G. C. Murphy Co.

National Labor Relations Board - Board Decisions

Sep 5, 1974

213 N.L.R.B. 175 (N.L.R.B. 1974)

G. C. MURPHY CO. 175
G. C. Murphy Company and Linda L. Holtzapple.
Case 5-CA-6586
September 5, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 25, 1974, Administrative Law Judge Henry
L. Jalette issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , G. C. Murphy Company, its
officers, agents , successors , and assigns , shall take the
action set forth in the said recommended Order ex-
cept that the attached notice is substituted for the
Administrative Law Judge 's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice.
WE WILL NOT threaten you with loss of vacation
benefits if you select a union to represent you.
WE WILL NOT question you about union litera-
ture in your possession and your reasons for
keeping it.
WE WILL NOT suggest or ask that you turn over
to us union literature in your possession.
WE WILL NOT discharge employees because they
join , assist , or give support to Retail Store Em-
ployees Union, Local 692 , Retail Clerks Interna-
tional Association , AFL-CIO, or any other labor
organization.
Since the Board found that we violated the law
when we fired Linda Holtzapple , WE WILL offer to
reinstate her and WE WILL pay her for any loss of
pay she may have suffered because we fired her.
You are free to become and remain members of
Retail Store Employees Union, Local 692, Retail
Clerks International Association , AFL-CIO, or any
other labor organization , or to refrain from any or all
such activities.
G. C. MURPHY COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 1019, Charles
Center, Baltimore , Maryland 21201, Telephone 301-
963-2822.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This case
involves allegations that the above-named Respondent en-
gaged in certain acts of interference with, restraint, and
coercion of employees in violation of Section 8(a)(1) of the
Act and that it violated Section 8(a)(1) and (3) of the Act
by discharging Linda Holtzapple, the Charging Party here-
in, because of her activities on behalf of, and assistance to,
Retail Store Employees Union, Local 692, Retail Clerks
International Association, AFL-CIO (herein called the
Union). The charge was filed on March 11, 1974,1 and
amended on April 10. On April 18 a complaint issued. Hear-
ing was held on May 14 in Baltimore, Maryland.
On the basis of the entire record herein, including my
observation of the witnesses, and after consideration of the
briefs filed by General Counsel and Respondent, I hereby
make the following:
1 Unless otherwise indicated all dates are in 1974.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. INTRODUCTION
Respondent is engaged in the operation of a retail store
in various States of the United States, including a store at
1200 West Baltimore Street, Baltimore , Maryland, the only
store involved in this proceeding? The store employs about
45 employees who are not represented by any labor organi-
zation . The first instance of any union activity in the store
occurred on or about March 4 when Robert Donnelly, a
union representative, entered the store and handed out
union literature to employees.3 The extent of his activity is
not shown in the record, but at least two employees received
literature, which consisted of an authorization card and a
pamphlet identifying the Union. The two employees were
Patricia Moses and Linda Holtzapple.
On March 6, Donnelly and another union representative
entered the store again and passed out literature to employ-
ees.
The allegations of the complaint stem from Respondent's
response to these two incidents, plus Respondent's dis-
charge of Linda Holtzapple on March 11.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and Coercion
According to Holtzapple, when Donnelly was speaking to
her and Moses on March 4, they were observed by Assistant
Store Managers Larry Naill and Mildred Dash, supervisors
within the meaning of Section 2(11) of the Act. After Don-
nelly left, Naill came over and asked Holtzapple who the
man was. Holtzapple replied that he was a union representa-
tive. Holtzapple is corroborated by Moses. Naill did not
expressly deny asking Holtzapple who the man was who
had been talking to her, but stated only that he could not
recall. I credit Holtzapple and Moses. However, as I under-
stand the allegations of the complaint and General
Counsel's brief, General Counsel does not contend that
Naill's inquiry on this occasion was unlawful. Inasmuch as
Holtaapple was on duty at the time Donnelly was talking to
her, Naill was justified in asking her who she was talking to.'
A. few minutes after Naill's inquiry, Supervisor Dash
came over to Moses and, according to Moses, asked her if
the man had given her any papers. Moses said yes and Dash
asked to see them. Moses told her she had given them to
Holtaapple and Dash went over to Holtzapple and asked
her if she could have the papers. According to Holtzapple,
the literature was in her pocket, she took it out, showed it
to Dash, and said she wanted to keep them to read. Dash
then asked her why she wanted a union and Holtzapple
replied she had not said she wanted a union, only that she
2 Jurisdiction is not in issue . The complaint alleges, the answer admits, and
I find that Respondent meets the Board's jurisdictional standard for the
assertion of jurisdiction over retail stores.
3 According to General Counsel's witnesses , this occurred on March I. but
their testimony as to the date was obtained through leading questions. Super-
visor Mildred Dash gave more convincing testimony concerning the date of
this incident and I credit her.
4J. C. Penney Co., Inc., 209 NLRB 50 (1974).
wanted to look into it. Dash said they didn't need a union
and suggested that Holtzapple take the papers to Store
Manager Howard Porter. Holtzapple said no, she wanted to
read them.
Dash's version of this incident is slightly different from
Moses' and Holtzapple's. According to Dash, she asked
Moses who the man was and Moses told her and added that
he had given them papers to sign. Moses told her that
Holtzapple had the papers and Dash went to Holtzapple to
ask about the papers. The papers were on a clipboard and
Holtzapple handed them to her. Dash told her they should
go to Porter and she told Holtzapple they didn't need a
union. I credit Dash's version. She was more precise in her
testimony than either Moses or Holtzapple and I see no
reason for her to falsify the details of the incident.
The complaint alleges that in questioning employees
about whether they received union literature Dash engaged
in conduct violative of Section 8(a)(1) of the Act. I do not
agree. When Dash approached Moses and learned of
Donnelly's identity and that he had handed employees liter-
ature I believe she was justified in investigating into the
matter further and in asking to examine the literature that
had been distributed to them on company time.
The complaint also alleges that Dash engaged in 8(a)(1)
conduct by questioning employees about their union activi-
ties, an allegation based on Dash's conduct in this incident.
I have not credited Holtzapple's version of the incident and
therefore do not find a direct query about Holtzapple's
union activities or sentiments. However, when Dash sug-
gested the literature be turned over to Porter, she engaged
in a form of interrogation because she forced Holtzapple to
reveal her interest in the literature. When her suggestion was
coupled with the statement the Company did not need a
union, the suggestion acquired a coercive tenor.
It may be argued that Dash could request that Holtzapple
turn the literature over to Porter, because it had been dis-
tributed to her in violation of Respondent's no-distribution
rule.5 N.L.R.B. v. Elias Brothers, Big Boy, Inc., 325 F.2d 360
(C.A. 6, 1963), cited by General Counsel, indicates other-
wise . It was not Holtzapple who violated Respondent's no-
distribution rule, it was the Union, and Dash had no legiti-
mate purpose in suggesting she turn the literature over to the
store manager. Rather, it is clear her purpose was to inter-
fere with the rights of the employees to be informed of their
right to form, join, or assist a labor organization. According-
ly, I find that Respondent violated Section 8(a)(1) of the Act
by Dash's suggestion that Holtzapple turn the literature
over to the store manager.
The complaint alleges that Dash confiscated union litera-
ture and authorization cards. The only incident involving
Dash and union literature is that described above and it is
undisputed Dash did not confiscate the union literature. In
his brief, General Counsel describes Dash's conduct as an
attempted confiscation. I would not so characterize Dash's
conduct, but even were I to do so, I do not know what it
Among Respondent 's rules for all store employees is the following:
10. SOLICITATION - Solicitation of employees and/or distribution of
any written or printed matter is not permitted on store premises except
by employees during non-working time in areas not open to the public.
(The exception does not permit the distribution of written or printed
matter in any working area , whether public or non-public.)
G. C. MURPHY CO. 177
would add to the finding made above.
Later the same day, Store Manager Porter approached
Holtzapple . According to Holtzapple , he asked her where
the papers were which the Union man had given her. She
replied they were in her pocket . He told her she did not have
to send them in and she replied she knew that . He asked her
what she planned to do with them and she told him a few
employees had asked her for them and she herself wanted
to read them . Porter then told her of the benefits provided
by Respondent and that the employees did not need a
union . He told her "if I were you , I would think twice before
I sent those papers in because the teachers have a union and
they are still out on strike ." He asked her what she didn't
like about Murphy's and she told him she did not even know
her hourly rate of pay because she had not been told. He
offered to go to the office with her right away to find out,
but Holtzapple declined on the ground she had not known
for some time so there was no need to know then . As with
the conversation between Dash and Holtzapple described
earlier, there is a difference between Porter's and
Holtzapple 's versions of what was said in their conversation.
According to Porter , he asked Holtzapple where the union
literature was which had been given to her , and when she
said in her pocket he proceeded to express his views about
the Union and that the Company did not need one. Porter
was unable to give any reason for asking about the union
literature . I do not credit him. In this instance , he, and not
Holtzapple , gave a very sketchy version of his conversation
with her . Holtzapple's version makes more sense and I cred-
it it . The complaint alleges that Porter engaged in unlawful
interrogation , and I find merit to the allegation. Porter had
no legitimate purpose in speaking to Holtzapple about the
union literature and asking her what she planned to do with
it. He had been told by Dash about the union literature and
there was no need for him to add his interrogation to Dash's.
It is abundantly clear that his purpose in interrogating
Holtzapple was to induce her not to support the Union.
Under the circumstances , this interrogation , added to
Dash's earlier interrogation , coupled with expressions of
animus against the Union , would tend to coerce employees
from exercising their Section 7 rights and was violative of
Section 8 (a)(1) of the Act.
On or about March 5, Naill and employee Charles Burns
were having lunch at the snackbar and the conversation
turned to the Union (how it did no one could recall). Naill
asked Burns if he had had a chance to talk to the union
representative and Bums said no. Naill replied that was
good , because it could not help Burns in any way , and that
Burns would lose his benefits , specifically , his vacation ben-
efit. Holtzapple , who was working a few feet away, had
overheard the first part of the conversation and she joined
the conversation . According to her, Naill said he did not
know much about the Union but from what Porter had said
it would not benefit the employees , that they would lose the
vacation Respondent gave to its employees if the Union
came in. Naill admitted having such a conversation as that
but denied making any threat of loss of vacation benefits.
Naill testified in what appeared to me to be a very uncertain
manner . I do not credit him. His remark , which attributed
loss of benefits with the selection of the Union as bargaining
representative , constituted a coercive threat violative of Sec-
tion 8(a)(1) of the Act.
On March 6 , Donnelly and Union representative Tina
Abel entered the store again and , going separate ways, dis-
tributed union literature in the store . They were observed by
Naill who, according to Holtzapple , went over to
Holtzapple 's counter and, pointing to Donnelly, asked her
if that was the man who had given her the union literature.
She replied falsely that she didn 't know. Naill followed
Donnelly to the basement of the store and Holtzapple ob-
served him returning escorting Donnelly from the store. As
Donnelly left, he called out to Holtzapple "Hello, If you
have any questions , call me."
Afterwards , Naill came over to Holtzapple and asked her
if she had any union literature this time and she said no. A
short while later, Holtzapple observed Naill and Porter talk-
ing together . After they had finished talking, Holtzapple
asked Naill what Porter had said and Naill replied that
Porter was really mad.
According to employee Burns, who had also observed
Donnelly's entry into the store , as Donnelly passed by the
cashier's counter he laid literature on it. Naill picked up the
literature, tore it , and followed Donnelly to the basement.
A few minutes after Donnelly had left the store, Burns
went over to the loading platform to do some work and he
saw Donnelly there with Miss Abel . He was asked if he
would pass out literature . Burns agreed and was given litera-
ture which he inserted in the top of his sock . Shortly thereaf-
ter, back on the salesfloor , Burns told Holtzapple he had the
literature and raised his pants leg to show her where he had
it. Nail] was standing nearby and came over and asked
Burns if he had any union literature . Burns told him no and
Holtzapple told him yes , so Bums again raised his pants leg
to show Naill where he had the literature . The record does
not indicate that Naill said anything else.
Donnelly testified that as he walked through the store on
March 6 , he handed out union literature to employees. Ac-
cording to Donnelly, Store Manager Porter confiscated the
literature . He based his assertion on his observing Porter
take the literature from the hands of one employee as Don-
nelly was being escorted out of the store , and his observing
that Porter had several pieces of literature in his hand.
The foregoing incidents pose several questions. First,
there is Naill's asking Holtzapple if that was the man who
had given her the union literature . Whether or not this query
constituted unlawful interrogation is debatable ; however, I
need not decide the matter because I do not understand the
complaint to allege this questioning as unlawful and Gener-
al Counsel makes no such contention in his brief . I note that
Naill was not examined about the incident.
The complaint does allege , however , that Naill engaged
in impermissible conduct on March 6 , in questioning em-
ployees about whether they received union literature. Gen-
eral Counsel does not advert to this allegation in his brief,
but it is evidently predicated on Naill 's asking Holtzapple,
after Donnelly had left the store , if she had received any
literature , and on his asking Burns if he had any union
literature. Naill denied questioning employees , but he was
asked a very general question and not specifically asked
about questioning Holtzapple and Burns . I do not credit
him.
The question remains, howver, whether his questioning
178 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Bums and Holtzapple was unlawful. As General Counsel
did not discuss this questioning in his brief, I am not certain
on what basis he contends it was unlawful. I assume that he
predicates his complaint allegation on the absence of the
safeguards enumerated in Struksnes Construction Co., Inc.,
165 NLRB 1062, and Blue Flash Express, Inc., 109 NLRB
591. If so, I would not agree that those cases are applicable.
The incidents here under consideration are not the type of
intrusive interrogation typified by the cited cases. Rather,
we have questioning of employees about the possession of
union literature distributed to them by union representa-
tives in violation of a valid rule of Respondent prohibiting
distribution of any literature in its selling area.
In the case of Burns, Naill's inquiry came after Burns told
Holtzapple he had union literature and showed her where
he was keeping it. Burns and Holtzapple were on the selling
floor on worktime. From Bums' description of the incident,
it appears that he was observed by Naill and Naill was
justified into checking into Burns' behavior to assure he was
not violating the no distribution rule. While the record does
not show that Naill explained the purpose of his inquiry,
neither does it show that Nail] made any remark that could
be construed as coercive, nor did he try to confiscate the
literature. Under the circumstances, I do not believe that it
may fairly be said that his inquiry had a tendency to coerce
employees in the exercise of Section 7 rights.
In the case of Holtzapple, she had received union litera-
ture during worktime in the selling area 2 days earlier from
the same union representative. Naill may very well have
believed that she was involved with Donnelly in the March
6 incident. In any event, he made no coercive remarks.
Accordingly, if General Counsel is contending that these
two instances of interrogation are unlawful, I do not agree.
As described earlier, when Donnelly left literature on the
cashier's counter, Naill went over, took it, and tore it up.
Naill could not remember doing this, but I credit Burns.
However, there is no showing that Naill took that piece of
literature, or any other piece, from any employee. Likewise,
in the case of Porter, there is no evidence that he took any
literature from any employee. Admittedly, he gathered
some of the literature distributed by the Union representa-
tive and some of that he received from employees. Accord-
ing to Porter, the employees tendered the literature to him
without a request. There is no evidence to the contrary.
Donnelly testified he saw Porter take literature from an
employee, but he was in no position to know whether Porter
took it against her will, requested it, or whether she turned
it over to Porter on her own initiative.
In my judgment, the evidence is insufficient to support a
finding of unlawful confiscation of union literature. Gener-
al Counsel appears to contend that once the union represen-
tatives had distributed the literature, Respondent could not
lawfully appropriate it. I do not agree. As the court stated
in N.L.R.B. v. Elias Brothers Big Boy, Inc., supra, with re-
gard to literature distributed in a restaurant during business
hours, "management was justified . . . in removing the leaf-
lets from tables, counters, and work places and destroying
them." That is all Respondent is shown to have done here.
Respondent did not as in the Dash-Holtzapple incident 2
days earlier, suggest that employees relinquish the literature,
nor request that they do so . Accordingly, I shall recommend evidence Respondent knew this.
dismissal of the allegations of the complaint respecting con-
fiscation of Union literature.
B. The Discharge of Linda Holtzapple
Linda Holtzapple was hired by Respondent as a salesgirl
on October 5, 1973. On March 11, she was discharged.
General Counsel contends the discharge was motivated by
Holtzapple's union activities and sympathies. Respondent
contends she was discharged for incompetency.
An essential element of a discriminatory discharge is
company knowledge of the alleged discriminatee's union
activities or sympathies. There is no dispute about that ele-
ment in this case. Holtzapple was the first employee to
receive union literature, she was solicited to turn it over to
the store manager and interrogated by him. She revealed her
interest in the Union by refusing to relinquish the union
literature and, perforce, in the Union. I find company
knowledge .6
Another element of a discriminatory discharge is union
animus. I find such animus present here in the conduct of
Dash, Porter, and Naill described above.
As Respondent correctly points out, however, union ac-
tivity does not insulate an employee from discharge. An
employee may be discharged for a good reason, a poor
reason, or no reason at all, so long as the discharge is not
based on the employee's union activities, and the burden of
proving an improper motive for the discharge is on the
General Counsel. But these are by now truisms of labor
relations law which are of little value in deciding why a
particular employer discharged a particular employee, as
must be decided here. The decision, in the final analysis,
depends on the total circumstances of the case, and while
the employer may discharge for a good, bad, or no reason,
a relevant circumstance to be considered in assessing his
motive is his asserted reasons for discharge. If an employer,
for example, states he fired an employee for unsatisfactory
work performance, it is important to decide whether or not
the employee did in fact perform his work unsatisfactorily,
because if he didn't, then the employer's asserted reason is
false and one may infer the false reason conceals the true
reason; namely, union activity.
In this case, according to Holtzapple, when she was called
to Porter's office and discharged on March 11, she was told
it was because she had left the job in November, she talked
too much, and she didn't do her work. Holtzapple com-
plained that she had received no warning. She did not indi-
cate that Porter replied to this, only that he told her goodby
and that he would give her a good reference if she needed
one.
Porter did not testify about the discharge interview, but
he did admit offering Holtzapple a good reference. In giving
his reasons for discharging Holtzapple, Porter confirmed
that one reason was her leaving her job without notice, and
another was her neglecting her duties (what Holtzapple de-
scribed as not doing her job). He gave as the third reason
her fighting with customers.
b While she also solicited employees on behalf of the Union, there is no
G. C. MURPHY CO. 179
1. Holtzapple's leaving her job
On November 17, Holtzapple left her job in mid-day
without notice other than to a secretary. A few days later,
she called the personnel director, Ruby Lawhorne, and told
her her reason for quitting (a personality conflict with an-
other employee). She was asked to come in to talk the matter
over. She did and returned to work.
It is difficult to understand how this incident, 6 months
before the discharge, which had been forgiven by rehiring
her, could form the basis of the decision to discharge
Holtzapple, I conclude this was not a real reason for dis-
charge, but a pretextual reason to cloak an unlawful mo-
tive.
2. Fighting with customers
According to Holtzapple, around Christmastime, as she
was unloading a cart of merchandise two girls passed her
and one deliberately pushed her into the cart. Holtzapple
objected and an argument ensued . Supervisor Dash came
over and Holtzapple told her what had happened. The girls
disputed this. Porter joined the conversation and concluded
by ordering the girls out of the store. They were escorted out
of the store by a security guard. Porter said nothing to
Holtzapple and at 5 p.m., as she was leaving work, Holtzap-
ple apologized about the incident. Porter said, "Well, okay,
the next time anything happens like that either call me or
call the guard and we will take care of it."
Porter gave only a brief description of this incident and
did not contradict Holtzapple's testimony.? I credit her.
From Holtzapple's description of the incident, she was not
at fault and Porter must not have thought so because he did
not reprimand her.
There was another incident at the checkout counter in
which Porter said Holtzapple had a heated debate with a
customer and he had to apologize to the customer and talk
to Holtzapple about it. According to Holtzapple, the inci-
dent in question involved another employee and the same
2 girls involved in the earlier incident, and she only hap-
pened to be at the checkout counter. According to Holtzap-
ple, the customers were put out of the store again . I credit
Holtzapple over Porter whose testimony about the incident
was brief and without any specifics.
On March 2, according to Holtzapple, she went to the
candy counter to help another salesgirl . A customer com-
plained about having waited a half hour to be served and
Holtzapple, who was waiting on someone else , told her she'd
have to wait her turn. The customer hollered and cursed at
Holtzapple and told her she was going to pull her from
behind the counter. Holtzapple called Naill and although he
came over he did nothing. So, Holtzapple left and went to
the restroom. There, she told Dash about the incident and
Dash consoled her.
Neither Porter nor Dash testified about this incident, but
Naill did. According to his testimony, which was very
sketchy, he went to the candy counter because he heard the
argument. When he got there, Holtzapple told him the cus-
tomer wouldn't wait in line and she was getting mad. Naill
7 Holtzapple's testimony was given as rebuttal testimony, and Porter was
not recalled to refute it.
apologized to the customer who told him Holtzapple had
been smart with her. He told Holtzapple to calm down and
not to say any more to the customer and Holtzapple left for
the restroom. Naill reported the incident to Porter, but he
did not tell Porter that Holtzapple was at fault.
If one accepts Holtzapple's version of what happened on
this occasion, she did nothing to be criticized about. Thus,
she did not argue with the customer and called Naill. Inas-
much as Naill did not reprimand her, nor assign fault to her
in reporting the incident to Porter, I conclude her version
was essentially accurate and she engaged in no conduct
which would form the basis of a discharge for cause.
3. Neglecting her duties
The principal complaint about Holtzapple was the condi-
tion of the counters assigned her. Her neglect in this particu-
lar was her failure to make her requisitions, to maintain
inventory, and to fill up her counter. Porter testified he
observed these failings personally and was told of them by
Supervisors Dash and Lawhorne. According to Porter, at
least since the first of the year, Dash and Lawhorne would
complain every week about Holtzapple's shortcomings. In
the week preceding her discharge, both complained to him
that Holtzapple was wasting her time talking to fellow em-
ployees and neglecting her duties. Porter testified that 2
weeks before her discharge he spent 3 days personally put-
ting her counter into shape. (He testified he was systematiz-
ing the counter and there is a suggestion in the record that
he did the work not because of Holtzapple's failure to do her
job but because he was changing the system so that sales
personnel would know when to reorder.) He did not speak
to Holtzapple about her shortcomings.
Personnel Director Lawhorne testified about frequent
complaints from Dash about the condition in which Holtz-
apple kept her counter, and she reported this to Porter
"quite often." However, she did not talk to Holtzapple
about these complaints. On Friday, March 1, Dash com-
plained to her and Lawhorne told her she would speak to
Porter on Saturday, because Porter was not at work that
day. On Saturday, Lawhorne said she reported the matter
to Porter and he observed the condition of the counter for
himself that day.
Dash testified critically about Holtzapple's work perfor-
mance and that she told Lawhorne about it and also spoke
to Porter. However, her complaints were somewhat infor-
mal since they were made only when Porter passed through
her department. Dash did not reprimand Holtzapple about
her shortcomings.
Holtzapple, in effect, denies that she was an unsatisfac-
tory employee.
From my review of the record, I am persuaded that
Holtzapple was less than a perfect employee, but I am not
persuaded that the deficiencies in her work performance
formed the basis for her discharge. The reason I have
reached this conclusion is the undisputed fact that with all
their testimony about Holtzapple's shortcomings, all of
Respondent's supervisors admitted that they had not
warned Holtzapple that her work was unsatisfactory. The
absence of any warnings suggests strongly that whatever
shortcomings there were in Holtzapple's work performance
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not regard her as an unsatisfactory employ-
ee. Of particular significance in this connection is the fact
that, according to Holtzapple, Respondent had a policy of
issuing three written warnings signed by the employee and
an employer representative before discharge. Porter testi-
fied the policy was to give two or three warnings, but his
very vagueness supports Holtzapple's testimony. After all,
as store manager, Porter must have known whether compa-
ny policy was two or three written warnings.
As a matter of fact, three written warnings appear on
Holtzapple's personnel record. However, none of these was
signed by Holtzapple except one dated the very date of the
discharge. One entry, "fighting with customers," and signed
by Porter, was not dated. There is a strong suspicion that
this item was entered on the record to support the decision
to discharge Holtzapple and to appear to have conformed
to company policy of three written warnings. I need not
make a finding to that effect. Sufficient to find that Holtzap-
pie did not receive three written warnings.
Another indication that Holtzapple's work was not unsat-
isfactory is the fact that on Saturday, March 9, Porter sub-
mitted to Respondent's home office a request for a
10-cent-per-hour increase in Holtzapple's rate of pay. Ac-
cording to Porter, this increase was only to equalize her rate
of pay with that of similar employees and was not an indica-
tion of satisfactory work. However, the requisition form
shows that a checkmark had been placed in the box desig-
nating the increase as a merit increase and an attempt was
made to erase the checkmark. This argues strongly that the
increase was a merit increase. Whether merit or equalization
is, in my judgment, a distinction without a difference. Un-
satisfactory employees are not given raises of any kind.
Porter sought to justify his recommendation with an expla-
nation that he made it in the early part of the week begin-
ning March 4, before the complaints about Holtzapple that
week. Be that as it may, he signed the requisition on Satur-
day, after Holtzapple had allegedly been unusually unsatis-
factory.
One might argue that if Porter were motivated by union
considerations when he discharged Holtzapple on March
11, he would not have recommended her for a raise on
March 9. Clearly, there was no union activity between
March 9 and I l to cause him to change his mind and to
discharge her. According to Porter, he had requested a pay
raise for Holtzapple to encourage her to do better work, not
because her work was satisfactory, and, over the weekend,
he changed his mind.
I cannot say that I fully understand Porter's handling of
the situation, but it frequently happens when one is delving
into another's motives, a state of mind, one cannot account
for all the circumstances in the record. The trier of the fact
must decide on the record as a whole and on this record as
a whole, I can reach no other conclusion than that
Holtzapple's discharge was motivated by her demonstrated
union sympathies. This conclusion is based, in summary, on
the fact that the discharge occurred I week after the start
of the organizational campaign, that Respondent opposed
unionization and engaged in 8(a)(1) conduct, that Holtzap-
pie was the employee most prominently displaying a favor-
able attitude for union representation, that she was
discharged without warning, that Respondent did not fol-
low its own policies respecting employee warnings, and that
the reasons given for her discharge were clearly pretextuous.
For all these reasons, I find that Holtzapple was discharged
because of her union activities in violation of Section 8(a)(1)
and (3) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) 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.
As I have found that Respondent discharged Linda
Holtzapple, because of her union activities or sympathies, I
shall recommend that it be ordered to offer her immediate
and full reinstatement to her former job or, if such job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
to make her whole for any loss of earnings she may have
suffered by reason of her unlawful discharge by payment
to her of a sum of money equal to that which she normally
would have earned as wages, from the date of her dis-
charge to the date of the offer of reinstatement, less net
earnings, to which shall be added interest at the rate of 6
percent per annum in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
The unfair labor practices committed by Respondent
strike at the very heart of employees' rights safeguarded by
the Act. I shall therefore recommend that Respondent be
placed under a broad order to cease and desist from in any
manner infringing upon the rights of employees guaranteed
in Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing
Co., 120 F.2d 532, 536 (C.A. 4, 1941).
CONCLUSIONS OF LAW
1. G. C. Murphy Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Store Employees Union, Local 692, Retail
Clerks, International Association, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their possession of
union literature and their reasons for keeping such litera-
ture, suggesting that employees turn over union literature to
Respondent, and threatening employees with loss of vaca-
tion benefits if they select a union to represent them, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
G. C. MURPHY CO. 181
4. By discharging Linda Holtzapple because of her union
activities or sympathies , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and upon the entire record in this case , I hereby
issue the following recommended:
ORDERS
Respondent, G. C. Murphy Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Retail Store Employees Union, Local 692, Retail Clerks
International Association, AFL-CIO, or in any other labor
organization of its employees, by discharging or otherwise
discriminating in regard to hire or tenure of employment or
any terms or conditions of employment of its employees.
(b) Threatening employees with loss of vacation benefits
if they select the Union as their bargaining representative.
(c) Interrogating employees about their possession of
union literature and their reasons for keeping such litera-
ture, in a manner constituting interference , restraint, or
coercion in violation of Section 8(a)(1) of the Act.
(d) Suggesting to employees that they turn union litera-
ture over to Respondent.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
8 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.
any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Linda Holtzapple immediate and full reinstate-
ment to her former job or, if it no longer exists , to a substan-
tially equivalent position, without prejudice to her seniority
or other rights and privileges, and make her whole for any
loss of pay she may have suffered by reason of the discrimi-
nation against her by payment to her of a sum of money
equal to the amount she normally would have earned as
wages from the date of her discharge to the date of her
reinstatement in the manner set forth in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents for examination and copying , all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records relevant and nec-
essary to a determination of the amount of backpay due
under the terms of this recommended Order.
(c) Post at its premises in Baltimore, Maryland, copies of
the attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent, shall be
posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places , including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps Respon-
dent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the com-
plaint found not to have been sustained by a preponderance
of the evidence be dismissed.
9 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."