Gerry's I.G.A.Download PDFNational Labor Relations Board - Board DecisionsSep 29, 1978238 N.L.R.B. 1141 (N.L.R.B. 1978) Copy Citation GERRY'S I.G.A. Gerry's Cash Markets, Inc., d/b/a Gerry's I.G.A. and Amalgamated Food Workers District Local Union 10, Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO and Retail Store Employees, Local 372, Retail Clerks International Association, AFL-CIO. Cases I -CA- 12428, 1 -RC- 14786, 1-CA-12504, 1-CA-12637, and I-RC- 14827 September 29, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 22, 1978, Administrative Law Judge Ir- ving M. Herman issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel file 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 briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. 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 Or- Respondent has excepted to certain credibility findings made by the Ad- rmnistrative Law Judge. It is the Board's established polio5 not to overrule an Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibil- ity 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. The Administrative Law Judge found (fn 12) that David Frampton testi- fied that neither Store Manager Peter Bellavance nor Assistant Store Man- ager DeCoff was present on Saturdays when he punched in. Our review of the record persuades us that Frampton was refernng to Saturday, November 13, 1976, the I day he worked after his work schedule was unlawfully changed. This does not alter our conclusions: rather, it reinforces our finding that Respondent's defense is pretextual In the remedy section of his Decision, the Administrative Law Judge prop- erly ordered, inter alia, that Frampton and Robert MacKenzie be made whole in contormance with standard Board precedent. It is hereby clarified that, with respect to Frampton's net interim earnings, the earnings from his full-time job are to be determined on the basis of the net increase over predischarge earnings. Isaac and Vinson Securitv Services. Inc, 208 NLRB 47 (1973) 'On January 3, 1980, the Respondent filed a motion to amend the notice to employees to reflect its compliance with the Board Order and the Order of the Court of Appeals for the First Circuit. The Board considered the matter and on January 24, 1980, issued an Order Amending Decision and Order to substitute the attached notice der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Gerry's Cash Markets, Inc., d/b/a Gerry's I.G.A.. Clare- mont, New Hampshire, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(e): "(e) Publishing, promulgating, maintaining, en- forcing, or applying any rule or regulation prohibiting its employees from engaging in union solicitation dur- ing their nonwork time in nonselling areas of the store." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Expunge from Frampton's and MacKenzie's personnel files any reference to or any warnings or letters regarding their respective discharges or demo- tions. 3. Substitute the attached notice* for that of the Administrative Law Judge. APPENDIX NOTI(Et To ENPILOYEES POSTED BY ORDER OF THE NATIONAI LABOR RELATIONS BOARD An Agency of the United States Government WE WILI_ NOI discharge, change the working conditions of, or otherwise discriminate against any' employee because of his union or other pro- tected activity. WE WILL NOT demote, change the working conditions of, or otherwise discriminate against any supervisor becasue of his failure or refusal to engage in the commission of an unfair labor practice. WE WILL NOT delay or withhold or threaten to delay or withhold any benefit from our employ- ees to interfere in a union campaign or discour- age support for union activity. WE WILL NOT promise or grant any benefits to our employees to interfere in a union campaign or discourage support for union activity. WE WILL NOT publish, promulgate, maintain, enforce, or apply any rule or regulation prohibit- ing our employees from engaging in union solici- tation during their nonwork time in nonselling areas of the store. WE WILL NOT threaten to refuse to bargain about requiring employees to take a psycholog- ical stress test or about any other subject that the law requires us to bargain about. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- 238 NLRB No. 161 1141 DECISIONS OF NATIONAL L.ABOR REI.ATIONS BOARD ercise of their rights under the National Labor Relations Act, as amended. WE: reinstated David Frampton to his former job and to his regular hours of work prior to November 26, 1976, without prejudice to senior- ity or other rights and privileges and made him whole for any loss of pay suffered by reason of discrimination against him, plus interest. WE wilItl make Robert MacKenzie whole for any loss of pay suffered by reason of the discrimina- tion against him plus interest. Wr! have expunged from Frampton's person- nel file and will expunge from MacKenzie's per- sonnel file any reference to or any warnings or letters regarding their respective discharges or demotions. WE have made whole all employees at our Keene store for any loss suffered as a result of the withholding on November 23, 1976, of the benefits announced that day for our employees at Claremont and Bellows Falls. WF have granted to our employees at Keene all benefits that were announced for our Clare- mont and Bellows Falls employees on November 23, 1976. GERRY'S CASH MARKETS, IN(., D/B/A GERRY'S I.G.A. DECISION STATEMEN'I OF THEF CASE IRVIN(; M. HFRMAN, Administrative Law Judge: This case was heard before me on April 11 - 13, 1977, at Boston, Massachusetts, on a consolidated complaint issued March 22, 1977. based upon a second amended charge filed De- cember 8. 1976 (Case I-CA 12428), by Amalgamated Food Workers District Local Union 10, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL CIO (herein called the Meatcutters), and upon a charge filed December 3, 1976 (Case I1-CA-12504), and an amended charge filed February 23, 1977 (Case I CA-- 12637), by Retail Store Employees. Local 372, Retail Clerks International Association, AFL-CIO (herein called the Clerks), all duly and timely served upon Respondent. The primary issues are whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), herein called the Act, by maintain- ing and enforcing an invalid no-solicitation rule and changed the working conditions of Robert D. MacKenzie, a supervisor, for failing to enforce the rule; whether it vio- lated Section 8(a)(3) by reducing the working hours and then discharging David Frampton for not complying with the rule and by denying certain benefits to its employees at its Keene, New Hampshire, store because of their union activities; whether it violated Section 8(a)(1) by other coer- cive conduct; and whether the election held at Keene on January 13. 1977, should be set aside and a new election ordered on objections filed by the Clerks. Upon the entire record., including my observation of the witnesses, and after due consideration of the briefs filed in behalf of the General Counsel and Respondent. I make the following: FINDINGS ANr) CO N('I :SiONS 1. TIIE Ei MPI.)YR IN OI() EI) The complaint alleges, the answer admits, and I find that Respondent. a Vermont corporation, with its principal of- fice and place of business at Claremont. New Hampshire, operates retail grocery, stores in Claremont and Keene, New Hampshire, and Bellows Falls. Vermont: that in the course of its business Respondent purchases goods valued at over $50,000 directly from points outside New Hampshire and has a gross annual volume in excess of $500,000: and that Respondent is an employer engaged in commerce within the meaning of the Act. II. tIHE l.ABOR OR(GANIZAIl()NS IV()I.NVII) The complaint alleges, the answer admits, and I find that the unions here involved are labor organizations within the meaning of Section 2(5) of the Act. III. IHEi ULNFAIR L ABOR PRA( II( ES A. 771e Fbt.s 1. The no-solicitation rule and its application during the organizing drive In the week ending Saturday, October 23. 1976,2 David Frampton, employed at the Keene store, approached an agent of the Meatcutters to complain about his and other employees' displeasure over Respondent's insistence on ad- ministering what the employees referred to as a lie detector test but Respondent more euphemistically termed a psycho- logical stress evaluation test (PSE). The agent gave Framp- ton some authorization cards to distribute, which he pro- ceeded to do that weekend.3 Some of his activity occurred on company time, and some occurred away from his de- partment. Other employees assisted in the solicitations. Frampton's efforts included a lengthy conversation with the deli-bakery manager. Dilworth, whose signature he solic- ited.4 The following Saturday. October 30, Peter Bella- vance, who was manager of the Keene store and the son of Respondent's owner' and to whom Dilworth had reported the conversation, called Frampton into the meat room and, I The typewritten transcript of testimony is hereby corrected by changing "Bellavance" to "Dilworth" at p. 259. 1.14. 2 The testimony as to dates in certain respects was somewhat confusing, but the discrepancies are less than critical for present purposes. The recon- ciliation herein is based on a synthesis of all the testimony 3Frampton was working only Saturdays and Sundays at that time. 'Although Dilworth is alleged in the complaint and admitted in the an- swer to have been a supervisor (along with Freight Manager Reichardt and Meat Department Manager Ron Woods). the Unions contended in the rep- resentation proceedings that all three were statutory employees. 'Peter Bellavance is herein called Peter: his father is called Gerry. 1142 GERRY'S l.G.A in the presence of Meat Department Manager Woods and Wayne Wardwrell. spoke to him as follows, according to Frampton's direct examination: A. Mr. Bellavance said to me very strongly that I was not allowed to discuss the union on work time. He said what I discussed after work was my business, but I was not allowed to talk about the union on working hours. I questioned him, and said-as it was explained to me I was not allowed to solicit for the union. I was not allowed to leave my post or go gather signatures during working hours: but that to merely talk about the union on working hours was legal and aboveboard. On cross-examination, this became: Q. What did Mr. Peter Bellavance say to you. and what did you say to him concerning your activities on working time? A. He came in and said to me that he wanted to make one thing clear, that I was not allowed to talk about the union on company time. What I did on my own time was my own business, but I was not allowed to talk about the union on company time. Peter's account of the event states. "I told him there would be no solicitation on the premises" and that there was a company rule to that effect. The rule maintained by Respondent and to which Peter thus referred is entitled "Solicitation on Premises" and reads as follows: To maintain efficiency and give service to our cus- tomers it is the company policy that employees handle their personal business on their own time. There shall be no solicitation or non-business activity regardless of cause conducld on the premises without the prior per- i.s.sion of the Store Owrner or Store nMatlger. Violations of the policy will result in disciplinary ac- tion. This rule, which, according to Peter, bans "solicitation of any type." appears on the sixth page of a document labeled "Gerrv's ('ash Markets Personnel Policy & Procedures. January 1976." Peter testified that he gives every new' em- ployee a copy of the first three pages of this "policy man- ual" and informs him at the time of hire of the remainder "that goes into more depth that they should ... read," that it is "available in the store for them." According to Gerry, there were two copies of the "complete" manual in each store, the respective managers "had been told to put those on the bulletin board or in the coffee break area," and he "personally saw to it that they were there.... the entire [manuals] . . . were posted in an around the store for the employees to read." After learning of the organizing drive, Peter called a meeting of the departmental managers at Keene. He testi- fied he told them "that there would be no solicitation on company time" and "made it clear to the managers that there was a rule against it. And when it was actually inter- fering with their work . . . they were not to allow it." He added that he said "that there was a rule pertaining to it that they knew about" and which "they were to enforce" and that he had had occasion himself to enforce the rule in June 1976 against a collection for a farewell gift for a de- parting employee because "there was no solicitaition sup- posed to he going on in the store": and he acknowledged that he had told Frampton of the rule (without actually showing it to him) on October 23 when, as noted supra. he "told him there would be no solicitation on the premises." Peter also testified, however. that he never had occasion tO invoke the rule other than in the June incident and that of October 23 and that he had never invoked it "against an employee who was talking during work time." And he testi- fied, on examination by Company counsel: Q. Did you from time to time during the fall of 1976 observe employees discussing union matters while then were working? A. Yes. Several times. Q. Did you say anything to them on those occa- sions? A. Long as it wasn't interfering with work I didn't say anything to them. Q. Did you ever observe employees in the Keene store discussing union matters in the coffee room for example? A. That was pretty prevalent at that time. Yes. Q. Did you ever say anything to them about that') A. No, I did not. Q. Did you ever observe employees talking about the union in the back rooms, or store rooms. or ware- house rooms, as distinct from rooms the public' A. Yes. Q. Did you ever say anything to them at that time? A. No. I didn't. On October 25, Robert MacKenzie, who, as assistant store manager, had been in charge of the store the weekend of October 23 24, was called into Peter's office and was told that Peter did not want union activity "going on in the store." According to him. the Girl Scouts. Heart Fund, and other outside groups had been permitted bh Peter to set up tables and pass out literature in the store. On October 29. MacKenzie was demoted (sec. A, 2. infro). Frampton testified that on October 31. he was talking to another employee about some notices on the bulletin board concerning unauthorized pay deductions when Emma. who had succeeded Mackenzie as assistant store manager. ap- proached them and said that Peter didn't like the Union and had instructed the supervisors not to let the employees talk about the Union. On cross-examination. however, his testimony limited the statement to "store time" or "com- pany time," and although he testified that throughout this period he understood his superiors to mean such talk was banned all the time he was on the clock. he conceded that they distinguished between actual working time and break- time, saying that what he did on his own time was his busi- ness. On November 6, Peter changed Frampton's hours of work from a Saturday-Sunday schedule to one of Thurs- day-Friday-Saturday. notwithstanding Frampton's other commitments on weekdays. Frampton reminded Peter of these commitments (sec. A, 3. inlr). but while Peter al- lowed him to stay out the following Thursday and Friday (November I I-12). he told Frampton as he was leaving on 1 143 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) the 13th that he was expected to report the next Thursday, the 18.6 Earlier on November 13, upon finding Frampton talking with McElroy., a fellow employee, near the meat counter. Peter had ordered McElroy to start bagging up front and ordered Frampton to get to work, telling him to leave the other employees alone when they had jobs to do. McElroy testified that Peter told him he was not to talk to people in other departments and he had never been told that before, although he had been told sometime in November by freight manager Reichardt that Peter had ordered that there was to be no talk about unions on "company time" or "store time" and he responded that he could talk about unions if the others could talk about baseball and other subjects that interested them. Frampton confirmed that he talked to employees all day long about everything while working the meat case and testified that that was what he was doing during his conversation with McElroy but that Peter threatened to fire him if he "talked about the union any more. Frampton did not report to work on November 18 and was fired on the 19th. One of the three reasons given on his discharge notice was "solicitation on the premises." 2. MacKenzie's demotion MacKenzie had been an assistant manager at Keene (and hence in charge on certain nights and Sundays) for at least 4 years when the union activity commenced herein. As indi- cated above, he wras called down by Peter immediately after Frampton's initial weekend of organizing, and 4 days later he was relieved of his supervisory duties' and assigned to working on freight with a reduction in working hours, albeit at the same hourly rate.' According to MacKenzie, Peter told him he "didn't need a manager like that," which Peter did not explain except to say that MacKenzie was doing work himself which he should have been delegating. How- ever, only about a week earlier Peter had told him that Respondent was planning to expand and open a new store and asked him if he wanted to be assistant manager with the possibility of future promotion to manager; he declined because he was "semi-retired" and did not want to assume new duties.9 After denying on cross-examination that Peter had ever criticized his job performance, he conceded that Peter had discussed with him at least one customer's com- plaint about treatment at the courtesy booth in respect to the check-cashing policy '° and that Peter had twice com- 6 Meanwhile, the Meatcutters had filed a representation petition (1-RC- 14827) on November 11. The Clerks had filed a petition (I RC 14786) on October 26. ' Peter's testimony puts this on October 22, relating it to his confrontation with MacKenzie on October 18 over Frampton's solicitation of Dilworth the day before. As indicated above, however. the solicitation of Dilworth oc- curred on October 24. MacKenzie's demotion, therefore, did not occur until the 29th This conforms not only to MacKenzie's recollection but also to Gerry's testimony that Emma's first Sunday in that position was October 31. 8 A couple of weeks before the hearing MacKenzie was transfered to the job of checking in all incoming goods, in which position he reports directly to Peter. ' The offer was not necessarily for the new store, but did entail the possi- bility of moving from Keene. '° MacKenzie apparently was unaware of the incident until Peter men- tioned it. plained about his not having enough boys up front for bag- ging and once about his not having a cash register covered. MacKenzie also admitted having refused a request that he take the PSE test a second time despite his knowledge that Peter considered management's taking the test important. And he acknowledged that he had not requested any expla- nation from Peter when Peter said he did not need a man- ager like him in view of the "delegation of work and so forth," because he "understooxd." He denied, however, knowing that these things caused Peter concern about his performance as manager, and he testified that Peter did not mention either the PSE test or the bagging problem when they talked on October 25 or 29. Peter testified that his "area of contention" with Mac- Kenzie was not only MacKenzie's failure to enforce the no- solicitation rule but the fact that people were allowed by MacKenzie to stray from their departments for long periods of time. He testified further that he consulted with Gerry before acting and that they had conferred a couple of times prior to the solicitation about "a couple of customer com- plaints" and other Sunday problems and that there was "a big breakdown in communications" with MacKenzie that could no longer be tolerated. Gerry testified on direct examination to "many" cus- tomer complaints involving MacKenzie: "a lack of leader- ship on MacKenzie's part which [he] personally called to his attention more than one time"; his withdrawal of Mac- Kenzie's privilege to use his own discretion in cashing checks and MacKenzie's confinement to the fixed check- cashing policy because of his experience in accepting bad checks; and MacKenzie's hostile attitude toward the PSE test. He also testified, however, that while he relayed these concerns through Peter. "the only discussions that I had with MacKenzie were regarding the courtesy cards and the checks." He further testified that he had discussed with Pe- ter "on many occasions" a change in MacKenzie's position and that its consummation was delayed 2 or 3 weeks for Emma's decision on whether to take MacKenzie's job. On cross-examination, he testified as follows: Q. And you related various times when you spoke with [MacKenzie] concerning complaints, concerning lack of leadership, etcera. Can you recall when these conversations took place? A. I don't believe I related anything about leader- ship to Mr. MacKenzie; I talked to him about checks, and so on. Q. Well, you said you spoke to him about com- plaints from customers, did you not? A. Through the manager of the store; not directly myself. Q. So, you never spoke to him directly? A. No. Only in respect to the checks. He also testified that his conversations with Peter concern- ing MacKenzie's performance started in August or early September, precipitated by MacKenzie's alleged rudeness to a customer, which MacKenzie denied ever happened, and that he and Peter started discussing Emma's replacing MacKenzie in late September or the first part of October. Emma's testimony was that he first learned that he was going to succeed MacKenzie on October 19 or 20, but he 1144 employee, Etheridge. whom Frampton wanted to attend. Peter told Frampton that he was being put back on the Thursday-Friday-Saturday schedule he had worked in the past because, according to Peter. "he could not seem to punch in or out when he was needed or as his schedule called for." and by virtue of the change either Peter or Assistant Manager DeCoff "would be present to make sure that Mr. Frampton did abide by his schedule."': Respondent contends that because New Hampshire re- quires payment to employees for clock time exceeding 5 minutes before the start of work, its practice is to prevent clocking in prior to such 5 -minute period. Its policy manual contains the following provision, on w hich the General Counsel relies: REPORTIING FOR WORK To maintain orderly shift changes. employees. are ex- pected to report for work not earlier than 15 minutes, or later than 5 minutes prior to the start of their shift. Another manual provision, not cited b, either party. states. under the heading "Store Opening': Employees shall be permitted to enter the store fifteen (15) minutes prior to their starting time. Emplovees are required to be at their stations and reads, for work at their starting time. No employee will punch in early. Punch in on time and leave on time. However. Respondent asserts a distinction between report- ing for work and punching in. contending that the 15-min- ute period provided applies only to the torimer According to Peter, he had cautioned Frampton about this in F ebru- ary and, wuhile "rearranging the schedule a little bit" to "accomodate [Framptonl better," he "made it clear to him at the time that he shouldn't punch in more than five nmin- utes early," and it did not happen again until October 30." Peter testified that he would have known it Frampton had punched in earl) during that period. since he initials each timecard of every employee, and that he "h;ad spoken to several [other employees] during the course of the ysear' about this problem, including the bakery manager himself (still employed), who punched in 15 20 minutes earl b "a lot of times."" In fact. Frampton's timecards shoAs that he punched in more than 5 minutes early on August 28. Sep- tember 1 I. and October 2. and indeed earlier on those dates than on November 6. Frampton testified that he had "al- ways punched in early" and that indeed this had been con- firmed by the arrangement he had reached with Peter in February. Prior to that time, he had been coming in early in order to get instructions from the meat manager (who left with the crew at 5 o'clock) as to what to put into the show- case, what to cut for the next day. etc.. and because he was not being paid for that time his request to advance his start- ing time on Thursday and Friday to 4:45 was granted. Frampton denied that Peter, either on that occasion or at any other time, told him not to punch in until 5 minutes 12 Frampton testified without contradiction that neither Peter noir )DeCoffl was present on Saturdass when he punched in 1' Peter testified that Meat Department Manager Woods AIas present it the February conversation. As noted above. Woods did not testihs 14 Asked whether ans of these people were disciplined or gilen warnings. Peter testified. "Thes weren't. because after the firsit tiitie sith them thes corrected the situation" obviously predated the event by a week, for he also testified that he assumed the new position the following Sunday. October 24, and, as we have seen (fn. 7. supra). MacKen- zie's removal did not occur until October 29. 3. The discrimination against Frampton a. Background Frampton worked full time for Respondent from 1971 until he quit in 1973. He was rehired in September 1975. In negotiating his rehire he informed the then manager at Keene (Thibeault) that he desired part-time work that would not interfere with his business as a self-emploved commercial artist specializing in illustrations from books and magazines that required his presence at home during the day on weekdays. They agreed on a schedule of 5 9 p.m. Thursday and Friday and 7 a.m. to 5 p.m. on Satur- day." for which Thibeault secured approval before Framp- ton commenced work. Around July or August 1976, ac- cording to Frampton, he asked Meat Manager Woods if he could work Sundays because his business had grown to the point where he could no longer spare Thursday and Friday evenings. He was receiving calls relating to his artwork "well into 5 o'clock" which he wanted to be able to answer: and he also had to spend more time out of town, so that. e.g.. if he had to spend a week in New York he preferred to do it at one time rather than to make two trips there inter- rupted by the need to be in Keene Thursday and Friday evenings. About a month later the man working Sunday in the meat department quit, and Frampton's schedule was changed by substituting Sunday (7 a.m.-2 p.m.) for the Thursday and Friday evenings. Peter's testimony as to this change was as follows: Mr. Frampton came up to me with Mr. Ron Woods, and requested that he have his hours changed from a Thursday, Friday, Saturday work schedule to a Satur- day,. Sunday. And Mr. Frampton pointed out that at the time he thought with one man doing both days every week we'd have more consistency. I talked to Mr. Ron Woods, and I said, "Can you cov- er his Thursday, Friday schedule?" And he said he could; and then I approved the change. Woods did not testify. b. The change in hours Frampton clocked in on Saturday. October 30, at 6:46 a.m. The office girl called this to Peter's attention, together with the fact that Frampton (whom Peter acknowledged to be a good worker) had overstayed his scheduled quitting time by a half hour the previous Sunday, and Peter told Frampton to stick to his schedule, although he paid him for the extra half hour. Frampton punched in at 6:47 the following day, Sunday. On November 6. his next workday, after Frampton had clocked in at 6:53, Peter called Frampton to his office, where, in the presence of Meat Manager Woods and an " The latter included lunch from 11 30 to 12 p.m GERRY'S I.G.A 1145 DECISIONS OF NATIONAL LABOR REItATIONS BOARID before working time, although he acknowledged Peter's having talked with him on October 30 for the first time about a store policy against punching in early and men- tioned the rule to him. Frampton also denied ever hearing any employees discussing the 5-minute rule. Employee McElroy testified without contradiction that sometimes he had been told to punch in early when the store was busy and he was waiting at the clock and that on one recent occasion he had accidentally punched in half an hour early, and First Assistant Manager DeCoff had merely told him to take an extra half hour for lunch. Employee Etheridge testified that he had never been spoken to about occasions when he punched in more than 5 minutes before his starting time, and that he understood the 5-minute rule to mean only that payment would not be made for the early time, but he was never told not to punch in early, even 20 minutes early. Sharon Forest, a heavy-duty clerk and week- end cashier, testified she had never been told not to punch in more than 5 minutes before her scheduled worktime but only that she would not be paid for such time. After testifying that he was not familiar with "any pol- icy" against punching in more than 5 minutes early. Mac- Kenzie conceded that there was a policy that "you shouldn't do it. You wouldn't get paid for it." On further examination he testified that the policy did not mean that "you weren't supposed to do it" but only that "you wouldn't get paid for it." His final word on the matter. however, was that the rule barred punching in over 5 min- utes early. Gerry testified as follows about the published rule: A. The policies are, and have been, all employees are expected to be on the premises no later than five minutes before their checkin time: and not to punch in any earlier than five minutes before their scheduled time. * *: * JuI)(i; HERMAN: What you're talking about is check in time? Tlii w.iiN:ss: I'm afraid I don't know what you mean by check in time. JUI)(;E HERMAN: Well, you just used the words. You said that they' are required to be on the premises no more than five minutes before check in time. Tbiu WiNiNSS: No later than five minutes before. JUIc(;i HERMAN: No Later? Tit: W\riiNESS: Their check in time, that is actual punch in time--the time that they actually punch the clock. I should say no later than five minutes before the scheduled time. If the schedule reads 5:00 o'clock, an employee should be on the premises no later than five minutes before: so that he's ready to go on duty at 5:00 o'clock. JU'D(GE HERMAN: The rule that has been put in evi- dence here has some language there about reporting no more than fifteen minutes before the start of the shift? THI WITNESS: That's right. JU)(il: HERMAN: Now your statement of the policy just now doesn't refer to that at all. THmI w'lirNSS: I didn't get that far. The fifteen min- utes there refers only to one thing. We do deal with a lot of young people, and they have a tendency to come in and loiter. They may get out of school, let's say, at 2:00 o'clock in the afternoon; and thev're scheduled to come in at 3:00 o'clock. They might leave their school and come in and loiter on the premises. We don't want to have anybody loitering on the premises. They should not be on the premises for working purposes any earlier than fifteen minutes before time; because a lot of them may people ride in with others. They commute with others. Assistant Manager Emma's understanding of the rule was: A. That you should he at the store between about five minutes early to punch. They don't expect you to be there anymore than 15 minutes early. They don't want you to be there any earlier than 15 minutes early. However, you should be there about five minutes of-- between five of and zero hour, so that you're on your job. and ready to relieve anybody that you're reliev- ing whatever, if you're a cashier, manager, what- ever so that they can leave at their time to go. Peter conceded that he had never fired an employee for punching in early. When Peter announced to Frampton on November 6 that he was being changed from Sunday hack to Thursday and Friday evenings. Frampton protested. He testified to telling Peter that he knew Frampton could not be available Thursdays or Fridays: and that Peter acknowledged this as well as Frampton's next statement that what Peter was really doing was limiting Frampton's time to Saturdays. He denied that his statement concerning his inability to work weekdays was restricted to the next week, testifying rather that he specifically told Peter that he had set up his art schedule far in advance and had commitments that could not be broken. Peter's testimony was that Frampton had confined his objection to the following Thursday and Fri- day and that he agreed to accommodate him to that extent. He denied any' awareness of Frampton's inability to work Thursdays and Fridays generally, testif'ying that all he knew of the reason for the change the previous August was that it was "more convenient for him." Pressed, however. his testimony continued: Q. Didn't he tell you that he couldn't work Thurs- days and Fridays? A. He told me that he couldn't work the following Thursday and Friday, if I remember right. Q. He didn't say he couldn't work Thursdays and Fridays at all is what you're saying? A. I'm not sure. I remember him stating exactly asking for that Thursday and Friday. telling me he had a business engagement. I'm not sure if he did nor [sic] not on the other one. He could have, and he might not have. I'm not positive. Etheridge's testimony is similarly ambiguous. He testified initially: Q. Was there anything said with respect to working Thursdays and Fridays? A. Yes, there was. Peter Bellavance told David that he was to work Thursday, Friday and Saturday. And David told him that he could not work them three 1146 GERRY'S I.G.A. days, because he had another business. that he had to travel down to New York. And he said that he just couldn't do that. And Peter said that that was his schedule. and that was the schedule that he was to work. Q. Hlow was that resolved as best you can recall' A. That David was to work Thursday. Fridas, and Saturdav. On cross-examination. however. he testified as follows: Q. Now, did Mr. Frampton-all my questions are addressed now to that particular meeting-did Mr. Frampton say that he couldn't work only that next Thursday and Friday. because he had business com- mitments? A. (No response.) Jtli)(,; HLRMSAN: What he's asking is, was this di- rected to that particular coming week? Or, were the' talking about a permanent thing'? Till WNIIESS: No. They was talking just about that one week that he could not work. Q. (By Mr. Swaim) While you were there was there ans discussion about Mr. Frampton working other Thursdavs and Fridays later on? Or. was thatjust ad- dressed to that one week, as far as sou remember? A. I don't remember. c. The discharge Pursuant to the understanding of November 6, Frampton did not work on November 11 or 12. As he was leaving the store on Saturday evening, November 13.17 Peter reminded Frampton that he was scheduled for work the following Thursday and Friday and would be fired if he failed to appear, despite Frampton's protest that he could not work those dayss. Peter testified that "the reason" he insisted was that Department Manager Woods was on vacation. and Frampton had always been cooperative in the past in ad- justing his schedule to "help [Respondent] out." Frampton did not report for work on the 18th or 19th. but in the late afternoon of the 19th he telephoned Peter to ask if he was fired for not showing up. and Peter said he was and for that reason." Earlier that same day Respondent had sent the following registered letter. which Frampton received on the 20th: Dear Mr. Frampton: You are hereby suspended from work at the Keene IGA Meat Room per order of Peter Bellavance, in the absence of Ron Woods who is on vacation this week. You are being suspended for the following reasons: 1. Solicitation on the premises 2. Failure to follow schedule-not punching in and out on time. 3. Failure to show up for work on November 18. as scheduled. )5 He had clocked in that day at 6:5 1, and Peter told him he would he fired if he punched In early again i On examination bs company counsel. Peter changed this h) testifsing he "thlought]" he said that was one reason and that a letter had been sent out also. The letter had been drafted by Gerry after a discussion with Peter. G(erry testified, with corroboration from company records, that other employees had been discharged in the past for inability to work when needed. hut apparentl1 without the formality of letters of discharge. "But, in this case we felt a letter was in order. U nfortunately I dictated that letter: and my intent was, on that, to show that we were not strictly dismissing Mr. Frampton for one cause. There'd been a series of causes." While the "wording" of the letter was his, the "reasons" were Peter's. 4. Respondent's other alleged conduct a. Def'erral of improved working conditions. granted at Bellows Fall and Claremon, t On November 23, every employee at the Bellows Falls and Claremont stores was mailed the toollowing conmuni- cation: TO: All Employees Bellows Falls and Claremont IGA GOOD NEWS As a matter of information, we hare been working on this for nearly a sear now -some of(, ou hav e heard of it. PROFIT SHARINGi Who All Employees part time or full time betfore Januarx 1, 1977. When Now Mones When Based upon 1976 audit usuall. completed before March 15. 1977. 5(7 cost of living increase to all employees who have been at their max. this 'ear or who have i)ot received a pay' raise this year. Paid vacation for part time employees who work 40 or more weeks from Januarv to January uar. Prorated paid holida'ys for part time emploNees with over 6 months service. Continued repayment of accumulated sick pas. all hours over 160 hours for full time employees who are on payroll December 1 of each year-sick pay will not be considered as earned in the event an employee leaves before December I and therefore nothing due upon separation. A new grievance procedure. New pay scale based upon todays labor market in the Connecticut Vallex- no decrease but possible in- crease based upon facts. This is possible because of you-you who took P.S.E. tests and did much and are doing much to cor- rect past bad practices you who I am sure will con- tinue to give vour best effort so that together we can prosper. YOUR FRINGE BENEFITS AT PRESENT FOR FULL TIME EMPLOYEES: 1. Six paid holidays (New Years Memorial Day- Thanksgiving. July 4th. Labor [ay -Christmas) 8 hours sour rate of pay. 2. Accumulated sick pas' (ratio) 27 of hours worked, 1147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accumulated to 160 hours paid for all hours in ex- cess of 160 on December 1, by December 15. 3. Paid vacation-- I week lyear, 2 weeks-3 years, 3 weeks-- 10 years. 4. Major medical plan-dental included-income in- surance & life insurance-your cost $2.25- Family and $1.00 single per week. 5. 1 time regular pay for Sunday and Holiday Work. 6. Automatic raises based on hourly increments. 7. Workmen's Compensation Insurance (against on job related injuries.) 8. Unemployment insurance (protection against loss of income) 9. An honest time card system that pays you for all minutes worked on the job. 10. Coffee breaks with free coffee and cream. II11. Free laundry service. 12. Opportunity for advancement. Although the plans for such improvement in benefits, dis- cussed periodically in 1974 and 1975 by Gerry and Peter, had covered the Keene employees as well, they were ex- cluded from the November 23 grant because of the pen- dency of the supervening representation petitions filed by the Clerks and Meatcutters, Peter testifying that Respon- dent "understood we could not give them because of that" and that absent the organizational drive or petitions the employees at Keene would likewise have benefited.? b. Implied promises at Keene The Regional Director issued his direction of election on December 10.'8 The following paper, date December 22, was prepared by Gerry and intended for distribution at a meeting of the employees at Keene he called for December 27: TO: IGA Employees RE: Thoughts for Your Consideration Please consider some of the disadvantages that occur if you vote the union into control over your affairs here. Voting for a union is not like joining a club. It is a vote to have yourself controlled by a union. Before any union has any power to use against an employer the union must have power over the working people, must be able to keep them in line. The people must give up most of their individual rights and behave according to union rules. Union control is pretty must [sic] permanent control. It is like signing up to make monthly payments for the rest of your working life or as long as you work where there is union control. It is not something you can try out and then get out of easily. Those who plan to vote NO are not voting against unions or to defeat any union or that unions should be abolished. All the NO vote means is that you have decided to keep the union handy but to deny it control '? This conduct was the subject of the Clerks' initial charge, filed Decem- ber 3. IS The election was held January 13, 1977. over you in this particular company at this particular time. By voting NO you keep the union outside but it remains as handy to you as your telephone. Anytime you might want to pay the union and hire it to take control over you, you only have to call the organizer and they will be glad to take your money. Those who might think a union would be helpful should consider the advantages of keeping it just out- side the door waiting to come in. Don't you believe that this encourages management to do the right thing? The talk about the union has been useful. It has made us more aware of our mutual problems and it has helped us to see solutions and better ways to work together. There is every reason now to avoid voting the union into control while we all make efforts to find better ways to work together than the union way. In big monopoly type business where added costs can be more easily pushed onto the consumer, the union system seems to work pretty well as everyone pays higher and higher prices. This system actually tends to squeeze out little businesses like our own. It makes it hard for us to compete. Sometimes it even makes it hard for the big ones. One example of this is A&P. A&P is nearly totally unionized and is in the process of closing some 1,200 unprofitable locations, including a warehouse in Rhode Island with 100 employees and another in New- ark, N.J. with about 400 employees. According to newspapers over 15,000 employees are to be affected. The case proves beyond question that no union can provide job security. This can only occur when the em- ployer operates a successful business. You should understand that we would bargain in good faith with the union if a majority of the people here feel that they must hire this union and give it control over them right now. However, we would fight to the best of our ability to avoid further cost increases. We know of few if any businesses like ours which can increase labor costs more often than about once each year. We would try to discuss how much these labor costs should be increased in the future-not now. This would cause the union to urge you to go out on strike which would be extremely unpleasant for you. Our business would be hurt, but you would be the ones on strike. It might take us a while to build back the business and that will only make it more difficult for the employees to progress. It will be better for you to vote NO and keep your independence here at this particular time. Talk it over with the people you trust and respect and have known awhile. People have worked together in our business for many years without a strike or a need to hire and pay union leaders to run things for them. Those people could have gotten themselves a union anytime. You will always be able to get a union, but once in the union, you will find it next to impossible to ever get back your independence again. You haven't got any- thing to lose by voting NO and by trying to find other less painful ways to work together for progress here. Those who are the most antagonistic, unsually have 1148 GERRY'S I.G;.A. been antagonistic for a long time, often long before the union came here. Those people won't be happier with the union. They will find that after they have paid the union for twenty years, they will be just every bit as unhappy as they are now. We want to work with you, we don't want to fight with you. Try to make a wise vote. Try to give yourself and us the best chance to work together in harmony. If you have any question or comment or suggestions, please talk with me about it befbre the vote. He did not hand it out at that time, however. but instead placed about a dozen copies in the coffeebreak area "the first part of January" and before the election. c. Negotiabhili' of the PSE test At the December meeting convened by Gerry in the backroom of the Keene store on December 27'9 about 7 p.m., in the presence of some 20 employees. in which Gerry expressed his opposition to the Union, he spent about an hour on the subject of the PSE test, one of the main ques- tions raised by the employees. Gerry's testimony was that the union representatives had stressed that this would be the first issue taken up with Respondent, and he stated. reading from a prepared statement. "The management po- sition was that we felt this was a management tool: and that management we didn't feel that the PSE was any more negotiable than the locks on the doors. But, we felt that they would bring it up for discussion, which was their right and their prerogative." Employee Pitts. who was in attend- ance, testified that Gerry said that if a union was voted in, the PSE test would not be negotiable, "that everybody would definitely have to take it as far as he was concerned." Employee Forest testified that when she went to the courtesy counter on January 6. 1977, as usual, to pick up her paycheck. she was told she would have to get it from Gerry in the office upstairs and that as she got her check Gerry asked her if she had any questions about what was going on, and inter alia, she asked about the PSE test, evok- ing from him the statement that "he would not, under any circumstances. consider discussing giving it up." Gerry tes- tified that his reply to Forest was substantially' a repetition of what he had said at the December 27 meeting. d. Promise of/ free laundnr service In the same conversation on January 6. Forest also ques- tioned Gerry about the failure to provide free laundry ser- vice to all the full-time employees rather than limiting such benefit to employees of the produce, bakery-deli, and meat departments. Gerry replied that extending this benefit had been planned for some time but that the laundry providing the service under contract had failed in its commitments and Respondent was seeking ways to correct the problem so that the employees would get the service in the future. For- est acknowledged that Peter had promised the service "long before the union." 1I Bs which time the election date had already been set. e. Promise offull-time employment conditioned on unions' loss On January 12. the day before the election, according to Valerie Coates. who worked in the bakerD-deli area.2 0 Su- pervisor Kennette2' approached her on company time, say- ing he was a "salesman for Gerry" and that he would like to "get [her] feeling" about the impending election. and she complained that the Company had not kept the promise Kennette had made when he hired her to give her full-time work, and her testimony continued: A. And Mr. Kennette told me that he couldn't do anything at the present time, because of union negotia- tions. And I understood him to mean the upcoming election. He told me also that hopefully on the Monday after the election that I should be stated as full time, with the pay. Q. Did he say anything else with respect to when you could possibly become full time? A. Just as soon as the negotiations were over. Kennette did not testif'. f. Promise o/ new uniforms Coates testified further that the same day (and more than 24 hours before the election) both Peter and Gerry came to the bakery requesting the employees' support. that Ken- nette. who was also present, said he was trying to get new uniforms in the form of slacks for the girls who had been suffering from the cold while wearing dresses," and that Peter confirmed Kennette's statement. On cross-examina- tion, Coates testified that she could not remember which Bellavance had said this but "believe[d] it was Gerry." Ger- r' admitted that he said good morning to the bakery em- ployees that day and that he could not recall whether Coates was in the group, but denied ever having a meeting or discussion with Coates or being "involved in a meeting" at that time "in which she was a participant to the best of [his] memory" or saying anything about slacks on that day. Peter did not testify concerning this matter, and Dilworth gave no testimony. g. Hot-waterfaucets The answer admitted the allegations in the complaint that Gerry promised employees a hot-water faucet on Janu- ary 12 and had one installed on February 8. B. Concluding Findings 1. The no-solicitation rule Respondent's brief (p. 8) acknowledges "that the solicita- tion rule contained in paragraph 8(a) of the complaint is 20 She was no longer employed by Respondent at the time of the hearing. 21 He evidently supervised the bakery departments at all three stores. 1 C(oates had previously mentioned the problem to her Immediate supervi- sor, Bakers Manager l)iluorth, but some other employee mas have raised the matter on this occasion. In her earlier conversation with Dilworth, he gave no indication that he would try to resolve the matter 1149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presumptively or prima facie involved on its face as applied to union solicitation matters" but urges consideration of "the evidence relating to the employee's [sic] knowledge about the rule and the Employer's application of the rule in light of the Board's decision in Essex International, Inc.. 21 1 NLRB 749, and House ojfMosaics, Inc., 215 NLRB 704." First, Respondent errs in asserting that "There was no evidence whatsoever that any employee knew of the Rule . ." (br., p. 9). As appears supra, Peter testified not only that the entire policy manual is "available in the store for [the employees]" but that he encourages every new em- ployee to read those pages of the manual which he does not receive at the time of his hire. Moreover, Gerry testified that he had not only instructed the store manager to put the "complete" manuals on the bulletin board or in the coffee- break area but had seen to it "personally . . . that they were there ... for the employees to read." An employer who has taken such great pains to bring its restrictive rules to the attention of the employees does not escape the obvious and natural consequences of its efforts by asserting the employ- ees' lack of knowledge of those rules merely because the General Counsel may have presented no specific affirmative evidence of such knowledge. And the clear inference of such knowledge among the employees generally from the testimony mentioned above is no less valid just because Frampton personally may mot have seen more than the first three pages of the manual. Nor is there merit to Respondent's other contention of an absence of evidence that the rule "has ever been enforced in an improper manner" (ibid.). In the first place, Respondent relies in this connection on Frampton's testimony that he had been told by both Emma and Peter that "solicitation was not permitted on company time" (br., pp. 9 10), and equates "company time" with "working time," which was held presumptively lawful in Essex, supra. The Board, how- ever, has likened "company time" to "working hours," which Essex held presumptively unlawful (Florida Steel Corporation, 215 NLRb 97, 98 99 (1974), endf. in this re- spect 529 F.2d 1225 (C.A. 5, 1976)), and, according to Frampton, Peter himself proscribed "working hours" for union solicitation on October 30. It is true that Frampton went on to admit at one point that his supervisors distinguished "between while [he was] actually at [his] meat case, or back in the meat room" and "when [he was] on coffee break, or rest break," saying that "what [he] did on [his] own time was [his] business." On the other hand, he also appeared sufficiently confused to testify that he understood his superiors to mean that solicitation was banned "from the time [he] punched in to the time [he] punched out." This confusion was understandable. Peter's own testimony was that he told Frampton simply that "there would be no solicitation on the premises" and that there was a company rule to that effect, and indeed that was precisely the rule." Peter further testified that he also reminded the department managers of the written rule im- mediately upon hearing of the organizing drive, and al- though he said he told them that there would be no solicita- tion "on company time," i.e., "when it was actually interfering with their work," he himself enforced the rule 21 As stated above, MacKenzie testified that Peter had told him he did not want union activity "going on in the store." the previous June just because the rule banned solicitation "in the store." Moreover, the culminating action in the dis- charge letter to Frampton was in the language of the overly broad written rule. "Solicitation on Premises." In the face of this, the rule at best could only have been ambiguous, even to Frampton. And ambiguities in this area must be resolved "against the promulgator of the rule rather than against the employees who are supposed to abide by it." V. L. R. B. v. Harold Miller. d/b/a Miller Charles & Co. 341 F .2d 870 (C.A. 2, 1965); Foasco Industries v. ,.L.R.B., 412 F.2d 589, 590 591 (C.A. 4, 1969); Jas. H. Matthews & Co. v. N.L.R.B. 354 F.2d 432. 441 (C.A. 8, 1965); cert. denied 384 U.S. 1002 (1966): Florida Steel Corp. v. N.L.R.B., 529 F.2d 1225, 1231 (C.A. 5, 1976). As for other employees familiar with the written rule or likely to have seen or learned of the letter and who had not had the benefit of any narrowing commentary from above, the rule was unambiguously defective as a total ban on solicitation on company property. Assuming such a defect were curable at all,"4 it could only be so through at least the kind of showing needed to save an ambiguous rule that is presumptively invalid, i.e., by evidence that the rule "was communicated or applied in such a way as to convey an intent clearly to permit solicitation" at such times and places as the law requires. Essex International, Inc., 211 NLRB 749, 750 (1974). And, as Board Member Penello 2' has repeatedly pointed out, "the clarification ... must come from the employer alone, either by a written or an oral explanation to all employees." Fssex, at 751-752; see also McBride's of Naylor Road, 229 NLRB 795 at fn. 8 (1977); St. Peter's M edical Center, 223 NLRB 1022, fn. 3 (1976); Grahanm Ford, Inc., 218 NLRB 980, fn. 1 (1975). As indi- cated supra, there is no evidence whatever of such commu- nication here to the employees at large.2 1 Respondent further contends (br. at 9) that the rule should be considered in light of the greater latitude enjoyed by retail establishments to bar solicitation in selling areas. The difficult, with this contention is that the rule is not limited to selling areas. Cf. Albert's, Inc., 213 NLRB 686 (1974), enfd. 543 F.2d 417 (C.A.D.C., 1976), cert. denied 430 U.S. 930. And this is true not only of the rule on its face but also of its enforcement insofar as union matters are 24 But for House of Mosairs, Inc'.. 215 NLRB 704 l 1974). I should find a per se violation, since I see nothing to clarify. There is no issue here as to whether the admittedly overly broad rule applies to unions Nor is there an issue whether, though applicable to unions, the rule is justified by special circumstances. Nor is there an issue as to the meaning of ambiguous lan- guage. The sole issue is whether a rule unambiguously facially invalid and admittedly applicable to unions, and not justified by special circumstances, means what it plainly says or, put another way, whether extnnsic evidence may be used to make white black. A newly hired employee, at least, who has not yet enjoyed the opportunity of exposure to the Employer's coloring ef- tbrts, must necessarily be inhibited in the exercise of his statutorily guaran- teed nght immediately upon learning of the written rule. Yet the conse- quence of failing to find a violation is the continued existence of the inhibiting wntten rule. There can be no justification for such a result, If the rule does not mean what it clearly says, it should be rescinded rather than remain the source of an unwarranted restraint fbr however brief a period. 25 The third member of the majority in Esse.x, the other two of whom constituted the majority in House of Mosiacs, Inc. supra. See Allis Chalmers Corporation, 224 NLRB 1199, fn. 2 (1976). 26 Of course the rule is not sasved by the reservation for respondent's "per- mission." Fasro Industries. Inc. v. N.L.R.B., vupra at 591, Esser, supra, John H Swisher & Son, Inc., 211 NLRB 777. 779 11974): Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB 870 (1974). 1150 GERRY'S I.G.A. concerned. I do not credit any testimony of Peter's urged as indicating the contrary. Instead, I credit MacKenzie that solicitation for nonunion purposes was allowed even in sell- ing areas, while Peter issued orders against union activity "in the store": and I credit Frampton and McElroy that talking among employees (which Peter distinguished from solicitation) was regularly permitted anywhere in the store on any subject but unions or one suspected to concern unions. ThI us. the rule was also violative of the Act because of the disparate treatment accorded union matters in its enforcement. E.g., Mit.suhishi Airerali Internarional. Inc.. 212 NLRB 856. 863-865 (1974). 2. MacKenzie's demotion After some 4 years on the job. MacKenzie was replaced as assistant store manager and assigned to a nonsupervisory position in the freight department within the week follow- ing Frampton's initial solicitation activity. immediately af- ter which he had received a dressing-down from Peter for allowing such activity to be carried out "in the store." Obvi- ously, this timing suggests a connection between the demo- tion and Respondent's expressed dissatisfaction with Mac- Kenzie's failure to enforce the invalid no-solicitation rule: and if such motive were established, the demotion would constitute a violation of Section 8(a)( 1). since an employer's enlistment of a supervisor in its unfair labor practices as the price for retaining his job unlawfully coerces the statutory employees in the exercise of their Section 7 rights. KAtey l'eist Coca Cola Bottling ('onpatl!v, 140 Nl.RB 1359, 1360-1361 (1963): see also lFirvieu .Nursing lomnc, 202 NLRB 318, fn. 2 (1973): Donelson Packing Co., Inc.. 220 NLRB 1043 (1975). While Respondent's brief contends that it was oth- erwise motivated, setting out six "problems" it had with MacKenzie, "all" of which "arose before any possible knowledge of union activity was known to the Employer" (p. 7), Peter acknowledged that "part of' the motivation for his decision was MacKenzie's failure to enforce the no-so- licitation rule. Even crediting Respondent's testimony that other motives entered into the determination. such partial motivation suffices to establish the violation. Don Lucas In- ternational, Inc., d/bl/a San Joset Bavarian Motors, 229 NLRB 127, 128 (1977). cf. N.L.R.B. v. tWi7tin fMachine Works. 204 F.2d 883, 885 (C.A. 1). I find, moreover, that the other alleged motives did not enter into Respondent's calculations at all but simply pro- vided a screen to cover its true motive. MacKenzie's testi- mony stands undenied that only' a week before being found unfit to remain a supervisor at Keene he had been offered a similar slot either at Keene or somewhere else in the organi- zation. Thus, to the extent that any other reasons may in fact have existed for dissatisfaction with MacKenzie, they were not deemed serious enough to warrant demotion until he failed to join in Respondent's illegal assault on union activity. Indeed, the internal contradictions in Respondent's own testimony belie the very existence of at least some of the alleged reasons. For example, after testifying that he "personally" had called MacKenzie's attention on more than one occasion to a lack of leadership on his part. Gerry testified that his criticism of MacKenzie which he made directly to the latter had been confined to his mishandling the check-cashing policy, and he specificall 3 denied saying anything to MacKenzie about his lack of leadership. Also. Gerry's testimony to "many" customer complaints about MacKenzie conflicted with Peter's "couple" of such com- plaints. Moreover, withholding MacKenzie's discretion as to cashing checks could alone have brought on the cus- tomer complaints, the nature of which does not appear ex- cept the single instance Mackenzie testified to aind the one alleged incident of rudeness that MacKenzie denied. Fi- nally, while Gerry's testimons indicates that Emma's re- placement of MacKenzie had been planned for several weeks and its consummation delasyed just in order to give Emma an opportunity to decide if he wanted the job, Emma, whom I credit. testified that the first he had learned of the job was only 4 5 days before his first das on it. Emma was thus offered the job only after MacKenzie's rep- rimand for not enforcing the no-solicitation rule. 3. Discrimination against Frampton I have already found that one aspect of the illegalit 3 of the no-solicitation rule consisted of' Frampton's discharge for violating it simply by "solicitation on the premises." UInder Board law, "if an employee is discharged for solicit- ing in violation of an unlawful rule, the discharge also is unlawful unless the employer can establish that the solicita- tion interfered with the employee's own work or that of other employees and that this rather than violation of the rule was the reason for the discharge." Dayvlin,. Inc.. d/h/a .il/rer' Disvcouli Dept. .Stores. 198 NLRB 281 (1972). It is impossible. of course. for the employer so to establish when interference with work is not the reason given in the dis- charge letter and the discharge letter instead is in the literal language of the overly broad rule. Cf. Groendi kc Tranvsorlt, Inc.. 211 Nl RB 92 1.922 (1974), enfd. 530 F.2d 137 (C. A. 8. 1976): George Washington U'niversit Hospital., 227 NI.RB 1362. 1375 (1977), enfd. in this respect 580 F.2d 701. (C.A.D.C., 1978). Moreover. the alleged existence of other reasons, with which this was conjoined in the discharge let- ter. would not save the discharge from constituting a viola- tion of Section 8(a)(3) of the Act. Dotn Luca.i International. Inc., vupra, especially in light of the contrived nature of such reasons. Cf. N.L.R.B.v. ' Machitin ,itchine Il',r/A', 204 F.2d 883, 885 (C.A. 1). I credit Frampton's uncontradicted testimony that he ful- ly explained to Woods in July or August why he wanted to switch from working Thursdays and Fridays. I also deem it a fair inference that Woods acquainted Peter with Framp- ton's reason2' and hence that Peter was quite familiar not only with the importance of the matter to Frampton but also with the fact that Frampton's needs transcended the single week's grace Respondent says Frampton requested on November 6. And I credit Frampton that he did not limit his protest on that occasion to that week, as against his firm testimony, supported by the logic of the case. was the uncertainty with which both Peter and Etheridge concluded their testimony on the subject. The question then arises whether Peter would have in- sisted on effecting the change in hours but for Frampton's 2' Peter admitted knowing at least that the SaturdaN-Sundas schedule was "more conenent" ihr F:rampton. 1151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD known activity as leader of the organizational drive, and I find that he would not, this being one phase in the entire pattern of conduct, including Frampton's subsequent dis- charge, aimed at defeating that movement. Essential to the framework of Respondent's defense in this respect is its contention that the change was necessary to guarantee Frampton's observance of the alleged ban on clocking in more than 5 minutes before the start of work. To begin with, although there seems to have been some concern on Respondent's part to avoid having to pay wages under New Hamsphire law for time not worked, Respon- dent's written rules do not advert to the specific point. In- deed the only reference in the policy manual to 5 minutes is that contained in the rule relied on by the General Counsel, requiring employees to report to work 5 15 minutes prior to the start of their shift. While Respondent claims a distinc- tion between reporting time and punch-in time, Emma was somewhat vague about it, and the employees generally were aware of no prohibition against punching in more than 5 minutes before they started work but only that they would not be paid for such time. The testimony of Gerry himself. quoted supra, only adds to the confusion. In any event, as Peter admitted, he had never before fired anyone for punching in early. Moreover, his testimony that no warning or other discipline had been necessary in the past because the culprits corrected their behavior after it was called to their attention does not fit his testimony that the bakery manager punched in more than 15 minutes early "a lot of times." Assuming the existence of a proscriptive rule in this respect, however, Frampton also shared in the laxity of its enforcement prior to his union activity. I do not credit Peter that he had cautioned Frampton about this the previous February when Frampton's starting time was ad- vanced 15 minutes, and I draw the usual adverse inference from Respondent's failure to call Meat Manager Woods, who was present on that occasion, to corroborate this.28 Furthermore, Peter's testimony that Frampton had there- after refrained from punching in early until October 30 was in clear conflict with Frampton's timecards in evidence, all of which Peter himself had seen and initialed. Finally, the reason advanced by Peter for changing Frampton's sched- ule, i.e., so that either Peter or Assistant Manager DeCoff would be there to ensure Frampton's adherence to his schedule, does not stand up in the face of Frampton's un- contradicted testimony that neither Peter nor DeCoff was present on Saturdays when he was supposed to punch in. All of the facts inexorably point to a classic case of' con- duct either approved or condoned in an employee just until he commences to engage in union activity opposed by the employer. The subsequent punishment for the same type of conduct, particularly in the midst of other violations of the Act, constituted prohibited discrimination within the mean- ing of Section 8(a)(3). 4. Withholding of benefits Peter admitted that only the pendency of the election prevented the Keene employees from sharing in the No- vember 23 grant of preplanned benefits to the employees at i' See Whiirn Machine Works, 100 NLRB 279, 285 (1952), enfd. 204 F.2d 883 (C.A. 1, 1953); Calip Dairies. Inc. 204 NLRB 257. 263. fn. 21 (1973). Claremont and Bellows Falls. The General Counsel urges this as a per se violation of Section 8(a)(3). There is no per se violation in this area of the law. "each case turnling] on its own particular facts and circumstances." Pacific South- west Airlines, 201 NLRB 647 (1973). There are certain con- trolling principles, however. (Generally, during an organiza- tional campaign, an employer must act as he would it no union were involved, so that either bestowing or withhold- ing benefits just because of the union's presence violates the Act. Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29, fn. I (1967): McCormick Longmeadow Stone Co., 158 NLRB 1237, 1242 (1966). Thus, the mere effectuation, during the pendency of a representation petition, of a decision to grant benefits made prior to the union's appearance does not vio- late the Act. Hughes & Hatcher. Inc,h v. N.,l.R.B.. 393 F.2d 557. 564 565 (C.A. 6, 1968); International Union 0/ Electri- cal, Radio and Machine UWorkers /SNC MIfg. Co.] v. N.L.R.B., 434 F.2d 473. 476 477 (C.A.D.C.. 1970). By the same token, the failure to effectuate such a determination does violate the Act unlessjustified by a good-faith showing that the employer was motivated by purely business consid- erations untainted by a purpose to discourage union sup- port. GA F Corporation v. N. L. R. B.. 488 F.2d 306. 309 (C.A. 2, 1973): Otis Hospital. 222 NLRB 402. enfd. 545 F.2d 252 (C.A. I, 1976): Pacific Southwe'st Airine.s, supra. Shifting the burden to the employer in this context merely conforms to the general requirement w here an employer is shown to have "engaged in discriminatory conduct which could have adversely affected employee rights to some extent." N.L.R.B v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).29 Respondent acknowledges this, contending, how- ever (br. at 12), that it carned its burden by showing that the benefits in question were granted in the normal course of business and withheld at Keene only because it "had no choice" and that there is no evidence that the Keene em- ployees knew of the grant. I disagree. This is not a case like Great Atlantic & Pacific Tea Co., 192 NLRB 645 (1971), where the employer has simply with- held a benefit not promised and with no past practice to give it or evidence that it sought to capitalize on the ab- sence of the benefit by connecting it with the union. This case is more like N.L.R.B. v. Agawarm nFood Mart, Inc., 86 F.2d 192 (C.A. 1. 1967). and N.L.R.B. v. Otis Hospital, 545 F.2d 252 (C.A. 1. 1976). Here, despite the absence of any definitive formulation of the benefits, it is clear that all three stores were to get them when any did. And while there was no public announcement to the Keene employees, there was such announcement to the employees of the other two stores which, by virtue of being addressed "TO: All Employees-Bellows Falls and Claremont IGC,"30 "clearly indicat[ed] that those employees who were represented, or sought to be represented, by the union were disadvantaged thereby." Agawam, supra. Since the letters were addressed to each individual employee, there was no need to specify his location or to indicate the one other location receiving 12 If "the danger inherent in iwell-timed increases in benefits is the sugges- tion of a fist inside the velvet glove" (, L.R.B. v. Exchange Parts Co.. 375 U.S. 405, 409 (1964)), the danger inherent in a well-timed withholding of benefits is the realit) of the bare first ° Repeated at the top of the second page was "Bellows Falls and Clare- mont Employees." 1152 made "long before the union." that had been unfulfilled only because of considerations entirely unrelated to union organization, and Gerry's statement in substance amounted to nothing more than an assurance to continue his past efforts to remedy the situation. I do find, however. that Respondent violated Section 8(a)(I) by new promises of benefits the day before the elec- tion. Thus. while Kennette's statements to Coates on January 12 in respect to full-time employment also concerned a prior promise, Kennette (unlike Gerrv on January 6) did not respond by merely assuring her that he would continue to try to fulfill the promise. Rather, he said he could not do anything about it at the time but that "hopefully" she would start full time on the Monday after the election. Since he had earlier promised her full-time work, however. there was no legal obstacle to carrying out that promise. despite the imminent election. By deferring its execution to the following Monday, Kennette was in effect telling Coates that he would be free to fulfill his word when the Unions no longer were in position to interfere, i.e., after then had been defeated in the election." In this contexture. moreover. by providing no explanation for his failure to have honored his promise prior to the union activity, he was not only demon- strating that the emplosees "would not need a union to obtain redress of their grievances" ( House ofM.losaics, Inc., 215 NLRB 704 (1974)) but also reminding them that "the employer is the ultimate source of all benefits ... and fur- ther remindlingl them of the necessity for not incurring the displeasure of the dispenser of such benefits. N.L R.B. v. Ft.lichange Parts Co., 375 lU.S. 405." (Tomrv's Spanish Foods, supra.) Similarly with Gerry's admitted promise of a hot-water faucet absent assurance that it did not depend on the out- come of the election and the subsequent fulfillment of the promise while the objections to the election were pending. Ibid. But I do not find the noncommittal statement of Ken- nette that he was "trying" to get new uniforms attained the stature of a promise rather than a kind of generalization. normally protected by Section 8(c). that the employees would have good working conditions even without a union. Finally. I conclude that Respondent violated Section 8(a)(1) by Gerry's statement regarding negotiability of the PSE test. First came his admitted statement on December 27 that the PSE test was "[no] more negotiable than the locks on the doors." Even if; as Gerry testified, he added that the Unions had a right to raise the subject for discus- sion, any discussion had on it could only be pointless, be- cause the clear import of the entire context was that just as Respondent could never be persuaded to forgo the locks on the doors it would never agree to give up the test. Such a position in respect to a mandatory subject of bargaining "tends to convey to employees a sense of futility about the value of prospective collective bargaining and, in conse- quence. improperly restrains their freedom of choice in re- gard to collective representation," especially in light of the '3 This rationale may assume some expertise on the part of Kennette, but I do not deem it unfair He was in the process, at the time. of accompanying Gerrs and Peter in a last-minute search fior antiunrion votes. and he did not halve to break unfamiliar ground the benefits and thus making clear that the omission was that of the single location at which organizing activity was going on. 3' Not only was this message directly brought home to the recipients of the benefits. but from the proxim- ity of the stores'2 and their common ownership and control it could fairly be expected at least that delivery personnel would communicate the information to the Keene employ- ees, and the fact is, of course, that thev did learn of it at least by December 3, when it became the subject of the Clerks' initial charge herein. Yet even after Respondent thus became aware that the Keene employees knew of their failure to receive the benefits given the other employees, it never attempted to assure them that they would get the benefits after the election and regardless of its outcome. See Grede Foundries. Inc., 205 Nl RB 39, 42, fn. 12 (1973). Moreover, no reason appears for bestowing the benefits at Claremont and Bellows Falls at that particular time. De- spite Respondent's argument that "the benefits in question were discussed from time to time in 1974 and 1975" (br. at 12), there was no evidence that any of the employees had ever been informed of the plans or had other reasons to anticipate the benefits or that the plans had ever crystal- lized in any way, especially as to timing. Indeed, as the contention acknowledges. and as Peter testified, his last conversation with Gerry about the benefits had occurred prior to his becoming manager at Keene, i.e., almost a year before the public announcement. Thus, there is a complete absence of evidence of any reason why. after having hung so long in limbo, they should suddenly emerge in the midst of the organizing campaign and the upcoming election. ('f. Gold Circlc Departmenr Stores, 207 NLRB 1005 (1973). Again, as in 4.gawrram, "that this was not mere thoughtless- ness on respondent's part is evidenced by its subsequent conduct" as well as its prior conduct. It was just one part of an overall pattern to interfere in the campaign and dis- courage union membership or support in violation of Sec- tion 8(a)( 1) and (3)." 5. The additional allegations The General Counsel's argument for a violation in Re- spondent's memorandum of December 22 is confined to its fifth paragraph. It is urged that this constituted an implied promise of benefits if the Unions lost the election. The short answer is that the challenged language merely stated in ef- fect that the employees would be at least as well off without a union as with one. If an employer were not free to express such an opinion, the guarantee in Section 8(c) would be meaningless.) Nor do I find a violation in Gerry's statements to Forest on January 6 concerning the improvement of the laundry service. This was a standing promise, admittedly originally 11 It is noted, by way of contrast. that Respondent's memorandum of' De- cember 22 to the Keene employees nowhere mentioned Keene hut was ad- dressed oInly "TO: It(A FMPI.OYE''S." I: Keene is some 38 miles from C laremont and less than half that distance from Bellows Falls " Contrary to the implication in Respondent's brief Peter did not testifs to Respondent's having been advised by legal counsel to follow this course But heeding such advice would not have avoided a violation in any event Ortis Hospital. 222 Nl.RB 402. 404 (1976), enfd 545 F.2d 252 ((A 1. 1976) 34 Cfi Trrnl 's Spanish Fbod. 187 Nl.RB 235. 236h t1970), especially last paragraph (;ERRY'S I.(;.A I 1153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other violations herein. Tommy's Spanish Foods. 187 NLRB 235, point 1. I question, moreover, whether Gerry did in fact say on December 27 that the Unions could raise the matter for discussion. In the first place, it may safely be inferred that the prepared statement from which he read said no such thing, for it would otherwise have been pro- duced as evidence. Secondly, I found Gerry generally unim- pressive on the witness stand. On the other hand, Forest credibly testified that in the same conversation on January 6 in which she had discussed free laundry service with Ger- ry he had stated that "he would not, under any circum- stances, consider discussing giving [the PSE test] up." This statement, quite consonant with his admitted analogy to the locks on the doors, belies his asserted addition on Decem- ber 27.16 The Election Objections On the basis of the unfair labor practices found that pre- ceded the election herein, I recommend that the election be set aside and a new election held. CON(CI.USIONS oi LAW' I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Clerks and the Meatcutters are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by interfering with, restraining, and coercing its employees in the exercise of their union activities as found above. 4. Respondent has violated Section 8(a)(3) of the Act by changing David Frampton's hours on November 6 and dis- charging him on November 19 and by withholding from the Keene employees until after the election the benefits granted to the Claremont and Bellows Falls employees on November 23, 1976. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not violate the Act except as specifi- cally found above. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist therefrom and, in view of their serious na- ture and variety, to cease and desist from infringing upon the Section 7 rights of its employees in any other manner, and to post the usual notices. Moreover, in order to effectu- ate the policies of the Act, my recommended Order will require Respondent to grant forthwith to all employees at its Keene store the benefits instituted at its Claremont and Bellows Falls stores on November 23, 1976, and not yet granted at Keene; to reimburse all employees at its Keene store, including those terminated since November 23, 1976, for all losses suffered as a result of the withholding of such benefits by paying each of them a sum of money equal to 36 Such an adamant attitude in respect to this subject is particularly note- worthy in view of the increasingly heavy criticism of the uses of polygraph lie detector devices for testing employees and the almost universal rejection of such test results as unreliable. that which he would have earned since November 23 but for the failure to grant such benefits on that date, together with interest thereon to be computed in the manner pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977); and to offer David Frampton and Robert MacKenzie full reinstatement with backpay. In accordance with customary requirements, reinstatement shall be to their former jobs, or, if those jobs no longer exist. to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and in Frampton's case to his regular hours of work prior to the change on November 6, 1976. They shall be made whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he would have earned from the date of discrimina- tion against him to the date of a valid offer of reinstate- ment, but in Frampton's case less net earnings during such period, and interest thereon, to be computed in the manner prescribed in F. W. Woolworth CompanL, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977)?'7 Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER3" The Respondent, Gerry's Cash Market, Inc., d/b/a Gerry's I.G.A., Claremont, New Hampshire, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, changing the working conditions of, or otherwise discriminating against any employee because of his union or other protected concerted activity. (b) Demoting, changing the working conditions of, or otherwise discriminating against any supervisor because of his failure or refusal to engage in the commission of an unfair labor practice. (c) Delaying or withholding or threatening to delay or withhold any benefit from its employees to interfere in a union campaign or discourage support for union activity. (d) Promising or granting any benefits to its employees to interfere in a union campaign or discourage support for union activity. (e) Promulgating, maintaining, or enforcing any rule or regulation prohibiting its employees from engaging in union solicitation during their nonwork time in nonselling areas of the store. (f) Anticipating refusing to bargain about requiring em- ployees to take a psychological stress test or about any other mandatory subject of collective bargaining. (g) In any other manner interfering with, restraining, or coercing any of its employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. )7See, generally, Isis Plumbhing & Heating Co., 138 NLRB 716 (1962). is 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 therto shall be deemed waived for all purposes. 1154 GERRY'S I.G.A. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer David Frampton and Robert Mackenzie full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs. without prejudice to seniority or other rights and privileges, and in Frampton's case to his regular hours of work prior to November 6, 1976, and make them whole for any loss of pay suffered by reason of the discrimination against them in the manner set forth in the section of this decision entitled "Remedy." (b) Make whole all employees at its Keene store for all loss of benefits suffered as a result of the withholding on November 23, 1976, of the benefits instituted that date at its Claremont and Bellows Falls stores in the manner set forth in the section of this decision entitled "Remedy" and grant forthwith to all employees at its Keene store any benefits instituted at the Claremont and Bellows Falls stores on said date and not yet granted at Keene. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records, timecards, personnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay and other benefits due hereunder. (d) Post at its stores at Keene and Claremont, New Hampshire, and at Bellows Falls. Vermont, copies of the attached notice marked "Appendix."' Copies of said no- tice. on forms provided by the Regional Director of Region 1. after being duly signed by an authorized representative of Respondent. shall be posted by Respondent immediatelt upon receipt thereof. and be maintained by it for 60 days thereafter. in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced. or covered by any other mate- rial. (e) Notift' the Regional Director, in writing. within 20 days of this Order. what steps Respondent has taken to comply herewith. IT IS FURrHiER ORDFREI) that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 11 Is FURIHER ORDERED that the election held at Keene on January 13. 1977. in Cases 1 RC-14786 and 14827 be. and the same hereby is, set aside and that a new election be held at a time to be fixed by the Regional Director of Re- gion 1. '9 In the event that this 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 Judg- ment of the United States Court of Appeals Enforcing an Order orf the Na- tional Labor Relations Board." 1155 Copy with citationCopy as parenthetical citation