Heck'S Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1986

280 N.L.R.B. 475 (N.L.R.B. 1986)

HECK'S INC.
Heck's Inc. and Food Store Employees Union Local
347, United Food and Commercial Workers
International Union , AFL-CIO-CLC. Cases 9-
CA-21750, 9-CA-21980, and 9-CA-22103-i,
-2
20 June 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 30 September 1985 Administrative Law
Judge James L. Rose 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 and to adopt the recommended Order
as modified.
The judge found that the Respondent violated
Section 8(a)(4) and (1) by transferring employee
Belinda Walton from stocker to cashier and Sec-
tion 8(a)(3), (4), and (1) by subsequently discharg-
ing Walton. We agree with the judge, but only for
the following reasons.
In early 1985 the Union began organizing the
Respondent's employees. It is undisputed that
Walton was the initial contact with the Union and
was one of the employee leaders in the organiza-
tional campaign. On 4 April 19852 a representation
election was held.3
On 22 February the Union filed an unfair labor
practice charge against the Respondent, and on 5
March the Union amended the charge to include
additional allegations . On 3 April the Regional Di-
rector issued a complaint, alleging that the Re-
spondent had engaged in unfair labor practices in
violation of Section 8(a)(1) and (3), and the Re-
gional Director scheduled the unfair labor practice
hearing for 21 May.
On 19 April the Respondent transferred Walton
from a stocker in housewares to cashier. Later that
day Walton questioned Randall Epling, the elec-
tronics and sporting goods manager, as to why she
had been transferred, and Epling responded that
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
All dates are in 1985
' The record is silent as to the outcome of the election.
475
"he had just got subpoenaed to Court, thanks to
me, and ... that Mr. Meadows4 told him that the
reason I was . . . going to be moved to cash regis-
ter on April the 22nd is because I had to go to
Court." Epling then said, "Well, why don't you
drop the charges and I will go back there and have
Mr. Lucas5 and Mr. Meadows put it in writing that
you would get to stay in housewares department."
Epling asked Walton if she would drop the unfair
labor practice charges if Meadows put it in writing.
Walton answered that "it was out of my hands,
that I couldn't, that I wouldn't drop the charges."
On 4 May Walton had a cash shortage on her
cash register of $19.71. Pursuant to the Respond-
ent's policy that a written warning would be issued
to any employee with a cash shortage in excess of
$10, Walton's supervisor Janice Phillips on 7 May
placed a written warning in Walton' s personnel
file. On 23 May Walton failed to report to work as
scheduled since she did not want to help clean up
flood damage to the Respondent's store.
On 24 May the Regional Director issued an
amended complaint, alleging, inter alia, that Wal-
ton's transfer was unlawful.
On 3 June Walton, in violation of the Respond-
ent's policy, accepted a check from a customer
which, was not signed. On 4 June Lucas placed two
additional written warnings in Walton's file based
on the 23 May and 3 June incidents.
On 6 June Meadows, at Lucas' request, reviewed
the warnings6 in Walton's personnel file with
Walton, asked her to sign the warnings,' and asked
her if she had any questions, responses, or explana-
tion about the warnings. According to Meadows,
Walton refused to sign the warnings and said noth-
ing in her own defense. Meadows testified that
after Walton left, he recommended to his supervi-
sors that she be discharged.8 Walton was dis-
charged on 7 June.
The judge found, and we agree, that the Re-
spondent's 19 April transfer of Walton from stock-
er to cashier violated Section 8(a)(4) and (1) of the
Act. In light of Walton's union activities, the
timing of the transfer, and the Respondent's clear
animus toward Walton, evidenced by Epling's un-
denied statements to Walton linking her participa-
tion in Board processes with the transfer, the Gen-
4 Gary Meadows is the Respondent's district supervisor
5 Larry Lucas is the Respondent's store manager
° In addition to the three May and June warnings , Walton had re-
ceived written warnings on 4 October 1984 and 1 February 1985
r According to Walton she had received only two written warnings,
one for having accepted a customer 's check without signature and one
for failing to report to work on 23 May
° Under the Respondent 's rules and discipline procedures the accumu-
lation of three written warnings during a 12-month period is cause for
discharge
280 NLRB No. 55
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel established a prima facie case of dis-
crimination which the Respondent failed to rebut.
See Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). The Respond-
ent asserts that Walton was hired by the Respond-
ent as a cashier , was needed as a cashier when
transferred, and that transfers to cashier jobs were
frequent . The Respondent , however, did not at-
tempt to deny or explain Epling 's statement to
Walton that the transfer resulted from Walton's
unfair labor practice charge against the Respondent
and that, if Walton agreed to drop the charge, the
transfer would be rescinded. Under these circum-
stances, the Respondent's mere assertions fail to
rebut Epling's admission of unlawful motivation for
the transfer. Accordingly, we agree with the judge
that the Respondent's transfer of Walton violated
Section 8(a)(4) and (1) of the Act.
The judge further found that Walton's discharge
on 7 June was unlawful. Under the judge's analysis,
the warnings issued to Walton which were related
to cash register misconduct" were unlawful since
Walton would not have been working on the cash
register but for the unlawful transfer. Similarly, the
judge found that these warnings could not lawfully
serve as a basis for the discharge decision because
of the unlawful transfer and that to allow the Re-
spondent to discharge Walton because of these
warnings "would be to allow it the fruits of the
poisoned vine."
While we agree with the judge that Walton's dis-
charge was unlawful, we do not agree with his
finding that certain of the warnings given Walton
were unlawful. It is undisputed that after the trans-
fer Walton violated company policy on three dif-
ferent occasions by having a cash shortage, failing
to report to work as scheduled, and accepting an
unsigned check from a customer . There is no evi-
dence that the Respondent 's issuance of warnings
to Walton for this misconduct was in any way dis-
criminatorily motivated . To the contrary, the judge
concluded that the Respondent had a policy of is-
suing warnings for similar misconduct . Under these
circumstances, the judge's conclusion that the
warnings were unlawful because the transfer was
unlawful has the effect of granting Walton immuni-
ty from discipline even though she failed to proper-
ly perform her job.
We find such immunity unwarranted. Even
though the transfer was unlawful , Walton remained
bound to fulfill her employee responsibilities and
° The judge concluded that the warning issued to Walton relating to
her refusal to work on 23 May was lawful as "the Respondent had every
right to expect her to do her share in the cleanup "
was subject like any other employee to disciplinary
action for breach of those responsibilities. See An-
derson-Rooney Operating Co., 134 NLRB 1480, 1495
(1961). Accordingly, we find lawful the warnings
issued by the Respondent to Walton.
Despite this finding, we conclude that Walton's
discharge was not motivated by these warnings,
but rather by Walton's union and Board-related ac-
tivities. Walton played a leadership role in the
Union's organizational campaign-a fact admittedly
known to the Respondent; the discharge was close-
ly related in time to Walton's union and Board-re-
lated activities;1 ° and the Respondent evidenced
clear animus against Walton by unlawfully transfer-
ring her to a job as cashier. Given these facts, we
find that the General Counsel established a prima
facie showing of discrimination under Wright Line.
We further find that the Respondent did not estab-
lish that Walton would have been discharged in
any event absent her union and Board-related ac-
tivities.
The Respondent asserts that Walton was dis-
charged because of her having received three writ-
ten warnings in May and June which, under the
Respondent's rules, is cause for discharge. Howev-
er, the Respondent's own evidence undermines its
assertion that the discharge was motivated by the
warnings. Walton had received three warnings as
of 7 May, but the Respondent did not discharge
her at that time. Even after she received two addi-
tional written warnings on 4 June, the Respondent
did not discharge her. Meadows, who made the ini-
tial decision to discharge Walton, testified that he
did not discharge Walton after she had three writ-
ten warnings because she was an "above-average"
employee, it was expensive to hire and train a new
employee, and the Respondent preferred "recon-
structing" an employee rather than discharging
him. Moreover, according to Meadows, the deci-
sion to discharge Walton was not made until after
the 6 June meeting. Thus it appears that the accu-
mulation of warnings was not, in fact, the motivat-
ing factor for the discharge decision despite the
Respondent's assertion to the contrary.
Additionally, we note that in his testimony
Meadows advanced a different possible reason for
Walton's discharge. According to Meadows, he de-
cided to discharge Walton after his meeting with
her on 6 June because of Walton's conduct in that
meeting . Meadows testified that because of Wal-
ton's "attitude" in that meeting, in which Walton
refused to sign the warnings or offer any explana-
10 Just as the transfer occurred shortly after the Respondent's receipt
of the original complaint in this case, the discharge occurred shortly after
receipt of the amended complaint.
HECK'S INC.
tion or response, he concluded that she was "not
being willing to cooperate with [the Respondent]
in a way to rehabilitate her condition or her prob-
lems she was having." Further testimony, however,
reveals the pretextual nature of this asserted reason.
At the 6 June meeting Meadows confronted
Walton with all of the warnings in her file, at least
some of which she had no previous knowledge.
Walton testified, without contradiction, that Mead-
ows refused to allow her to read the warnings but
rather insisted that she sign them without reading
them. Further, there is no evidence that Meadows
told Walton that her failure to adequately respond
to Meadows' questioning would result in her dis-
charge. Under these circumstances, it is under-
standable that Walton, who had shortly before
been told by the Respondent that her transfer was
in retaliation for her Board-related activities, was
reluctant to engage in a prolonged discussion with
Meadows.
For these reasons, and in light of the General
Counsel's strong prima facie showing of discrimina-
tion, including Walton's prominent union and
Board-related activities, the Respondent's stated
animus against her, and the unlawful transfer, we
fmd that the Respondent failed to establish that
Walton would have been discharged even absent
her union and Board-related activities. According-
ly, we fmd that the Respondent violated Section
8(aX3), (4), and (1) by discharging Walton on 7
June. l'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Heck's Inc., Sprague, West Virginia, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Delete paragraph 1(c) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the following for paragraph 2(b).
"(b) Remove from its files any references to the
unlawful transfer and discharges, and notify the
employees in writing that this has been done and
that the transfer and discharge will not be used
against them in any way."
3. Substitute the attached notice for that of the
administrative law judge.
" We agree with the judge , for the reasons set forth by him, that the
Respondent also violated Sec. 8(a)(3) by discharging employee Kenneth
Ward on 26 February and violated Sec. 8 (a)(1) by threatening employees
with job loss and plant closure if the Union became their bargaining rep-
resentative.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
477
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees with loss of
jobs or store closure should they engage in union
activity.
WE WILL NOT transfer employees in retaliation
for their having participated in cases before the
National Labor Relations Board.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in ac-
tivity on behalf of a union or participate in cases
before the Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Kenneth Ward and Belinda
Walton immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify them that we have removed
from our files any references to the unlawful trans-
fer and discharges and that the transfer or dis-
charges will not be used against them in any way.
HECK'S INC.
Cassius B. Gravitt, Esq., for the General Counsel.
Fred F Holroyd, Esq., of Charleston, West Virginia, for
the Respondent.
Claude E. Foster, of Charleston, West Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. RosE, Administrative Law Judge. This
matter was tried before me at Beckley, West Virginia, on
7 August 1985, on the General Counsel's consolidated
complaint which alleges generally that the Respondent
discharged two employees in violation of Section 8(a)(3)
and (4) of the National Labor Relations Act. In addition,
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain violations of Section 8(a)(1) of the Act are al-
leged.I
The Respondent denies that it engaged in any activity
violative of the Act and specifically contends that Ken-
neth Ward and Belinda Walton, the two individuals in
question, were discharged for cause.
On the record as a whole , including my observation of
the witnesses, briefs, and arguments of counsel , I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISIDICTION
The Respondent is a West Virginia corporation en-
gaged in the operation of retail discount stores in various
locations in West Virginia and other States including one
in Sprague , West Virginia , the facility involved in this
matter. In this business, the Respondent annually derives
gross revenues in excess of $500,000 and annually re-
ceives directly from points outside the State of West Vir-
ginia goods, products, and materials valued in excess of
$50,000. The Respondent admits , and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union Local 347, United Food
and Commercial Workers International Union, AFL-
CIO-CLC (the Union) is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Outline of Facts
In early 1985 an organizational campaign commenced
among employees of the Respondent at its Sprague store.
Undeniably active in this campaign were Kenneth Ward
and Belinda Walton. In January there were meetings
among employees with union representatives, and au-
thorization cards were signed . A petition for representa-
tion was filed and a hearing was scheduled for 26 Febru-
ary, but it did not go forward as the parties executed a
stipulation agreement . An election was held among em-
ployees on 4 April. The outcome of the election is un-
known on this record ; however, from the testimony it
appears that following the spurt activity in January and
February , culminating with the election in April, there
was no further organizational effort.
In January and February various supervisors of the
Company including its chairman Russell Isaacs are al-
leged to have made certain coercive and threatening
statements to employees . These will be treated specifical-
ly and in detail in the analysis section below.
It is alleged that about 26 February the Respondent
discharged Ward and imposed more onerous working
conditions on Walton in various respects and on 19 April
transferred Walton to a different job. It is also alleged
' Charges were filed on 21 and 28 February , 23 April, 10 May, and 6
and 10 June 1985 The second consolidated amended complaint issued on
25 July 1985 All dates are in 1985 unless otherwise stated
that on 4, 6, and 7 June the Respondent unlawfully
issued written warnings to Walton and on 7 June unlaw-
fully discharged her.
Except as noted below , the Respondent does not deny
the statements attributed to its agents nor do the General
Counsel and Union deny the basic facts relating to the
warnings issued to Ward and Walton.
B. Analysis and Concluding Findings
1. The 8(a)(1) allegations
About 19 February Isaacs held a meeting among all
employees at the store during which it is alleged that he
made certain comments which amounted to solicitation
of grievances, coercive interrogation , and threats of store
closure.
The only evidence concerning these allegations is from
the testimony of Ward and Walton . None of the Re-
spondent's witnesses testified concerning this meeting.
Isaacs was not called as a witness. Thus from the unden-
ied and otherwise generally credible testimony of Walton
and Ward , I find:
Isaacs told employees that "he wouldn 't have the
Union in his store and that everybody 's job was on the
line and that he wouldn't sign a contract for the store to
have a Union; he would close the store down first before
he would sign the contract."
Ward generally corroborated this by stating that when
he arrived at the meeting Isaacs was discussing the pros
and cons of the Union and he said "that the [sic] he was
not going to sign a Union contract and that everyone's
job was in jeopardy if the Union did come in, and the
store would shut down if the Union did come in."
It is clear from these statements that Isaacs demon-
strated animus against the Union and his employees exer-
cising their statutory right to engage in collective bar-
gaining . It is further clear that as chairman of the Re-
spondent, and one with the authority to do so , Isaacs
threatened employees with plant closure should they
pursue their statutorily protected right to engage in col-
lective bargaining. Such was a clear violation of Section
8(a)(1).
However, there is nothing in the testimony of either
Ward or Walton which would indicate that Isaacs solicit-
ed grievances from employees at this time or interrogat-
ed them . Accordingly , I conclude that the General
Counsel failed to sustain the allegations set forth in para-
graphs 5(a)(i) and (ii) but did sustain the allegations set
forth in paragraph 5(a)(iii).
2. The activity of Randall Epling
It is alleged that about 15 February Epling, the sport-
ing goods manager , created the impression that union ac-
tivity was under survelliance and warned employees not
to engage in union activity . My review of the record
does not find any testimony to support these allegations
nor does the General Counsel suggest in what respects
the allegations in these paragraphs of the complaint have
been proved.
HECK'S INC.
Inasmuch as I do not find sufficient evidence to sup-
port them, I conclude that the allegations set forth in
paragraphs 5(bXi) and (ii) should be dismissed.
3. The alleged violations of Section 8(a)(3) and (4)
a. The Kenneth Ward discharge
Following the Isaacs meeting about 19 February, sev-
eral employees and Supervisors had a general discussion
in the lounge . Included were Ward and Walton and Su-
pervisors Epling , Gloria Thomas, and Betty Presti . Presti
testified that in part the discussion dealt with her state-
ment that she was unhappy because she had been trans-
ferred to another position against her will. She testified
that to this Ward said , "Well don't worry about it Mr.
Meadows will get his, I guaran-damn-tee you." This tes-
timony was generally corroborated by Thomas and
Epling.
Ward denied having made the statement precisely as
attributed to him, testifying that he said , "Within a week
Mr. Meadows would get what was coming to him in
Court." This version was corroborated by Walton.
Meadows testified that Ward' s "threat" was referred
to him and that he made an investigation by taking state-
ments from the supervisors in attendance . Meadows testi-
fied that he "would be afraid of anybody that had an at-
titude like that," and recommended that Ward be termi-
nated.
Ward had been reemployed on 15 July 1984 and had
received written warnings on 28 July and 27 November
1984. There is a company policy which states that three
written warnings within a year can be cause for dis-
charge . Therefore, the Respondent argues, the "threat"
to Meadows involved a third written warning within the
year. Thus there was cause to discharge Ward. On brief,
however, counsel for the Respondent contends that
Ward "was discharged for threatening a fellow employ-
ee."
Whether Ward was discharged for having received a
third warning within the year or whether he was dis-
charged for having threatened Meadows is of little mate-
riality . Here they amount to the same thing . The Re-
spondent contends that Ward was discharged because of
the statements he made concerning Meadows on 19 Feb-
ruary.
Even if one totally credits the testimony of the Re-
spondent's witnesses (that Ward said Meadows "would
get his"), such scarcely constitutes a threat of bodily
harm or otherwise . It is hard to locate the nature of
menace in these words. Such certainly are not sufficient
normally to justify the ultimate sanction of discharge.
Certainly an employer may discharge an employee for
making threats. Indeed an employer may discharge an
employee for any reason or no reason at all, other than
for having engaged in union or other protected activity.
However, where the reason advanced is patently insig-
nificant , that fact may itself be evidence that the Re-
spondent advanced it to disguise its true motive. And the
true motive may be inferred to have been the employee's
union activity . See Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (9th Cir. 1966).
479
Where , as here, the General Counsel has established a
prima facie violation of the Act by showing antiunion
animus (the statement of Isaacs), timing of disciplinary
action with union activity, and an inferred unlawful
motive , the issue becomes whether the Respondent has
shown that it would have discharged Ward nonwith-
standing his union activity . See Wright Line, 251 NLRB
1083 (1980).
The statement by Ward occurred immediately follow-
ing the meeting of employees held by Isaacs at which
Meadows spoke . It was during the height of the organi-
zational campaign when employees were discussing al-
leged grievances against management in the context of
organizing on behalf of the Union. At the time of this
discussion the representation hearing had been scheduled
and therefore it is credible that Ward would make some
statement with regard to Meadows "getting his" with re-
lation to the organizational campaign in general and the
representation hearing in specific.
During Isaacs ' meeting with the employees, Ward
made comments concerning his seniority which were
questioned by Meadows in rather harsh terms. Meadows
called Ward a liar. Undeniably thereafter Meadows
called Ward into his office to reprimand him for state-
ments that Ward made during that meeting . Ward testi-
fied , without contradiction , that he apologized to Mead-
ows. From the totality of the events, and the insignifi-
cance of Ward 's statement, Meadows ' purported reason
for recommending the discharge was clearly a pretext.
Finally , I just simply do not believe Meadows when
he testified he was frightened by Ward's statement I
found that Meadows' testimony and demeanor generally
not credible. In my judgment , he exaggerated facts
rather than gave candid testimony . On this matter, and
those in which there is a factual dispute (albeit, there are
relatively few in this case), I specifically discredit Mead-
ows.
Although Ward was a short-term employee, having
been rehired from layoff about 7 months before his dis-
charge, and had two warnings during that period, I nev-
ertheless conclude that but for Ward 's union activity he
would not have been discharged when and as he was.
In reaching this conclusion, I also note that Ward was
to attend the representation hearing scheduled for 26
February and had arranged to be off that day. He report-
ed to work following a telephone call advising his sched-
ule had been changed and on reporting was not told by
his supervisor that he did not have to work that day. Al-
though the source of the phone call is unknown, that
Ward's supervisor acquiesced in his reporting for work
on a scheduled day off 'indicates that the Respondent in
fact called Ward to work. There is no indication to the
contrary or explanation of this event. Thus the only evi-
dence points to the conclusion that the Respondent
changed Ward's day off in an effort to thwart his testi-
mony at a representation hearing , notwithstanding that
the hearing ultimately was not held. Such action on
behalf of the Respondent is a further indicator that the
Respondent would not have discharged Ward for the al-
leged "threat" absent his having engaged in activity on
behalf of the Union.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that Meadows' recommendation was based
on a pretext and that the Respondent violated Section
8(aX3) of the Act by discharging Ward about 26 Febru-
ary 1985.
b. The discrimination against Belinda Walton
It is alleged that in February the Respondent imposed
more onerous working conditions on Walton by keeping
her communications with other employees under surveil-
lance, denying her assistance on her job , isolating her
from other employees, and not allowing her to talk on
the telephone . To the first three allegations there is no
evidence or suggestion , even in the testimony of Walton.
Nor did the General Counsel suggest where in the
record there are facts to support those allegations. Ac-
cordingly, I shall recommend that paragraphs 6(b)(i), (ii),
and (iii) shall be dismissed.
The allegation of not being allowed to talk on the tele-
phone involves an incident about 4 March . During work-
ing time (and not on a break), Walton was called to the
telephone to discuss with her husband a problem with
her young son. According to Walton, Epling cut her off.
She asked him why and he said he did not know wheth-
er she was talking "company business or union talk."
This incident was undenied by Epling . Inasmuch as I
found Walton to be generally credible, I conclude that
the event occurred substantially as she testified.
Such conceivably is a violation of the Act, particularly
with the statement attributed to Epling . However, it is
noted that Walton testified that Epling was generally fa-
vorable to the organizational campaign , stating on a dif-
ferent occasion to Walton that the Union sounded good,
that he had been in a union before and it was a good
idea. In view of this, it is difficult for me to conclude
that when Epling cut off Walton from talking on the
telephone, he did so with any kind of an antiunion bias.
Accordingly I conclude that the Respondent did not vio-
late Section 8(a)(3) of the Act as alleged in paragraph
6(bXiv).
It is further alleged that on 19 April the Respondent
transferred Walton to a different job-from a stocker in
housewares to a cash register . Walton had been hired-in
on a cash register, had worked that job for some time,
and was undeniably a good employee . She was also well
thought of in housewares because shortly prior to this
time Walton had been offered a supervisory position in
that department, which she declined.
Walton's pay as a cashier was the same as a stocker.
There is no evidence that the work of a cashier is more
onerous, difficult, stressful , or otherwise a less desirable
job than that of a stocker in housewares . But she pre-
ferred the job she had and this fact must have been
known to the Respondent. Walton testified , without con-
tradiction, concerning a conversation she had with
Epling about the day she was transferred:
He [Epling] had just left the office of Mr. Lucas
(the store manager) and Mr. Meadows and I asked
him, I said , "Randall, what was going on back
there?" He told me that he had just got subpoenaed
to Court, thanks to me , and he said that the-that
Mr. Meadows told him that the reason I was on the
cash register-that's the reason I was on it, was
going to be moved to cash register on April the
22nd , is because I had to go to Court. Randall said,
"Well, why don 't you drop the charges and I will
go back there and have Mr. Lucas and Mr. Mead-
ows put it in writing that you would get to stay in
housewares department," if he put it in writing,
would I drop the charges.
Such from a supervisor proves not only that the Re-
spondent viewed the transfer as punishment, but that the
source of the Respondent 's ire was Walton's perceived
participation in the unfair labor practice case . (The com-
plaint in Case 9-CA-21750 issued on 3 April with a trial
date of 21 May.)
The testimony of Walton was undenied by Epling. Be-
cause he is a supervisor , his statement concerning what
Meadows said carries a probability of truthfulness and
was not denied by Meadows . Walton was generally cred-
ible and the event is plausible on the record before me.
Thus I conclude that Walton was transferred to the cash
register job in violation of Section 8(a)(4) of the Act.
It is also alleged that the Respondent unlawfully issued
written warnings to Walton on 4, 6, and 7 June . It is un-
denied that Walton in fact received the warnings. Nor
does Walton deny having engaged in the events which
generated the warnings though she gave reasons why she
believed the warnings unjustified.
The 4 June warning came as a result of her failing to
report for work as scheduled on 23 May. Walton con-
tended that she did not report for work because the store
had been flooded the night before and she did not want
to work cleanup because on a previous occasion she
became sick doing so. The Respondent maintains, with-
out contradiction , that every other employee scheduled
for work in fact came to work except one employee
whose apartment was flooded and she was allowed per-
mission to stay home to clean up her own apartment.
On 4 May Walton had a cash shortage on her register
of $19.71. The Company undeniably has a policy of
giving a written warning if a shortage exceeds $10.
On 3 June Walton took a check for $30.75 which was
not signed by the customer and in this Walton undeni-
ably violated company policy.
Although Walton in her testimony and the General
Counsel on brief tend to minimize the events which gen-
erated the warnings it is clear that she engaged in the
acts set forth in them . And I conclude these are the
types of things for which the Company has a policy of
giving employee warnings. I note in this respect that
Walton and Ward both received warnings prior to the
advent of union activity and thus it cannot be said that
the Respondent only implemented a written disciplinary
system in retaliation to that activity.
Although the warning system was not unlawful, issu-
ing the cash register related warnings, I conclude, was.
But for the Respondent 's unlawful transfer of Walton the
mistakes would not have been made and she would not
have been disciplined. No doubt a company has a right
to demand that employees do their respective jobs
correctly.However, where one is put into a job against
her will and in violation of the Act, then the company's
HECK'S INC.
right to discipline for violations of policy in that job
must be weighed against the violation. Here the cash
register breaches of company policy were relatively
minimal , and Walton had been away from that job for
some time . I conclude the warnings here must be consid-
ered unlawful. See Turnbull Cone Baking Co., 271 NLRB
1320 (1984), and cases cited therein.
However, the same is not the case with regard to Wal-
ton's having refused to work on May 23. The Respond-
ent had every right to expect her to do her share in the
cleanup. Her failure to respond, even for what she con-
sidered to be a good reason, justified giving her a written
warning.
Finally, it is alleged that on 7 June the Respondent dis-
charged Walton because of her union activity and be-
cause she had given testimony before the Board in the
form of a written affidavit.
The Respondent contends that it discharged Walton
because she had engaged in the activity which had led to
the several warnings. The Respondent maintains that
while she had been a good employee for some years, be-
ginning about April or thereafter and following the con-
clusion of the union campaign her "attitude" degenerated
and she was discharged. As with Ward, I conclude that
the General Counsel made a prima facie case , given the
timing of Walton's discharge with the union activity, the
fact that she was known to be one of the principal activ-
ists on behalf of the Union and the Respondent's unden-
ied and demonstrated animus against it. And as with
Ward, I conclude the Respondent has failed to rebut the
prima facie showing of unlawful discrimination.
A substantial portion of the Respondent' s case against
Walton concerned warnings she received while on the
cash register. Since these were a direct result of the Re-
spondent's unlawful transfer of her (regardless of how
well deserved the warnings were) they cannot be the
basis of further disciplinary action. Turnbull Cone Baking
Co., supra. To allow the Respondent to discharge
Walton based on warnings resulting from its unlawful
action would be to allow it "the fruits of the poisoned
vine."
Therefore I conclude that but for Walton's protected
activity in this matter, including participation in the
Board's processes, she would not have been discharged.
The alleged violation of a direct order testified to by
Meadows need not be considered since, even according
to Meadows, it occurred after the decision to discharge
Walton had been made. And there is no real indication
that the event was of sufficient seriousness to warrant
discharge in the normal course of the Respondent's con-
duct of its business . And, as indicated, I do not credit
Meadows in any event.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
481
Having concluded that the Respondent engaged in
certain unlawful activity including the discharge of Ken-
neth Ward and Belinda Walton , I shall recommend that
it cease and desist therefrom , and take certain affirmative
action including offering them immediate reinstatement
to their former jobs or , if those jobs no longer exist, to
substantially equivalent positions of employment, without
prejudice to their seniority and other rights and benefits,
and make them whole for any loss of wages and other
benefits they may have suffered as a result of the dis-
crimination against them , in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
provided for in Florida Steel Corp., 231 NLRB 651
(1977).2
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed3
ORDER
The Respondent, Heck's Inc., Sprague, West Virginia,
its officers, agents , succcessors , and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of jobs or store
closure should they exercise their statutorily protected
right to engage in union activity.
(b) Transferring employees in retaliation for their
having participated in cases before the National Labor
Relations Board.
(c) Giving written warnings to employees who partici-
pate in cases before the Board.
(d) Discharging or otherwise discriminating against
employees because they engaged in activity on behalf of
the Union or participate in the Board's processes.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.4
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and complete reinstatement to
Kenneth Ward and Belinda Walton to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positons of employment, without prejudice to their
seniority or other rights or privileges, and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and the cash register warnings to Walton, and
notify them in writing that this has been done and the
2 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
3 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
4 Although some of the unfair labor practices alleged in this matter
were dismissed, those found , especially the discharges , are sufficient to
justify the imposition of broad injunctive relief See Hickmott Foods, 242
NLRB 1357 (1979)
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharge and warnings will not be used against them
in any way.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Sprague, West Virginia , copies
of the attached notice marked "Appendix." Copies of
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegations not
specifically found are dismissed.