-
ployees' hours because they have engaged in union
activities or because they have given testimony in a
proceeding before the National Labor Relations
Board."
2. Substitute the following for paragraph 2(a):
"(a) Immediately offer to James Alaura, William
Kulick, Emilio Gabagat, Hannalore Garrard, Robert
Hale, Mahendra Prashad, and James Erwin full
reinstatement to their former positions as set forth in
the section of this Decision and Order entitled 'The
Remedy' or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges
previously enjoyed, discharging if necessary any re-
placements hired, and make them whole for any loss
of earnings or other benefits they suffered as a result of
the discrimination against them, in the manner set
forth in the section of this Decision and Order entitled
'The Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
It should be noted that the Administrative Law Judge specifically credited
the testimony of Erwin on other matters, did not specifically discredit his
testimony regarding the burglary, did not credit the testimony of Bansraj on
other matters, and apparently did not even credit Bansraj's limited testimony
about the burglary incident where it differed from Erwin's testimony.
'Member Penello would adopt the Administrative Law Judge's dismissal of
the allegation in the complaint regarding Erwin's discharge. He agrees with
the Administrative Law Judge's finding that Respondent fired Erwin for
cause, particularly noting that Respondent had indicated little animus toward
Erwin's support for the Union, that Erwin occupied a position of trust, that
Respondent had reason to believe Erwin had not fulfilled his responsibilities,
and that Erwin's negligence caused Respondent to suffer a substantial
monetary loss ofabout S1,000.
"' See rv-U-Stores. Inc.. 225 NLRB 37, 38 (1976).
' See, generally, Isis Plumbing & Heatfing Co.. 138 NLRB 716 (1962).
1216
FRENCHY'S K & T AND EARL'S NEWS STAND
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportuni-
ty to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and we have been ordered
to post this notice.
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which imposes
a lawful requirement that employees become
union members.
WE WILL NOT interrogate employees about
their union activities, sympathies, desires, or the
manner in which they intend to vote in an NLRB
election, nor will we question employees about
the union activities, sympathies, or desires of
fellow employees.
WE WILL NOT financially reward employees
for providing information regarding the union
activities of others.
WE WILL NOT discharge or threaten to dis-
charge or otherwise discriminate against my
employees for seeking representation by a union
or for testifying in a proceeding before the
National Labor Relations Board, and WE WILL
NOT threaten employees with loss of employment
by saying my stores will be closed if employees
become represented by a union.
WE WILL NOT transfer employees, assign
employees more onerous working conditions, or
reduce employees' hours because they have en-
gaged in union activities or because they have
given testimony in a proceeding before the
National Labor Relations Board.
WE WILL NOT tell employees that we have
blacklisted employees whom we fired for engag-
ing in union activities.
WE WILL NOT grant or promise to grant wage
increases to discourage employees from seeking
representation by Retail Clerks Union, Local 648,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, or any other union.
WE WILL NOT in a coercive manner tell
employees that union representation is a futile
act.
WE WILL NOT create the impression that the
union activities of employees are under surveil-
lance.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL immediately offer to James Alaura,
William Kulick, Emilio Gabagat, Hannalore
Garrard, Robert Hale, Mahendra Prashad, and
James Erwin full reinstatement to their former
jobs, or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their
seniority or any other rights and privileges
previously enjoyed, dismissing if necessary any
persons who replaced them; and WE WILL make
them whole for any loss of earnings or other
benefits, with interest.
EARL KUHNS D/B/A FRENCHY'S K & T
AND EARL'S NEWS STAND
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me in San Francisco, California, on
June 5 and 12-14, 1979,' pursuant to two complaints issued
by the Regional Director for Region 20 of the National
Labor Relations Board on February 25 and April 27, as
amended on May 24 and further amended at the hearing,
which are based upon charges filed by Retail Clerks Union,
Local 648, Retail Clerks International Union, AFL-CIO
(herein called the Union), on January 9 and March 13, as
thereafter amended. The complaints allege that Earl Kuhns
d/b/a Frenchy's K & T and Earl's News Stand (herein
called Respondent), has engaged in certain violations of
Section 8(a)(1), (3) and (4) of the National Labor Relations
Act, as amended (herein called the Act).
Issues
The issues involved herein are whether Respondent, in
response to the Union's organizing campaign in early 1979,
unlawfully interfered with, restrained, or coerced its employ-
ees in the exercise of their rights under Section 7 of the Act
in numerous ways and whether it discharged seven employ-
All dates herein refer to 1979 unless otherwise indicated.
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in violation of Section 8(a)(3) and/or (4) either because
of their union activities or suspected union activities or
because they testified on behalf of the Union in a Board
representation case.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of both
the General Counsel and Respondent.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor I make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a sole proprietorship which
operates a chain of adult bookstores in San Francisco and
South San Francisco, California. It further admits that
during the past year in the course and conduct of its
operations, its gross volume of business exceeded $500,000.
Although Respondent denies that its interstate purchases
were sufficient to warrant the assertion of jurisdiction, the
Regional Director found in her Decision and Direction of
Election dated February 16 sufficient purchases of an
interstate nature to satisfy the Board's de minimus require-
ments.: Respondent failed to file a timely request for review
of that finding. Accordingly, I find, pursuant to Section
102.67(f) of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, that it is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Participants
As noted, Respondent Earl Kuhns operates a chain of six
adult bookstores. In addition to literature the stores sell
films and novelties and also house peepshow movie ma-
chines usually located to the rear of each store. Although
Kuhns participates to some degree in the day-to-day
operation of his stores, he employs two full-time managers.
One is Kenneth Garrett, Kuhns' 19-year-old stepson. The
other is Subhas Bansraj. In addition, in late 1978 he
converted a clerk, James Alaura, to night manager. Alaura
held that position until late December of that year; he later
became involved, as an employee, in the Union's organizing
drive. The only other individual involved in Respondent's
management is Robert "Sam" Kearnes, who oversaw the
South San Francisco store. Although Kearnes became an
admitted supervisor sometime in January, his authority
appears to be significantly less than that of Garrett or
Bansraj.
Respondent's biggest store is its Taylor Street operation,
located in the heart of the San Francisco tenderloin. It is
operated on a 24-hour basis and is normally manned by two
clerks. Although the Taylor Street store has a small office
behind the public area, Respondent's business office is in its
16th Street store located in the Mission District. That store,
as well as the stores located on Stockton Street, Geary
Street, Mason Street, and in South San Francisco were
usually manned by only a single clerk and operated on
schedules less than 24 hours. In January a seventh store,
located on Kearny Street, was closed because the lease was
lost. The Stockton and Kearny stores were both located in
the North Beach area.
B. The Union's Organizing Drive and Pertinent Dates
James Alaura had been hired in July 1978. By late
September or early October he had demonstrated sufficient
competence to be the first clerk to reach the highest hourly
wage of any employee, $4.25. Sometime in mid-October he
became Respondent's night manager. His duties were to
oversee each of the stores in the late evening and early
morning hours. During that tenure he had the right to hire
and fire. Even before that, as the senior clerk at the Taylor
Street store, he had been given the authority to hire and had
exercised it. He held the post of night manager for
approximately 6 weeks, ceasing those duties sometime in
December 1978. He was reassigned to the Taylor Street store
as a clerk. Dissatisfied with some of Respondent's personnel
policies, Alaura began inquiring of other clerks regarding
their support for union representation. He contacted the
Union, and on December 28 the Union conducted an
organizing meeting at its office in the Mission District not
far from Respondent's 16th Street store. Fourteen employees
attended that meeting, including six of the seven employees
alleged to have been unlawfully discharged. These were
Alaura, Hannelore Garrard (who lived with Alaura and who
had been hired by him), William Kulick, James Erwin,
Mahendra Prashad, and Robert Hale. The seventh dischar-
gee involved herein is Emilio Gabagat. Also in attendance at
that meeting was Sam Kearnes, who later became the South
San Francisco manager. All 14 employees who attended that
meeting, either a day or two before or at that meeting, signed
union authorization cards.
On January 2 four union officials went to the 16th Street
store to present a letter demanding that Respondent recog-
nize and bargain with it on behalf of its clerks. The letter was
first given to Bansraj, then to Garrett, and finally to Kuhns
himself. As Respondent declined to recognize it, the Union
filed the election petition. A hearing on that petition was
thereafter begun on January 19. Witnesses who testified
included alleged discriminatees Garrard and Hale.
On February 16 the Regional Director issued her Decision
and Direction of Election, and an election was conducted on
March 15. The ballots, however, were impounded and not
opened until March 29.
: Case 20-RC- 14734 (unpublished). See G.C. Exh. 2.
1218
FRENCHY'S K & T AND EARL'S NEWS STAND
C. Alleged Interference. Restraint. and Coercion
During the course of the hearing the General Counsel
adduced, through numerous witnesses, many incidents
alleged to be violative of Section 8(a)( ). For convenience I
have categorized them by the type of allegation. In general
these include interrogations, threats to discharge, threats to
close the stores, granting wage increases, statements that
union representation is futile, paying employees for giving
information regarding the union activity of others or for not
joining the Union, implying that a discharged union activist
had been blacklisted from working elsewhere in the industry
and creating the impression that employees' union activities
were under surveillance.
1. Interrogation and closely connected activity
Instances of alleged unlawful interrogation began on
January 2, the day that the Union demanded recognition at
the 16th Street store. At approximately 4 p.m. Manager
Kenny Garrett spoke to the clerk at that store, Mahendra
Prashad. Prashad states that Garrett simply asked him
about the Union, at the same time saying that he did not
care about the Union.
On January 3 clerk James Sablan had a discussion with
Manager Subhas Bansraj. They were joined at some point by
Garrett. Sablan testified that Bansraj asked him what clerks
Jim Alaura and Hannelore Garrard were up to. Sablan
replied that they were organizing a union. Bansraj then
asked Sablan to find out which other employees were
involved. Garrett went into the office for a moment,
returned, and asked Sablan to tell him who else was
involved. Sablan replied that he did not really know but
called another clerk, Tim Andrews, who told him that
approximately 15 employees were connected to the drive but
did not give Sablan any names. Sablan, guessing, made up a
list of 15 employees whom he thought were implicated and
gave it to Garrett. Garrett took the list but said it was "too
late" because the Union had already given him a letter.
Sablan testified that the list included the names of Alaura,
Garrard, and Erwin, all of whom are alleged discriminatees.
The list named others as well. Sablan thought about his list
for a moment or two and then made out a second list,
omitting Andrews' name.
A few moments later Garrett returned with the first list
and told Sablan that he would "find something on his
check." A day or two later when Sablan received his weekly
paycheck, the figure did not reflect an increase, and he asked
Garrett about it. Garrett told him to pay himself 1 1.25 in
quarters from the safe. His later paychecks reflected the
raise. (He was also allowed a 30 salary advance shortly
thereafter.)
During the same conversation in which Sablan gave
Garrett his list Sablan also told Garrett and Bansraj that if
they got rid of the employee who was organizing the other
employees would stop. They replied that was "a brilliant
idea."' He then told them Alaura was the principal organiz-
' I do not conclude that what Respondent did later was because of Sablan's
suggestion. Garrett's and Bansraj's statement that firing union organizers was
a "brilliant idea" was probably a facetious comment. It takes no brilliance to
conclude that organizing might be halted by selected discharges. The facetious
er. Garrett again went to the office and returned a short time
later. Sablan reports that upon his return Garrett said that
Alaura would be discharged.
On January 23 Garrett went to the Geary Street store
where he spoke to clerk Jack Chandra. The night before
Garrett had discharged Garrard at South San Francisco.
Chandra reports that Garrett asked him if he was aware
Garrard had been fired. When Chandra replied "No, why?"
Garrett said, "Because she was trying to get employees to
join the Union." At that point Garrett asked if Chandra
knew anything about the Union, whether anyone had
approached him, and if he had signed a card. Chandra
replied negatively to all three questions.
On January 24 Garrett went to the Taylor Street store
where he spoke to clerk James Erwin. Garrett asked if Erwin
had signed a union card. When Erwin denied that he had
Garrett said, "[You] better not be lying." He continued to
press Erwin, repeating his question three more times and
then telling him that if Erwin had signed a card he better get
it back.
On the following day, according to Erwin between 11 a.m.
and 1 p.m. Garrett came to the store to give him and his
coworker Suruj Lal additional quarters.' Garrett again asked
Erwin if he had signed a union card and also asked him how
he would vote if it came to an election. Erwin replied that he
did not know, he was not certain. Garrett then remarked
that Timothy Andrews had better get his union card back
"or else."
Also during that conversation Garrett asked Erwin who
had signed cards and what Erwin thought "the chances were
of the Union going through." Erwin said that with the
leaders gone (Alaura, Kulick, Gabagat, Garrard, and Hale
had all been fired at that point), there would be no chance of
the Union going through. Garrett asked Lal if he had signed
a card. About that time Bansraj appeared, became aware of
the conversation, and asked Lal again whether he had signed
a card. Lal replied, "Yes," in a joking manner, and all of
them laughed. his "Yes" was taken as a denial. Garrett
looked at Bansraj and said, "Well, these two didn't sign
union cards, let's put them up for $4 an hour." Erwin says
that Garrett promised him a 50-cent increase to be payable
with the following week's paycheck. When that check
arrived he observed that he had only gotten 25 cents, half of
what had been promised.
On January 30 at approximately noon, again at Taylor
Street, Garrett visited Erwin. Erwin, recalling an earlier
Garrett discussion of Garrard's discharge, observed that
Garrard must be looking for work. Garrett told him, "She
(isn't] likely to find work in this industry in San Francisco
anymore." When Erwin asked why not Garrett replied,
"Because of a list." Erwin asked if Garrett meant a
"blacklist," and Garrett replied, "Yes."
During the first week in February on several occasions,
also at the Taylor Street store, Garrett continued to ask
Erwin who else had signed union cards and what Erwin
thought the Union's chances were in an election.
nature of the remark was no doubt lost on Sablan. Moreover. they had asked
about Alaura's activities earlier in the conversation.
' Lal recalls this conversation as being on January 23. His version
corroborates Erwin but is not as detailed.
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also during early February, according to Manuel Mendo-
za, a longtime clerk then working at the 16th Street store,
Garrett asked him if he had joined the Union or had signed a
union card. Mendoza did not reply, only asking what would
happen if he said yes. Mendoza reports a simlar conversa-
tion in late February as well.
Randolph Fleming, a clerk, in early February had been
transferred to the South San Francisco store. He remembers
during his early tenure at South San Francisco that Manager
Kearnes asked him, "Randy, tell me, just how is the Union
doing?" Fleming answered, "Just fine." On cross-examina-
tion Fleming described the conversation as "Friendly, but
still inquisitive." Later on, in March, Kearnes told Fleming
that Garrett no longer liked him because he had been friends
with Alaura.
On February 17 Jack Chandra was working at the Geary
Street store when Kuhns appeared. Chandra remembers that
Bansraj joined them toward the end of the conversation.
Chandra recalls that it started out casually, but at some
point Kuhns asked him what the Union was doing for him.
When he replied he did not know what Kuhns meant Kuhns
said that he knew Chandra had signed a union authorization
card, but the Union could do nothing for him. Kuhns said
that he could fire Chandra even if he was a union member,
that he did not care whether he was or not, but that if he
ever caught Chandra stealing he would be fired.
Kuhns told Chandra that he would not let a union tell
him how to run his business but would take the entire matter
to court. Kuhns said that he paid $3.50 per hour plus
medical insurance, but that with union dues "we couldn't
make it." Chandra remembers Kuhns saying, "You're
getting the highest rate of pay, as far as bookstores are
concerned, and [1 don't] know what [you are] fighting for."
Kuhns told Chandra that he knew which clerks had joined
the Union and he was getting rid of them not because of the
Union but because they were not doing their jobs and were
stealing from him. He said that if he closed the stores the
clerks would be out of their jobs, and if they went on strike
he would hire new clerks. Chandra remembers Kuhns also
saying that he would not let any union tell him how to run
his business, that he would not "get into any union," that he
would not agree to any kind of an election concerning the
Union, and that he would not accept anything concerning
the Union no matter what happened. Kuhns then said that
he was surprised Chandra had joined. Chandra asked him
why, and Kuhns replied "Well, you've been with me for so
long. You should have asked me. You should have under-
stood my position." Chandra retorted, "After all these years,
you should have understood me. I have asked you for a raise
so many times; you have not given me what I deserved."
Chandra asked Kuhns why he had not gotten better raises,
and Kuhns replied that Chandra's sales were too slow.
Chandra challenged him on the point, suggesting that
Kuhns look at the cash register tape. Given pause Kuhns
said, "I know I haven't been fair to you all these years, but
considering you have worked for me for 7 years, you should
have understood my situation and my position." With that
the conversation appears to have ended.
' There is no evidence that Respondent had actually seen the list; however,
Kearnes had signed it and easily could have reported it on or before his
succession to supervisor.
In late February Garrett spoke to clerk Efren San Juan in
the Mason Street store movie room. Garrett asked San Juan
what number he was "on the union list." (The list to which
Garrett was referring appears to have been the attendance
roll taken by the Union at its December 28 meeting; it is the
only list which makes any sense in this context.)' San Juan
replied that he did not belong to the Union. (He had not
attended the December 28 meeting.) In late February and
again in early March at the 16th Street store Garrett asked
Mendoza if he intended to vote for the Union. On each
occasion Mendoza replied with a question, "What if I did?"
Also in early March clerk Gary Beach was working at
Taylor Street, and, according to him, because of a lack of
employees Kuhns was also working that store, though he did
not normally do so. Beach's shift overlapped with the one
Kuhns was working, and one evening between 4 and 5 p.m.
Kuhns asked Beach what he expected to get from the Union
and who was going to pay his wages when he had to close
the stores. Kuhns said that if the Union "went through" he
would have to close the stores and asked Beach if the Union
would pay his wages after that.
On the evening after the March 15 election in the
backroom of the Taylor Street store Garrett asked Beach if
he had voted, saying "I'd like to know how you voted, but I
can't ask you, but I wish you would tell me." Beach said that
he avoided answering. Similarly, on either March 16 or 17 at
the 16th Street store, Garrett asked Prashad if he had voted
in the election. When Prashad told him that he had, Garrett
asked him how he had voted, and Prashad told him that he
voted for the Union.
Approximately a week later at Taylor Street Garrett asked
Beach what he expected to get from the Union. Beach
replied, "Whatever I can." Garrett then told him that he
would get a 25-cent hourly raise and would have vacation
time coming when his anniversary was up-something
which Garrett had never mentioned to Beach before.
In late March Garrett was driving San Juan between
stores and asked him, "How's the union going on?" San
Juan replied that he did not want to talk about the Union
because he did not want to have to testify against Respon-
dent.
Finally, in early April shortly after the ballots were
actually counted, Garrett asked Mendoza if he had voted in
the election. Receiving no reply Garrett told Mendoza that
he knew which employees had voted for the Union.
I have in each of the incidents recited above credited the
employees' versions. 1 have done so because none of
Respondent's witnesses specifically denied that testimony.
Kuhns, Garrett, Bansraj, and Kearnes made only cursory
and conclusionary denials. Moreover, the employees' evi-
dence was overwhelmingly similar. Such similarity involving
numerous incidents persuades me that the incidents oc-
curred as those witnesses said they did. Moreover, as will be
seen, Garrett did not impress me as a particularly trustwor-
thy witness nor did Kearnes. That observation should not be
construed as an accreditation of Kuhns and Bansraj.
Each of the incidents constitutes, at a minimum, an
inquiry into an employee's desires regarding union represen-
tation. In most of the incidents the coercive nature is self-
1220
FRENCHY'S K & T AND EARL'S NEWS STAND
evident. In others, such as Garrett's January 2 conversation
with Prashad, when he asked him "about the union" the
coercion is present but less clear. In that conversation
Garrett asked the question in a deceptive manner-feigning
lack of interest. That feint was specifically designed to create
for Prashad an atmosphere of trust or at least one in which
Prashad would be more likely to tell Garrett what he knew.
Thus, rather than an innocent question, it was the beginning
of Respondent's antiunion course of conduct. The interroga-
tions violate Section 8(a)(1) as intrusions into the private
feelings of employees regarding their union activities, sympa-
thies, and desires or that of other employees or as an inquiry
regarding how employees intended to vote or actually had
voted in a Board election.
Garrett's statement to Erwin that Garrard was on a
blacklist and could no longer find employment in the
industry in San Francisco violated Section 8(a)(1), as it was a
threat to her and other employees that if they were fired for
their union activities they too would suffer a similar fate.
Such a threat is a restraint on the Section 7 rights of
employees. Professional Ambulance Service. Inc.. 232 NLRB
1141 (1977).
Garrett also unlawfully created the impression that the
union activities of employees were under surveillance when
he asked San Juan what number he was on the union list. He
repeated the violation in April when he told Mendoza that
he knew which employees had voted for the Union. Kuhns
did the same thing when he told Chandra, on February 17,
that he knew which employees had joined the Union.
Kuhns also coercively conveyed to Chandra the impres-
sion that unionization would be a futile act-he would never
capitulate to the Union's representative status as he would
drag the matter out in the courts; moreover, he said that
Chandra would gain nothing and could only lose. With
regard to the latter he specifically said that Chandra's take-
home wage, though low, was the best in the industry; with
union dues it would be even less. That, too violates Section
8(a)(1). Sky Wolf Sales d/b/a Pacific Industries of San Jose,
189 NLRB 933, 944 (1971), enfd. 470 F.2d 827 (9th Cir.
1972); International Medication Systems, Ltd., 244 NLRB
861 (1979).
2. Threats
As previously discussed, on January 3 Garrett told Sablan
that Alaura, the union organizer, would be fired. In
addition, however, he told Sablan that the Union would
cause the Company to go bankrupt. During the second week
in February Manager Kearnes told Andrews that Kuhns
had said that in order to avoid a union he would close the
stores for a month if it was necessary. On approximately
February 17 Kuhns' conversation with Chandra, previously
described to some extent, consisted of threatening to fire
Chandra if he became a union member. Moreover, Kuhns
told Chandra that he knew which employees had joined the
Union and was firing them, but in the same breath said that
he was doing so because they were not performing their jobs.
In addition, he threatened to close the store and cause jobs
to be lost in that manner. Further, he told Chandra that if a
strike ensued he would hire new clerks.
In March, approximately 2 weeks before the election,
Garrett and Mendoza had a conversation. During that
discussion Mendoza asked Garrett what had happened to an
employee named DePante. Garrett told him that DePante
had been fired for joining the Union. Such a statement is an
implied threat that if DePante had been fired for joining the
Union, whether that was true or not, others certainly could
be. At approximately the same time Kuhns asked Beach, as
previously described, if the Union was going to pay his
wages when he closed the store. That, too is a threat to close
the store as a reprisal for seeking union representation.
Finally, according to clerk Roger Saccomano, on approxi-
mately March 6 he was working at the Taylor Street store.
Both Kuhns and Garrett were present. He overheard Kuhns
tell Garrett, in reference to another store, that a sign had
been on that store for 7 years, and he did not see why in the
hell he would have to change it; if the Union took over that
would be the first store he would close.
As with the interrogation matter, the incidents set forth in
this subsection are not specifically denied, and I find them to
be proven. I conclude therefore that Respondent violated
Section 8(a)(l) by threatening to close stores to defeat
unionization (on one occasion threatening bankruptcy).
Kuhns' February 17 conversation with Chandra containing
a not very veiled threat to discharge union activists--even
going so far as to imply he would find pretexts for doing
so-also violated Section 8(a)(1). In that context his further
statement that he would in the event of a strike hire new
employees must be construed as exceeding the bounds of
lawfullness. See The Laidlaw Corporation, 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970). This was not mere advice regarding right of
a struck employer to hire replacements. It was a threat to
discharge strikers. Garrett's remark to Mendoza that an
employee named DePante had been fired for joining the
Union also threatened Mendoza with the same fate. That too
violates Section 8(a)(1).
3. Wage matters
I have previously discussed the wage increase given to
Sablan in early January upon his cooperation with Garrett
and Bansraj and also the offer to increase Erwin's and Lal's
salary to $4 per hour following their denial to Garrett that
they had joined the Union. Both of these incidents violated
Section 8(a)(1) as rewards-perhaps even bribes-for anti-
union feelings and activities. See Keystone Pretzel Bakery,
Inc.., 242 NLRB 492 (1979); cf. Stern & Stern, Inc., 227
NLRB 1763 (1977).
In addition to these matters, however, the General
Counsel has alleged that Respondent violated Section 8(a)(1)
by thawing out a wage freeze which had commenced in late
November or early December 1978. In support of his
contention that a wage freeze was in effect the General
Counsel particularly points to the testimony of Jim Alaura
and Hannelore Garrard. Alaura testified that sometime after
he had been relieved of his managerial duties he had several
discussions with Garrett, usually prompted by the com-
plaints of other employees, regarding security matters and
raises. He was unable to be specific about the date but said
that once when he spoke to Garrett about wage increases for
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lesser-paid employees Garrett told him that there was "an
indefinite wage freeze and there wouldn't be any more wage
increases until sometime next year [1979]. I think it was
indefinite-he said indefinite, sometime next year I believe."
On cross-examination Alaura said that he had first heard
about the wage increase from Bansraj, rather than Garrett.
He remembered an incident, again without specifying the
date, in which he had been discussing wages in general with
Bansraj and inquired about the wages of a couple of
employees "in particular." He said that I week after his
initial inquiry Bansraj told him that he had discussed the
matter with Garrett, who had said that Kuhns was freezing
the wages indefinitely. Alaura said that Bansraj told him
Garrett had claimed Kuhns had some bills to pay, and that
it was going to be sometime next year before anybody was to
be allowed an increase. Alaura said, however, that he got the
impression from Bansraj that the freeze would last just until
January 1979 even though it was being characterized as
indefinite. He concedes that the length of the freeze was
never discussed in terms of the number of months it would
last.
Garrard, who lives with Alaura and had been hired by
him on November 28, testified that she was aware of
Respondent's policy of giving a 25-cent wage increase within
the first month of employment. She had learned that policy
from Bansraj; however, when she did not get a raise within
that period she asked Bansraj about it one day while working
at Taylor Street. She says that the conversation was in the
beginning of December. She recalls Bansraj telling her there
was a wage freeze, and that nobody was to get a raise for an
indefinite period of time. She continued to ask Bansraj about
her raise every payday thereafter until the beginning of
January. The answer on each occasion was the same. Both
Emilio Gabagat and Robert Hale gave similar testimony.
Hale reported that in mid-December Bansraj denied him an
increase because of a wage freeze. Gabagat, who had gotten
an increase in early December, said that Bansraj promised
him another to take effect later that month. The second raise
never materialized.
No management official denied this testimony, and
therefore, despite some chronological inconsistencies and
even the possibility that the freeze was intended to end in
January, that testimony is accepted. I find, therefore, that
Respondent, by at least mid-December 1978, had deter-
mined to freeze the wages of employees.
Despite the freeze, when the Union made its demand for
recognition on January 2 the freeze disappeared. Although
Sablan got an increase on the following day, I do not believe
it was principally motivated by a desire to unfreeze his wage.
As noted above, his increase appears to have been a reward
for supplying information regarding union activists. In early
January Garrard got the 25-cent hourly wage increase
promised her at the time of her hire. This was followed by
increases to Hale on January 4 and to Erwin shortly
thereafter. Indeed, Erwin got a second increase that month
as well. On January 26 Suruj Lal received an increase too.
In circumstances where the freeze was to be of a short
duration or where no freeze was in effect, I would be
unimpressed with General Counsel's evidence as Respon-
dent's wage policy is fairly haphazard. Here, however, since
the wage freeze was intended to be indefinte, its prompt
thaw after the Union's recognition demand appears to be a
response to it. In that case the policy change must be viewed
as a grant of benefit designed to dissuade employees from
seeking union representation and is a violation of the Act.
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964).
Garrett's postelection statement to Beach to the effect that
he would get a 25-cent hourly increase and vacation time on
his anniversary, closely following his inquiry regarding what
Beach expected from the Union, also violates the Act. The
election was still pending; Respondent had filed objections to
its outcome. The timing alone raises the presumption that
the promises were an unlawful inducement in the event a
second election were to be held. By actually connecting the
promises to union demands Garrett was attempting to
undermine the Union's status. Either way the promises
violated the Act.
D. The Discharges
1. James Alaura and William Kulick
As previously noted, the Union made its demand for
recognition on January 2. Late that afternoon or early that
evening Alaura was working at Taylor Street. That store is
divided into three sections. The first is the front end or
merchandise section, where the principal commercial activi-
ty takes place. It contains the counter and cash register. To
the rear is the peepshow room containing coin-operated
movie machines. Customers are free to pass between these
two sections. The third is an area not open to the public
which is located immediately behind the movie room. This
area is normally locked as it opens to a larger room to which
are connected a small office (which doubles as a stockroom)
and a restroom. The office is commonly used by both clerks
and managers.
Alaura testified that he entered the nonpublic area
intending to utilize the restroom. As he walked to it he also
approached the office where he heard voices coming from
within. He immediately recognized Garrett's voice and
shortly thereafter recognized Bansraj's. Instead of going to
the bathroom he stopped and listened. According to him,
they were in the middle of a conversation. He heard Garrett
say to Bansraj, "I think it was Jim, but my father thinks it
was Bill." Bansraj said something which Alaura did not
understand, and then he heard Garrett say, "I want you to
get rid of both of them, and soon." This was followed by a
discussion of a man named Jack (probably Chandra)
wherein the two discussed whether he was involved since he
was a longtime clerk who knew all the others. Then Bansraj
said something else which Alaura did not understand, and
Garrett replied, "Well, I don't know, just get rid of both of
them. I'm sure that it's Jim Alaura but you better get rid of
Bill, too." Although Alaura does not believe that Bill's last
name was mentioned, he is certain they were referring to
Kulick. Then Alaura heard Bansraj ask Garrett what reason
he should give for discharging them, and Garrett said,
"You'll have to think of something. Tell Bill he had one of
the doors closed again in the front of Mason." Bansraj
replied, "Okay, but what about Jim Alaura, what are you
going to say? What reason do I give him?" Garrett replied,
"Well, I don't know. Think of something. Tell him he didn't
1222
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put some merchandise out." At that point Alaura decided to
leave and returned to the front of the store.
Both Bansraj and Garrett deny that the conversation
occurred. In essentially the same breath Garrett denied that
Alaura could have even entered that area without people in
the office becoming aware of it due to the placement of a
coat rack in front of the access door which noisily scrapes
the floor and serves as a security warning (Alaura says that
he removed it.) Neither denies having a meeting in the office
that evening, but they do deny the substance of the
conversation. Indeed, they deny that Alaura could have even
overheard any conversation.
On the following day, according to Sablan and as
discussed above, Garrett and Bansraj asked him what
Alaura was doing, and he told them that Alaura was
organizing a union. He also gave them a list of employees
whom he believed to be union activists and that list
contained Alaura's name. He also suggested that the leaders
be fired.
In the meantime Alaura says that he had informed Kulick
of the backroom conversation. On the following day, the
same day Sablan informed Garrett and Bansraj of Alaura's
involvement, Alaura was fired. The discharge came in the
middle of his shift, at approximately 7:30 or 8:30 p.m.
Alaura remembers that Robert Hale had just called him
from Mason Street regarding the price of a film when
Bansraj entered the store. Bansraj had the company check-
book, a large binder, and said, "Jim, I have to let you go.
You didn't put out some merchandise on Sunday." Bansraj
immediately began to write a check, but before he could
finish he had to pull Alaura's timecard. January 3 was a
Wednesday. Alaura said that he usually does not work
Sundays, although he has no specific recollection about
Sunday, December 31, 1978. For that reason he believed
that Bansraj'sjustification for firing him is false.
Garrett testified that Alaura's failure to stock was his
allegedly constant practice of waiting 2 to 3 days to get
merchandise from the back room to the shelves. He said that
because Alaura was experienced he was more responsible for
the store than other clerks. He also said that the movie
machines were not kept up. In addition, Garrett pointed to
some shortcomings Alaura allegedly displayed while he was
night manager, including failing to cover up merchandise
and projectors which were being transported in the back of
the company station wagon. Because of the explicit nature of
some of the magazines and because of the value of the
equipment his failure to cover these things with a blanket
supposedly invited theft. Finally, Alaura allegedly scratched
the windshield of the station wagon when he failed to replace
a defective wiper blade.
Kulick, like Alaura, was considered to be a senior clerk
and although hired in January 1978 had by October of that
year reached the highest rate being paid anyone. He
principally worked at Mason Street.
On January 4 at 11 a.m. Bansraj came to him and told
him, "I've got some bad news for you, Bill. We're going to
have to let you go. Please don't be mad at me. I didn't have
anything to do with this." A few minutes later Garrett
appeared with a replacement clerk, and Kulick asked him
why he was being fired. Garrett told him, "Bill, you keep the
doors closed, you don't stock the films in the showcase. You
don't listen to anything I say."
It is clear that Respondent, basing much of its business on
walk-in customers, has a policy of requiring its stores to keep
their doors open during business hours. It is also true that
Kulick during the fall, as the weather became colder, kept
the door shut for warmth. He and Garrett had discussed the
problem on several occasions, and Garrett had finally
provided him with an electric space heater, though the
problem continued to some extent. However, there is no
showing that immediately before Kulick's discharge that
Kulick had failed to comply with the directive. Further-
more, Kulick testified without contradiction that he had
never before been warned about improper display of mer-
chandise. In fact, the contrary had been true. It appears that
Respondent has contracted with Merit Protective Service, a
security firm, to "shop" its stores to determine, inter alia,
the efficiency of its employees. Bansraj, on several occasions,
had told Kulick that Merit Protective Service had never
found anything wrong with his work.
2. The South San Francisco store discharges--Gabagat,
Garrard, and Hale
In mid-January Emilio Gabagat was the night clerk at the
South San Francisco store. That store is located 10 miles
from downtown San Francisco. The day clerk was Sam
Kearnes, who by then was considered to be a supervisor.
Hannelore Garrard had, until January 23, been assigned
solely to the Taylor Street store. The Taylor Street store was
approximately 2 blocks from the residence where she and
Alaura lived at Golden Gate and Market Streets. She was
the only female clerk employed by Respondent, and because
Taylor Street required two clerks at all times it was safer for
her to work there than at any other location and certainly
was more convenient. Robert Hale had been hired in
October 1978 and, although he worked at Geary Street for a
short time, was working at Mason Street until he was sent to
South San Francisco on January 24.
The events leading up to the South San Francisco store
discharges began on January 17, 2 weeks after the Alau-
ra/Kulick discharges. Garrard was working the midnight to
noonshift with Roger Saccomano. At approximately 1:30
a.m. Joey Molina, another clerk who had just closed the
Stockton store, brought his keys to Taylor Street for pickup
the next morning by the Stockton day clerk. When he
arrived he asked Garrard and Saccomano if they had taken a
coffeebreak that evening. When they replied that they had
not he offered to watch the store for a few minutes while
they did so. Both then left for a period of time. Both they
and Molina say that they were gone only a few minutes and
returned with sandwiches and coffee, having gone to an all-
night restaurant nearby. While they were gone Garrett
appeared, saw Molina running the store, and asked where
Garrard and Saccomano were. Molina replied that they had
gone on a coffeebreak, and he was covering for them. Molina
was not alone as two janitors were also in the store, though
Garrett apparently sent one of them home when he arrived.
When the two returned, according to all three employees,
they had a friendly chat with Garrett, and nothing was said
about their being absent. Garrett says that they avoided him
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and kept their faces averted. He thought they had been
drinking. He also says that Molina told him they had been
gone a long time, and he noticed they had no food with
them.
On January 19 Garrard testified in the representation case
hearing at the Regional Office. She testified again on
January 22. On January 19, after she returned home, Bansraj
called her to the Taylor Street store. Both Molina and
Saccomano were there. Bansraj told Saccomano and Gar-
rard they were fired pending a statement from Molina.
Bansraj had with him two blank checks which were to be
their final paychecks. Bansraj told them that Molina was to
sign a statement saying they had returned to the store drunk
on January 17 and were to be fired for that reason. When
Molina refused to sign such a statement Bansraj made a
telephone call and then told them they were not being
discharged after all.
On January 23 there appears to have been a sudden
decision to transfer Garrard to South San Francisco. That,
of course, immediately followed her second day of testimony
in the representation case. She said that on January 21, while
at Taylor Street, her timecard had been pulled. When she
asked Garrett about it he replied that it had been pulled for a
review, but it was never returned to her. Also that day she
says that Garrett told her to report to Taylor Street on
Tuesday, January 23, to find out her new shift. That was
consistent with his previous method of assigning her shifts.
On a reasonably regular basis she reported to Taylor Street
from her nearby residence, and Garrett told her what shift to
work. Sometimes he was not at Taylor Street and would
telephone her there.
On Tuesday when she went to the store he was not there.
She waited for approximately an hour and then called
Bansraj at the 16th Street store. Bansraj told her that
Garrett had advised him she was to be transferred to South
San Francisco and was to start there at 6 p.m. that night.
She located Garrett by telephone and asked him if what
Bansraj had said was true. When Garrett advised that it was,
he also said she was being transferred because she was such a
good clerk. He told her that the store hours at South San
Francisco had been extended that day but he refused to
answer any questions, telling her if she wished to know
anything else she was to call Kuhns.
She did so, and Kuhns told her that the transfer was
because she was such a good clerk, and she should get to
know all the stores. When she asked him about the extension
of the store hours he told her it was a new policy as of that
day; the store was to be kept open to 1 a.m.,' and she was to
clock out at 2 a.m. She advised him that there were no buses
running that late, but he replied, "That's not my problem."
She had no transportation of her own, so she then asked if
Kuhns would pay her bus fare as she knew he was paying
Kearnes' fare. But Kuhns told her that he would not. Before
the transfer she had averaged 60 to 65 hours per week at
Taylor Street; however, her new schedule at South San
Francisco was to be 6 p.m. to 2 a.m., a 40-hour week. In
addition, she was to perform certain janitorial duties which
she had not been asked to perform at Taylor Street. She was
^ Prior to this date the store had closed at midnight.
' While I was not particularly impressed with Kearnes' testimony, as will be
to clean and mop the floors, scrub the screens in the movie
room, and clean the toilet.
Suspicious of these circumstances, for she was aware of
the firings of Alaura and Kulick and had recently been the
victim of an abortive attempt to discharge both her and
Saccomano for what she believed false reasons, she reported
to work at South San Francisco. She was accompanied by
Alaura and Kulick, whom they had prevailed upon to drive.
She arrived shortly before 6 p.m. She remembers Kearnes
expressing some surprise about her arrival, saying that he
had just gotten orders to fire Gabagat, whom she was to
replace. A few minutes later Gabagat appeared and was
discharged. Gabagat testified that when Kearnes told him he
was fired he also said he did not understand the reason for it
because Gabagat was a good employee. Gabagat remembers
Kearnes remarking that it was Kuhns' decision.
By way of background, it is undisputed that sometime
earlier in January Kearnes had told Gabagat that Alaura
was forming a union, and Gabagat had replied it was a good
idea and he would join for the benefit of the other
employees, because as a moonlighter he did not really need
fringe benefits himself. On January 10 Gabagat signed an
authorization card, although it is not clear whether Respon-
dent was aware of that fact.
With respect to Gabagat's firing, he testified that Kearnes
gave no reason for firing him and instead said he was going
to write a statement saying how good Gabagat was. Before
Kearnes wrote the statement, according to Gabagat, Garrett
arrived. Because Gabagat did not wish to talk to Garrett he
left and never got the statement. Kearnes did not deny
Gabagat's testimony here.
While Gabagat was still at the store a discussion began
between Kearnes, Garrard, Alaura, and later Garrett. It
commenced with Kearnes telling Garrard what she was to
do in the store and how she was supposed to clean and lock
up. She advised Kearnes that the store hours had been
extended, and he replied, "That's impossible, because Earl
knows the last bus leaves at 1:33 [a.m.]." It is apparent from
Kearnes' remark that he was unaware that the hours had
been changed.' Shocked that Garrard could not leave the
store until after the last bus to San Francisco, he telephoned
Kuhns. Kearnes says that after he spoke to Kuhns he told
Garrard it was not the employer's "reasoning to find out
how a person should get back and forth to a job. That's not
his responsibility." She testified that after Kearnes hung up
the telephone he said that he had been told to tell her to
"stick out her thumb"-obviously telling her to hitchhike
home. Alaura testified that shortly before Kearnes made the
telephone call he had accused Kuhns of changing the hours
in order to get rid of Garrard, but Kearnes replied, "No,
there must be a mistake."
Alaura remembers that approximately at that time Gar-
rett arrived and directed him to leave the store. Alaura
accused Garrett of having breached an agreement between
Respondent and Garrard regarding her working only at
Taylor Street. Garrett replied that he did not have to explain
anything to Alaura, that Alaura could talk to his father.
When Alaura said that Kuhns would not talk to him Garrett
said, "Sure he will. He's up at 16th Street. Call him right
seen, infra, nonetheless he corroborates Garrard with respect to this
conversation.
1224
FRENCHY'S K & T AND EARL'S NEWS STAND
now. Go ahead. Go ahead." Alaura did so and asked Kuhns
if he was aware of the arrangement for Garrard to work
exclusively at Taylor Street. He told Kuhns that he was the
one who had hired Garrard, and both Garrett and Bansraj
both knew from the start that she was hired for Taylor
Street. Kuhns interrupted, asking him, "Are you paid by the
Union?" "No." "Are you an official union representative?"
"No." "Go scratch your buns." With that Kuhns hung up.
When Alaura put down the phone Garrett asked him to
leave. Alaura asked Garrett if he believed in what he was
doing or whether he was a "messenger boy." When Garrett
replied he was just doing what he was told, Alaura told
Kulick they should leave as there was no reason to bother
Garrett since he was not making the decisions.
At that point no arrangement had been made for
Garrard's return transportation at the end of her shift. There
is a factual dispute regarding what happened next, but I
credit the Alaura-Garrard version over that of Garrett and
Kearnes. Garrard said that she had put her purse behind the
counter and was prepared to begin operating the store,
although Garrett and Kearnes were still present. Kearnes
had not yet cashed out and was still in the process of doing
so. As Alaura and Kulick began to leave she asked Alaura to
wait a moment so she could talk to him, but Alaura said that
he had to leave, and they would have to talk outside. She
came from behind the counter, leaving her purse, when
Garrett said, "You can't leave the store now. You're on
duty." She replied, "Well, I just have to arrange a ride home
with Jim." As she got to the doorway Garrett yelled,
"You're fired. Punch out and then leave immediately."
According to Garrard, shortly before she was fired and
while he was telling Kulick and Alaura to leave Garrett had
told her that she was no longer allowed in any of the stores
except the store where she was working and only for the
shift she was scheduled to work.
Both Garrett and Kearnes testified that there was no
discussion regarding her arranging a ride home after her
shift, only that Alaura invited her to take a coffeebreak and
she agreed to do so. Both say that she picked up her purse to
leave and was fired only when she refused to abide by
Garrett's directive to remain.
While I agree with Respondent that there appears to be
the possibility that Garrard, Alaura, and Kulick came to the
store with the intent of challenging Respondent to discharge
her, there is no proof that occurred. Had that been the case
Alaura would not have attempted to negotiate with Kuhns
regarding her Taylor Street assignment, nor would they have
attempted to negotiate a return to the original hours. It
seems unlikely that a coffeebreak would have been discussed
by anyone, considering that the shift had just begun.
Accordingly, I credit Garrard's and Alaura's version.
On the following day Respondent assigned Robert Hale to
the South San Francisco store. Before that Hale had worked
nearly exclusively at Mason Street. Unlike Garrard, how-
ever, he was used to closing stores at late hours. At Mason
Street he closed at 2 a.m. and spent the following hour
clearing the cash register, bagging the money, and cleaning
the store. He usually clocked out at 3 a.m.
I Although scrubbing the booths and the movie machines appears to be a
job which must be done, it is apparent from the testimony of a number of
witnesses that it is a distasteful job and for the most part avoided. This
Hale, like Garrard, had testified in the representation case
hearing on January 19. On January 24 he was told by
Garrett to go to South San Francisco, as Garrard had been
fired. Like Garrard he had no transportation to his home in
San Francisco, and like Garrard he was told that he could
not leave South San Francisco before 2 a.m. When he
complained to Garrett that he was unable to get home
Garrett told him "tough luck." In the same breath Garrett
told Hale that his length of stay at South San Francisco
depended on his being a good employee, that he could be
fired at any time. His closing duties were to be the same as
they had been at Mason except that he was also told to scrub
the movie booths.' He worked at that store for approximate-
ly 2 weeks, being discharged by Kearnes on February 7. On
February 2 Kearnes stated that he was supposed to fire Hale,
but when Hale challenged his authority, asserting that
Kearnes was not a supervisor, Kearnes did not do so. On
February 5 Kearnes praised Hale's work and told him that
he hoped he would remain. On February 7 Kearnes again
told Hale he was fired. Hale refused to leave, asserting that
Kearnes had no such authority, and Kearnes called the
police. When the police arrived the situation was explained,
and because Kearnes could not show that he was one of the
managerial persons listed on a company notice he called
Garrett. When Garrett appeared he discharged Hale, saying
that Hale was fired "for whatever reasons Sam Gave."
According to Hale, the discharge was very unusual because
that day Bansraj had told him he was to train a new
employee that night. Bansraj did not deny that testimony.
Kearnes told Hale that he was being discharged for failing
to clean all the booths. However, he had cleaned all the
booths by February 2 after having earlier left a note to
Kearnes saying they could not all be done in I night but he
would do two each night until they were all done. Kearnes
never told him that this procedure was disapproved.
3. Analysis of the discharges of Alaura, Kulick,
Gabagat, Garrard, and Hale
As demonstrated above in the section dealing with the
independent allegations of violating Section 8(a)(1), it is
clear that Respondent harbored a great deal of animus
against individuals who favored union representation. It was
opposed to union representation and engaged in acts
designed to chill union activity. It discharged Alaura and
Kulick within I and 2 days, respectively, of the Union's
demand for recognition. I see no reason to discredit Alaura's
version of the backroom conversation, particularly as Re-
spondent demonstrated in various conduct previously dis-
cussed that it could fire employees for union activity using
dereliction of duty as an excuse. That was the case in each of
the discharges discussed in this section. It accused Alaura of
failing to stock shelves apparently on a day when he did not
even work and so hastily it had not even pulled his timecard.
Over and above that, it piled on a number of alleged
transgressions which had occurred long before when he was
a manager. Some of those problems, such as his alleged
failure to cover up merchandise in the back of the station
avoidance appears to have been tolerated at each of the stores. In fact. at
South San Francisco, according to Hale (though denied by Kearnes), there
were no supplies with which to do it.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wagon, appear to have been corrected. Finally, Garrett told
Sablan on January 3 that Alaura was to be fired immediately
after Sablan told him that Alaura was the principal
organizer.'
Likewise, Kulick was accused of having kept the doors
closed even though he had been given a space heater and the
problem had been significantly alleviated. Respondent made
no showing that on the few occasions that he continued to
leave the door shut that sales were in any way reduced.
While one should be skeptical of eavesdropping testimony
such as that given by Alaura, in this case I believe it to be an
honest account of what occurred. Thus, all the elements of
an unlawful discharge are made out. Respondent believed
Alaura and Kulick to be responsible for the organizing
drive, it discharged them within hours after the Union made
its recognition demand, and it had sufficient animus to
motivate the carrying out of those discharges. Moreover, the
reasons advanced for the discharges do not withstand
scrutiny in the face of overwhelming evidence to the
contrary. Bansraj even appears to have been reluctant to
carry out one discharge, telling Kulick it was not his
decision. I conclude, therefore, that Respondent violated
Section 8(a)(3) and (I) by discharging Alaura and Kulick.
With respect to the South San Francisco discharges, the
entire scenario appears to be only slightly more sophisticat-
ed. In some respects Gabagat was the innocent victim of
Respondent's desire to rid itself of Garrard and Hale, who
had just testified on behalf of the Union during the
representation matter. Garrard had, on the night following
her first testimony, been subjected to a false accusation
relating to alleged drunkenness and overstaying a break."'
When Molina failed to support the accusation Respondent
must have concluded a better justification for the discharge
was needed. Both Garrett and Bansraj were well aware of
Garrard's relationship with Alaura, were aware that she
lived two blocks from the Taylor Street store, and knew that
she was without transportation. They probably also knew
that Gabagat had told Kearnes he would vote in favor of
union representation in order to benefit the others. The
South San Francisco store was the most remote of the stores.
By sending her there Respondent knew that it would create
a hardship on her which might force her to quit. Even so,
simply sending her to that store would not have guaranteed
her departure. To that end Respondent decided to make it
nearly impossible for Garrard to tolerate the transfer. That
included extending the store hours and requiring her to leave
well after the last public transportation back to San
Francisco. Moreover, they decided to ask her to perform
duties which were distasteful and which she had never done
before, such as scrubbing the booths and doing the toilets.
Assigning these duties to clerks, rather than to the janitors
which Respondent employed, seems somewhat strange in
any event.
Lending even more doubt to Respondent's story is the fact
that Kearnes did not discharge Gabagat until Garrard
appeared on the evening of January 23. Thus, Gabagat's
discharge and Garrard's immediate transfer seem to have
I am somewhat chary of Sablan's testimony. Even so, what he describes is
consistent with other events.
"' Respondent's argument that she and Saccomano had left the store
partially unattended (with one clerk instead of the required two) and in charge
been accomplished in a sudden manner leaving a number of
loose ends. I believe that is explained by the fact that
Garrard testified again in the representation case on January
22, and Kuhns could not wait any longer to discharge her.
Finally, there is Garrett's admission to Chandra that he fired
her for trying to get employees to joint the Union and his
statement to Erwin that she was blacklisted.
When he fired Gabagat, Kearnes did not know the reason
for his discharge. At the time Gabagat was holding a bad
check from a customer, and Bansraj had ordered him to
attempt to recoup the loss. He asked Kearnes what he
should do about the check. Kearnes did not know, so
Gabagat called Kuhns. Gabagat testified that Kuhns told
him to "wipe your butt with it."
Garrett contends that the reason Gabagat was discharged
was because he had taken the bad check in contravention of
company policy against accepting personal checks in pay-
ment for purchases. Assuming the policy was strictly
enforced, which is not really shown by the evidence, the fact
is that Respondent permitted Gabagat to be employed after
the check bounced. Moreover, the check could not have been
missed during the daily collection by Bansraj and/or
Garrett. In fact, Gabagat says that he had accepted checks
from the same customer before. Assuming that to be the
case, why was he not warned about breaching the policy on
those occasions? Even assuming that this was the first check
he had taken and it had bounced, why did Respondent not
discharge him on the spot? Instead, Bansraj told Gabagat to
collect the money or suffer a docked paycheck as a result.
Rather than given him a full opportunity to collect the
money it discharged him immediately after Garrard testified
and without a credible explanation.
The sum of this unusual circumstance is, in my opinion,
the conclusion that Respondent wanted to get rid of Garrard
because of her connection to Alaura and because she had
testified in the representation case. As she was a good
employee it could find no plausible reason for a straightfor-
ward discharge. Knowing, however, that working in South
San Francisco would be a hardship on her, particularly if the
hours were extended beyond public bus service times, if her
working hours were reduced and if she were required to
perform janitorial duties it could predict that she would quit.
To make that plan work it was necessary to get rid of
Gabagat, whose shift she would have to work. Gabagat's
problem with the bad check provided an excuse for ousting
him. That decision was made easier by the fact that Gabagat
had previously told Kearnes he would vote for the Union in
order to help the other employees. Accordingly, I conclude
that Gabagat was discharged to carry out the discriminatory
purpose of constructively discharging Garrard.
Respondent did not have to await Garrard's decision to
quit. The transfer had unsettled her, and she was rightfully
suspicious. When she was unable to resolve scheduling and
transportation problems with Kearnes, particularly with
Kuhns' rude backing, it was not unreasonable for her to
attempt to make transportation arrangements with Alaura.
Garrett's directive that she not step outside the store was
of a clerk not assigned that store is unavailing. It appears to be simply an
afierthought. The principal accusation aimed at those two on January 19 had
to do with drunkenness and overstaying the break.
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FRENCHY'S K & T AND EARL'S NEWS STAND
totally unreasonable and is itself evidence of an attempt to
harass her." Accordingly, I find that Garrett's decision to
discharge Garrard was discriminatorily motivated by the
fact that she had testified before the Board in the representa-
tion case and because she was believed to be a union activist
or at least known to be associated with the union leader,
Alaura. Such a discharge violated Section 8(a)(4), (3), and
(I).
Because of the success in utilizing South San Francisco as
an exit door for Garrard, Respondent next centered its
attention on Hale who, like Garrard, had also just testified in
the representation case. He, like her, had no transportation
and could be expected to balk at the transfer. When Hale
unexpectedly remained on the job Respondent discharged
him anyway. Its excuse was his failure to keep the store
clean and to scrub the movie machines and booths. As I
have previously observed, however, those were jobs which
were laxly carried out, and the neglect was generally
tolerated. If anyone was performing that job at all it was
Hale. In addition, Kearnes contended that Hale's failure to
perform these jobs created a health hazard and that
Respondent feared the health inspectors. However, even
Garrett conceded that no health inspections had occurred.
Accordingly, I doubt Kearnes' testimony that Respondent
was under scrutiny by health officials. Oddly, too, Bansraj
had scheduled him to train a new employee the night he was
discharged. Hale could not have been as terrible as Kearnes
said he was.
I conclude that Respondent's assigned reason for dis-
charging Hale was not the real reason but his involvement
with the Union, particularly his testifying in the representa-
tion case, was. Therefore I find that Respondent discharged
Hale in violation of Section 8(a)(4), (3), and (1).
4. The discharge of Mahendra Prashad
It will be recalled that the Board election was conducted
on March 15, but the ballots were impounded and not
opened until March 29. Prashad was discharged on March
30.
Prashad was the victim of early unlawful interrogation on
January 2 on the heels of the Union's demand for recogni-
tion. He was a senior employee whom Respondent trusted.
Immediately after the election Garrett again interrogated
him unlawfully, asking him how he had voted. Prashad
admitted that he had voted in favor of union representation.
Even so, Respondent did not discharge him, probably
because it was not yet certain what the election outcome
would be due to the impounded ballots. When it learned on
March 29 that the Union had handily won the election it no
doubt was upset by Prashad's switch in loyalties.
However, Garrett contends that he discharged Prashad
because he had falsified his timecards. It is undisputed that
Respondent had had difficulty with the timeclocks at the
16th Street store. Indeed, in December 1978 the timeclock
worked so improperly that it was replaced. The replacement
timeclock, too, suffered a number of malfunctions. Garrett
says that prompted him to conclude that someone was
"He also harassed her by restricting her to the store and shift to which she
was assigned. Kuhns' rude remark. telling her to hitchhike. is also evidence of
harassment.
tampering with it, although he could never discover who or
when.
At 2:30 p.m. on Friday, March 30, Prashad went to the
store to pick up his paycheck. Garrett appeared to be very
annoyed. He told Prashad that this was his last paycheck, as
he could not use Parashad anymore. Parashad asked why
not, and Garrett told him "your timecard." &rashad say
that he asked to see the timecard, but Garrett refused, saying
that he could not do that, but would see Prashad in court.
Garrett went inside, got the paycheck, and returned with it.
Prashad says that he asked again why he was discharged, but
Garrett repeated that he would see Prashad in court.
At the hearing Garrett was examined about Prashad's
timecards covering the weeks of March 6-12, 13-19, and
20-26. He first observed Prashad had handwritten times on
two of the cards rather than punching them on the clock. On
March 12 Prashad wrote in that he checked out at 1:50 a.m.
(actually the early hours of March 13). The burglar alarm
company record shows, however, that the alarm was set at
12:41 a.m., more than an hour before his timecard says he
left. On March 14 (the early hours of March 15) it shows
that he signed out at 2 a.m. But the burglar alarm record
shows that the alarm was set at 1:02 a.m., nearly an hour
earlier. Similarly, on March 15 (again, the early hours of
March 16) Prashad signed out at 2:30 a.m. The alarm record
shows the alarm was set at 1:02 a.m., approximately 90
minutes earlier.
The incident which Garrett says triggered the discharge
involved March 25 and 26. On Sunday Prashad punched in
at approximately noon, but Garrett says that he failed to
punch out. In the out blank, the day "Tuesday" and the time
"12:04 " are punched in On Tuesday morning he punched
out at 12:44 a.m. Garrett says that this proves Prashad
punched his Sunday out slot early Tuesday morning.
Garrett also testified that on approximately March 20 he
had warned Prashad about writing in his timecards. He said
that he had compared Prashad's written checkout times with
Mendoza's, as Mendoza was also working at the 16th Street
store. He observed that the timeclock appeared to be
operating properly for Mendoza on those dates. The Mendo-
za timecards bear Garrett out.
Garrett was willing to testify that the timecards of Efren
San Juan also support that conclusion. He testified in some
detail regarding that. On cross-examination, however, he
was forced to concede that San Juan's timecards had been
punched in another store and were of no value regarding
Prashad's situation at 16th Street. Garrett's willingness to
make the earlier assertions about the San Juan timecards
demonstrates a propensity to exaggerate and overreach. He
testified that he relied upon the alarm company records to
prove Prashad was cheating on his timecards. He said that
the burglar alarm records were sent to him once each month
(presumably after the cards had been filled up at the end of
the month since each card contains a full month's record).
As Garrett made the decision to discharge Prashad on
March 29, prior to the expiration of the month, it is apparent
to me that Garrett had not yet obtained the alarm company
records. He attempted to cover the gap by saying that the
alarm company informed him by telephone about the period.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That does not seem likely to me unless there had been an
unauthorized entry. Certainly his testimony about telephone
calls with the burglar alarm firm was not specific with
respect to problems related to Prashad.
Prashad denies that Garrett warned him about a timecard
problem on March 20, or thereabouts. Garrett also contends
that on the day of the discharge he had the timecard in
question with him and offered to show it to Prashad. That,
of course, contravenes Prashad's assertion to the contrary.
Even if I credit Garrett's version, which I cannot, it
appears to me that he had no reason to believe Prashad was
cheating on his timecards until after he had obtained the
burglar alarm company monthly record. He did not testify
that his comparison of the written entries and of the
incorrectly stamped entry on Prashad's card caused him to
telephone the burglar alarm company. He merely said that
the card came to him at the end of the month, and that he
had telephone conversations with that company. Had he
actually spoken to that firm regarding an effort to compare
Prashad's timecard entries with the burglar alarm records
undoubtedly he would have so testified. He did not. Thus, it
appears to me that he had no reason to believe that Prashad
was cheating. Fi conclude, therefore, that it was not until
after Prashad had been discharged that he learned that
Prashad really was cheating. Certainly Garrett had reason to
think Prashad was failing to use the timeclock properly, but
it does not follow that his entries were automatically to be
deemed dishonest. The punched-in entry on March 27 did
not deceive anyone. No one could reasonably expect it to be
believed accurate. In that case Respondent would not have
paid Prashad anything other than for a regular shift. Had
Garrett been acting reasonably here corrective measures less
than discharge would have been appropriate. I find, there-
fore, that the timecard irregularities were not the real
reasons for his discharge. Garrett also testified that Prash-
ad's work performance in other areas was defective but said
that the timecard was the reason for the discharge. I
therefore discount his testimony regarding Prashad's other
alleged shortcomings. In view of Respondent's conduct with
respect to other dischargees, its general antiunion attitude,
and its knowledge of Prashad's switch in loyalty (probably
rekindled by the ballot opening), it appears to me that
Prashad's discharge was motivated principally by antiunion
considerations, and I so find. Such a discharge violates
Section 8(a)( 3) and (1) of the Act.
5. The discharge of James Erwin
James Erwin worked at the Taylor Street store. On March
3 he was assigned for the first time to work at Stockton
Street. At that time he had been employed for approximately
4 months. The Taylor Street store operated 24 hours per
day, and although it had a front-end safe for the storage of
quarters for the movie machines, the safe was generally
closed but not locked.
In late January Garrett, as discussed above, questioned
Erwin on two occasions on whether he had signed a union
authorization card. Erwin denied that he had. Garrett said
that if Erwin had he had better get it back. On another
' I barred certain evidence on this incident proffered by Kulick which I
deemed incompetent as his information was at best third hand. See Fed. R.
Evid. 602.
occasion he told Erwin that if employee Andrews had signed
a card he had better get it back "or else." Garrett also
continually asked Erwin what he thought of the Union's
chances to win an election. Erwin replied that they were low.
As a result Erwin was given a wage increase from $3.75 to
$4 per hour. He had also heard Garrett's statement about
blacklisting Garrard. He had, however, attended the Decem-
ber 28 union meeting and had signed an authorization card
then. In view of Kearnes' presence at that meeting I have no
doubt that Respondent learned that both Erwin and An-
drews had attended the meeting, as Erwin testified that
beginning in early March his relationship with Garrett,
which previously had been very good, changed. It was then
that Garrett asked him to perform cleanup work in the back
of the Taylor Street store and directed him to paint
projection booths. Those jobs previously had been given to
others for additional pay.
As noted, however, on Saturday, March 3, he was
assigned to the night shift at the Stockton store together with
a trainee named Roger McFarris. Erwin admitted that he,
following the practice he was used to at Taylor Street, did
not lock the safe after putting the shift receipts in it, though
he did close the safe door.
Erwin testified that he set the burglar alarm and locked
the store that evening when he closed. Nonetheless, the
following morning when clerk Alfred Flores arrived to open
the store the front door was unlocked and the previous
night's receipts were missing from the safe-at least that was
the report given to the police and to Bansraj. Erwin did not
learn of the loss from Bansraj but from fellow employee
Roger Saccomano. That prompted Erwin to contact Bansraj,
who asked him what had happened. Erwin told him that he
had locked the front door and offered to take a polygraph
test to prove his lack of negligence in the incident. Bansraj
also told him that the burglar alarm records showed the first
entry had occurred at 9:15 a.m. The police record shows
Flores' report was made at 10 a.m. Thus, it is apparent that
the entry occurred during daylight hours and, even though it
was Sunday, close enough to normal opening time for the
alarm company to be unconcerned.
When Erwin reported for work at Taylor Street on March
6 for his next shift he was taken to 16th Street. Shortly
thereafter Garrett told Erwin that he should have locked the
door on Saturday night and because he had failed to do so he
was discharged.
The General Counsel argues, despite the fact that Erwin's
discharge closely followed a break-in for which he could
reasonably be assumed responsible, that nonetheless the
discharge was in part motivated by antiunion considerations.
He contends that Erwin treated differently than another
employee involved in a similar incident.'! The employee
involved was named Ceniceros, and he appears to have been
the victim of a robbery, not a burglary. Garrett, on cross-
examination, did say that Ceniceros was "indirectly respon-
sible" for the robbery but agrees that Respondent did not
fire him. No other evidence regarding the robbery is in the
record.
First, I am unpersuaded that the incidents are compara-
ble. It is more probable that an employer would retain an
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FRENCHY'S K & T AND EARL'S NEWS STAND
employee who was the victim of a robbery even if his actions
somehow contributed to it rather than an employee who
negligently failed to lock a door contributing to a burglary.
A robbery victim, due to the forcible taking inherent in such
a crime, is a much more sympathetic figure than Erwin, who
never faced the perpetrator of the burglary. Accordingly, I
do not deem the incidents comparable and conclude that
Erwin and Ceniceros were not treated disparately.
The General Counsel observes that Respondent would not
accept Erwin's offer to submit to a polygraph test, nor did it
discharge the trainee McFarris and argues that these failures
show an illegal motive. Frankly, I do not find those failures
to be persuasive of discriminatory motive. Respondent had
placed Erwin in a position of trust, to run that store and to
train McFarris. It was not unreasonable for Respondent to
conclude that Erwin had created a situation leading to the
loss. McFarris was newly hired and was not considered to
have been in charge of the store; Erwin was. Moreover,
Erwin's admission that he had failed to lock the safe clearly
pointed the finger at him. Had Erwin negligently failed to
lock the door it is possible that he would not have
remembered it and a polygraph may well have shown
nothing. As Erwin's discharge closely followed a serious
error dealing with his reliability, I conclude that Respondent
was solely motivated by what it believed to be a serious
dereliction in duty. I reach this conclusion despite the fact
that Erwin had been the victim of some unlawful conduct
and despite Respondent's willingness to seize excuses to
discharge union activists. I note that Respondent had little if
any animus against Erwin and at one point gave him a raise
in the belief that he was opposed to unionization. Even
assuming that Respondent later became aware of his
prounion proclivity and that awareness manifested itself in
the cleaning and painting duties shortly before his discharge,
those factors are totally outweighed by the seriousness of the
burglary. Accordingly, I shall recommend that the allega-
tion relating to Erwin's discharge be dismissed.
IV. THE REMEDY
Having found that Respondent has engaged in violations
of Section 8(a)(4), (3), and (1) of the Act, I shall recommend
that it be ordered to cease and desist therefrom" and to take
certain affirmative action designed to effectuate the policies
of the Act. The affirmative action shall include a provision
requiring Respondent to immediately offer Alaura, Kulick,
Gabagat, Garrard, and Hale reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent jobs. In addition, Respondent shall be required to
make them whole for any loss of pay they may have suffered
as/a result of the discrimination against them in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950). Interest on the backpay shall be
computed as set forth in Florida Steel Corporation. 231
NLRB 651 (1977).'' The General Counsel's request for a
higher rate of interest than set forth in Florida Steel is
denied. See W. Carter Maxwell d/b/a Pioneer Concrete Co.,
241 NLRB 264 (1979).
" Because of the pervasive nature of Respondent's violations here I believe
that a broad cease and desist order is warranted. See Hickmnot Foods. Inc..
242 NLRB 1357 (1979).
With respect to Prashad, however, I am unable to
recommend his reinstatement. I have no doubt that his
dishonest timecards were shortly to be discovered and that
he would have been fired then for that. While the Board
usually will order reinstatement for an employee who has
been unlawfully fired, it has not granted that remedy in cases
involving later discovery of misconduct which would have
caused a nondiscriminatory discharge. See Fort Smith
Broadcasting Company, 146 NLRB 759 (1964) (appealed on
related allegation and reversed 341 F.2d 874 (8th Cir.
1965)). Employee honesty has always been a concern of the
Board, and it normally will not reinstate discriminatorily
discharged employees where they have falsified their job
applications, assuming that they would not have been hired
in the first place. Syracuse Tank & Manufacturing Company,
Inc.., 133 NLRB 513 (1961); Southern Airways Company,
124 NLRB 749 (1959); W Kelly Gregory, Inc., 207 NLRB
654 (1973); cf. Ohio Ferro-Alloys Corp., 209 NLRB 577
(1974). While a distinction may be drawn that the falsifica-
tion of an employment application is different from falsifying
a timecard, to the extent that the former justifies the
conclusion that the discriminatee would never have been
hired had the truth been known, they are similar as both
involve the basic honesty of an employee. I find that line of
cases, therefore, to be helpful here and have no difficulty
concluding that Prashad would have been fired shortly.
Thus, I shall not recommend his reinstatement. However, I
believe that he is entitled to backpay plus interest from the
date of his discharge to the date he would have been fired
over the timecard matter-a date to be determined at the
compliance stage. I am aware that the Board has both
granted and denied backpay for such periods in the false
employment application cases. Compare Syracuse Tank and
Southern Airways, both supra. However, since those employ-
ees would not have been hired at all but for their false
applications they are not persuasive on the point. Prashad's
dishonesty came after his hire. Moreover, in misconduct
involving property damage the Board has ordered backpay
up to the time of the misconduct. O. R. Cooper and Son. 220
NLRB 287 (1975), and cases cited in fn. I therein.
Based on the foregoing findings of fact and the record as a
whole, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent Earl Kuhns d/b/a Frenchy's K & T and
Earl's News Stand is an employer engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Clerks Union, Local 648, Retail Clerks Interna-
tional Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, at the times found above in the body of
this Decision, violated Section 8(a)(1) of the Act in the
following respects: Interrogating its employees regarding
their union activities, the union activities of other employees,
and the manner in which they intended to or had voted in a
Board election; financially rewarding employees for provid-
ing information regarding the union activities of others;
" See. generally, Isis Plumbing & Heatring Co.. 138 NLRB 716 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening to discharge employees for engaging in union
activities; threatening to close its stores to avoid the effects
of union representation; granting or promising to grant wage
increases during the course of the union organizing cam-
paign in order to discourage employees from seeking union
representation; stating that employees who were discharged
for union activities would be blacklisted elsewhere in the
industry; advising employees in a coercive manner that
union representation is a futile act; and creating the
impression of surveillance of employees' union activities.
4. By discharging its employees James Alaura, William
Kulick, Emilio Gabagat, and Mahendra Prashad, Respon-
dent violated Section 8(a)(3) and (I) of the Act.
5. By discharging its employees Hannelore Garrard and
Robert Hale, Respondent violated Section 8(a)(4), (3), and
(I) of the Act.
6. Respondent did not discharge its employee James
Erwin in violation of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Earl Kuhns d/b/a Frenchy's K & T and
Earl's News Stand, San Francisco, California, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Restraining or coercing employees with regard to the
exercise of their Section 7 rights by: interrogating them with
respect to their union activities and the union activities of
others and questioning them with regard to the manner in
which they intend to or had voted in a Board election
financially rewarding them for providing information re-
garding the union activities of others threatening to dis-
charge employees for their union activities threatening to
close stores to avoid the effect of union representation
granting or promising to grant wage increases to discourage
employees from seeking union representation telling employ-
ees that individuals who had been discharged for their union
activities had been blacklisted in the industry and would be
unable to find employment coercively telling employees that
'' 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, 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.
union representation is a futile act and creating the impres-
sion of surveillance of their union activities.
(b) Discharging employees because they have engaged in
union activities or because they have given testimony in a
proceeding before the National Labor Relations Board.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Immediately offer James Alaura, William Kulick,
Emilio Gabagat, Hannelore Garrard, and Robert Hale full
reinstatement to their former jobs or, if they no longer exist,
to substantially equivalent ones without prejudice to their
seniority or other rights and privileges, and make them and
Mahendra Prashad whole, with interest, for lost earnings in
the manner set forth in the section of this Decision entitled
"The Remedy," dismissing if necessary, those employees
who replaced them.
(b) 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 other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its San Francisco and south San Francisco
facilities copies of the attached notice marked "Appendix."'
Copies of said notice, on forms to be provided by the
Regional Director for Region 20, after being duly signed by
the authorized representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof and be
maintaining by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees customarily are posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the remainder of the
complaint be, and it hereby is, dismissed.
" In the event that this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1230