John Wanamaker

National Labor Relations Board - Board Decisions

Nov 1, 1972

199 N.L.R.B. 1266 (N.L.R.B. 1972)

1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Wanamaker, Philadelphia, Inc. and International
Brotherhood of Painters and Allied Trades, AFL-
CIO, Local Union No. 1159. Case 4-CA-5711
November 1, 1972
DECISION AND ORDER
MEMBERS FANNING, KENNEDY, AND PENELLO
ing, neither Gantt nor Guy is shown to have engaged
in any union or concerted activity.
Upon such evidence, more fully detailed in the
attached Decision, we find ourselves in agreement
with the Trial Examiner that the General Counsel has
failed to establish by a preponderance of the evidence
that Gantt and Guy were discharged for a reason
prohibited by Section 8(a)(3) or (4).
On March 8, 1972, Trial Examiner Eugene
George Goslee issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a "brief contra exceptions."
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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Trial Examiner and to adopt his
recommended Order.
Our dissenting colleague would find that Re-
spondent violated Section 8(a)(1) of the Act because
it impliedly promised improved conditions in the
course of soliciting grievances. However, the testimo-
ny credited by the Trial Examiner shows that Person-
nel Administrator Reardon, in his conversation with
employees about problems in their department, sim-
ply alluded to Respondent's past practice of resolving
grievances through recourse to the personnel depart-
ment, and invited the employees to continue to use
this practice as an alternative to union representation.
No promise of benefit was expressed and we agree
with the Trial Examiner that none may be implied in
the circumstances.'
As for Gantt and Guy who the dissent claims
were unlawfully discharged, they left work on 2 days
to attend a hearing without clocking out. Thus, for 2
days they absented themselves from work for personal
reasons leaving their names on the timeclock with the
apparent expectation of receiving pay for the time not
worked. Upon discovering this, Respondent dis-
charged Gantt and Guy.
This conduct of Gantt and Guy was in violation
of company rules. Permission therefor had not been
granted by any supervisor. Nor was their prolonged
absence from work without clocking out sanctioned
by any practice at the plant. In the penalty meted out,
it does not appear that they were treated differently
than any other employee guilty of the same miscon-
duct. Aside from their attendance at the Board hear-
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 Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
MEMBER FANNING , dissenting:
This is a case where two display department em-
ployees of a large metropolitan department store vol-
unteered to testify at a Board representation hearing
and were discharged, without warning or discussion,
at the first opportunity after the hearing closed.
The Board hearing concerned a unit of the store's
display department employees sought by the Charg-
ing Union. Shortly after the petition for this unit was
filed and before the hearing was held, the Respon-
dent-which had no past practice of soliciting em-
ployee complaints-solicited grievances from its
display employees through its personnel director
Reardon. At the same time the Respondent, through
Reardon and by letter, emphasized its opposition to
unionization.
In my view the discharges were clear discrimina-
tion to discourage union membership within the
meaning of Section 8(a)(3), as well as discharges spe-
cifically for giving testimony under the Act within the
meaning of Section 8(a)(4). Also, as I interpret this
record, the solicitation of grievances during organiz-
ing was, in the circumstances, improper interference
with employee rights guaranteed in Section 7, hence
a violation of Section 8(a)(1). I cannot agree with my
colleagues, Members Kennedy and Penello who af-
firm the Trial Examiner, that falsification of time rec-
ords was the real reason for the discharges, rather
than a transparent pretext the Respondent found con-
venient, or that Respondent's solicitation of griev-
ances during this election campaign did not carry with
it an implied promise of improved conditions. Mem-
ber Kennedy has recently approved a Trial
Examiner's Decision in Rotek, Incorporated,2 stating
that the mere fact that the institution of more careful
searching out of employee complaints coincided with
their manifestation of interest in unionization "went
' The cases relied on in the dissent are therefore factually distinguishable . 2 194 NLRB No. 73.
199 NLRB No. 163
JOHN WANAMAKER 1267
far to indicate to the employees that what Respondent
was doing was improperly motivated and was intend-
ed to induce the employees not to unionize." Do my
colleagues really think it necessary, as the Trial Exam-
iner here did, that an employer explicate his reason
for soliciting complaints during organizing before this
Board will take account of that solicitation? The
Board has set aside elections where such activity oc-
curred, recently in Raytheon, 188 NLRB No. 42. In his
separate opinion in that case Chairman Miller spoke
of the strong inference of a promise to correct inequi-
ties where an employer suddenly embarks upon solic-
itation of grievances during an election campaign,
"impliedly urging on his employees that the combined
program if inquiry and correction will make collective
action unnecessary."3
Concerning the discharges of Gantt and Guy,
who are the alleged discriminatees, there is much dis-
cussion in the Trial Examiner's Decision concerning
whether they actually had permission to attend the
Board hearing on Thursday and Friday, September 9
and 10, 1971, but it cannot be seriously contended
that they did not. On both days they cleared with their
immediate "superior" Klaus Schmidt-referred to by
the Trial Examiner as a "section, leader", -and obedi-
ent to Schmidt's suggestion made timely efforts to
clear with display director Gazabat, who had then
held his position for only four months and had had no
meetings with his employees. On both days they left
a note in Gazabat's office early in the work day, be-
fore leaving for the hearing. On the second day they
actually encountered Gazabat at the elevator, men-
tioned that they had been requested to return to the
hearing by the Hearing Officer, and were told by Ga-
zabat, as the Trial Examiner found, "It's your show."
If permission from the head of the department was
actually needed, this remark implied it. As Gazabat
admitted, he "definitely" did not tell them not to go.
Gantt and Guy did not clock out on either day
as they left for the hearing. The Trial Examiner found
that employees were allowed by Schmidt and other
section leaders to leave work for personal reasons
without clocking out but declined to impute knowl-
edge of this to the Respondent 4 On Friday the hear-
3 My colleagues distinguish the Rotek and Raytheon cases without discus-
sion, apparently satisfied that the Trial Examiner's allusion to a past practice
of employee recourse to the personnel department fits the exception specified
in those cases. That exception, however, deals with a perceivable employer
practice of soliciting employee complaints from time to time , not with an
employee-initiated discussion such as occurred at Wanamaker's in 1970 and
described by Reardon as what he meant when spoke of past practice . Absent
evidence of past employer practice , an employer promise of benefit is implicit
under Rotek and Raytheon . What Reardon did on behalf of management in
pointedly seeking out four display department employees -including Gantt
and Guy-and expressing chagrin at their consulting "outsiders" to resolve
their problems instead of coming to personnel , was timed to coincide with
the onset of union organization and implied a promise to correct inequities
so that unionization would be unnecessary . This is improper interference
with rights guaranteed to employees in Sec 7
ing closed about 4:30 p.m., the two men returned to
the store and duly clocked out at closing time. On
Thursday they were admittedly still at the hearing at
the time their cards show a clockout. They had no
knowledge who made these clockouts. Reardon testi-
fied that he would be interested to know who did, but
admitted that he did not discuss the matter with Gantt
and Guy. Reardon himself adjusted the time on their
cards so that they would be paid only for time actually
worked on the 9th and 10th, and directed their dis-
charge - an order carried out on Monday, September
13, by another member of the personnel department.
In its brief to the Trial Examiner the Respondent
urged that the evidence showed that these two em-
ployees "were discharged for having falsified time rec-
ords and for no other reason." This is essentially the
conclusion the Trial Examiner reached, branding as
specious the General Counsel's argument that Gantt
and Guy would hardly attend a Board hearing attend-
ed by Reardon and Gazabat-the latter having at-
tended on the first day-and expect to be paid for the
time unless management was agreeable to doing so,
and rejecting as without merit arguments that the
summary discharges of these men were not required
by the Respondent's personnel policies, though the
record shows just that.'
In my view, a fair interpretation of record facts
not in dispute shows an inordinate interest by the
Respondent in the time cards of Gantt and Guy,6 a
policy of giving warnings for even serious offenses
before discharge, and no previous example of a dis-
charge for falsifying time records. Thus, an abrupt
discharge of employees who have given testimony ac-
complished without discussion of the problem or
° The Trial Examiner 's reasoning in this respect is difficult to follow Such
a practice "over a period of time" is condoned by failure to stop it. It could
easily have been stopped here by warning rather than discharging Gantt and
Guy, and by alerting all section leaders
s Reardon testified that there are offenses such as job performance and
attendance where the most severe penalty-summary discharge-is not used
Instead a formal conference is held "plus a final letter of warning" and then
termination if there is no improvement . On redirect, he analogized falsifica-
tion of time records to stealing and said intermediate steps were dispensed
with in discharges for stealing No examples were given.
6 Timecards are customarily collected by Gazabat's administrative assist-
ant Faber on Saturdays, signed by Faber , and turned over to payroll. Faber
brought these two cards to Gazabat on Friday . Reardon had them brought
to him on Saturday morning because he was "curious " as to what they might
show.
The majority implies a lack of discriminatory intent in the discharges by
noting that, aside from their "attendance " at the Board hearing, Gantt and
Guy are not shown to have engaged in union or concerted activity. But Gantt
and Guy did not merely attend the hearing. They testified for the Union; so
far as this record shows no other unit employees volunteered to testify for
the Union, and Respondent lost no time in commenting on the two groups
of witnesses . Immediately following the Board hearing it sent a letter, dated
September 10, to all display employees, in which it stated.
We presented our case through general counsel and five responsible
employees who testified for John Wanamaker Numerous other mem-
bers of our Store Family were available to serve as additional witnesses
for us if we deemed it necessary
The OUTSIDERS [sic] produced two employees of the display division
and one of their business agents as their witnesses.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warning to them, occurring in a context of channeling
grievances to the personnel department to avoid deal-
ing with "outsiders," sustains the General Counsel's
burden of proving 8(a)(3) and (8)(4) discrimination. I
would reverse the Trial Examiner and order rein-
statement and backpay for Gantt and Guy in the
customary manner.'
7 My colleagues seem preoccupied with what they view as an "apparent
expectation to receive pay for time not worked," and they go so far as to
characterize the Gantt and Guy absences from work on the hearing days as
being for "personal" reasons . In truth , Gantt and Guy were assisting in a
government function concerning their own employee representation rights
and those of their colleagues in the display department . This may well have
been a new experience for them. As their absence from work for this unusual
purpose was bound to be noted by those members of management who
attended the hearing , their failure to clock out justifies no unfavorable infer-
ence . This is particularly true on a record which fails to show whether the
five employees who testified for the Respondent were also docked for the
time spent at the hearing.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Trial Examiner: This case
came on for hearing before me on January 26, 1972, at
Philadelphia, Pennsylvania, on a complaint issued by the
General Counsel of the National Labor Relations Board
and on answer filed by John Wanamaker, Philadelphia,
Inc., hereinafter called the Respondent.'
The issues raised by the pleadings relate to whether or
not the Respondent violated Section 8(a)(1), (3), and (4) of
the National Labor Relations Act, as amended, by acts and
conduct hereinafter detailed. At the conclusion of the hear-
ing all parties waived oral argument, but briefs have been
received from the General Counsel and the Respondent and
have been duly considered.
Upon the entire record in this proceeding, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation, main-
tains its principal office and place of business at Philadel-
phia, Pennsylvania, and operates several department stores
in the States of Pennsylvania , New York, New Jersey, and
Delaware . During calendar year 1971, the Respondent's
gross volume of business exceeded $500,000 , and during the
same period the Respondent 's purchases and sales in inter-
state commerce both exceeded $50,000 . The complaint al-
leges , the answer admits, and I find that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1 The complaint was issued on November 30, 1971, and is predicated on
a charge filed on September 27, 1971 , and served on the Respondent on
September 28, 1971.
II. THE LABOR ORGANIZATION INVOLVED
The complaint also alleges, the answer admits, and I
find that International Brotherhood of Painters and Allied
Trades, AFL-CIO, Local Union No. 1159, hereinafter
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on August 26 and 27 and
September 21, 1971,2 the Respondent, through its admitted
agent, Personnel Administrator John P. Reardon, interro-
gated its employees concerning their union membership,
activities, desires, and sympathies. The complaint further
alleges that on September 13, 1971, the Respondent dis-
charged its employees Charles Richard Gantt and Louis
Edward Guy because (1) they gave testimony under the Act,
(2) because they affiliated with and were in sympathy with
the Union, and (3) because they engaged in other concerted
activities for the purposes of collective bargaining or other
mutual aid or protection.
By its answer the Respondent denies any unlawful in-
terrogations, but admits that Reardon did have conversa-
tions with certain employees in the display department
concerning normal activities and problems. The
Respondent's answer also admits that it discharged Gantt
and Guy on the date alleged, but affirmatively alleges that
the employees were discharged for cause, more particularly
because Gantt and Guy took time off from work without
permission and falsified their timecards with the intent of
receiving pay during their absences.
With respect to the discharges, the facts of the case are
essentially undisputed. Gantt and Guy took time off from
their work on September 9 and 10 to testify before the Board
in a representation case 3 hearing involving the Union and
the Respondent. Testimony and documentary evidence in
the record reflects that during their absences of these 2 days
both employees remained on the timeclock. An issue to be
determined is whether Gantt and Guy had, or reasonably
assumed they had permission to leave work to attend the
hearing. If the foregoing issue is determined in the affirma-
tive, a second issue concerns whether the employees also
had permission to remain on the timeclock while absent
from work. Critical to the determination of these issues is
the evidence pertaining to the composition and scope of
authority of the Respondent's supervisory and managerial
2 All dates recited hereinafter are in 1971, except where otherwise specified.
3 John Wanamaker, Philadelphia, Inc., Case 4-RC-9308. On November
12, the Regional Director issued his Decision and Direction of Election,
finding that the display department employees constituted a unit appropriate
for the purposes of collective bargaining. The Regional Director also found,
as contended by the Union, that Klaus Schmidt and three other individuals
were not supervisors within the meaning of the Act, and included them in
the bargaining unit. The Respondent subsequently filed a request for review,
limited to the question of the unit found appropriate by the Regional Direc-
tor. On December 7, the Board issued an order granting the request for
review, and on February 17, 1972, the Board, at 195 NLRB No. 82, found
the unit sought by the Union to be inappropriate and dismissed the petition.
JOHN WANAMAKER 1269
hierarchy, and the inferences to be drawn from the chronol-
ogy of events.
This proceeding involves only that segment of the
Respondent's Philadelphia operations identified in the rec-
ord as the display department. A total of approximately 45
employees are assigned to the display department, and they
are assigned to several functional sections including, among
others, the home furnishing section, the women's fashion
section, and a section assigned to the Respondent's budget
stores . Jean Louis Gazabat, the corporate display director,
has overall supervisory authority over the display depart-
ment and he is assisted by Mssers. Collier and Faber. Ac-
cording to testimony adduced by the Respondent, Gazabat,
Collier, and Faber are the only officials in the display de-
partment who have authority to grant employees permission
to leave the store for personal reasons during working hours.
Gazabat also has authority to effectively recommend hire,
discharge, and discipline of employees, but his recommen-
dations are subject to review and final approval by Person-
nel Administrator John P. Reardon.
Charles Gantt was first employed by the Respondent
in November 1969, and was initially assigned to the
women's fashion section. At some undisclosed later time
Gantt was promoted to supervisor4 of the women's fashion
section, with a crew of three or four employees. Six or seven
months later, at his own request, Gantt was transferred to
the home furnishing section, where he worked until his dis-
charge on September 13.
Louis Guy was employed by the Respondent in Sep-
tember 1968, and apparently worked in the home furnishing
section in the display department for the entire period of his
employment. As in the case of Gantt, Guy was summarily
discharged by the Respondent on September 13, his first
workday following the second day of his appearance as a
witness at the Board representation hearing in Case 4-RC-
9308.
At some undisclosed time prior to August 16, the Un-
ion undertook an organizing campaign among the employ-
ees assigned to the Respondent 's display department. On
August 16, the Union filed a petition in Case 4-RC-9308,
seeking certification in a bargaining unit comprised of the
display department employees.
According to the testimony of Louis Guy, on or about
August 26, Personnel Administrator John Reardon met
Guy and Klaus Schmidt in the rug department and talked
to them about the Union. Reardon told the employees that
the Union had filed a petition with the National Labor
Relations Board and Reardon asked Guy what he knew
about the Union. Guy replied that he knew nothing about
the Union because he had just returned from vacation.
4 Gantt used the term "supervisor" to describe his classification in the
women's fashion section , and he used the same term to describe the classifica-
tion of Klaus Schmidt, the leader of the employees assigned to the home
furnishing section Another witness, former employee Robert Lewis, testified
that during the course of his employment with Respondent he was promoted
to supervisor of the budget store section At the time of his promotion,
however, Lewis was the only employee assigned to that section , and at no
time did his alleged supervisory functions extend to more than one helper.
For reasons more fully explicated below, I find that the witnesses ' use of the
title of "supervisor" is not dispositive evidence that Gantt, Lewis, or Klaus
Schmidt ever possessed or exercised supervisory authority within the
meaning of Section 2(11) of the Act.
Reardon then posed the same query to Schmidt, who also
replied that he had just returned from vacation and knew
nothing about the Union. According to Guy, Reardon
talked about vacations and other matters, and then asked
Guy if he had been to Frank's 4 lately . Reardon suggested
that Guy might be inclined to come down to Frank's and
talk, and, in response to a leading and suggestive question
from the General Counsel, Guy testified that Reardon was
suggesting that they talk about the Union. Schmidt did not
testify in this proceeding.
Gantt testified that on or about August 27 he was sum-
moned to Gazabat's office and a discussion with Reardon
ensued concerning the Union. Reardon explained that the
Respondent was aware that the Union was seeking to repre-
sent the employees in the display department and had filed
a petition. He asked if Gantt was aware of this. Gantt re-
plied that he had no personal knowledge, and Reardon then
asked if Gantt was aware of any particular problems in the
display department which had escaped the notice of the
personnel department. Gantt replied that the display de-
partment was not having any problems. Reardon then stat-
ed that he was aware of a prior problem, which had been
taken care of, and felt that there was no situation or problem
that the personnel department could not solve. Gantt vol-
unteered that he had formerly worked in a store where the
display department was unionized, and that he hadn't liked
it. Reardon closed the conversation by reminding Gantt
that he should feel free to come to Reardon and discuss any
problems in the display department.
On the same date employee Robert Lewis and his help-
er, Louis White, had a conversation with Reardon about the
Union. According to Lewis, Reardon began the conversa-
tion by asking if the employees were familiar with the situ-
ation in the display department, and Reardon explained
that some of the people in the department were interested
in having a union. Further, according,to Lewis, Reardon
asked him if he knew what was happening, and if he knew
the people who were involved. Lewis replied that he had no
knowledge. Reardon, mentioned his concern about employ-
ees going to "outsiders," rather than coming for help to the
personnel department, and asked the employees if they had
any problems. Lewis told Reardon of problems he had pre-
viously experienced about an adjustment in salary and addi-
tional help in his section, and complained that he had found
it necessary to go to higher management to have the prob-
lems resolved. At this juncture, the conversation ended.
Louis White did not testify.
Sometime late in August the Respondent, through
Reardon and Gazabat, conducted a meeting for the em-
ployees in the display department. Reardon informed the
employees that the Company was aware that the Union was
seeking to represent the display department employees and
that the Union had filed a petition. Reardon explained that
the Respondent believed that the display department did
not constitute an appropriate unit, and he alluded several
times to a letter sent by the Respondent to the employees
in the display department. Gantt informed Reardon that he
had not received a copy of the letter, whereupon Reardon
5 Apparently a neighborhood watering spot frequented on occasion by
both Reardon and Guy.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read the contents and opened the meeting up for discussion.
The employees asked no questions, attempted no discus-
sion , and Reardon adjourned the meeting.
With respect to the alleged interrogations, Reardon
testified that he did talk to Gantt on August 27, informed
him that the Union had filed a petition, and expressed sur-
prise that the employees had gone to a union rather than
following the prior practice of seeking a solution to their
problems through the personnel department. Reardon relat-
ed some prior examples of how problems had been solved
and expressed his curiosity about what problems might cur-
rently exist. Reardon denied that he made any inquiry about
Gantt's attitude toward the Union, but corroborated
Gantt's testimony that Gantt had no personal knowledge of
the Union and volunteered his experience in prior employ-
ment in a unionized store.
Reardon also testified that on August 26 and 27 he had
separate conversations with employees Guy and Schmidt
and employees Lewis and White. Reardon related that he
informed the employees of the petition filed by the Union,
and related the prior practice by which the employees had
brought their problems to the attention of the personnel
department. Reardon apparently indicated his curiosity
about any current problems in the department, and admit-
ted in his testimony that he did discuss with Lewis a prior
problem concerning a wage adjustment. Reardon admitted
that in his conversation with Guy and Schmidt he men-
tioned "Frank's," but denied making any suggestion that
Guy meet him at that place for the purpose of discussing the
Union. In addition, Reardon denied that he questioned the
employees concerning what they knew about the Union,
and also denied that he questioned them about the identity
of . other employees who favored having a union.
On an undisclosed date late in August the employees
in the display department, including Guy, Gantt, and Klaus
Schmidt, attended a union meeting . The Union's represent-
ative explained the hearing scheduled to take place in the
representation case and asked for volunteer witnesses. The
Union's representative explained that the hearing would
only last a couple of hours. After some discussion among
the employees Gantt and Guy volunteered to appear as
witnesses , but at no time were the employees placed under
subpena. According to the testimony of both Gantt and
Guy, Klaus Schmidt was present during the course of the
meeting, expressed approval of Gantt and Guy appearing as
witnesses , and told them that it would be "O.K."
On September 8, Gantt reminded Schmidt that the
hearing was to be conducted on the following day, and
asked Schmidt if the employees still had permission to at-
tend. Schmidt replied in the affirmative, but cautioned
Gantt that the employees should be sure to let Mr. Gazabat
know of their intended absences.
Gantt testified that later on the same day he delivered
some materials to the floor where Gazabat's office was lo-
cated, and attempted to contact Gazabat to inform him that
he and Guy were scheduled to attend the hearing on Sep-
tember 9. Gazabat was not in his office and Gant postponed
any further attempt to contact him until the following morn-
ing. Guy, who had heard Schmidt's admonition to be sure
to let Gazabat know of the intended absences , made no
independent attempt to inform Gazabat or secure his per-
mission.
On September 9, Gantt arrived at work about 8:30
a.m., and about 9 o'clock renewed his attempts to locate
Gazabat and inform him of the contemplated absences.
Again, Guy made no independent attempt to inform Gaza-
bat, but left the matter in the hands of Gantt. Gantt was
unable to contact Gazabat, or Gazabat's secretary, but testi-
fied that he did leave a note for Gazabat. The note, which
was left on the secretary's desk, informed Gazabat that
Gantt and Guy were to attend the hearing at the Board's
office, that Gantt contemplated an absence of only a few
hours, and that the employees could probably return after
lunch. According to Gazabat, he never saw the note from
Gantt.
The employees left for the hearing about 10:15 a.m.
and encountered both Gazabat and Reardon in the hearing
room. Some small talk was exchanged between the employ-
ees and Gazabat and Reardon, but no mention was made.
of their appearance at the hearing during working hours,
and the employees were not questioned concerning the
source from which they had obtained permission to be ab-
sent from work.
Both Gantt and Guy testified during the morning ses-
sion of the hearing on September 9, and prior to the noon
recess both were requested by the Board's hearing officer to
return for the afternoon session. The employees complied
with the request and remained at the hearing in the presence
of Reardon and Gazabat until about 6:20 p.m. At the close
of the day's session the Hearing Officer and the Union's
representative requested Gantt and Guy to return to the
hearing on the following morning.
After leaving the hearing on the evening of September
9, both Gantt and Guy departed for home without reporting
back to their place of employment. When the employees
reported to work on the morning of September 10, they both
found that some unknown person or persons had punched
out their timecards at approximately 6:10 p.m. on the prior
evening.
After reporting to work on September 10, Gantt con-
tacted Klaus Schmidt and informed him that the employees
had been recalled to attend the hearing on that day. Schmidt
asked, "Again?" and when Gantt answered in the affirma-
tive, Schmidt said, "All right."
About 10:30 a.m., Gantt, accompanied by Guy, at-
tempted to conduct Gazabat to inform him that they had
been recalled to the hearing. Gazabat was not in his office
and his secretary was unable to inform the employees of his
whereabouts. Gantt left a note with the secretary, adivsing
Gazabat that the employees had to return to the hearing,
and Gantt expressed hope that it would be very short. Gaza-
bat testified that he saw Gantt's note about 11 a.m. on
September 10.
After leaving the note with the secretary, Gantt and
Guy returned downstairs, and as they were leaving the el-
evator they encountered Gazabat. After passing the time of
day, Gantt told Gazabat that he and Guy had been recalled
to the Board hearing. Gantt asked Gazabat if he also intend-
ed to return to the hearing. According to Gantt's testimony
Gazabat replied in the negative, and added "It's your
show." According to the testimony of Guy, Gazabat replied,
"Go ahead, it's your show."
JOHN WANAMAKER 1271
The employees left the store about 10:45 a.m., and
remained at the hearing until it closed at 4:30 p.m. Reardon
was present in the hearing room and observed the presence
of Gantt and Guy. After the close of the hearing both em-
ployees returned to the store and worked until they punched
out on the timeclock about 5:15 p.m.
On the following Monday, September 13, Gantt and
Guy arrived at work at their usual starting time. About 11
a.m. Gantt and Guy were called separately to the office of
Mr. Stoeckel in the personnel department, and both were
summarily discharged. Both employees were informed that
they were terminated for falsifying their time records and
leaving the store without permission.
The General Counsel has also alleged, and Respondent
has denied, that on September 21 Reardon again interrogat-
ed employees concerning their union membership, activi-
ties, desires, and sympathies. There is evidence in the record
of a conversation between Reardon and employee Lewis on
that date, but no part of the evidence can be construed as
an interrogation. Lewis testified that some few days after
the discharges of Gantt and Guy he asked Reardon for an
appointment. When Lewis appeared in Reardon's office he
related to Reardon that at an earlier meeting the employees
had been promised progress reports about the Union and
the store and where everyone stood. Lewis asked for a prog-
ress report, and, according to his testimony, Reardon re-
plied, in substance:
... by saying that recently there was a hearing being
held to provide the validity of a union coming into the
store, into the display department. He went on to say
that there were several witnesses for the store, and there
was two witnesses for the Union. At that time I asked
him if the two people that were witnesses for the Union
were the ones that were fired; whereupon he said, "We
can't say that they were fired for that reason, for ob-
vious reasons". He went on to say that they were fired
for falsifying their time cards.
Lewis testified that he then asked Reardon a hypotheti-
cal question. In substance Lewis asked if he would be fired
under circumstance of his absence from work for illness, but
where he came into the store to buy something, and some-
one else had punched his timecard in and out for that day.
According to Lewis, Reardon replied that Lewis couldn't
lose his job for that reason. Lewis then asked if the witnesses
were paid for the time spent attending the hearing, and
Reardon replied:
Yes, they were paid for the day, but we couldn't pay
those who testified aginst the store.
Reardon testified that Lewis made an appointment
with him and that a conversation did take place on Septem-
ber 21. As related by Reardon, Lewis expressed concern
about job security, stated that he was going to take on an
additional personal obligation, and complained of a person-
ality conflict with Assistant Display Director Collier. Ac-
cording to Reardon, he explained the Respondent's
personnel policies related to job performance, and he in-
formed Lewis that he would not be summarily discharged
for poor job performance, but would be entitled to several
warning sessions with the personnel department. Lewis then
asked about five individuals who had been discharged in the
display department, including employees Gantt and Guy.
Reardon explained to Lewis the reasons for the termina-
tions. Reardon denied, however, that he told Lewis that the
Respondent couldn't say that Gantt and Guy were dis-
charged because they testified at the Board hearing, al-
though he admitted that he did give Lewis the true reasons
for their discharges.
The Respondent's defenses to the discharges of Gantt
and Guy were established in the record through the testimo-
ny of Gazabat and Reardon. The Respondent admits that
its management officials were aware of the presence of
Gantt and Guy at the hearing on both September 9 and 10.
Gazabat admitted that he saw the note left by Gantt on the
morning of September 10, and that the note came to his
attention after he met Gantt and Guy at the elevator. Gaza-
bat also admitted that in response to Gantt's question of
whether he intended to return to the hearing, Gazabat re-
plied, "It's your show." Gazabat denied, however, that he
prefaced his reply with the words, "Go ahead." I credit
Gazabat's denial.
Gazabat further testified that he never gave permission
to Gantt and Guy to leave the store during working hours
to attend the hearing, and neither Gantt nor Guy ever asked
for his permission. Gazabat denied that Klaus Schmidt had
authority to excuse Gantt and Guy from work, and stated
that it is the established policy of the display department to
require employees who leave the store for personal business
to clock out at the time of departure and to clock back in
upon return.
With respect to the alleged falsification of the time-
cards, Gazabat related that this matter came to his attention
on Friday morning, after he talked with Gantt and Guy at
the elevator and after he had read Gantt's note. According
to Gazabat, Faber, whose duty it is to make a daily check
of the timecards for employees in the display department,
brought the cards to his attention about 11: 30 a.m ., or short-
ly thereafter. Gazabat, who was aware of the employees
presence at the hearing on September 9, checked the time-
cards and ascertained that both Gantt and Guy had
punched in on the morning of September 9, and that the
cards had been punched out after 6 p.m. on the same date.
After the review, Faber apparently returned the timecards
to the proper places in the ract, and Gazabat attempted to
contact Reardon. Reardon, however, had returned to the
Board's offices and Gazabat was unable to discuss the mat-
ter with him until after the close of the hearing.
Between 5 and 6 p.m. Gazabat met with Reardon, the
timecards were analyzed and Gazabat recommended that
Gantt and Guy be discharged. Having made his recommen-
dation, Gazabat left the final determination to Reardon and
the personnel department.
Reardon testified that he saw Gantt and Guy at the
hearing on both September 9 and 10, and that he directed
Faber to pull their timecards for his review. Reardon further
testified that having determined that the employees were
clocked in during the periods while they were attending the
hearing, and in accordance with the Respondent' s estab-
lished policy of summary discharge for certain conduct,
including falsification of timecards, he decided on Septem-
ber I1 to discharge Gantt and Guy. The employees' time-
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards were adjusted to reflect the actual hours they worked
on September 9, 10, and 13 , and they were paid the corre-
sponding wages at the time of their discharges.
With respect to the evidence pertaining to the allega-
tions of interrogation , I find that Reardon did confront
employees Guy, Lewis , and Gantt about the Union on Au-
gust 26 and 27 . As to the several versions of the conversa-
tions, I credit the testimony of Gantt and Reardon, and I
discredit the versions related by Guy and Lewis . The testi-
mony given by Gantt and Reardon concerning their conver-
sation on August 27 is in substantial accord . Reardon
credibly testified that his conversations with the employees
followed a similar pattern , and I find that he did not interro-
gate the employees concerning their union membership, ac-
tivities, desires , or sympathies . I do not credit Guy's version
that Reardon asked him what he knew about the Union,
and I similarly reject Lewis' version that Reardon asked him
if he knew anything about what was happening concerning
the Union and "any people that were involved ." Aside from
my observation of Guy and Lewis and a review of their
testimony, the verity of their versions of the conversations
is susceptible for failure of corroboration . Employee
Schmidt was present at the Reardon -Guy conversation, and
employee White was present at the Reardon-Lewis conver-
sation . Neither employee was called to testify and there is
no indication in the record of their unavailability as witness-
es.
Upon the credited testimony of Gantt and Reardon, I
find that Reardon informed the employees of the filing of
the petition , asked them if they were aware of this fact, and
expressed some chagrin that the display department em-
ployees had turned to "outsiders " to resolve their griev-
ances . I also find that Reardon asked, or at least expressed
his curiosity, about current problems in the display depart-
ment ; related the past practice of resolving employee griev-
ances through recourse to the personnel department; and at
least tacitly invited the employees to continue this practice.
In the circumstances of this case , questions posed to
employees concerning their awareness of the filing of a
representation petition do not rise to the stature of an un-
lawful interrogation of employees about their union mem-
bership , interests, or activities . Accordingly , I find that the
Respondent did not unlawfully interrogate its employees in
violation of Section 8(a)(1) of the Act.6
The General Counsel argues , nevertheless, that
Reardon's questions to the employees coupled with his com-
ments about "outsiders" and the availability of the person-
nel department for the resolution of grievances , constituted
an unlawful solicitation of grievances . In support of this
contention the General Counsel relies on Raytheon Compa-
ny, 188 NLRB No. 42, a Decision , Order, and Direction of
Second Election , and Rotek, Incorporated, 194 NLRB No.
73. There is no doubt from the record in this case that
Reardon alluded to the Respondent 's past practice of re-
solving grievances through recourse to the personnel de-
partment, and invited the employees to continue to use this
practice as an alternative to union representation.
Reardon 's conduct, nevertheless falls far short of that found
violative by the Board in Rotek, supra, where the solicitation
of employee complaints was coupled with an expressed
6 Invalex Sales Co, Inc., 152 NLRB 773
promise that the employer needed the complaints to de-
termine how to make improvements with respect to wages
and other employment conditions . As the Board has estab-
lished , "The solicitation of employee grievances by an em-
ployer is not illegal unless accompanied by express or
implied promises of benefits specifically aimed at interfer-
ing with , restraining or coercing employees in their organi-
zational effort ."7 Reardon did not couple his comments
about the established method of resolution of employee
grievances or problems with any express or implied promise
of benefits, and I find that his conduct did not violate the
Act.
I further find that the Respondent did not violate any
provision of the Act by the comments made during the
course of the meeting it held for the display department
employees in late August. Reardon told the employees of
the Respondent's awareness that the Union was seeking to
represent the display department and that it believed that
the unit sought was inappropriate . Reardon alluded to a
letter which the Respondent had sent to the employees and
subsequently read the contents of the letter . The letter is in
evidence and, as the General Counsel conceded on the rec-
ord, its contents do not violate any provision of the Act. At
most, the Respondent's group meeting with the employees
is evidence of its opposition to union representation of the
display department.
With respect to the reasons asserted by the Respondent
for the discharges of Gantt and Guy, the record is clear that
they did not have express permission from any acknowl-
edged supervisor or managerial agent of the Respondent to
leave work to attend the hearing on September 9 and 10.
The record is equally clear that the employees neither
sought nor received permission from any acknowledged
agent of the Respondent to remain on the timeclock during
their absences on these 2 days.
The General Counsel contends , nevertheless, that the
employees secured permission to attend the hearing from
Klaus Schmidt and that Schmidt , based on the
Respondent's accepted practice , gave the employees tacit
permission to remain on the timeclock during their absen-
ces. To this end the General Counsel twice amended the
complaint during the course of the hearing, first to allege
that Schmidt is a supervisor, and again later in the hearing
to allege that Schmidt is "either a supervisor or acting as the
agent of the Respondent." The Respondent , of course,
amended its answer to deny both allegations.
In answer to these allegations the Respondent contends
that in the related representation case Klaus Schmidt was
specifically found not to be a supervisor within the meaning
of Section 2(11) of the Act . It is true that the issue of
Schmidt's alleged supervisory status was investigated during
the course of the representation hearing, and the Regional
Director found Schmidt to be a leadman and not a supervi-
sor. In my view, I am not bound by this disposition arrived
at as a result of a nonadversary proceeding, particularly
since the Board was not called upon and did not reach this
issue . Nevertheless , on the basis of the pertinent evidence in
the record in this proceeding, which is indeed sparse, I am
unable to find that Schmidt is, or was at any time material
7 ITT Telecommunications, A Division of International Telephone and Tele-
graph Corporation, 183 NLRB No. 115
JOHN WANAMAKER 1273
to this case, a supervisor within the meaning of the Act. The
limited testimony in the record concerning Schmidt reflects
that his duties are routine in nature and require no exercise
of independent judgment. This is no evidence that Schmidt
has, or ever had, authority to hire, discharge, discipline,
reward, or effectively recommend these or any other per-
sonnel actions.
As concerns the General Counsel's alternative conten-
tion that Schmidt, even if not a supervisor, was "acting as
an agent of the Respondent," some testimony was elicited
through witnesses Gantt, Guy, and Lewis concerning prior
occasions when employees in the display department were
allowed to take time off from work for personal reasons
while they remained on the timeclock. Gantt testified that
at the time of his hire by the Respondent he was instructed
by the then assistant director of the display department that
he was required to punch his timeclock only at the begin-
ning and- end of the workday.' Gantt also testified to three
occasions when Schmidt had given him permission to ab-
sent himself during working hours, and he related that he
did not clock out on these occasions and was never crit-
icized or reprimanded for failing to do so. Gantt further
related that, during the period of his employment as the
so-called supervisor of the women's fashion section, he gave
permission to other employees to take time off from work
for personal business . At a later juncture in his direct testi-
mony Gantt repeated that there had been occasions when
he was absent from the store for personal reasons, that these
were common occurrences, and that if an employee left the
store with the permission of his supervisor he was not
docked for the, absence. On cross-examination, however,
Gantt admitted that he did not know whether either Gaza-
bat or Collier was aware that employees had been allowed
to take time off with pay.
Guy also testified that on occasions during his 3 years
of employment in the display department he had taken time
off during working hours. According to Guy, he obtained
permission from Schmidt, whom he described as his imme-
diate supervisor. Guy related a specific instance in June
when he took time off to look for an apartment, and he also
related that on these and other occasions he did nothing to
indicate his absence on his timecard.
Robert Lewis related three instances when he had tak-
en time off from work for personal reasons . On each of these
occasions , however, he sought and obtained permission
from John Fariello, who was then in charge of the display
department. According to Lewis, on only one of these occa-
sions did Fariello gave him instructions about clocking out
and in on the timeclock.
As related above there are two key issues involved in`
reaching a determination as to whether Gantt and Guy were
discharged for reasons prohibited by the Act, or for cause
as asserted by the Respondent. Did the employees have, or
reasonably believe that they had permission to leave work
to attend the representation case hearing? If so, did they
also have permission, express or implied, to remain on the
timeclock while absent from work? I have found above that
8 The timeclock system used by the Respondent utilizes the 24 hours or
military method and portions of hours are registered in decimal units. The
employees are not required to clock out for lunchbreaks , but apparently are
not paid for this time.
Klaus Schmidt was not a supervisor and not a duly consti-
tuted agent of the Respondent. In the resolution of the
issues, I further find no evidence in the record to refute the
Respondent's testimony that Schmidt had never been ex-
pressly authorized to grant permission to employees to leave
work, whether with or without pay.
I am mindful that the legal responsibility of a principal
for the conduct of another does not in all instances depend
on proof of an express authorization. An individual or legal
entity may be held accountable for the conduct of an other-
wise unauthorized agent where the conduct is adopted, con-
doned, or ratified. Proof of adoption, condonation, or
ratification is impossible, however, where, as in circum-
stances of this case, there is no proof that the Respondent
was aware, or had reason to be aware, of Schmidt' s course
of conduct.
There is proof in this case, which I credit, that over a
period of time Schmidt and other section leaders allowed
employees to leave work for personal reasons, and without
requiring them to clock out. From the evidence of the length
of time the practice was in existence, I could infer that the
Respondent was aware, or had reason to be aware, of what
was going on. Upon this inference I could further infer that
the Respondent's failure to halt the practice is evidence of
adoption, condonation, or ratification. I am well aware,
however, that proof by a preponderence of evidence is not
established by pyramiding one inference on top of another.
Insofar as this record reflects the practice allegedly
adhered by Schmidt and Gantt had no authorization from
the Respondent, either express or implied. In reaching this
finding I have considered that it was Schmidt who is alleged
to have exercised the authority to grant time off with pay,
and Schmidt would have been the logical witness to estab-
lish the source of his express or implied authority. Schmidt
did not testify. I have also considered Gantt's testimony that
he also granted employees time off with pay, as well as his
failure to establish that his conduct was authorized or
known to the Respondent.
In summary I find that Gantt and Guy did not have
express permission from any authorized agent of the Re-
spondent to leave work to attend the representation hearing.
I also find that both employees were informed by Schmidt
to notify Gazabat of their intended absences, and, accord-
ingly, they could not have reasonably assumed that permis-
sion from Schmidt was sufficient to allow them to leave
work.
The General Counsel argues that the Respondent's
conduct on September 9 and 10 is persuasive evidence of a
plan to entrap the employees into violating its rules, so as
to create a pretext for their discharges. The characterization
of the Respondent's conduct as entrapment is perhaps inap-
propriate, but the evidence does suggest some doubt that the
employees' absences from work, standing alone, were good
cause for discharge. It has been found above that Gantt and
Guy did not have express permission to absent themselves
from work, and they were aware of their obligation to secure
permission from Gazabat. Their failure to do so cannot be
justified, moreover, by their belated and abortive attempts
to reach Gazabat,-because they could have sought permis-
sion from either Faber or Collier. Nevertheless the
Respondent's representatives were present and observed
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gantt and Guy at the hearing on both September 9 and 10.
They were aware that the employees were asked to return
to the hearing on the afternoon of September 9 and the
morning of September 10. Gazabat met the employees be-
fore they departed for the hearing on the second day, and
he admits that they informed him that they had been re-
called. In none of these confrontations, however, did the
Respondent's representatives object to the employees' ab-
sence from work, or question them about their permission
to attend or the source from which the permission was de-
rived.
In the light of the Respondent's conduct, its proffered
justification that the employees were discharged for failure
to properly secure permission to absent themselves from
work has all the overtones of an afterthought. The same
cannot be said, however, of the contention that Gantt and
Guy were discharged because they failed to clock out with
the intent of receiving pay for their attendance at the hear-
ing. The matter of the timecards was not discovered by the
Respondent until after the employees had departed for the
hearing on the second day. The matter came to the attention
of Reardon on the evening of September 10, and the dis-
charges were effected on the next scheduled workday.
The General Counsel contends that as Schmidt had
express or implied authority to grant time off, he also had
authority to allow employees to remain on the timeclock
when absent from the store on personal business. I have
found above that Schmidt was not an agent of the Respon-
dent, and his practice of allowing the employees to take time
off with pay was assumed without the authorization or
knowledge of the Respondent. Even if I were to assume,
moreover, that, through Schmidt's conduct and the
Respondent's condonation, Gantt and Guy had tacit per-
mission to leave work to attend the hearing, the assumption
would not permit a finding that the employees were also
given permission to remain on the timeclock during the
course of their 2 days absence from work. There is no evi-
dence in the record that on the particular instance in ques-
tion either Gantt or Guy sought or received permission from
Schmidt or any other person to leave their place of employ-
ment without clocking out.
In response to the evidence that Gantt and Guy attend-
ed the hearing while on the timeclock, the General Counsel
has advanced several arguments to justify their conduct and
negate the Respondent's defense of discharge for cause.
Among other arguments , the General Counsel contends
that it was not the intent of Gantt and Guy to cheat the
Respondent, and that they knew that they would not be
paid for their absences from work because Gazabat and
Reardon knew they were at the hearing, and Faber would
audit their timecards at the end of the week. The argument
is specious. There was no testimony from Gantt or Guy that
they failed to punch out in anticipation that their time on
the clock would not be paid. On the contrary, their testimo-
ny concerning prior absences warrants the inference that
they fully expected to be paid for the time they spent at the
hearing:
The General Counsel also argues that the summary
discharges of Gantt and Guy were not warranted and were
not required by the Respondent's supposed personnel poli-
cies. To this extent the General Counsel relies on the fact
that the portion of the personnel manual relied on by the
Respondent was read into the record, but the Respondent
refused to introduce the whole of the manual into evidence.
I find no merit in the argument. An employee's purposeful
claim for pay for time not worked, without regard to the
reason for the absence, is misconduct and a serious breach
of the employment relationship. I find the evidence relied
on by the General Counsel insufficient to establish grounds
for concluding that the discipline meted out to Gantt and
Guy was any aberration of the Respondent's established
personnel policies.
The General Counsel finally urges that the testimony
of Robert Lewis concerning his conversation with Reardon
on September 21 is dispositive proof that Gantt and Guy
were discharged because they testified for the Union at the
representation hearing. I have discredited Lewis' version of
his alleged interrogation by Reardon, and I similarly dis-
credit his version of the September 21 conversation with
Reardon. This conversation was alleged in the complaint as
an unlawful interrogation, but the only interrogation proved
as Lewis' questioning of Reardon. As Lewis admitted, he
sought out Reardon and questioned him, inter alia, about
the discharges of Gantt and Guy. Although the General
Counsel argues that Lewis should be credited as a disinter-
ested witness, my observation of his demeanor and a review
of his testimony reflects quite the contrary. Lewis was sub-
sequently discharged by the Respondent. Contrary to his
testimony that he sought Reardon out for the purpose of
obtaining a status report on the Union's organizing cam-
paign, Lewis was seeking reassurance about his own job
security and the effects of his conflict with Assistant Direc-
tor Collier. His testimony that Reardon tacitly admitted
that the discharges of Gantt and Guy were motivated by
their attendance and testimony at the hearing is, at worst,
a contrivance, or, at best, a symptom of an overactive imagi-
nation.
Section 8(a)(4) of the Act protects employees against
discharge or other job related reprisals because they have
filed a charge, testified, or otherwise cooperated with the
Board in an unfair labor practice or representation case
proceeding. As the Supreme Court has held, Congress made
it clear that persons with information necessary to the
Board's processes are to be protected against coercion, and
that this "complete freedom is necessary ... to prevent the
Board's channels of information from being dried up by
employer's intimidation of prospective complainants and
wintesses ." 9 As the General Counsel admits, however, the
rights of the employees to engage in protected activities
must be counterbalanced against the employer's right to
operate his business in an orderly and efficient manner.1°
More to the point of this case , Section 8(a)(4) in no way
restrains an employer's right to maintain discipline among
his employees, and the protection afforded by Section (a)(4)
does not immunize employees against discharge of disci-
pline for misconduct or violations of the employer's rules. I I
Where, as here, the misconduct is proven the General Coun-
9 N.L.R.B. v. Scrivener, d/b/a AA Electric Co. 405 U.S. 117.
i0 East Tennessee Undergarment Co., 139 NLRB 1129.
11 Standard Packaging Corporation, Royal Lace Paper Division, 140 NLRB
628, 629.
JOHN WANAMAKER 1275
sel can sustain the burden of proving discrimination only by
showing that the discharges were motivated by other rea-
sons, or that the employees were treated differently than
others under like circumstances. 12
Employees Gantt and Guy took time off to attend the
hearing without obtaining express permission from the Re-
spondent, and more particularly they failed to clock out
during their 2-day absences from the store , in expectation
that they would be paid . I find that for these reasons, and
particularly for the latter misconduct, the Respondent dis-
charged them . There is no evidence in the record that Gantt
and Guy were treated any differently by the Respondent
than other employees who have sought to 'collect pay for
time not worked . 13 I find , accordingly, that the General
Counsel has not sustained the burden of proving that Gantt
and Guy were discharged for reasons prohibited by Section
8(a)(4) of the Act.
As I have found that the discharges did not violate
Section 8(a)(4), I similarly find no violation of Section
8(a)(3) of the Act. Aside from their appearance and testimo-
ny at the representation hearing , which I have found was
not the motivating cause for their discharges, there is no
evidence in the record that Gantt or Guy engaged in any
union or concerted activities . There is evidence that the
Respondent was opposed to union representation of the
employees in the display department , but evidence of ani-
mus standing alone is not evidence of unlawful motiva-
tion.14
As I have found that the General Counsel has not
sustained the allegations of unfair labor practices alleged in
the complaint , I shall grant the Respondent's motion to
dismiss the complaint , and recommend that the complaint
be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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. The General Counsel has not proved by preponder-
ance of the evidence that the Respondent has engaged in,
or is engaging in, any unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
I recommend that the complaint herein be dismissed in
its entirety.
12 Poray, Inc., 143 NLRB 617, affd . 337 F.2d 114 (C A D C.).
13 Poray, Inc, supra.
14 N.L.R. B v Hudson Pulp & Paper Co, 273 F 2d 660 (C.A. 5), Poray, Inc.,
supra, 620