272 N.L.R.B. 1389 (N.L.R.B. 1984)

Gray Drugs, Inc

National Labor Relations Board - Board DecisionsNov 30, 1984

272 N.L.R.B. 1389 (N.L.R.B. 1984)

GRAY DRUGS 1389 Gray Drugs, Inc and Retail Store Employees Union, Local 880, Chartered by the United Food and Commercial Workers International Union, AFL-CIO-CLC Case 8-CA-16576 30 November 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND ZIMMERMAN On 21 September 1983 Administrative Law Judge John H West issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings, findings and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent violated Section 8(a)(1) of the Act by telling an employee who had expressed an intent to consult with the Union that another employee was on her way out because she had called the Union Based on the credited evidence in this case we disagree with the judge s analysis and conclusion As stated in the judge s decision, the Respond ent, a retail drugstore, and the Union have a collec tive bargaining relationship dating back over 40 years At all times relevant to the events of this case a collective bargaining agreement was in effect There is no evidence of animus against the Union by the Respondent or other disharmony in their relationship On 27 January 1983 1 employee Francis Zlokas filed a grievance with the Union over disciplinary action taken against her for tardiness and absentee ism The Union received the grievance on 31 Janu ary On that date union business representative Larry Stephens called the drugstore manager James Wallace to discuss the matter On 3 Febru ary employee Laura Conetsco and Wallace had a discussion about work scheduling Conetsco be lieved that schedules were not following the system set forth in the contract concerning seniori ty and shift preference While looking at the most recent schedule Wallace explained how he had de vised the schedule and why certain employees were assigned to particular shifts Conetsco did not accept Wallace s explanation and said that she would have to call someone and check on his ' All dates herein refer to 1983 reasoning According to credited testimony Wal lace then pointed to Zlokas name on the schedule and commented that she called the Union and she is on her way out Conetsco asked, you mean if I call the Union I m on my way out ? Wallace im mediately replied either that is not what I said or I didn t say that or that is not what I meant 2 Thereafter the discussion turned to a perceived problem with Conetsco s attitude, as evidenced most recently in a verbal exchange between her and the pharmacist Conetsco did not receive any further reprimand or verbal admonishment regard ing her attitude or her statement to Wallace and she did not file a grievance over the incident About a month later however Conetsco saw Ste phens in the store and related the 3 February inci dent to him The charge in this case was filed shortly thereafter The judge concluded that Wallace s statements to Conetsco regarding Zlokas being on her way out interfered with Conetsco s right to seek repre st.ntation from her bargaining agent and would tend to inhibit her from exercising Section 7 rights He found that Wallace did not effectively repudiate his statement because it was not sufficiently clear or specific to dissipate the effects of the unlawful conduct We disagree The facts of this case present an isolated offhand remark to one employee which was immediately retracted No followup action was taken against either the employee about whom the remark was made or against Conetsco Conetsco did not take any action i e, report the matter to the Union, until she happened to encounter the business repre sentative while he was visiting the store Such con duct is not that of an employer intent on retaliating against employees or attempting to coerce them Nor is Conetsco s delay in reporting the matter to her union representative indicative of an employee who felt the need to seek protection from possible retribution by her employer Had Conetsco not happened to see Stephens during his store visit it may have been that she would never have pursued the matter at all and the matter would have ended on 3 February We believe that that is where the matter appropriately should have ended On the basis of the entire record and the credited testimony we find that Wallace s statement to Con etsco was not coercive and therefore not violative of Section 8(a)(1) However, even if Wallace s statement was viewed in itself as unlawful he im mediately disavowed it Unlike the judge we find 2 The judge relied on the testimony of Conetsco and of pharmacist Kozik who overheard the conversation in determining what was said by Wallace 272 NLRB No 215 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Wallace s repudiation of his initial statement comports with the requirements of Passavant Me mortal Area Hospitala in that the retraction was timely was announced to the only individual who heard it was delivered in a context free of other unfair labor practices, and was clearly directed to the original comment and to the employee s ques tion about the intent of that comment Accordingly we dismiss the complaint in its entirety 4 ORDER It is ordered that the complaint in this case be dismissed in its entirety MEMBER ZIMMERMAN dissenting For the reasons fully stated in the judge s deci sion I would find that the Respondent s manager, James Wallace violated Section 8(a)(1) of the Act by threatening employee Laura Conetsco with dis charge if she contacted the Union about a work scheduling problem After Wallace clearly indicat ed that Conetsco could suffer the same fate of an other employee who called the Union and was on her way out Conetsco asked, you mean if I call the Union I m on the way out Wallace re plied either that is not what I said or I didn't say that or that is not what I meant He did not however, identify what he had said or specify what he had meant Furthermore he did not reas sure Conetsco in any way about her statutorily protected right to contact the Union Instead Wal lace raised further doubts about Conetsco s job by turning to a discussion of a problem with her atti tude ' Unlike my colleagues I would find that Wal lace s statement was a clearcut 8(a)(1) threat of job loss Their contrary view is based entirely on events subsequent to the conduct at issue These events are of no significance in determining wheth er Wallace s statement when it was made would reasonably tend to coerce an employee in the exer cise of Section 7 rights It is meaningless that Wal lace did not subsequently take adverse action against Conetsco or the other employee mentioned A truly effective threat precludes the need for any 3 237 NLRB 138 (1978) 4 Chairman Dotson finds it unfortunate that the parties despite a 40 year bargaining relationship found it necessary to resort to Board proc esses to resolve this relatively minor dispute It is his belief that if parties particularly those with long established bargaining histories would make efforts to reason through their differences on an amicable basis the true purposes and policies of the Act would be achieved Unions employers individuals Regional Directors and the General Counsel have an obliga tion not to treat the Board s processes and the administration of the Act as a game It is not in the public interest to bring out a cannon to swat a fly Frivolous tactical or vindictive invocation of the Board s processes diverts the Board s resources from substantial cases with potentially meaningful remedies compounds the backlog of cases and delays the res olution of serious violations such followup action It is equally meaningless that Conetsco did not ever file a grievance and did not report Wallace s threat to a union official until a month later She could have had many different reasons including fear of reprisal by Wallace for her actions In any event her subjective impression of Wallace s remark is legally irrelevant to the ob jective measure of whether they were threatening and violative of the Act I also disagree with my colleagues opinion that Wallace immediately and effectively disavowed his threatening statement None of the testimonial var iants of Wallace s response to Conetsco s direct in quiry about the implications of his on the way out comment clearly disclaim an expressed intent to retaliate against employees contacting their Union Wallace s putative disclaimer was made even more ambiguous by his subsequent discussion of Conetsco s attitude Finally Wallace did not sat isfy the Board s traditional requirement that an ef fective repudiation or disavowal of coercive con duct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights For the foregoing reasons I would find the al leged 8(a)(1) violation I would also follow the Board s traditional remedial course, including re quiring the Respondent to post a notice to employ ees because Wallace failed effectively to disclaim a threat, and that threat of job loss was of such gray ity as to exceed its being construed as an isolated de minima violation which would not necessitate a Board remedy ' Passavant Memorial Area Hospital 237 NLRB 138 138-139 (1978) The majority opinion omits reference to this requirement in its discussion of the Passavant criteria DECISION STATEMENT OF THE CASE JOHN H WEST Administrative Law Judge On a charge filed on March 10 1983 1 by Retail Store Em ployees Union Local 880 Chartered by the United Food and Commercial Workers International Union AFL- CIO-CLC (the Union) a complaint was issued April 21 alleging that Gray Drugs Inc (Respondent) through its Store Manager James Wallace violated Section 8(a)(1) of the National Labor Relations Act (the Act) by telling an employee Laura Conetsco that another employee Francis Zlokas had consulted or relied on the Union and was on her way to being discharged 2 Respondent denies the allegations I All dates refer to 1983 unless otherwise indicated 2 Respondent s assertion in its answer to the complaint that while Wallace manages one of its drug stores it lacks sufficient information to Continued GRAY DRUGS 1391 A hearing was held in Cleveland Ohio on June 3 On the entire record in this case including my observation of the demeanor of the witnesses and consideration of the briefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT I JURISDICTION Respondent an Ohio 'corporation with its principal office in Cleveland is engaged in the retail sales of drugs and sundries from various retail locations throughout the greater Cleveland area The complaint alleges Respond ent admits and I find that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act In answer to the complaint allegation that the Union is a labor organization within the meaning of Sec tion 2(5) of the Act Respondent states that it lacks suf ficient information to form a belief as to the truth or fal sity of the allegations Respondent and the Union have had a bargaining relationship for over 40 years Their most current agreement is effective from April 5 1981 to April 7 1984 (G C Exh 2) The Union is a labor or ganization within the meaning of the involved section of the Act II THE ALLEGED UNFAIR LABOR PRACTICE Before the alleged violation occurred Zlokas who worked at the Strongsville Store and who was having problems regarding her attendance and tardiness filed a grievance over disciplinary action taken against her by Respondent The grievance is dated January 27 and has a receipt by Local 880 stamped date of January 31 (G C Exh 3) On January 31 the Union s business representa tive Larry Stephens telephoned Wallace who managed the Strongsville store and discussed the Zlokas griev ance Wallace s testimony that he did not recall having this conversation is not credited He was not a credible witness The file that Stephens maintains on this griev ance contains a note corroborating his testimony that he called Wallace and discussed the Zlokas matter (G C Exh 10) On February 3 Conetsco who also works at the Strongsville store had a conversation with Wallace re garding the work schedule he posted The above de scribed agreement at page 5 states B Work schedules for each workday in the basic workweek will be scheduled by the Employer however classification seniority in each store will be observed to assure that a more senior employee is not assigned a greater number of evening work shifts than one with less seniority form a belief as to whether he is a supervisor under Sec 2(11) of the Act must mean that Respondent does not know or understand what this Section of the Act states Wallace testified I suspended Fran Zlokas for being late As the manager of a drug store he has the responsibil ity of directing employees who work in that store Indeed the incident Involved herein centers on a discussion of a shcedule worked up by Wallace Wallace is a supervisor Conetsco told Wallace that she believed that the sched ule gave another employee with less seniority than Con etsco a better assignment The previous schedule was also discussed Wallace explained his approach to Con etsco advising her that he considered the first three women on the seniority list as equal because they were department heads Conetsco told Wallace that the senior ity of the first three (she was second on the list) dif fered greatly and that Wallace s approach Just did not make sense to [her] and [she] would have to call someone and check on that particular statement Conetsco testified that Wallace pointed to Fran s [Zlokas] name on the schedule and he said she called the Union and she is on her way out and that she then asked Wallace you mean if I call the Union I m on my way out? He said that is not what I said or I didn t say that I can t remember his exact words but one or the other Wallace testified that during this discussion he did not say that Zlokas called the Union and she is on her way out Pharmacist Henry Kozik who overheard the discus sion and who managed other of Respondent s stores and is the assistant manager of Store 91 corroborated Wal lace s testimony But while Wallace denied threatening Conetsco Kozik initially testified that he did hear Wal lace say no I didn t say that that is not what I meant Kozik then changed his testimony Kozik s initial re sponse was candid For Wallace to make a disavowal there would have to be something to disavow When Kozik realized this he changed his testimony Kozik s initial testimony is credited Consequently that which Wallace believed he needed to disavow was said Conets co s testimony is credited Wallace then talked to Conetsco about what he viewed as a shortcoming in her attitude both in general and citing one specific past incident Before this nothing had ever been said to Conetsco about how management viewed the past incident Conetsco had not received a verbal or a written reprimand for something she testified she said in Jest The above described conversation with Wallace was related by Conetsco to at least one other employee in the store Approximately 1 month after it occurred Con etsco saw Stephens in the store and she told him about her discussion with Wallace A Contentions On brief the General Counsel urges that it would ef fectuate the purpose and policies of the Act to require Respondent to post a notice that it will cease and desist from threatening employees who express an intention to consult the Union regarding work related problems As sertedly there was no retraction for Wallace subsequent ly in the same conversation advised Conetsco that she almost received a warning over a matter that had never before been brought to her attention In the light the at tempted disavowal was not an effective retraction ac cording to the General Counsel Respondent on brief contends that Conetsco concoct ed a story to implicate Wallace in wrongdoing solely as a personal vendetta against Respondent because she was 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not offered a promotion and to retaliate against Re spondent for disciplining her best friend Zlokas that even if the alleged statement had been made the corn plaint should still be dismissed because the facts and cir cumstances show that it did not have any coercive or threatening effect and would not reasonably be expected to have that effect and that even if the statement was made and had a coercive or threatening impact because it was an isolated occurrence de mtnimis in nature no remedial order is warranted B Analysis Wallace s statement to Conetsco interfered with her right to representation from her bargaining agent and it could not but tend to inhibit her in the exercise of rights guaranteed by Section 7 of the Act 3 The statement con stituted a serious violation of Section 8(a)(1) of the Act Furthermore Wallace s statements were not repudiat ed effectively The standards for effective repudiation were set forth in Passavant Memorial Area Hospital 237 NLRB 138 (1978) as follows To be effective such repudiation must be timely unambiguous specific in nature to the coercive conduct and free from other proscribed illegal conduct Douglas Division The Scott & Fetzer Company 228 NLRB 1016 (1977) and cases cited therein at 1024 Furthermore there must be adequate publication of the repudiation to the em ployees involved and there must be no proscribed conduct on the employer s part after the publica 3 Container Corp of America 244 NLRB 318 (1979) See also Safeway Stores 266 NLRB 1124 1125 (1983) non Pope Maintenance Corporation 228 NLRB 326 340 (1977) And finally the Board has pointed out that such repudiation or disavowal of coercive con duct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights See Fashion Fair Inc et al 159 NLRB 1435 1444 (1966) Harrah s Club 150 NLRB 1702 1717 (1965) Wallace s disavowal was ineffective to relieve Re spondent of liability and to obviate the need for further remedial action [T]he attempted retraction was neither sufficiently clear nor sufficiently specific to dissipate the effects of the unlawful conduct Safeway Stores supra The issuance of a remedial order in these circum stances is both necessary and proper to effectuate the purposes of the Act CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Retail Store Employees Union Local 880 Char tered by the United Food and Commercial Workers International Union AFL-CIO-CLC is a labor orgarn zation within the meaning of Section 2(5) of the Act 3 By telling employee Laura Conetsco who expressed an intent to consult the Union that another employee called the Union and she is on her way out Respondent has violated Section 8(a)(1) of the Act 4 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ]