J. C. Penney Co., Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1973

204 N.L.R.B. 41 (N.L.R.B. 1973)

THRIFT DRUG CO. 41
Thrift Drug Company , a Division of J. C. Penney Com-
pany , Inc. and Retail Store Employees Union, Local
526, Retail Clerks International Association, AFL-
CIO. Case 30-CA-2139
June 8, 1973
DECISION AND ORDER
BY MEMBERS , JENKINS, KENNEDY, AND PENELLO
On March 15, 1973, Administrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limited
exceptions and a supporting brief. Respondent filed
exceptions and a supporting brief, a brief in opposi-
tion to the General Counsel's exceptions, and a re-
quest for oral argument.' The Charging Party filed a
brief in opposition to Respondent's exceptions and
request for oral argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings," and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Thrift Drug Company, a Di-
vision of J. C. Penney Company, Inc., Kenosha, Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
1972, Retail Store Employees Union, Local 526, Retail
Clerks International Association, hereinafter called the
Union, filed a charge with the Regional Director for Region
30 of the National Labor Relations Board, hereinafter
called the Board, alleging that Thrift Drug Company, here-
inafter called Respondent,' violated Section 8(a)(3) and (1)
of the Act by the suspension of Nancy Peterson, an employ-
ee, because of her activities on behalf of the Union. On
November 29,2 the Regional Director, on behalf of the Gen-
eral Counsel of the Board, issued a complaint and notice of
hearing alleging the suspension of Nancy Peterson as a
violation of Section 8(a)(3) and (1) of the Act and further
alleging that Respondent, by its agent Jerry Fishman,
'threatened to fire Nancy Peterson because of her protected
concerted activities. By its duly filed answer Respondent
denied that Gerald Fishman was a supervisor and denied
that it had suspended Nancy Peterson. On the issues thus
joined the matter came on for hearing before me on January
16, 1973, in Kenosha, Wisconsin. All parties were repre-
sented by counsel and had an opportunity to call and exam-
ine witnesses and to adduce relevant and material evidence.
At the close of the hearing all parties argued on the record.
Briefs have been received from the General Counsel, the
Charging Party, and Respondent.
Upon the entire record in this matter and in consideration
of the briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Thrift Drug Company, a Division of J. C. Penney, Inc.,
is a nationwide enterprise engaged in the operation of retail
stores , selling, among other things, drugs. Repondent main-
tains a drugstore in Kenosha , Wisconsin, where it is en-
gaged in the retail sale of merchandise including drugs.
Respondent annually derives revenues in excess of $500,000
in the course and conduct of its business and at its Kenosha,
Wisconsin , location purchases and receives goods valued in
excess of $50,000 in interstate commerce directly from
points located outside the State of Wisconsin . Respondent
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
' This request is hereby denied because the record, the exceptions , and the
briefs adequately present the issues and positions of the parties.
2 In adopting the Administrative Law Judge 's finding that Respondent's
conduct toward employee Nancy Peterson violated Section 8(a)(3) and (1)
of the Act , Members Kennedy and Penello rely solely on his finding that
Peterson was unlawfully selected for suspension because of her activities on
behalf of the Union . Member Jenkins relies also on the Administrative Law
Judge's rationale based upon Inland Trucking Co v N L R B, 440 F 2d 562
(CA. 7, 1971).
DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Administrative Law Judge: On October 13,
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union organized the employees at the Kenosha store
in 1965 or 1966. After much litigation an order to bargain
was enforced through the courts, and Respondent, which
had purchased Thrift Drug Company in 1970, commenced
' The pleadings were amended at the hearing to show the full name of
Respondent
2 All dates hereinafter are in the year 1972, unless otherwise specified.
204 NLRB No. 20
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating with the Union. Negotiations continued without
success until the spring of 1972 at which time the Union
determined to apply economic pressure on Respondent by
picketing and handbilling for informational purposes at the
customers' entrance to the store. The handbilling and pick-
eting was not accompanied by any work stoppage among
employees although employees took part in the handbilling
and picketing on occasion during their off hours. This state
of affairs continued until near the end of August, at which
time the employees became restive at the failure of Respon-
dent to agree to a contract. In response to Respondent's
failure to agree, the Union, by its business agent, Whiteside,
determined to picket at the receiving door of the Kenosha
store in an effort to impede deliveries of merchandise. This
picketing stopped a delivery while the truckdriver called his
business agent in Pennsylvania. After an interchange of
messages the truckdriver delivered the merchandise and the
picketing ceased. It appears that the truckdriver informed
Business Agent Whiteside that unless employees were on
the picket line at the receiving door he had instructions to
cross the picket line.
At the next union meeting Whiteside reported the reac-
tion of the truckdriver to the employees and asked for vol-
unteers both to attend the negotiating sessions and to
picket. Nancy Peterson volunteered to picket when the
truck arrived because she worked only 11 hours a week and
lived nearby. Accordingly she was most likely to be avail-
able during the hours that the truck delivered .3
On September 19 a truck from Pennsylvania arrived to
deliver merchandise at Respondent's Kenosha store. Busi-
ness Agent Whiteside called Mrs. Peterson at her home and
she went right over to the store. The truck pulled up and
commenced unloading before Mrs. Peterson's arrival. At
least three nonemployee pickets were on the loading dock
as well as four or five pharmacists who had been recruited
from Respondent's local store and other stores to assist the
truckdriver in unloading the truck. When Mrs. Peterson
arrived she was handed a picket sign and Whiteside in-
formed the driver that now an employee was on the picket
line. The driver pulled his truck away from the dock, parked
it, and went to a motel for the night.
While the truck was still at the dock, according to the
testimony of all the witnesses called by the General Coun-
sel, pharmacist Gerald Fishman, who was acting assistant
manager at the time, remarked in essence that "we ought to
fire Nancy Peterson." All of Respondent's witnesses denied
hearing such a statement except for Mr. Fishman who de-
nied making such a statement.
The General Counsel contends that this statement violat-
ed Section 8(a)(1) of the Act. I credit Mrs. Peterson's testi-
mony that Fishman made the statement attributed to him.
However, the record reveals no evidence that Fishman was
at this time a supervisor. He was temporarily detailed to the
store in the absence of the manager, who was ill and who
later left Respondent's employ. During the period of time
he was detailed at the Kenosha store Fishman was author-
ized to make no decisions regarding personnel or otherwise.
These were all left to the acting manager or, if he was absent
and could not be reached, to District Supervisor John Mey-
ers.
While it is clear that the sole management in the Kenosha
store consisted of the pharmacist on duty and that the em-
ployees looked to the pharmacists on duty for direction, in
the absence of any evidence that Fishman had been held out
to have authority of any type I find no occasion to charge
Respondent with responsibility for statements of Fishman.
Accordingly, I shall recommend that the complaint be dis-
missed insofar as this statement is alleged to be violative of
Section 8(a)(1) of the Act.
On the following morning, September 20, the truckdriver
returned to the Kenosha store as did Mrs. Peterson with her
picket sign. A standoff resulted until Business Agent White-
side, after conversations with Division Manager Meyers
and with the Company's labor relations manager in Penn-
sylvania, decided to take the pickets down and permit deliv-
eries to be made until he ascertained whether any progress
could be made in negotiations at the next negotiating meet-
ing scheduled later in September.
On October 10, no agreement having been reached,
Whiteside again called Mrs. Peterson to picket on the arriv-
al of a truck. Approximately the same thing happened as
happened on September 19. The truckdrivers declined to
make the delivery.' The drivers parked their trucks and went
to a motel after telephoning their business agent in Pennsyl-
vania. The following morning Whiteside had a conversation
with the Teamsters business agent in Pennsylvania who
represented the truckdrivers. Whiteside had apparently
made some sort of an agreement with this business represen-
tative that he would inform him in advance when he was
going to picket the loading dock with employees and he had
failed to do so on this occasion. The business agent was
angry with Whiteside and Whiteside agreed to take down
the pickets. Accordingly, on October 11, Mrs. Peterson was
withdrawn from the picket line and the deliveries were com-
pleted. The following day, October 12, Mrs. Peterson re-
ceived a telephone call from John Meyers in which she was
told that the Employer was not going to schedule her for any
further work, that she should not report for work that eve-
ning and
with regard to your activity on the picket line we are
giving you full status as a striker. You will, therefore,
not be scheduled for work until such time as the inter-
ruption of our truck deliveries discontinues or the pick-
et line disappears.
No further attempt was made to interfere with truck de-
liveries by the use of employee pickets. Picketing and hand-
billing has continued in front of the store. In the week after
Christmas Mrs. Peterson was informed that she was again
scheduled to work, and she has worked since that time until
the hearing.
B. Discussion and Conclusions
The General Counsel contends that the Respondent's ac-
tion with regard to Mrs. Peterson was clearly an unlawful
suspension in retaliation for her picketing activity, which
3 It appears that the truck deliveries normally arrived in the late afternoon 4 Two trucks appeared this time rather than one truck, as in a normal
every other Tuesday or Wednesday delivery
THRIFT DRUG CO. 43
under the Board's Decision in Edir, Inc., d/b/a Wolfie's, 159
NLRB 686, and Burns Ford, Inc., 182 NLRB 753, was statu-
torily protected activity, and that, by suspending the sole
employee picket while continuing its operations and retain-
ing the rest of the employees represented by the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
Respondent contends that its action with regard to Mrs.
Peterson was not a suspension but rather that the Employer
locked out Mrs. Peterson as a means of bringing economic
pressure to bear on the Union in support of its bargaining
position. Respondent relies on the decision of the Supreme
Court in N.L.R.B. v. Brown, d/b/a Brown Food Store, 380
U.S. 278 (1965), and American Ship Building Company v.
N. L R. B., 380 U.S. 300 (1965). In its brief Respondent as-
serts its position as follows:
In short the Company has the right to lock out all its
employees in support of its bargaining position. It
chose not to exercise that right in full but rather only
partially. It chose to lock out only that employee who
had sought to bring economic pressure to bear upon it
by her picketing activity. That employee was clearly
told that she could, at any time, relieve the counterpres-
sure by discontinuing the pressure of her own. Indeed,
when she did discontinue her interference with the
truck she was in fact returned to work.
We are not here faced with the issue of whether an em-
ployer may or may not lock out its employees in a unit for
the purpose of bringing economic pressure to bear on the
employees to accept the employer's collective-bargaining
position. Mrs. Peterson was selected for suspension s be-
cause she was the employee whose picketing stopped the
delivery of merchandise to the store. The very fact that
Respondent offered to and in fact did reinstate Mrs. Pe-
terson when picketing of the delivery trucks ceased reveals
that the suspension was in retaliation for the picketing and
had as its primary object the protection of the Employer
against the Union's economic weapons rather than the plac-
ing of an economic burden on the union members in sup-
port of the Employer's contract position. The suspension
was lifted not by the Union giving in in negotiations but
rather by the cessation of Mrs. Peterson's activity in picket-
ing the trucks. The effect thus is only secondarily supportive
of the Employer's economic contractual position.
However, even were I to find that the purpose, and rea-
sonable to-be-anticipated result, of the Employer's suspen-
sion of Mrs. Peterson was supportive of its bargaining
position, I find that the selection of Mrs. Peterson because
of her activities on the picket line was discriminatory and
this discrimination is directly violative of Section 8(a)(3) of
the Act. Admittedly she was selected because it was her
picketing that stopped deliveries. Other employees picketed
at the doors and others attended negotiating sessions. Only
Mrs. Peterson was involved in the stoppage of deliveries. By
the selection of Mrs. Peterson for suspension Respondent
clearly evidenced to every store employee that at least this
particular protected economic sanction undertaken by the
Union could be expected to result in the suspension of any
S 1 decline to play semantic games about whether Respondent 's refusal to
let Mrs Peterson work was a suspension Clearly her activity as a working
employee was suspended by Respondent 's action
employee connected with it. Lockouts are not all protected,
as the Union points out. The Seventh Circuit in Inland
Trucking Co. v. N.L.R.B, 440 F.2d 562 (1971), affg. 179
NLRB 350, cert. denied 404 U.S. 858, held that an employer
violated Section 8(a)(1) and (3) by locking out its employees
and continuing operation with the use of new hires. The
American Ship Building rule does not give the employer
license to pick and choose among its employees and sus-
pend those whose protected picket line activities are most
damaging to it. The mere selection of such an employee
from among all those in the unit for suspension is per se
discriminatory.
I find, as the General Counsel alleges, that the suspension
of Nancy Peterson violates Section 8(a)(3) and (I) of the
Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, 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.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act engaged in commerce within the mean-
ing 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 suspending Nancy Peterson because of her activi-
ties on behalf of the Union, Respondent discriminated
against employees with regard to terms and conditions of
their employment in violation of Section 8(a)(3) and (1) of
the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Having found that Re-
spondent unlawfully suspended Nancy Peterson, its em-
ployee, I shall recommend that Respondent be ordered to
make her whole for any loss of pay she may have suffered
as a result of Respondent's unlawful conduct. Backpay shall
be computed in the manner set forth in F. W Woolworth
Company, 90 NLRB 289, with interest added thereto in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to Section 10(c) of the Act, I hereby issue the APPENDIX
following recommended:
ORDER6
Respondent, Thrift Drug Company, a Division of J. C.
Penney Co., Inc., its officers agents, successors and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other
labor organization by discriminating against employees
with regard to terms and conditions of their employment.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Nancy Peterson for any loss of earnings
she may have suffered by reason of Respondent's discrimi-
nation against her 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 payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Kenosha, Wisconsin, store copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 30,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT Is FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found herein.
6 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
' In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to present
their evidence, an Administrative Law Judge of the Nation-
al Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post
this notice and to keep our word about what we say in this
notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT discourage membership in Retail Store
Employees Union, Local 526, Retail Clerks Interna-
tional Association, AFL-CIO, or any other labor or-
ganization , by discriminatorily suspending or
otherwise discriminating in regard to the hire, tenure of
employment or any term or condition of employment
of our employees because they have engaged in pro-
tected concerted activities for the purposes of collective
bargaining or other mutual aid or protection.
WE WILL make whole Nancy Peterson for any loss of
pay she may have suffered as a result of our discrimina-
tion against her by payment to her of the amount of
money she lost as a result of our action together with
interest at 6 percent per annum.
THRIFT DRUG COMPANY, A Di-
VISION OF J. C. PENNEY COMPA-
NY, INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 2nd
Floor, Commerce Building, 744 North 4th Street, Milwau-
kee, Wisconsin 53203, Telephone 414-224-3861.