J. C. Penney Co.

National Labor Relations Board - Board Decisions

Aug 17, 1978

237 N.L.R.B. 643 (N.L.R.B. 1978)

J. C. Pt NNEY (COMPP\N
J. C. Penney Company, Inc. and Ednmund M. Mitchell
and Bernard Washam. Cases 4 CA 8827 and 4
CA 8951
August 17. 1978
DECISION AND OR[)ER
By CHNiRMxAN FANNIN(; ANi) MI MIst RS .I KINSN
On May 11, 1978, Administrative ILaw Judge Mlar-
vin Roth issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has deleg~ated 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,1 and
conclusions of the Administrative Lavw Judge and to
adopt his recommended Order.
OR)IER
Pursuant to Section 10(c) of the National lIabor
Relations Act, as amended, the National I abor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and herebs
orders that the Respondent, J. C. PenneN (Compan,.
Inc., Wilmington, Delaware. its officers, agents, suc-
cessors. and assigns, shall take the action set forth inl
the said recommended Order.
Respondent has excepted Io certain rcdbilith. findlinit niadeiJ he thl
Admlnlslratlie Lay Judge It it the Boards est.ahllshCd pohC! not I1, ,el
rule an Adn tinistralive La. Judge', re...lution, ith rprli I. . i redih lill
unless Ihe clear preponderance of all of the rele'.ant e\l dcncC I.)n r l thl C ii
that (he resolution. are inc )rrec t .Sitanli Dri l ) ll Pr,,d Iai. /pi, l I
NLRB 544 (19 5(1, enfd l 1i :2d 36h2 ( \ 3.I 1,t) V.e haec aref ulkb
examined the record alid find no hasis fir rtcr L:ti ho findinlui
DECISION
STATEMsoNI O IHI C( SI
MARVIN ROTH, Administrative Law Judge: This case was
heard at Wilmington. Delaware, and Toms River, New- Jer-
sev, on November 30 and December 1 and 2. 1977. lhe
charges were filed on August 1 and October 3. 1977, re-
spectively. by Edmund M. Mitchell and Bernard Washam.
both indisiduals. The consolidated complaint, which issued
on November 9. 1977. alleges that J. C. PenneN (CompanN.
Inc, (herein the Compan? or Respondent). violated Section
8(a)( I ). (3). and (4)of the National l abor Relations Act. as
amended. The rasvamen of the complaint is that the Com-
pan} allegedl interrogated an employee (who the Compa-
n\ contends was a supervisor) concerning employee union
activit.: discharged employee Edmund Mitchell because of
his union acti ities, and discharged supervisor Bernard
(Ben) Washam because he declined to misrepresent in his
teslitmon, to a Board agent that Mitchell was aware that
the C(ompany had a polic' against its security guards hear-
ing arms vhile on duty. The Company's answer, as
amended at the hearing, denies the commission of the al-
leged unfair labor practices. All parties were afforded full
opportunit\ to participate, to present relevant evidence, to
examine and cross-examine witnesses. to argue orally. and
to file briefs.
lpon the entire record in this case and from mv obser-
vation of the demeanor of the witnesses, and hav ing con-
sidered the briefs submitted bh General Counsel and Re-
sponldent, I make the following:
:[In)Iwts oI FA( I
I ]lii Bt SINISS ()I ltil RISP()NI)I NI
1 he (omp;an!. a D)elaware corporation, is engaged in
the operation of a nationwide chain of retail department
stores. including ia store at 3236 Kirkwood Highwa'. Wil-
mington. Delaware. known as the Price's Corner Store.
which is the store ins olved in the present case. In the oper-
atin of it.s business. the ('ompany annually receives gross
revenues in excess of 5500.000 and annually purchases
goods valued in excess of 50.,000 directly from outside the
State of Dela;ware. I find.; as the C(ompany admits, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11 1IIF I ABOR OR(i'NIZATION INO()I VF)
International U nion of Security Guards (herein the
Ulnion) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111 I if Al I Ft(il) I NIiR I BO()R PRA( 11 I:S
A. Back ground, li t Organizational A e riviv, and the
('Coipanl ' Res.pon.se
Price's Corner is a relativel, large store. It occupies
about 114,000 square feet and has a complement of from
300 to 500 emplo'ees. C(harles R.an has been store manag-
er since Price's (Corner opened in the 196 0's. The opera-
tions manager and the general merchandise manager are
immediately subordinate to the store manager. Paul Stam-
baugh has been operations manager since April 1976 and
Da'id Boatwright has been general merchandise manager
since Januar' 31. 1977. Prior to February 1970, the store
did not hae a structured security program. In 1970 Wil-
liam Knerr. who was then operations manager, hired Ben
Washam to set up and administer such a program at the
store. At the time. WVasham wias a principal of Profit Pro-
tectioll S\ stemn, a firm which uas engaged in the business
237 NLRB No. 101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of providing security service. During the period from 1970
to sometime in 1973 he continued his interest in Profit Pro-
tection Systems, and also functioned as a security officer at
three other company stores and a shopping center, which
included a company store. However, Profit Protection
went bankrupt and the business was sold. From 1973 until
his discharge on August 17, 1977, Washam worked as se-
curity manager for the Company only at the Price's C(orner
store, although he continued to perform security functions
through Profit Protection and made use of its office and
facilities. The Company paid Washam an hourly wage. It is
undisputed that at all times from 1973 until his discharge,
Washam was a supervisor for the Company within the
meaning of Section 2(11) of the Act.
In May 1977, the security staff at Price's Corner consist-
ed of Washam, Assistant Security Manager Carol Eller.
and Security Officers Pauline White and Edmund Mitchell.
Eller and Mitchell were hired by Washam. and White by
Eller. Eller had been working at Price's Corner since 1971.
except for an absence of about 9 months early in her ca-
reer. White began working at the store in April. 1974, and
Mitchell began on March 9. 1977. The Company also uti-
lizes temporary security help at particularly busy times, e.
g., in December. Washam directed the security staff and
was responsible to the operations Manager, who in turn
was responsible to the store manager. In addition, the
Company's eastern regional security manager has overall
responsibility for security functions for some 240 company
stores, including Price's Corner, in 15 States. Charles Dep-
pe has held that position since February 1974.
In March 1977,1 notwithstanding his supervisory status,
Washam became interested in union representation for the
security personnel.- He asked Eller, White, and Mitchell
whether they wanted union representation, and he ar-
ranged for a meeting between the security staff and Union
Representative Dan Ceasar. At the meeting all four agreed
that they wanted a union, and they signed union authoriza-
tion cards. It was agreed that Ceasar would contact the
Company, and on May 10 Ceasar contacted Store Manag-
er Ryan. Ryan testified that Ceasar told him the security
people wanted a union, and Ryan referred him to the
Company's district manager. Ceasar was not presented as a
witness, and there is no evidence as to what, if any, further
contact took place between the Union and the ('ompany
concerning union representation at Price's Corner.
Washam testified that store manager Rvan summoned
him to Ryan's office and asked him if he knew that the
security people wanted a union. Washam answered that he
did, whereupon Ryan became angry, demanded to know
All dates herein are in 1977 unless otherwise indicared
Joseph Sartoris. who is employed hby the ( oripan ais a persinnelIc relai
lions attorney. and who ails involved in the events of this case. Wilas pre
sented as a (Compans w itness. Sartiris testified that V alhai itll lmplialnled Io
him that he was getting only 20 hours of work per week. In his testililoils
Sartoris intimated that Washalm mali have been looking for ain excuse i,
discharge Mitchell in urder to give himself more sorking houis I his is
unlikely Washam exercised considerable discrelion in directing the securitm
operation. lie could have reassigned Iorking houl-s. r if tile staff w as too
large, he could have laid off Mitchell without hwxinig to I ih.k for i pretext
1However, it is possible tha; Washaim was concerned .abhot his own lrob
security because of his wife's legal problems. which hlad come tIi Stolre Maln-
ager Ryan's attention.
why Washam hadn't told him, and threatened to fire Was-
ham if he learned that Washam started the Union. Ryan in
his testimony, did not expressly deny that this conversation
took place. Rather. Ryan was somewhat equivocal, vari-
ously testifying that he did not know who brought the
Union into the store, that he couldn't recall whether he
ever told anyone that Washam did it, and that Attorney
Sartoris told him (Ryan) about May 16, that Washam was
the driving force behind the Union. Sartoris inferentially
corroborated Washam. Sartoris testified that he told Was-
ham that as a supervisor. he could be fired for union activi-
ty, and that he was not to engage in such activity. I credit
Washam concerning his interview with Ryan. Washam fur-
ther testified that he had a second meeting with Ryan in
Ryan's office prior to Mav 16, at which store Personnel
Manager Marguerite Wrightson was present. According to
Washam. Ryan asked him if he could get Mitchell another
job, stating that Washam had an obligation to the Compa-
ny. and that he (Ryan) would have fired "them" if Was-
ham had told him about the union activity. Wrightson, al-
though presented as a company witness, did not testify
about this meeting, and Ryan did not deny that the meet-
ing took place. Again. Ryan was equivocal about the sub-
ject matter of the meeting, testifying that he could not re-
member asking Washam to find Mitchell another job. I
credit Washam.
Washam had a third meeting with Ryan prior to May 16,
at which Attorney Sartoris was present. They arranged for
a meeting with the security staff on May 16. Washam testi-
fied that Rvan requested the May 16 meeting; Ryan and
Sartoris testified that Washam told them that the staff
wanted a meeting. The circumstances, including matters
discussed during and after the May 16 meeting, indicate
that both sides were interested in a meeting. At the May 16
meeting there was discussion of staff grievances. Mitchell
complained that Ryan had been abusive toward him and
was out to fire him. Eller. in particular, complained about
certain procedures which the staff had been asked, or di-
rected to approve by their signatures, and which, she con-
tended, contained provisions which were contrary to Dela-
ware law. More important, however, is what was allegedly
said after the meeting. Washam testified that Sartoris told
him that he felt that Washam wanted the Union more than
anyone, and that he felt he had gotten through to Eller and
White but not to Mitchell. According to Washam, Ryan
again asked him if he could get Mitchell another job, add-
ing that he was concerned about Eller and White, but not
Mitchell. As a witness, Ryan, as indicated, was equivocal
about whether this subject matter was discussed. Sartoris
testified that he spoke to Ryan and Washam after the
meeting, and that he did not hear Ryan tell Washam to
find another job for Mitchell. However, although Sartoris
was present during most of the hearing and heard
Washam's testimony, he did not deny making the state-
ment attributed to him by Washam. 3 I credit Washam.
Carol Eller testified that on two occasions after May 16,
Ryan asked her what the security personnel were going to
do about the Union, and on each occasion she answered
IThis hearing wais conducled under the rule of exclusion of witnesses.
ltoweser the Iwo iallegcd discriminatees. and Sartoris for the Compans.
were perrinlied to renlain throughout the hearing.
644
J. C. PENNEY COMPANY
that she could only speak for herself. Ryan testified that he
asked Eller "how are we doing." and that E:ller answered
that she didn't know, and would have to ask W'asham. I
credit Eller. Following Washam's discharge. Eller was pro-
moted to take his place, and was still store securit, mana;l-
er at the time of this hearing. The Compan) has in effect
endorsed her trustworthiness. Eller is also awuare of what
this case is about, i.e.. in part that General Counsel is alleg-
ing that Washam was discharged because he refused to
support the Company's version of Mitchell's discharge. It
is highly unlikely that Eller would knouingli testif, falselN
against the Company. In contrast. as has been and u ill be
discussed at various points in this Decision. I hase resersa-
tions about Ryan's credibility. Therefore. unless otherwise
indicated. I have credited Eller's testimons whereser it
conflicts with that of the Companm's witnesses. General
Counsel contends that the Compan,: violated Section
8(a)( ) of the Act by questioning Eller. As resolution of this
question depends on whether Eller was a supers isor within
the meaning of the Act, and also in part upon subsequent
developments, including the termination of Mitchell. I
shall defer such resolution to a later section of this Deci-
sion.
On May 25 Washam met with AttorneN Sartoris and
complained that Ryan was interrogating Eller. Sartoris
promised that it would not happen again. The next das
Washam had a lengthy meeting with Sartoris and Compa-
ny District Manager Warren Wilkin, at which time VWas-
ham talked about his problems and those of the securits
staff. From that date until the events of July 23 through 2S.
which culminated in Mitchell's discharge. the evidence
fails to indicate that there was any further contact between
the Union or the security staff and the CompanN. concern-
ing the Union, or any union activity or any other devel-
opments which could be material to the resolution of this
case. This does not mean that the Union was defunct. or
that the Company thought it was defunct. On the contrary.
Store Manager Ryan, by his persistent questioning of iEller.
indicated that he remained very much concerned about the
matter. In a memo to Ryan dated August 12. concerning
Washam (who was discharged 5 days later). Operations
Manager Stambaugh stated that "ever since the deal with
his wife and the labor union problem, no matter what any-
one does or says about security, it seems that theo all feel
we are out to get them." It is quite possible that the Union
had good reasons for not pressing a demand for recogni-
tion at this time. The Union may have felt that a unit of
three employees could not function as an effective bargain-
ing unit, or that in a contested proceeding, the Board might
find that a single-store unit was not appropriate. The
Union may have been concerned because the organization
activity was started by a supervisor, and preferred to re-
sume the activity on a sounder basis. The Compans. with
the advice of knowledgeable staff counsel. was undoubted-
ly aware of these possibilities. In fact, as Sartoris indicated
to Washam, the Company's suspicions were now directed
at Mitchell, who began working for the Company shortls
before the organizational activity.
4 On or ahbouit ugustl 3. Wash.m signed sndd andard ( n form dicu-
ment · hlch purported tir Indl:late the reasion for Mitchell's dlsmnila:l. lhe
645
O()n Saturds,. Julx 23. Mitchell. while on duts at the
store, followed tvwo female suspected shoplifters out of the
store. lie was there accwsted bh two males, whereupon
\Mitchell pulled a gun on them. specificall_ a 38 special
res ol rci. Iike the other securits officers. Mitchell w ore cl-
xilian clothes in order to maintain his coSer. 1lis weapon
had been concealed under his jacket. Ihe next da 1 Mit-
cheli discussed the incident with General Merchandise
ManaLger Boatw right. and Mitchell also prepared a written
report. Nitlchell aind Boatwright differ as to what .was said
hetvs een them. Boatw right reported the incident to Store
Mlanager Rsan. Rsan testified that he called Washan,. told
him that Mtitchell knew, the rules. and referred to an incl-
dent in 1972 in l.afaettc. Indiana. known as the Lockhart
incident. in which a conipans securits officer. who was an
off-duts police officer. shot and killed a suspected shoplift-
er. According to Rian. Washam said that Mitchell certain-
1s knewv the rules and he didn't know wh' Mitchell did it.
Rsan said that the Company was going to be sued, and
directed Washanim: "le's in our department. fire him."
According to Rs\an. Vv'asham did not disagree with the de-
cision. Washam testified that R'san told him that Mitchell
w,as fired. that he knewv the rules and had no business pull-
ing a unll. and that the ('ompan} wlas going to he stied. (No
evidrence was introduced as to whether the ('omparn" was
actuallN sued.) 'Washam testified that he told R'an that he
(Washain) gave Mitchell permission to carr' a gun. where-
upon Ryan answered that he was also firing Washamn
(Washam was not discharged until August 17). On Jul, 25.
Washam discharged NMitchell. According to Mitchell, Vsas-
ham stated that Ryan told him to fire Mitchell because he
was wearing a gun. adding that he had made a "boo-boo"
in drawing a weapon and giving Rvan the excuse he was
looking for to discharge Mitchell. In response to Mitchell's
question. VsVashanm said that his own position was not jeop-
ardized because he (Washaiml carried a gun. Washaim sub-
stantiallN corroborated Mitchell's testimony concerning the
discharge. Washam also testified that he encouraged Mit-
chell to file an unfair labor practice charge.
Resolution of the question of what was actually said bs
the persons involved on Jul\ 23. 24. and 25. depends in
large part upon m, findings concerning the ('ompany's
policy on weapons. The same is also true with respect to
the conversations which led to Washam's subsequent dis-
charge. Therefore. with one qualification noted at this
point, I shall next proceed to the facts surrounding
Washam's discharge. and thereafter take up the matter of
the ('ompany's polic! on weapons 4
dIlicumcll iliCldlll I 1 h it it1 a ,;I l. iolion of ( l ioLp.ns rules I tI I.1us i gil
ihal \ull¢till ,u iti airlcd T1w 1to i irr ,I gun, and th.i "ash.ailm had "1o
chol[c [ Ihut] to cllll .ltlc" lt ihi l w.1 u ih.lim telif cd th.iia ti lie fo rlll ,is
.ilreaid fll]ld out ihen Pcinollill M\.Ln..atl Wr¥i ghlill sUhnllllied it Io hllll
for gIl/:tlr. t 1iid th11t he tsincid the firm itrih uit piaing miuch .tentlln1n 1t,
.h. i t .II1l Ihd ccilc liie '.1 i ;tlrlcl .Ihot ll , d.iltihler', seii.rlilS llen'
,:5righitiln uv htoe iffice n1rmllil\ preptir e i uch forill'. Ietified hit i he did
iiot prepa.telc the foIn O[ hc nOine lie do s I ugrce ,t th ( oit tnip ',
C-Plllitl.ll 1h11i ¥.sh;L. Iti-roAhai, prepared o(r diltated the frim i hll lh
umritlen I tile tirol picron i nd it ntt1li. kinililae thilil .,ild 11klkel he
used hx u1 securilt officer in t1 k ell l ;I rpnrtpii Ic t h referenr e 1 , I-v I1ll e
sLlhJCt''I"
B. MitichelPi: Dischar~r~c
DECISIONS OF NATIONAL LABOR RELA IONS BOARD
C. Washam s Discharge
On August 3 the Company received notice that Mitchell
had filed an unfair labor practice charge over his discharge,
and the Board's field examiner arranged with Attorney
Sartoris to meet with the Company's witnesses on August
10 in order to obtain the Company's position. Sartoris con-
tacted Ryan, telling him to have Washam available at that
meeting. What happened thereafter is sharply disputed.
Ryan testified that he left a message with Washam to be
available for the "hearing" on August 10. He testified that
he did not discuss the case with Washam and. specifically,
that Washam never said that he would not support the
Company in the investigation. Washam testified that on
August 8 Ryan summoned him to his office, and said that
they were going to Philadelphia about the Mitchell case,
that Sartoris was coming to the store on Tuesday (August
9) and that he (Ryan) wanted to go over the story they
were to tell the Board agents about Mitchell knowing the
rules. According to Washam, he told Ryan that he wasn't
going to lie for Ryan or anyone else, because he (Washam)
authorized Mitchell to carry a gun: whereupon Rvan an-
grily ordered him out of his office. At the request of the
Board's Regional Office, Sartoris agreed to reschedule the
investigatory interview to August 18. The record does not
indicate the Region's reason for this change.
In the meantime, on August 6 Washam and General
Merchandise Manager Boatwright had a conversation
while going up the store escalator. Pauline White was fol-
lowing them. According to Washam. Boatwright sass that
Washam had a gun under his jacket. Washam told Boat-
wright that previous operations managers had given him
permission to carry a gun. Washam testified that Boat-
wright did not question this assertion, but instead stated
that he felt Mitchell should not have been fired. Boatwright
testified that Washam brought up the Mitchell case, where-
upon Boatwright reminded him of the Lafayette incident
and the Company's policy about guns. According to Boat-
wright, Washam said that he felt he (Washam) was a re-
sponsible person. and showed his gun to Boatwright. White
did not testify about the conversation. Boatwright and
Ryan testified that Boatwright reported the conversation to
Ryan on August 8. Ryan and Sartoris testified that Ryan
reported the matter to Sartoris. On August 15 Ryan sum-
moned the three security officers into his office to question
them as to whether they carried guns. According to Ryan,
White said she did not carry a gun. Eller said that she
carried a gun, and was given permission to do so by Was-
ham. Ryan told her to put it either in her car or in the store
vault, and Eller gave it to Boatwright to put in the vault.
Ryan and Boatwright testified that Washam said that both
former Operations Manager Knerr and Regional Security
Manager Deppe authorized him to carry a gun. Rvan told
Washam to put the gun in his car or in the vault, and
Washam took the gun to his car. Nevertheless. on August
17, the day before the scheduled meeting in Philadelphia,
Ryan, in the presence of District Operations Manager Ray-
mond Paine, told Washam that the) had to let him go for
'violating a store rule." Carol Eller was promoted to take
his place. Washam testified that on August 16, Ryan again
unsuccessfully attempted to get him to back up the
Company's story about Mitchell. Attorney Sartoris testi-
fied that on August 17 the Company decided to terminate
Washam because he violated the Company's gun policy,
but not to terminate Eller. because Washam had permitted
her to carry a gun. On August 29 Washam gave an affida-
vit to the Board concerning Mitchell's case, and he later
filed his own unfair labor practice charge.
D. The Companvl's Policiv on Guns, and Concluding
Finding.s With Respect tlo the Discharges of Mitchell and
Washam and Interrogation of Eller
Putting aside for the moment the question of what if any
policy the Company had with respect to the carrying of
weapons by security officers at Price's Corner. the evidence
indicates that during the period from August 8 to 17, the
Company was fishing around for an excuse to get rid of
Washam, if necessary. In Operations Manager
Stambaugh's memo to Rvan of August 12, previously men-
tioned. Stambaugh stated that "I would like to call Joe
Sartoris and find out for sure I could fire Ben for violations
of store policy and his attitude." However, the "policy"
and "attitude" to which Stambaugh referred in his three-
page handwritten diatribe against Washam had nothing to
do with weapons. That subject was not even mentioned in
the memo, although the escalator conversation between
Boatwright and Washam took place on August 6. If the
carrying of guns were as horrendous as the Company con-
tends it was, it is unlikely that Stambaugh, as Washam's
immediate supervisor. would not have known about the
conversation by them, and also unlikely that he would not
have mentioned the matter in a memorandum in which he
recommended Washam's discharge. Rather, the memo
concerned the ('ompany's policy with respect to the is-
suance of door passes to store personnel when they took
purchased or serviced items out of the store. However, the
Company does not contend that Washam was discharged
for violating this rule, and Ryan conceded that in discharg-
ing Washam, he did not consider Washam's overall record.
Indeed, in a performance appraisal in March 1977, Stam-
baugh rated Washam's attitude as "superior" (the highest
possible rating), and Stambaugh before being confronted
with his August 12 memo, testified that Washam's attitude
did not change after the Union campaign. Moreover, in
view of the fact that Ryan had summarily discharged Mit-
chell ostensibly for carrying a gun, it is difficult to see why,
if Washam's discharge were similarly motivated, the Com-
pany would wait until August 17, i.e.. 2 days after Ryan
told Washam to put away his gun, to discharge Washam.
Ihe inference is warranted that Ryan was holding the gun
matter as a threat over Washam's head, and that, as
Washam's testimony indicates. it was a later development
which precipitated his discharge: specifically, his continu-
ing refusal to back up the Company's story about Mitchell.
The testimony of company witnesses Frank Grace and
Charles I)eppe is also significant. Grace was operations
manager at Price's Corner from September 1975 to April
1976. and at the time of this hearing was operations man-
ager at the Company's Toms River, New Jersey. store.
Grace testified that he told Washam many times that guns
646
J. C. PENNEY COMPANY
were not permitted. Grace further testified that Carol Eller
was present at a meeting of regional security personnel
when Regional Security Manager Deppe categorically told
them that weapons, including guns and mace, were not
permitted. Deppe also testified that Eller was present at a
meeting in Dover, Delaware, in October 1975, when he
'reiterated" that it was against company policy to carry
weapons. If this testimony and the testimony of Ryan con-
cerning his August 15 interview with Washam were true, it
would demonstrate that the reason given to Washam for
his discharge was pretextual. Acccording to Ryan. Was-
ham said that Deppe had authorized him to carry a gun. If
Ryan did not check out this statement, it would indicate
that Ryan did not care whether or not Washam had been
authorized to carry a gun. If Ryan did check out the state-
ment, he presumably would have learned that both Was-
ham and Eller knew that guns were prohibited. Therefore,
it is unlikely, if the Company were sincere about its gun
policy, that it would have promoted Eller, who had ostensi-
bly committed the same type of violation for which Mit-
chell and Washam were discharged. If the companr wit-
nesses testified falsely, this would cast doubt upon the
Company's entire defense in this case.
On paper, and in the general pronouncements of Deppe.
the Company nominally had a policy which generally pro-
hibited security officers from carrying weapons on store
premises. The Company presented in evidence manual pro-
visions purporting to be as originally promulgated by the
Company's security office in August 1969, and as revised
in 1974 and in February 1977. These provisions uniformly
and categorically prohibited security personnel from car-
rying chemical deterrents, including mace, on company
premises. The provisions also prohibited security personnel
from carrying firearms on company premises, with certain
limited qualifications. Thus, a full-time police officer who
was a part-time company employee could be authorized to
carry a firearm, and security officers could carry firearms
while opening or closing a store or conducting an investiga-
tion during nonworking hours. A 1974 revision provided
that the district manager or corporate security officer could
authorize the carrying of weapons, but this provision was
deleted from the 1977 revision, which permitted the store
manager to authorize only a "law enforcement officer with
police powers. . . to carry a firearm on company prem-
ises." Washam, Mitchell, Eller, and White would not have
come within this exception. Additionally., as indicated. Re-
gional Security Manager Deppe testified that he told secur-
ity personnel at the Dover meeting that weapons were pro-
hibited. His testimony was corroborated by the Company's
security manager at the Dover store, who was present at
the meeting.
The Company contends that its management at Price's
Corner consistently sought to enforce the above policy.
and never condoned the carrying of firearms. In support of
this contention, the Company presented the testimony of a
procession of company career executives. Some of their
testimony was inconsistent, evasive, or, in some instances,
patently false. In contrast, General Counsel presented, in
addition to the alleged discriminatees, the testimony of wit-
nesses who included a present supervisor (Eller), a present
employee (White), three former security officers at Price's
Corner, including one who is a high law enforcement offi-
cial with the State of Delaware. and a former department
manager at the store. The last four have no apparent inter-
est in the outcome of this case, and I have no reason to
believe that they would knowingly testify falsely against
the Company. The credible testimony of General Counsel's
witnesses, and the admissions of the company witnesses,
demonstrate that until the discharges of Mitchell and Was-
ham, and on a selective basis beyond that point, the Com-
pany condoned the carrying of weapons, including guns.
by its security officers at Price's Corner, whether they were
on or off duty. On paper, the Company had a strong policy
against weapons, but in practice, at least at Price's Corner,
this policy was ignored. The Company may have been con-
cerned about potential liability arising from the use of fire-
arms, and thereby sought to improve its legal position by
maintaining nominal rules which could be used to show
that its security officers exceeded their authority. However,
at least until the advent of unionization, management at
Price's Corner did not let this nominal policy interfere with
the safety of its security officers. Therefore, the carrying of
both guns and mace was sanctioned.
I need not recite all of the evidence which leads to the
foregoing findings. Some examples will suffice. Carol Eller
testified that in a side conversation at the May 16 meeting,
Ryan asked her if she approved of security guards carrying
weapons. Eller answered that "as a general rule I do not,
but we are not security guards, we are store detectives;
there's a big difference." Rvan replied that he was glad that
Eller felt that way. Ryan, in his testimony, did not deny
that this conversation took place. I credit Eller. Pauline
White carried mace until a week before the present hear-
ing. when Attorney Sartoris told her to stop. The timing,
and the fact that the instruction came from Sartoris, indi-
cates that the instruction was given with an eye to the pres-
ent litigation, rather than in furtherance of any company
policy. WVasham and former Jewelry Manager Anthony Pi-
leggi testified about an incident in Operations Manager
Grace's office, when Washam, while engaged in some
horseplay with Pileggi, went through the motion of draw-
ing his gun on Pileggi. Grace first testified that he didn't
recall the incident, then that it was possible that he saw it,
and finally that "it was an unremarkable incident to me."
The admission speaks for itself. Washam and Pauline
White testified as to an incident in which Ryan observed
Washam after he had used it to arrest suspected shoplifters.
Ryan first testified that he never saw such an incident, and
then backed down, testifying that he didn't see Washam's
gun. I credit Washam and White. While Ryan, like Eller,
personally did not like guns on the store premises, he rec-
ognized that the security officers needed some protection
in their work, and therefore permitted or condoned the
carrying of weapons. Finally, I find incredible former Op-
erations Manager Stambaugh's testimony that he went
with Carol Eller to follow a suspected shoplifter into the
dark basement of an apartment building, without being
aware or even believing that she was armed.
The Compan). in an attempt to mitigate the impact of
the evidence against it, suggested at the hearing and argues
in its brief that much of General Counsel's evidence is ir-
relevant because it involved a supervisor (Washam). or an
647
DEC'ISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged supervisor (Eller), or involved the carrying of guns
while a security officer was off duty but on store premises,
or involved mace rather than guns, or involved company
stores other than Price's Corner. The difficulty with this
argument is that the ostenstible company policy was not so
limited. If the Company were really serious about enforc-
ing this alleged policy, it would have discharged Ryan. be-
cause until the discharge of Mitchell, he consistently per-
mitted or condoned the carrying of weapons by security
guards. I find that the Company never had an actual policy
which prohibited its security officers from carrying guns on
the store premises, and that pursuant to his authority as
security manager, Washam, with the knowledge of man-
agement, carried a gun while on duty and, as testified to by
Washam and Mitchell, authorized Mitchell to carry a gun
at the store. I further find that Ryan ordered Washam.
under threat of Washam's own discharge, to discharge Mit-
chell, notwithstanding that Ryan knew that Mitchell had
been properly authorized by Washam to carry a gun.
Therefore, the reason given by Ryan was a pretext. In light
of the Company's hostility toward the Union. its suspicion
that Mitchell was the principal union adherent, and the
Company's efforts, beginning in May, to persuade Was-
ham to get rid of Mitchell. the inference is warranted, and
I so find, that Ryan seized upon the July 23 incident as an
excuse to fire Mitchell, but that the real reason was
Mitchell's adherence to the Union. Therefore, the Compa-
ny violated Section 8(a)(l) and (3) of the Act by discharg-
ing Mitchell.
As to Washam, the reason given for his discharge was
likewise a pretext. I find that the Company discharged
Washam because he refused to give false evidence to the
Board concerning Mitchell's discharge. Washam, in his ca-
pacity as a supervisor, reluctantly carried out Ryan's in-
struction to fire Mitchell. but Washam balked at lying to
the Board about the matter. Therefore, Ryan, as he had
threatened to do on July 24, fired Washam for allegedly
"violating a store rule," thereby hoping to discredit
Washam's testimony. The Company violated Section
8(a)(1) and (4) of the Act by firing Mitchell. The Board has
held that it is a violation of Section 8(a)(1) for an employer
to instruct a supervisor to withhold evidence from a Board
investigator, because such conduct has the necessary effect
of interfering with the freedom of employees to vindicate
their statutory rights in a Board proceeding. Grand-Central
Chrysler, Inc., 155 NLRB 185, 188 (1965). A fortiori, it fol-
lows that an employer also violates Section 8(a)(1) as well
as Section 8(a)(4), by discharging the supervisor because he
refuses to do so, or more specifically, as here, because the
supervisor refuses to give false testimony to the Board. See
N.L.R.B. v. Schill Steel Products, Inc., 480 F.2d 586, 594
(5th Cir. 1973); King Radio Corporation, Inc., v. N.L.R.B.,
398 F.2d 14, 22 (10th Cir. 1968); N.L.R.B. v. Electro Motive
Mfg. Co., Inc., 389 F.2d 61 (4th Cir. 1968); General Ser-
vices, Inc., 229 NLRB 940, 943 (1977).
With respect to the interrogation of Carol Eller, I find
that the Company did not violate the Act, because Eller
was a supervisor within the meaning of Section 2(11) of the
Act. Eller testified that when she was assistant security
manager, she wrote up disciplinary actions, warned em-
ployees who were not doing their job properly, told officers
where to work, trained new employees, and around Christ-
mas directed as manv as six or seven officers. She hired
Pauline White and other security officers. and participated
with Washam in discharge interviews. Together with Was-
ham she attended district security meetings. Operations
Manager Stambaugh testified that he discussed with her
changes in procedures. schedules, performance problems,
and the like. When Mitchell was hired, he was told that
Eller would be his boss. In sum, in addition to routine
security work, which Washam also performed, Eller func-
tioned as a supervisory assistant to Washam. It is true, as
General Counsel contends. that a finding of supervisory
status would mean that at most times the store had a secur-
ity staff which consisted of two supervisors and two em-
ployees. However. at times the staff was larger. Moreover,
it is difficult in this respect to analogize the security work
to other occupations, for the nature of retail store security
work may well have necessitated a higher proportion of
individuals with supervisory authority.
('ON( LiSIONS f0 LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging and by failing or refusing to reinstate
Edmund Mitchell because of his activities on behalf of the
Union, the Company has violated and is violating Section
8(a)( Il) and (3) of the Act.
4. By discharging and by failing or refusing to reinstate
Bernard Washam because he refused to furnish false testi-
mony to the Board concerning Mitchell's discharge, the
Company has violated and is violating Section 8(a)(1) of
the Act.
5. The Company did not violate the Act by interrogat-
ing Carol Eller concerning union activity, because Eller
was a supervisor within the meaning of Section 2(11) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ITHL Rif.Ml)Y
Having found that the Company has committed viola-
tions of Section 8(a)( I). (3), and (4) of the Act, I shall rec-
ommend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Company discriminatorily termi-
nated Edmund Mitchell and Bernard Washam, it will be
recommended that the Company be ordered to offer each
of them immediate and full reinstatement to his former job
or, if it no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings
that he may have suffered from the time of his discharge to
the date of the Company's offer of reinstatement. Backpay
shall be computed in accordance with the formula ap-
proved in F. W. Woolworth Compana,, 90 NLRB 289
(1950), with interest computed in the manner and amount
prescribed in Florida Steel Corporation. 231 NLRB 651
648
.1 C. PFN N Y C ()MPANY
(1977).5 It will also be recommended that the ('ompanns be
required to preserve and make axailable to the Board. or its
agents, on request. payroll, and other records to facilitate
the computation of backpa, due.
As the unfair labor practices conmilitted b the (Compa-
nv are of a character striking at the root of emplosecsc
rights safeguarded by the Act. the inference is warranted
that the Company maintains an attitude of opposition to
the purposes of the Act with respect to the protection of
employee rights in general. Accordingis. I shall recoil-
mend that the Compans be ordered to cease and desist
from infringing in any manner upon the rights guaranteed
in Section 7 of the Act. See N. L. R. . En. i.hslc .M/Ig. ( o,.
120 F.2d 532, 536 (4th Cir. 1941.
Upon the foregoing findings of fact. conclusions of la'..
and upon the entire record. and pursuant to Section 10()c)
of the Act. I hereby issue the following recoimended:
ORDER c
The Respondent. J. C. Pennes (o ompan, . Inc.. its offi-
cers, agents, successors, and assigns. shall:
1. ('ease and desist from:
(a) Discouraging membership in International L:nion of
Security Guards or an) other labor orgalnization hb' dis-
criminatorily terminating employees. or in an\ other maln-
ner discriminating against them with regard to their hire or
tenure of employment or any term or condition of enplo -
ment.
(b) Discharging supervisors or emploees because the',
refuse to give false testimony to the National l ahor Rela-
tions Board.
(c) In any other manner interfering with, restraining. or
coercing employees in the exercise of their rights to orga-
nize, to form, join, or assist labor organizations, including
said Union, to bargain collectively through representa.ties
of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection. or to refrain from an' and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Edmund Mitchell and Bernard W'asham im-
mediate and full reinstatement to their former jobs or. if
such jobs no longer exist, to substantially equis'alent posi-
tions, without prejudice to their seniority or other rights.
and make them whole for losses they suffered by reason of
the discrimination against them as set forth in the Section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents, for examination and copying, all pas-
roll records, social security payment records. timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpa y due.
(c) Post at its Price's Corner store in Wilmington. I)ela-
ware, copies of the attached notice marked "Appendix."
Copies of said notice, on forms provided by the Regional
Director for Region 4. after being duly signed by Respon-
dent's representative, shall be posted by Respondent upon
receipt thereof, and be maintained by it for 60 consecutive
davs thereafter, in conspicuous places, including all places
where notices to employees and to security personnel are
customarily posted. Reasonable steps shall be taken by Re-
spondent to assure that said notices are not altered, de-
faced. or cosvered bh' ain' other material.
(d) Notif' the Regional Director for Region 4. in writ-
ing. within 20 da't s fromi the date of this Order. what steps
Respondent has taken to comply herewith.
St. et h ,t,. / ,, /',,,,, O. II,,,,;nk ( ,, 1 t8 NI R B 7 10 71I ' 1
~~Nt I 't ). IIs
' h i t[le . \. t tii \ ,l ,,'e . :cd a, -, ,d b , t 1t02iS 4(, -[ ti e
Rtllc, Hnd the/\,,lwll Olle H i lt) I ,qibl Rclll.,l Board, thate frn sc ,
t l.~lll.ltl l d11/d Ia lillt ldi cd O)] l be';lilon xad l ,i , plo tled III Seo
e 4s , r I R l- !nd: R .tl r,, hr .1oICdl hI tIh. lr . 11t i hbe ll)c
Ir, t ll i", I ", "I 1 11 O a d l )Ti ,l ,and ,ll o 'in.oo r thc clo shai he
tId¢llnIC ] ..41 tl, cd K A.l iJ [>-r[ 'C, !
11l the C nr II Illl. i 'x ()rdtCl n clrf'lrned hb , I LiI rnT cllIl of the I rlled
S. itac ( ,kirl f \N[, c.ir, .the x.,rd. I1 lh notnie reading "PoI ed h, Order
.the N inillll [hboIr Rel.ll.w, [. ir' " h5ll u relad "Poted tursu.l ni tI O
ILtd lr thein 'ir m r t f led Siarl r ( oui" of \ppeA ,n lnfor ini Order oi the
\.1 0I ,] .I ' l R ti'llo 4,i d
A\PIPEN DI X
NoI( I l o ,It Plt10 lls
[POST I) Bi ORI)I R i I tIl
N s\ IN s1 I slB)R Ri I Al iosNS BOARD
An Agent of the U 'nited States Government
After ai hearing in s hichl all sides had an opportunity to
present ex idence and state their positions. the National Ia-
hor Relations Board hais found that we violated the Na-
tional Labor Relations Act and has ordered us to post this
notice anid to carr' out its prosisions.
Wt \n li so i discourage membership in Internation-
al i nion of Security G uards or anv other labor orga-
nization bs terminainng employees, or in any other
mianner discriminating against employees in regard to
their hire or tenure of employment or ans term or
condition of employment.
wilt il oel discharge supervisors or employees be-
caiuse the' refuse to give false testimony to the Na-
tional L.abIir Relations Board.
VWsI wit so in all, other manner interfere with.
restrain. or coerce employees in the exercise of their
rights to organize, to form. join, or assist labor organi-
zations. including International Union of Security
Giuards, to bargain collectively through representa-
tives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and aill such activities.
Wi wn i offer Edmund Mitchell and Bernard Was-
ham immediate and full reinstatement to their former
jobs. or if such jobs no longer exist. to substantially
equixvalent positions. without prejudice to their senior-
its or other rights, and make them whole for losses
thes suffered by reason of the discrimination against
them.
All our employees are free to become, remain, or refuse
to become or remain. members of International Union of
Security (Guards or alln other labor organization.
J C Pt'N1 (N() Co\11X'N I"(
649