G. C. Murphy Co.

National Labor Relations Board - Board Decisions

Mar 14, 1975

216 N.L.R.B. 1054 (N.L.R.B. 1975)

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. C. Murphy Company and Teamsters Local Union
No. 592, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 5-CA-6780
March 14, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On December 26, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, G. C. Murphy
Company, Fredericksburg, Virginia, its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In his remedy recommendation , the Administrative Law Judge
inadvertently failed to provide for interest on the backpay due the
discrimmatee . Accordingly, that recommendation is amended to provide
that backpay shall be computed on a quarterly basis plus interest at 6
percent per annum , as prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing A Heating Co., 138 NLRB 716 (1962), from
the date of the termination to the date reinstatement is offered.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
was held in this proceeding on October 31, 1974, at
Fredericksburg , Virginia, on complaint of the General
Counsel against G.C. Murphy Company, herein called the
Respondent or the Company . The charge was filed on July
18, 1974, by Teamsters Local Union No . 592, International
216 NLRB No. 143
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , herein called the Union , and the
complaint issued on September 27, 1974. The sole issue of
the case is whether the Respondent violated Section 8(a)(3)
of the Act in the discharge of Glenda Puckett on July 12,
1974. Briefs were received from the General Counsel and
the Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
In the city of Fredericksburg, Virginia, the Respondent,
a Pennsylvania corporation, operates a warehouse. During
the preceding 12 months, a representative period, the
Respondent had gross sales in excess of $500,000 and
received at this location , in interstate commerce , goods and
materials valued in excess of $50,000 from out-of-State
sources . I find that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Teamsters Local Union No. 592, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At its Fredericksburg warehouse , the Respondent has,
among other employees , 15 or 16 office clerical women.
The Union filed a representation petition for an election
among the production and maintenance employees on
June 19 , 1974, and a Board hearing on that petition was
held on July 11.
Glenda Puckett was hired as an office clerical on June
17. She attended a union meeting at a local hotel sometime
at the start of July and again on the evening of July 11, at
another local hotel , where, in addition to the warehouse
employees , there were four office-clerical women besides
Puckett. The girls signed union cards there , and Puckett
took an additional supply to work with her the next day.
For half an hour or more that morning, July 12, most of
the office girls sat at a long table in the women's lounge
before the 8 o'clock starting time, talking, smoking , having
coffee and something , as they always do. There was talk
about the Union, union cards were on the table, and
Puckett solicited some signatures . There is uncontradicted
testimony by two other girls then present that Puckett was
doing most of the talking in favor of the Union. Shortly
before 8 o'clock Betty Dickey, office manager and
supervisor over all these girls , entered the lounge and
walked the length of the room to the ladies' bathroom,
which opens into the lounge. She emerged just at about
starting time , some of the girls still sitting and talking, and
she left without saying anything and no one saying
anything to her. She heard some of what Puckett was
telling the others . As Dickey recalled it: "I heard Glenda
making a remark to Betty Millar . She was banging her arm
on the table and saying if we had a union in here and you
G. C. MURPHY COMPANY
gave me work to do that was not my work I would not have
to do it."
Dickey continued to testify that she later reported what
she had heard to Kenneth Riley, assistant manager of the
warehouse. She said she characterized Puckett's words to
him as "bickering," but also admitted she told Riley,
Puckett had literally said "if they had a union" in the place
things would be different. Riley then proceeded to report
the incident to John Kelley, the warehouse manager and
apparently top management representative over the entire
operation. As Kelley recalled it, he was told by Riley that
Puckett made "a statement to the effect that if a Union got
in she wouldn't have to take instructions from Betty." Just
before quitting time that afternoon Puckett was dis-
charged.
There is no direct evidence of union animus. The theory
of complaint is that considering Puckett's prounion
attitude-known to the Respondent as admitted by the
various managers, the timing of the discrimination against
her-following immediately upon the Respondent learning
of her attempt to persuade others to favor the union, and
the total lack of any objective explanation for manage-
ment's selection of that moment to fire the woman, it must
be inferred that the act was motivated by an intent to stop
her. prounion activities among the clericals. I think the
foregoing facts prove a prima facie case sufficient for a
conclusion of violation of Section 8(a)(3) of the Act. The
question therefore becomes whether the evidence offered
by the Respondent in support of its affirmative defense of
discharge for cause is convincing enough to offset the
persuasive proof of illegality.
Like all others hired by this company, Puckett was taken
on as a probationary employee. In pertinent part the
written rules of employment initially given to her, also,
provide for a probationary period of "the first 30 working
days," and that during that period "your progress will be
discussed with you."
Puckett's work consisted primarily of preparing a very
comprehensive weekly chart reflecting, in minute numbers,
details about quantitative merchandise deliveries by about
15 drivers, time spent by each of them at every delivery
stop, running totals of the many columns of figures by the
day, by the week and by the month, etc. She also did
ordinary typing, the amount increasing as her time went
on. The numerical chart work was essentially supervised by
George Davis, the traffic manager , and the typing work
was performed under supervision of Mrs. Dickey, the
office manager . She was discharged on her 19th "working
day." The conclusionary assertion by Manager Kelly is
that his reason for dismissing her was because she made
mistakes , she complained of being assigned too much work
by just another office girl, she did not like one or two of the
work rules, she was unhappy, or, as he said at one point in
his testimony : ". . . we didn't feel she was going to fit into
the organization and make the grade ." A word used very
frequently at the hearing by the Respondent's witnesses to
characterize all these faults is that it amounted to
"bickering." When Dickey told Riley that day that Puckett
was pounding the table towards Betty in the women's
lounge, she told the assistant manager , according to her
own testimony, "the bickering had started already." Betty
1055
is Betty Millar, Davis' secretary and one of the office girls.
A complaint of Puckett's had been that Millar had been
shifting her work to Puckett instead of doing it herself, and
Dickey's testimony shows she knew this was the same
situation which Puckett thought would be corrected if
there were a union in the picture.
Upon careful appraisal of all the evidence relating to
Puckett's work performance and attitude, and the Respon-
dent's contemporaneous reaction to it, I find the defense
assertion of discharge for cause unpersuasive when
weighed against the probative proof of illegal discharge.
1. It is argued Puckett made mistakes in her numerical
calculations on the periodic traffic and transportation
charts, and it is true she did make some mistakes. In her
testimony Mrs. Dickey implied the girl wanted the
managers to accept her reports, mistakes and all. This is
not true; what Puckett once suggested was that with the
corrections made, it ought not be necessary for her to redo
the entire document. She was told to redo the work and she
did. Davis, directly in charge of the transportation
recording work, admitted that "it's very possible" some of
the mistakes in running totals reflected in Puckett's charts
were chargeable to errors made by her predecessors during
prior weeks in calculating the mounting totals. He also
admitted other employees made like mistakes-"but not as
many." And finally, Davis also said that while he pointed
out mistakes to her, he never told Puckett she made too
many to retain the job, or that she had to improve in this
respect. All this is strong indication the errors Puckett
made during her learning weeks were accepted by
management as nothing more than normal experience at
the time they happened. Dickey, for whom Puckett started
doing more and more typing work during her third week of
employment, said about the girl's work: "she was doing
fine."
2. The witnesses spoke about Puckett expressing
dissatisfaction with the rules governing conduct at work;
they said this showed her "unhappiness" on the job. The
only specific things they mentioned on this score was that
employees are not permitted to bring coffee to their desks,
and may not leave the building during break periods.
Puckett thought she should be permitted to go out, and
once brought a cup of coffee to her work station, was told
not to do it, and never did it again. And Kelley, who said
he made the decision to discharge, and who assumed the
major burden of proving her undesirability at the hearing,
said: "I don't know that she broke any rules."
3. In the general disparagement of the girl articulated
long after the event at the hearing, Kelley threw in an
additional idea. He said he was displeased with Puckett's
"mod or gypsy style attire, hardly fitting for office work
.... It involved many rings, beads, garrish earrings, .. .
jeans with patches or sequin decorations." Kelley added
the girl's style of attire "possibly entered into the decision"
to fire her. He then added he told no one to do anything
about this, and Davis, Puckett's immediate supervisor,
never mentioned such a subject to her either.
4. The last definitive item mentioned at the hearing was
by Dickey, and it is that Puckett asked to talk to her
privately once to complain that Betty Millar, the other
secretary, was pushing too much of her work to Puckett,
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who had the power to assign work anyway- just a
clerical or the supervisors? The office manager told her to
take her work orders from Davis only.
Neither of her supervisors-Davis and Dickey, nor
anyone else in management, ever told Puckett during the
19 days of her employment , that she had to improve, that
they were entertaining any thought of releasing her during
or at the end of her probationary period, that she was in
danger of losing her job. This, despite the written provision
in work rules applicable to all probationers that the
Company would "discuss" the employee's progress with
her. She was dismissed without a word of warning. There is
no contradiction of her testimony that in the discharge
conversation , as she protested she did not deserve such
summary treatment, she asked both Mrs. Dickey and
Manager Kelley had she ever been disrespectful towards
either of them , and both answered no. The affirmative
defense gains no comfort from the fact Puckett was still on
probation . This is not an arbitration proceeding, nor a
contract violation case . Puckett could be discharged for a
good reason , for a bad reason , or for no reason at all. But
she could not be discharged with impunity , regardless of
her permanent or temporary status , if in reality the reason
was to curb her union activity.
Manager Kelley was twice asked at the hearing why he
chose that particular day to discharge the girl. Each time
he avoided answering the question . But it is the question of
this case . The only thing that happened that day that was
different from anything that had occurred before, is that
now Puckett urged the union as the vehicle for changing
conditions of employment . In the circumstances , the causal
relationship between that activity, quickly funneled up-
ward through management to the decisional authority, and
the immediate discharge , is too compelling an inference to
be ignored . The nature of her activity did not change
merely because the Respondent called it "bickering" either
then or at the hearing. As the Court stated in Salt River
Valley Water Users' Association v. N.LR.B., 206 F.2d 325
(C.A. 9, 1953): "It is obvious that concerted activities
which are protected by the Act often create a disturbance
in the sense that they create dissatisfaction with the status
quo. Such a fact without more can hardly justify dis-
charge."
I find that the Respondent discharged Glenda Puckett
on July 12, 1974, because of her activity in favor of the
Union and thereby violated Section 8(axl) and (3) of the
Act.
IV. THE REMEDY
Since it has been found that the Respondent unlawfully
discharged Glenda Puckett, it must be ordered to restore
her to her employment, or an equivalent position. The
Respondent must also make her whole financially for any
loss of earnings she has suffered in consequence of the
discrimination against her. This means compensation to
Puckett for the amount she would have earned had she
remained in the Respondent 's employ, minus what interim
earnings she may have had , for the entire period from the
1 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.
day of her discharge to the time Respondent effectively
restores her to work. And the fact she held probationary
status in July 1974 in no way reduces this liability on the
part of the Company. See National Detective Bureau, Inc.,
204 NLRB 7, fn. 2 (1973).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By discharging Glenda Puckett on July 12, 1974, the
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER1
The Respondent, G. C. Murphy Co., Fredericksburg,
Virginia, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against its employees because of their union activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights of self-
organization, to form, join or assist Teamsters Local Union
No. 592, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Glenda Puckett immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
(b) Make Glenda Puckett whole for any loss of pay or
any benefits she may have suffered by reasons of the
Respondent's discrimination against her, in the manner set
forth in the section herein called "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
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.
G. C. MURPHY COMPANY
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its place of business in Fredericksburg,
Virginia, copies of the attached notice marked "Appen-
dix."2 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being duly signed by
its representatives , shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by it
to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 In the event the Board 's Order is enforced by a Judgment of the 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."
1057
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the Federal law by discharging an
an employee because she engaged in union activities:
WE WILL NOT discharge or discriminate against any
employees for engaging in concerted or union activities.
WE WILL offer Glenda Puckett immediate and full
reinstatement to her former position or, if such position
no longer exists, to a substantially equivalent position.
WE WILL pay Glenda Puckett for any earnings she
lost as a result of our discrimination against her, plus 6
percent ititerest.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to join or assist Teamsters
Local Union No. 592, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, and to
engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
G.C. MURPHY COMPANY