L.M. Berry and Co.

National Labor Relations Board - Board Decisions

Jan 13, 1981

254 N.L.R.B. 42 (N.L.R.B. 1981)

42
L. M. BERRY AND COMPANY
L. M. Berry and Company and Mary Jo Downey
and Barbara Culbreath. Cases 12-CA-8867,
12-CA-8932, and 12-CA-9088
January 13, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 29, 1980, Administrative Law
Judge John C. Miller issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
L. M. Berry and Company, Tampa, Florida, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Insert the following as paragraph l(d) and re-
letter the subsequent paragraph accordingly:
"(d) Telling employees that their union activity
or union membership might be a problem in their
being able to transfer to the other divisions."
2. Substitute the following for paragraph 2(b):
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge inadvertently failed to include in his
recommended Order and notice a provision for the 8(aXI) violations con-
cerning Stern's and Sturtz's comments to Culbreath on December 21,
1979, and January 21, 1980, respectively. We shall therefore modify the
recommended Order and notice accordingly. The Administrative Law
Judge ordered Respondent to "transfer" Culbreath, rather than ordering
it to "offer to transfer" her as is customary. We perceive no reason to
depart from our customary order and we therefore shall modify par. 2(b)
of his recommended Order accordingly. We have further modified the
Administrative Law Judge's notice to confirm with his recommended
Order.
"(b) Offer to transfer Barbara Culbreath to the
New Orleans office as a telephone sales representa-
tive effective April 1, 1980 (the date of hire of
Donna Cook), and make her whole for any loss of
wages she incurred because of Respondent's failure
to transfer her, with interest as set forth in the
Remedy section here, less any net interim earn-
ings."
APPENDIX
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withhold benefits from em-
ployees in the bargaining unit while refusing to
bargain with the Union where nonorganized
employees have been given such benefits.
WE WILL NOT issue reprimands to employ-
ees because of their union activities or support
for United Food & Commercial Workers In-
ternational Union, Local 1636, or any other
Union.
WE WILL NOT refuse to consider or refuse
to transfer qualified employees because of their
union activities and support for the aforemen-
tioned Union or any other union.
WE WILL NOT tell employees that their
union activities or union membership might be
a problem in their being able to transfer to
other divisions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL remove and/or expunge from the
personnel records of Mary Jo Downey the
written reprimands given her dated November
30, 1979.
WE WILL offer to transfer Barbara Cul-
breath to the New Orleans office as a tele-
phone sales representative and make her whole
for any loss of wages she incurred because of
our failure to transfer her as of April 1, 1980,
with interest, less any net interim earnings.
L. M. BERRY AND COMPANY
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER, Administrative Law Judge: This
case was heard in Tampa, Florida, on April 28 and 29,
1980. The consolidated complaints allege that Respon-
dent granted increased wages and benefits to all employ-
ees except a newly certified group of telephone sales rep-
254 NLRB No. 3
L. M. BERRY AND COMPANY
resentatives in the Tampa office, that Mary Jo Downey
received one oral and two written reprimands because of
her union or concerted protected activities, that Barbara
Culbreath was discriminatorily denied a transfer to Re-
spondent's New Orleans office, and that all of the above
conduct was violative of Section 8(a)(1), (3), and (4) of
the National Labor Relations Act, herein called the Act.
On the entire record in this case, including my obser-
vations of the witnesses and their demeanor, I make the
following findings:
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Ohio corporation, has an office and
place of business in Tampa, Florida, where it is engaged
in the business of selling telephone directory advertising
in several States. It is alleged and admitted that during
the last 12 months Respondent received revenues in
excess of $500,000 and has sold more than $5,000 of ad-
vertising to customers in Florida who in turn meet a
Board standard for the assertion of jurisdiction. On the
basis of these admitted facts, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
It is alleged and admitted and I find that United Food
and Commercial Workers International Union, Local
1636, AFL-CIO, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
In a prior case,' the Board concluded that a unit of
telephone sales representatives in Respondent's Tampa
office constituted an appropriate unit and found that Re-
spondent's refusal to recognize and bargain with the
Union was a violation of Section 8(a)(5). Respondent, re-
lying on its contention that the unit is inappropriate, has
thus far refused to bargain and apparently intends to test
the validity of the unit finding in Federal circuit court.
1. The benefits issue: On September 18, 1979, the Union
was certified as the exclusive bargaining representative
of the telephone sales employees. The complaint alleges
that on or about October , 1979, Respondent granted
the following benefits:
(a) A new dental plan applicable to all employees
in the Tampa office except the employees in the
telephone sales unit;
(b) Increased the maximum coverage of its major
medical plan from $50,000 to $100,000 for employ-
ees in its Tampa office except for the employees in
the telephone sales unit;
(c) Increased its contribution to its Incentive Sav-
ings Fund from 33-1/3 to 40% for the accounts of
employees in its Tampa office except for the em-
ployees in the telephone sales unit;
L M. Berry and Company, 248 NLRB 1218 (1980).
(d) Effective on or about November 1, 1979, Re-
spondent increased coverage and limits of its pen-
sion and retirement programs for all employees in
its Tampa office except for the employees in the
telephone sales unit.
Respondent concedes that the above benefits were
granted to all employees except those in the telephone
sales unit and William Trip, vice president of human re-
sources for Respondent, testified credibly that the bene-
fits were withheld on the advice of counsel. After the in-
stant charge was filed, Respondent did grant the benefits
to such employees in mid-February 1980 and such bene-
fits were made retroactive to the date that such benefits
were initially granted to other employees.
2. Mary Jo Downey: It is undisputed that Downey re-
ceived three reprimands within I week during the week
ending November 30, 1979. She received an oral repri-
mand from Thomas Sturtz, division manager, after a tele-
phone sales supervisor, Elizabeth Widener, brought to
his attention that Downey had "closed" 132 accounts in
four working days the prior week, the closing week of a
sales contest. Sturtz advised her that she could not ade-
quately handle that many closings and properly sell the
advertising. In effect, she was reprimanded for closing
too many accounts.
On November 30, 1979, Downey was called in and
given a written reprimand for closing too few accounts
for the current week, 17 at the time she was reprimanded
on Friday morning. She testified credibly that, by the
close of business on Friday, she had closed 42 accounts
for that week. Downey also received a written repri-
mand for her "insubordination" at an informal sales
meeting on November 30, 1979, at the urging of Virginia
Stearnes, the telephone sales manager who conducted
the meeting. Her alleged misconduct involved her leafing
through a magazine flyer during the course of the meet-
ing.
3. Barbara Culbreath: Culbreath, who had been a tele-
phone sales employee for 4 years, on January 21, 1980,
made a letter request for transfer to the New Orleans
office of Respondent which was forwarded by Sturtz to
Green, the territorial manager. No response or action
thereon was ever taken by Green although such request
was received. On March 10, 1980, Culbreath wrote a
second letter again inquiring about her possible transfer
to New Orleans. On or about March 14, 1980, Sturtz
called Elmer Smith the division manager at New Or-
leans, who advised him that there were no openings at
that time and that he had never to that point accepted
any transfer into the New Orleans office. On March 20,
1980, Culbreath wrote another letter advising that she
had not heard about her transfer request and advising
that she was leaving Respondent's employ that day.
4. Respondent is engaged in the business of selling
telephone directory (yellow page) advertising throughout
the United States. Except for the newly certified bargain-
ing unit of telephones sales in Tampa, the remainder of
Respondent's operations are nonunion. Both Downey
and Culbreath were active union adherents and both tes-
tified in support of 8(a)(1) allegations against Respondent
in June 1979 in Cases 12-CA-8443 and 12-CA-8480.
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 18, 1979, Retail Clerks International
Union, Local 1636, AFL-CIO,2 was duly certified as the
exclusive bargaining representative for telephone sales
employees in Respondent's Tampa office. Subsequently,
on a Motion for Summary Judgment, Respondent was
held to have refused to bargain in good faith. (See 248
NLRB 1218.) Respondent is challenging the National
Labor Relations Board's finding that such unit is appro-
priate for bargaining.
Downey filed one charge against Respondent on Octo-
ber 30, 1979, and another on December 20, 1979. Said
charges concern the matters involved in this hearing
(Cases 12-CA-8867 and 12-CA-8932), namely, the fail-
ure to grant benefits to telephone sales employees in the
certified bargaining unit, and the reprimands given to
Downey on November 26 and November 30, 1979. Cul-
breath filed her charge on March 20, 1980.
B. Contentions of the Parties
The General Counsel contends the benefits withheld
from the newly certified unit of telephone sales employ-
ees is violative of Section 8(a)(1) and (3) where the em-
ployer is not recognizing or bargaining with the certified
union and where such benefits would have been granted
to such employees but for their action in filing a repre-
sentation petition and cites Florida Steel Corporation, 221
NLRB 371 (1975), 220 NLRB 1201 (1975), and 220
NLRB 260 (1975).
As to Downey, the General Counsel urges that Re-
spondent is seeking a means of eliminating Downey from
its employ because of her past union activities and that
due to her admittedly excellent work record, Respondent
is attempting to establish a progressive style discipline to
justify her later discharge.
As to Culbreath, also admittedly an excellent employ-
ee, she was told by Vivian Stearns and by Tom Sturtz,
the telephone sales manager and the division manager,
respectively, that they saw no problem with a transfer to
Respondent's New Orleans office but for her union activ-
ity.
Respondent contends that under the Board's Goodrich
and Shell rules3 it was privileged to grant benefit in-
creases to its unorganized employees while withholding
such benefits from the unit of telephone sales people in
Tampa. It further contends that the minor disciplinary
sanctions imposed on Downey were justified and lawful.
Lastly, it contends that the General Counsel has failed to
prove that the failure to transfer Culbreath was because
of her union activities or otherwise violative of the Act.
C. Discussion and Resolution of the Issues
1. The granting of benefits: The Company concedes and
I find that Respondent granted increases in benefits to
current and retired employees on October 1, 1979, and
on or about November 1, 1979, and that such benefits
were not granted to employees in the telephone sales
2 The Retail Clerks International Union merged and is now known as
United Food and Commercial Workers International Union, Local 1636.
3 he B. F Goodrich Company, 195 NLRB 914 (1972); Shell Oil Com-
pany. Incorporated and Hawaii Employers' Council, et al., 77 NLRB 1306
(1948).
section of the Tampa office, a newly certified collective-
bargaining unit as of September 18, 1979. Charges about
the benefits were filed on or about October 30, 1979, and
subsequently on or about mid-February 1980, Respon-
dent granted the same benefits to the telephone sales unit
at Tampa, and made them retroactive to the date they
were originally granted to other employees.
Under normal circumstances, Respondent's withhold-
ing increased benefits to bargaining unit employees is not
unlawful and in fact the unilateral granting of such bene-
fits to people in a bargaining unit without consulting
with or bargaining with the collective-bargaining repre-
sentative might trigger a refusal-to-bargain charge. How-
ever, the facts here are somewhat unique. Respondent
has never recognized the Union as the collective-bargain-
ing representative nor has it bargained since the date of
certification. It has contended that the telephone sales
unit is an inappropriate unit for bargaining and is seeking
review of the Board's decision in Federal circuit court.
Thus the question posed here is whether it can refuse to
bargain with the Union, and then rely on the fact that
the telephone sales people are represented, as a basis for
denying them the same benefits. This issue was specifi-
cally treated in B. F. Goodrich Co., 195 NLRB 914, 915.
The Board discussed the genesis of this problem and
quoted at length from Shell Oil Co., 77 NLRB 1306,
1310. In the Goodrich case, the Board stated:
We conclude that the granting of new profit-
sharing benefits to unorganized employees but not
to represented employees is not, standing alone,
prohibited discrimination. [195 NLRB 914 at 915.1
Further on in its decision, however, after finding no dis-
criminatory motives and dismissing the 8(a)(3) allegation
regarding such benefits, it discussed the 8(a)(l) aspects in
a context where respondent was refusing to bargain and
stated:
By thereafter instituting the plan for its unorganized
employees while unlawfully refusing to bargain
with the Union as the statutory representative of its
warehouse employees, Respondent deprived the
latter employees of their right to bargain collective-
ly with respect to obtaining this additional benefit.
[195 NLRB at 915.]
The same rationale applies here where Respondent is
refusing to bargain, while testing the finding of the ap-
propriateness of the bargaining unit, and at the same time
refusing to grant the benefits to the newly certified unit.
As to Respondent's motivation, I credit the testimony
of William Tripp, Respondent's vice president of human
resources, that the benefits were not granted to the
people in the telephone sales unit on the advice of coun-
sel. There is, therefore, no evidence of discriminatory
motivation which would warrant finding a violation of
Section 8(a)(3) of the Act. However, I do find that Re-
spondent's failure to grant these benefits to the telephone
sales bargaining unit employees in Tampa while refusing
to bargain, constitutes a violation of Section 8(a)(1) of
the Act. The subsequent granting of such benefits retro-
actively does not erase the violation although it effec-
44
L. M. BERRY AND COMPANY
tively removes the necessity for any make-whole order
on such issue.
2. Mary Jo Downey: As to Downey, it is alleged that a
verbal reprimand on November 26, 1979, for closing too
many accounts, and two written reprimands on Novem-
ber 30, 1979, one for closing too few accounts and one
for being insubordinate at a sales meeting were discrimin-
atorily motivated because of her union activities and sup-
port. Each of these incidents will be treated separately
hereafter.
(a) The verbal reprimand of November 26, 1979: On No-
vember 26, 1979, Downey was called into the office of
Thomas Sturtz, Respondent's division manager, and
orally reprimanded for her record of 132 account "clos-
ings" in the 4-day period she worked during November
12-16. Elizabeth Widener, the telephone sales supervisor
at the time, who was also involved, testified that, in view
of the large amount of account "closings" in the 4-day
period by Downey and because such closings figured in
an office contest for a turkey, she personally verified
Downey's sales contacts and found that six closings
should not be included in her report because four report-
ed closings were "disconnects" and two were reservice
calls. She also concluded that 132 "closings" in 4 days
raised a question whether these sales contacts were being
done properly and brought the matter to the attention of
Thomas Sturtz, division manager.
Sturtz testified similarly that in his opinion there was
no way anyone could adequately handle that number of
closings in a 4-day period and that, in effect, Downey
was making a superficial effort at contacting customers
in order to qualify for and/or win the office contest for
the most closings in the 3-week period. The General
Counsel's Exhibit 5, Downey's diary record for 1979 of
her account closings, indicates that her previous high for
any I week in 1979 was 101 for the 5-day week of
August 6-11, 66 for the 4-day week of February 12-16
and several weeks in March and July 1979 when she
achieved closings in the 50 to 60 range. Thus by Dow-
ney's own records, her performance, closing of 132 ac-
counts (her diary shows 140 for that period) was signifi-
cantly higher than her weekly production during the rest
of 1979. Moreover, the division average was about 8.5
closings per day or approximately 42.5 closings per 5-day
week. Downey averaged approximately 33 closings per
day for the week in question.
I conclude that it was the high number of "closings"
by Downey, 132 in a 4-day period that prompted Super-
visor Widener to check her figures by contacting her
customers for verification of the sales contacts. Certain-
ly, the fact that the results of a sales contest hung in the
balance appeared to justify the inquiry. Moreover, she
was not reprimanded for her relatively small error rate, 6
out of approximately 184 closings, but for her unusally
large number of closings in a short period. In these cir-
cumstances, I find that Respondent was properly con-
cerned with the apparent superficial sales contacts by
Downey and that there was a justifiable basis for the oral
reprimand. Accordingly, I find that the verbal reprimand
given Downey on or about November 26, 1980, was not
discriminatorily motivated and I recommend dismissal of
that allegation.
(b) The written reprimands of November 30, 1979: On
Friday, November 30, 1979, Downey received two writ-
ten reprimands. One was for closing "too few" accounts
during that week, 17 in number. The second written rep-
rimand was for being insubordinate at a sales meeting
that day where Supervisor Vivian Stearns spoke by leaf-
ing through a magazine flyer during the meeting.
The record discloses a number of previous instances in
which Downey closed a small number of accounts and
was not reprimanded. For example, she closed 12 ac-
counts for the week of March 2, 22 accounts for the
week of May 4, 18 accounts for the week of August 17,
11 accounts for the week of September 7, 11 accounts
for the week of October 19, and 24 accounts for the
week of October 26.
Moreover, during 1978 and 1979, the average accounts
"worked" by Downey was above the average for the
Tampa sales office. For example, in 1979, the division
average for accounts worked was 8.5, Downey had 8.6.
For the period November through October 30, 1978, the
division average was 8.6, Downey had 9. Thus statistical-
ly, Downey was at least an excellent employee and per-
haps more properly classified in the excellent to superior
range. This is further substantiated by the General Coun-
sel's Exhibits 6(a) and (b) in which she was lauded for
doing a good job and rated in the first quartile, presum-
ably the upper 25 percent of a sales force numbering
some 14 in number. Sturtz also testified that Downey
"has been one of our better employees," and was rated
one of the top 3 or 4 out of 14 in the department. As to
this reprimand, Sturtz testified that Stearns was upset at
Downey's performance in closing 17 accounts the week
ending November 30, and he felt Downey might be en-
gaging in a deliberate slowdown. He admitted, however,
that at a meeting with Downey on Friday she denied
any work slowdown and advised him that she was work-
ing on a large number of accounts that she expected to
close that day.
Thus, on Monday, November 26, Downey receives an
"oral reprimand for too many closings" and on Friday,
even before the week's production record is concluded,4
she is being reprimanded for "too few" closings. It estab-
lishes to my satisfaction that Respondent is watching
Downey's work performance with an eagle eye, with the
object of building up a progressive record of discipline
with the ultimate objective of discharging her. In view
of her past 24 years of satisfactory service, her recent ac-
tivity on behalf of the Union, and her testifying against
the Company in a prior proceeding and the filing of new
charges on October 30, 1979, 1 am convinced and find
that the written reprimand for "too few" closings was
prompted by her union support and related activities.
Accordingly, I find this written reprimand of November
4 Downey credibly testified that she closed some 26 accounts on
Friday, November 30, 1979, and that for the week her closings were 43.
This is supported by her diary, the G.C. Exh. 5, for that week in Novem-
ber. Respondent did not offer any evidence to dispute this although daily
sales reports utilized by Downey for her diary are available to Respon-
dent. Thus the reprimand was at best, premature, and certainly unwar-
ranted in view of her production figures for the week. Sturtz also con-
ceded that he had not personally issued warnings of this type to other
employees in the telephone sales department.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
30, 1979, was discriminatorily motivated and violative of
Section 8(a)(1), (3), and (4) of the Act.
The second written reprimand was allegedly prompted
by Downey's insubordination at a sales meeting on No-
vember 30, 1979, in that she leafed through a magazine
flyer during the course of a sales meeting.
While Downey admitted the above-mentioned conduct
at the sales meeting, she was not admonished or ques-
tioned about her activities during the meeting. She credi-
bly testified that other employees had engaged in similar
conduct without being reprimanded. She stated that sales
meetings are informal in nature and employees can leave
during such meetings to make business calls or to pur-
chase cigarettes and employees drink coffee and smoke
during the meetings. Downey testified that employee
Jacoby hooked a rug during a February 5, 1980, sales
meeting and that employee Judy Young, blew a party
"favor" throughout the meeting and neither employee
was admonished. She further credibly testified that at a
meeting on April 9 or 10, 1980, employees Carol Doug-
las, Judy Young, and Alice Burns passed notes and con-
versed during the sales meeting until a fellow employee,
Chris Blackhurst, asked them to be quiet.
Vivian Stearns, now retired, did not testify. In this
regard Sturtz testified that Vivian Stearns, the telephone
sales manager, was upset at Downey's conduct in leafing
through a magazine during a sales meeting that same day
(Friday morning) and told him that Downey was doing
it to affront Stearns. Sturtz admitted that he had not per-
sonally issued warnings of this type to other employees
in the telephone sales department.
Downey further testified credibly that on the after-
noon of Friday, November 30, 1979, she was called in
and handed two written reprimands. Although Stearns
initially indicated that Downey could add her comments,
Stearns tore off Downey's written comments and there-
after Downey's request for copies of the reprimands was
denied.
I conclude that the second written reprimand (given
the same day, Friday, November 30, 1979) was an over-
reaction to Downey's actions at the sales meeting.
Stearns did not choose to call Downey's attention to her
conduct but waited and had the division manager write
up a written reprimand. In view of the informal nature
of the meetings, and the testimony of Downey which I
credit that other employees had engaged in other activi-
ties during the meetings without being admonished or
reprimanded, I am convinced and find that Downey's ac-
tivities were being carefully watched and she was being
singled out for discipline despite her excellent employ-
ment history and almost 24 years of employment with
Respondent, because she had chosen to challenge man-
agement by supporting the Union. I find that the second
reprimand, allegedly for insubordination, was in fact, mo-
tivated by a desire to impugn her excellent work record
and lay the groundwork for further disciplining and ulti-
mate discharge. Accordingly, I find that the giving of
the second written reprimand was in fact discriminatorily
motivated and violative of Section 8(a)(1), (3), and (4) of
the Act.
3. Barbara Culbreath: The complaint alleges that Cul-
breath was advised by Vivian Stearnes, Respondent sales
manager, and by Thomas Sturtz, the division manager,
on December 1979 and January 1980 that but for her
union activities she could be transferred to Respondent's
New Orleans office. The complaint further alleges that
on March 21, 1980, and thereafter Respondent refused to
transfer her because of her union activities and support.
Culbreath worked for Respondent in Tampa, Florida,
as a telephone sales representative from April 1976 until
March 21, 1980. Sometime in December 1979, she
learned that her husband was to be transferred to New
Orleans and telephoned Vivian Stearnes, the telephone
sales manager, and inquired about the possibility of her
being transferred to Respondent's New Orleans office.
According to Culbreath's undisputed and credited testi-
mony, Stearnes stated that she did not see any problem
at all and that I had a "very good record and she saw no
reason why the company wouldn't transfer me except for
the problem with the union activity." Culbreath talked to
Stearnes personally the following day and again Stearnes
stated she saw no reason why the company would not
transfer her except for this one problem-"you know"-
the fact that "I had been in the union activity."
Culbreath credibly testified that she spoke to Tom
Sturtz, the division manager, and personally delivered to
him a letter, dated January 21, 1980, and addressed to
him, requesting that she be considered for any openings
in the New Orleans office after March 1, 1980. Accord-
ing to Culbreath, Sturtz stated "that he didn't see any
problem with my transfer-you know-the possibility of
transferring there, except that-we had had the problem
with the union activity and he didn't know how that
would go over."
Sturtz forwarded Culbreath's January 21, 1980, letter
to Bill Green, the territorial manager. Green made no re-
sponse to the request for transfer although Sturtz indicat-
ed that Green did receive the letter.
Receiving no response from her January 21, 1980,
letter, Culbreath prepared a second letter, dated March
10, 1980, again addressed to Tom Sturtz, inquiring about
her transfer request. Sturtz advised her a day or so later
that he had a call in to Elmer Smith, the division man-
ager, and he would get back to her. Later, Sturtz called
Culbreath and advised her that he had talked to Smith
and they had no openings at the moment. He also stated
that he asked Smith if they do transfer people and he
said no that they did not make transfers.
She gave a third letter to Sturtz, dated March 20,
1980, noting she had received no responses from her ear-
lier letters requesting a transfer to the New Orleans
office, and advising that this was her last day in the
Tampa Office.
Both Sturtz and Smith testified. I credit Sturtz over
Smith that Smith did not advise that he had a no-transfer
policy, but merely he had made no transfer up to that
point. In that respect, however, Smith was not correct.
General Counsel's Exhibit 7(a) discloses that there were
three transfers to Tampa or New Orleans within the last
2 years. Smith testified thereafter that the only transfer
into the New Orleans office was a woman named Linda
Stranchmore, who transferred from the Los Angeles
office. He was advised by the Company's vice president
46
L. M. BERRY AND COMPANY
that she was being transferred to the New Orleans office
as a premise sales representative and he decided not to
object or fight the transfer. The exhibit also reveals that
on October 1979 a Chris Blackhurst was transferred from
Bristol, Tennessee, to the Tampa office. Sturtz stated he
had met her and thought she had good potential and had
approved the transfer. One other woman, Rommes, was
transferred from the Tampa office to Fort Myers on De-
cember 1978, apparently involuntarily, as a demotion
from a position as telephone sales manager to premise
sales representative.
I find that the comments by Stearnes, on or about De-
cember 21, 1979, and similar comments by Thomas
Sturtz on or about January 21, 1980, to the effect that, in
view of her good record, they saw no reason she could
not be transferred to New Orleans except for her union
activity or union membership were clearly coercive and
would inhibit Culbreath's present and future union activi-
ties. Therefore, I find the comments by Stearnes and
Sturtz are each separately violative of Section 8(a)(l) of
the Act.
With respect to whether Culbreath was discriminatori-
ly denied a transfer, several key issues need to be re-
solved. Respondent contends and I find that, with some
exceptions, the division managers had automony in
hiring employees. Several exceptions have been noted
where superiors of the division manager have in effect
directed certain transfers. The remaining issue is that
Smith categorically denied knowing that Culbreath was
involved in union activities at Tampa, until sometime in
April when he was sent a copy of the charge filed by
Culbreath. Respondent contends with considerable merit
that, if Smith made the decision not to transfer and there
is no evidence that he was aware of her past union ac-
tivities, Smith's decision not to permit her to transfer
could not be discriminatorily motivated.
In that respect, however, Sturtz, in testifying about his
conversation with Culbreath about her possible transfer,
testified as follows:
During the conversation, which I would say, ran
about 20 minutes, the subject of the union did come
up. We talked about that. I told her that I had no
idea exactly-you know-how the Louisiana Divi-
sion would view her being a member of-you
know-the union.
And, at that point in time she told me that we
wouldn't have to worry about that, that she had
learned her lesson, that the Union had nothing for
them-the union had done nothing for them.
By his testimony, Sturtz assumed that New Orleans
would be informed of Culbreath's union activity and it is
logical that they would be told. Certainly, if both the
telephone sales manager and the division manager con-
sidered it important enough to mention to Culbreath, it is
highly unlikely that it would not be brought to Smith's
attention in any discussion of possible transfer. Conse-
quently, I infer that, in Sturtz' telephone conversation
with Smith about Culbreath's possible transfer, Cul-
breath's union activities were mentioned. Certainly a di-
vision manager would tend to alert another division man-
ager about any problem area involved in any transfer,
because he would expect similar information. Moreover,
the failure to advise Smith of such a problem might even
get Sturtz in difficulty with his superiors.
In sum, I conclude there are a number of factors
which persuade me that Culbreath's union activities pre-
cluded her from being considered and transferred to the
New Orleans office. They include:
(a) The fact that the only certified unit in the entire
Company was at the Tampa office and consequently
such union activity would be well known throughout the
Company with the idea of alerting managerial personnel
of the possibilities of unionization in their area.
(b) The failure of the company hierarchy, Green, in
particular, to respond to the request for transfer emcom-
passed in Culbreath's January 21, 1980, letter. Certainly,
Green must have been aware that Culbreath was an em-
ployee in the newly certified bargaining unit. Thus, the
failure to respond, is suspicious.
(c) The comments of Stearnes and Sturtz, both to the
effect that in view of her good record they saw no prob-
lem with her transfer but for her union activities or
membership.
(d) In light of Sturtz' comments, it is highly unlikely
that Culbreath's union activities were not mentioned in
the telephone conversation between Sturtz and Elmer
Smith, the New Orleans (Louisiana) division manager. I
therefore conclude, by inference, that such activities
were mentioned. To the extent Smith denied any knowl-
edge of Culbreath's union activities, I do not credit it.
(e) Smith's testimony that, even if Culbreath had ap-
plied to him personally, he would not have hired her.
Thus, Smith would not consider an employee with 4
years of experience who had just received a congratula-
tory letter for being a top notch sales representative, but
instead hired employees with no experience who were
then sent to training school for 2 weeks in Dayton. Thus
Smith's precluding Culbreath from any consideration is
illogical and suspicious in this context. The record, the
General Counsel's Exhibits 7(a), (b), and (c) and the testi-
mony of Elmer Smith which I credit in this regard, es-
tablished that Donna Cook was hired for telephone sales
work in the New Orleans office on or about April i,
1980, and that on or about March 24, 1980, another em-
ployee, Deborah Pianka, was transferred from one sec-
tion identified as TSSR to telephone sales. In addition,
Smith conceded that he approved the running of a help-
wanted ad (G.C. Exh. 10) in the New Orleans Times
Picayune of April 20, 1980, for telephone sales represen-
tatives.
Accordingly, I find and conclude that Respondent pre-
cluded Culbreath's transfer to the New Orleans office be-
cause of her past association with the Union and her
union membership. I am not persuaded that Culbreath's
expressed disenchantment with the Union would have
persuaded Respondent to okay her transfer and face the
possibility of a spread of union activities to the New Or-
leans office. In light of Culbreath's very good work
record, I further conclude that she would have been
hired on or about April 1, 1980, but for her union activi-
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties.5 The failure to consider and to transfer Culbreath
because of her union activities and association is violative
of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, United Food and Commercial Workers
International Union, Local 1636, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent, by withholding benefits from bargain-
ing unit employees while granting them to non organized
employees, and refusing to bargain with the Union, en-
gaged in conduct violative of Section 8(a)(1) of the Act.
4. Respondent, by issuing two written reprimands to
Mary Jo Downey, on November 30, 1979, because of her
union activities, including her testimony on behalf of the
Union and her filing of charges against Respondent, en-
gaged in conduct violative of Section 8(a)(1), (3), and (4)
of the Act.
5. Respondent, by failing to consider and transfer Bar-
bara Culbreath for transfer to its New Orleans office be-
cause of her union activities and support for the Union,
including her testimony at a National Labor Relations
Board hearing, engaged in conduct violative of Section
8(a)(1) and (3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not otherwise violated the Act.
THE REMEDY
The recommended Order will require Respondent to
cease and desist from the unfair labor practices found,
and to expunge or remove the two written reprimands
given Mary Jo Downey dated November 30, 1979, from
her personnel records. In light of my conclusion herein
that Respondent discriminatorily refused to transfer Bar-
bara Culbreath, Respondent shall be ordered to transfer
Barbara Culbreath to the New Orleans office as a tele-
phone sales representative and make her whole for the
wages she would have earned if she had been employed
in lieu of Donna Cook, on or about April 1, 1980, plus
interest thereon, less any interim earnings. The amounts
of backpay are to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLR8 289 (1950), less
any net earnings, with interest as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977).6
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended Order:
ORDER7
The Respondent, L. M. Berry and Company, Tampa,
Florida, its officers, agents, successors, and assigns, shall:
s In so concluding I reject any assertion or contention that the work
varied from that done in the Tampa office, i.e., that sales work for Bell
directories varied substantially from the work for independent directories.
It was conceded that the sales work was essentially the same and only
the paper work varied. In any event Respondent's training school did not
distinguish between such types of work and Culbreath had had past expe-
rience in working on both independent and Bell directories.
6 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
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 find-
1. Cease and desist from:
(a) Refusing to give benefits to employees in the bar-
gaining unit that it granted nonorganized employees
while refusing to bargain with the Union.
(b) Issuing reprimands to Mary Jo Downey or to any
other employees because of their union activities, includ-
ing testifying at Board hearings or filing unfair labor
practice charges.
(c) Refusing to transfer qualified employees for em-
ployment in other divisions because of their union activi-
ties, including testifying at Board hearings.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Remove and/or expunge from the personnel re-
cords of Mary Jo Downey, the two written reprimands
dated November 30, 1979.
(b) Transfer Barbara Culbreath to the New Orleans
office as a telephone sales representative effective April
1, 1980 (the date of hire of Donna Cook) and make her
whole for any loss of wages incurred because of Respon-
dent's failure to transfer her with interest as set forth in
the Remedy section here, less any interim earnings.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at Respondent's office in Tampa, Florida,
copies of the attached notice marked "Appendix.
"8
Copies of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by Re-
spondent's authorized 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 notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ings, 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.
I In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of
the 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."
48