Oertle Managment Co., Inc.

National Labor Relations Board - Board Decisions

May 26, 1970

182 N.L.R.B. 722 (N.L.R.B. 1970)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oertle Managment Company, Inc: and H F D #11, Inc.
and Retail Clerks Union , Local No. 73, Affiliated
with Retail Clerks International Association , AFL-CIO.
Case 16-CA-3504
May 26, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On May 21, 1969, Trial Examiner Frederick U. Reel
issued his Decision in' the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recom-
mending that they cease and'desist therefrom and take
certain- affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that Respondent Oertle Management Company,
Inc., had not engaged in certain other unfair labor prac-
tices alleged in the complaint.-,Thereafter, the Respond-
ents, the General Counsel, and the Charging Party filed
exceptions to the Trial Examiner's Decision and support-
ing briefs.' `
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and'the" entire record in the
case; and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.,
1. The Trial 'Examiner found, and we agree, that
the Respondents violated Section 8(a)(1) of the Act
by unlawfully, either expressly or impliedly, instructing
security guards to report on the union activities of
employees, and by threatening that employees would
be discharged for union activities.
2. The Trial Examiner found, and we agree, that
Respondent H F D #11 discriminatorily discharged
employee Bernice Patton in violation of Section 8(a)(3)
of_ the Act. However, in finding that only Respondent
H F D #11 is responsible for the discharge of Bernice
Patton, we find it unnecessary,, to- pass upon the Trial
Examiner's determination that a joint employer relation-
ship did not exist between the two Respondents. Even
were we to find, which we do not, that Oertle Manage-
ment Inc., and H F D #11, Inc., were joint employers
we would not hold Oertle responsible for the discharge
of Bernice Patton since it is evident from the record,
and was so found by the Trial Examiner, that Respondent
Oertle did everything it could to prevent the discharge.
Nor do we agree with the Trial Examiner that under
' The Charging Party's request for oral argument is hereby denied
as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
the circumstances herein a finding of joint employership
would a fortiori result in `Oertle being jointly liable
for the Section 8(a)(3) violation.
3. We agree with the Trial Examiner that the surveil-
lance by Respondents' security guards of the union
organizer in the California snackbar did not constitute
unlawful surveillance in violation of Section 8( a)(1).
However, we do so on grounds different from those
relied upon by the Trial Examiner. We do not hold
that the Respondents' no-solicitation rule as to outsiders
made lawful per se, the surveillance by Respondents'
security guards in the cafeteria or snackbar, which was
open to the public and to employees during their rest
periods. Our agreement with the Trial Examiner's conclu-
sion is premised on the fact that the record evidence
does not support a finding that the surveillance of the
union organizer was for a purpose other than enforcing
the no-solicitation rule as to cafeteria or snackbar
employees then working. Accordingly, in the absence
of any evidence that such surveillance was for the
purpose of coercing 'other employees of Respondents
during their nonworking time spent in the cafeteria where
they were free to engage in union activities we adopt
the Trial Examiner's finding, but 'solely for the reasons
above stated.
We do not adopt the opinion expressed by the Trial
Examiner in footnote 3 of his Decision.2
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the' National 'Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and -'orders that the
Respondents, Oertle Management Company,, Inc., and
H F D, #11, 'Inc., Tulsa, Oklahoma; their officers,
agents, sucessors, and 'assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with my colleagues that it is unnecessary
for the purposes of this Decision to determine whether
or not a joint employer relationship existed between
the two Respondents: However, unlike my colleagues,
I would otherwise adopt the Trial Examiner's Decision
without modification.
s Montgomery Ward & Co , 162 NLRB 369
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE'
FREDERICK U. REEL. Trial Examiner: This case, tried
at Tulsa, Oklahoma, April 2, 1969, pursuant to a charge
filed the preceding January 16, and a complaint issued
March 4, presents questions as to whether Respondents
countered an organizing campaign with unlawful threats
' The caption of the case reflects an amendment made at the opening
of the hearing
182 NLRB No. 114
OERTLE MANAGEMENT COMPANY, INC. 723
and surveillance and by discharging an employee for
union activity. Upon the entire record, including my
observation of the witnesses, and after due consideration
of the briefs filed by each of the parties, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS AND THE LABOR
ORGANIZATION INVOLVED
Oertle Management Company, Inc., herein called Oer-
tle, an Oklahoma corporation , is engaged at Tulsa in
the operation of a discount department store, one depart-
ment in which is leased to H F D #11, Inc., herein
called HFD, a New Jersey corporation. As both Oertle
and HFD annually sell and distribute products, the gross
value of which in each case exceeds $500,000, and
as each of them annually receives goods valued in
excess of $50,000 which are shipped to their places of
business directly from outside the State of Oklahoma,
each is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Charging
Party, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
The violations of Section 8(a)(1) alleged in the com-
plaint are (1) unlawful threats of discharge or other
economic reprisal for union activity, and (2) unlawful
surveillance of union or concerted activities. Both allega-
tions are supported by the record. ,
Employee Bernice Patton, whose later discharge is
the subject of the 8(a)(3) allegation in this case, testified
that about December 23, 1968, when the Union was
preparing an organizing campaign among the employees,
her supervisor, Wayne Proe, the manager of the domestic
department operated by HFD, said to her in the stock-
room "that he had heard that they were going to let
about 12 people go because they were for the Union."
Although Proe was called as a witness for Respondents
and testified at some length, he was not asked to,
and did not, deny making the statement which Patton
attributed to him. To be sure, he did testify that he
did not become aware of the Union's new organizing
effort until early in January 1969, and he and other
supervisors had received instructions from Oertle the
preceding July which, at least by implication, admonished
them against making statements of the type Patton attrib-
uted to him. As will appear, infra, however, in connection
with Patton's discharge, Proe, an HFD supervisor, did
not always follow instructions given him by Oertle,
and he was not above misrepresenting whether he knew
of union activity. Moreover, the critical factor in Patton's
testimony was the content of the conversation, not
its date.' In the absence of an express denial from
2 In this connection I note that while Patton referred to a meeting
Proe, I credit Patton. The threat was, of course, a
clear violation of Section 8(a)(1).
The surveillance allegation rests largely on the testimo-
ny of Thomas Chapman, who was a security guard
employed by Oertle, and who was apparently relieved
of his duties shortly after the events here involved
because of his prounion sympathies. Chapman testified
that on Friday evening, January 3, 1969, he received
instructions from Store Manager Addington, "to go down
and stay with the Union representatives and watch what
they did . . . observe their actions and then inform
him of the people they talked to." Chapman saw Ted
Helms, the union organizer, talking to employee Bernice
Patton. Chapman reported to Addington that Helms
had talked to Patton. Chapman's testimony continues:
"Then I told Mr. Addington that it was my impression
that Ted Helms was going to meet Bernice Patton after
she got off work . . . [Addington] just acknowledged
that he understood what I said, shrugged his shoulders,
or said 'OK' or some facsimile."
The next day, Saturday, January 4, according to the
testimony of James Moore, the head security guard
and a witness called by Respondents, Oertle employed
five security guards instead of the customary two. Moore
testified on direct examination:
Our instructions were to follow the union man,
which was Mr. Ted Helms, to follow around the
store with him. Our instructions were for three
of us to be with him, if there was just one in
the store, one on each side and one walking behind
him. We were not to join in any conversation.
If he stopped and talked to someone, why, we
were just to stand there and listen. It was just
to disregard the conversations, and this would dis-
courage him from talking to the employees.
On cross-examination Moore further testified:
Q. And when you walked with Helms, Mr.
Moore, did you observe who he talked to?
A. I just stood there and listened.
Q. Did they explain to you why they wanted
you to walk around with the union representatives?
A. They just said they wanted us to walk around
with them, which would discourage the employees
from talking to Mr. Helms and to discourage Mr.
Helms from talking to them.
*
Q. (By Mr. Penrice) While you were following
Mr. Helms, Mr. Moore, did he ever talk to the
employees on their lunch breaks and other breaks
in the cafeteria?
of the employees at which management discussed the union as occuring
in mid-December, Store Manager Addington ' s testimony dates such
a meeting on January 4 This, of course, was after Proe became aware
of the union activity Patton dates her conversation with Proe as after
the store meeting
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Oh, he would sit down at a table there.
He would just sit down and speak.
Q. Well, now, what I am getting at, were your
instructions to follow him at all times, Mr. Moore,
regardless of whether it was their working time,
the employees, or their break time?
A. Everything, yes.
Q. Well, what about on the parking lot?
A. Well, after he went out of the store we was
not to follow him.
Q. OK.
TRIAL EXAMINER: Do I understand you to say
that during part of the day Mr. Helms would talk
with employees when they were not at work, when
they were on a break time of some sort?
THE WITNESS: Well, he would sit down in the
snack bar occasionally.
TRIAL EXAMINER: Well, now, the snack bar is
a place of work.
THE WITNESS: Right.
TRIAL EXAMINER: But I suppose it is also a'
place to which people go when they are not working
on occasion; is that right?
THE WITNESS: Yes, they come in there for some-
thing. '
TRIAL EXAMINER: All right. Now, when Mr.
Helms was in that snack bar was he talking to
people who worked in the snack bar-
THE WITNESS: Well, He-
TRIAL EXAMINER: -or to other employees?
THE WITNESS: Well, he would just casually speak.
to everyone. He would just say, "Howdy," and
so forth, you know.
Finally, on redirect examination Moore testified:
(By Mr. Rheam) With reference to the snack
bar, Mr. Moore, was any special specific instruction
given you and the other guards about your conduct
with Mr. Helms in the snack bar?
A. Yes, sir.
Q. What was that, please, sir?
A. If he sat down, why, we wasn't to sit with
him. We were supposed to stand behind him, or
go to a table close to him, or just somewhere
around, but not sit down with him.
The testimony of Store Manager Addington contra-
dicts that of Chapman in only one important particular.
Addington testified that he did not ask Chapman "to
give me any names or report to me on the activities
of the employees." Also, Moore testified that he "wasn't
supposed to" give the names of employees to Addington.
But on cross -examination Addington corroborated part
of Chapman's testimony as follows:
I got no particular names from them, no, other
than the one instance where I believe Mr. Chapman
did tell me that he overheard the girl tell him
that she was going to meet him out on the lot,
the union, man, or something to that effect.
TRIAL EXAMINER: What girl9
THE WITNESS: Bernice Patton.
Later in cross-examination Addington testified:
Q. And what did you say to Chapman when
he told you about Bernice Patton?
A. I don ' t think I gave him any specific instruc-
tions of any kind.
Q. Did you give him any general instructions9
A. No.
Q. Did you say anything?
A. No.
Q. Excuse me?
A. No.
Q. All right.
Did you tell him he was not to report to you
individuals he observed the union representatives
talking to?
A. I don' t think I did, no.
Respondents contend that the conduct of the guards
was intended only to implement Oertle's valid rule pro-
hibiting "non-employees and outsiders . . . from solicit-
ing employees on [the store ] premises . . . ," and that
Chapman went beyond his instructions in identifying
Patton and telling of her plan to meet Helms after
work . But conceding all this arguendo , the fact remains
that when Chapman did report to Addington, the latter
in no way indicated that Chapman had misconstrued
his instructions . Addington thus ratified Chapman's con;
duct , and in effect left Chapman with an outstanding
instruction to continue to report the names of employees
to whom Helms spoke and the content of the conversa-
tion . This goes far beyond implementation of a rule
against solicitation , and amounts to unlawful surveillance
in violation of Section 8(a)(1).
General Counsel contends that the conduct of the'
guards in following the organizer on the selling floor
and in the cafeteria constituted unlawful surveillance
violative of Section 8(a)(1). As to the selling floor,
Oertle had a rule prohibiting solicitation by outsiders,
and the " surveillance" was therefore lawful under such
cases as G. C. Murphy Company, 171 NLRB No. 45.
As to the cafeteria, it appears that this was open to
employees and to the public . Although employees were
free to engage in union activity on their own time
at the cafeteria , the prohibition against solicitation by
outsiders properly extended to this area .3 As the guards
were lawfully keeping the outside organizers under sur-
veillance , the fact that employees were free at this
time to engage in union solicitation does not make
the guards' presence illegal. General Counsel suggests
that once the organizers are admitted to the premises,
Respondents are really using the guards to keep the
employees, not the organizers, under surveillance. The
Board ' s decisions in Murphy , supra, and the cases there
cited in fn . 5, afford no support to this theory.
Insofar as the Board's decision in Marshall Field Company, 98
NLRB 88, set aside in pertinent part 200 F 2d 375 (C A 7), holds
otherwise, it has been superseded by N L R B v Babcock & Wilcox
Company, 351 U S 105
OERTLE MANAGEMENT COMPANY, INC 725
B Patton 's Discharge
Bernice Patton was hired as a sales clerk in the
domestics department, operated by HFD, on June 3
1968 She received a raise in November to $1 65, and
was discharged on January 10, 1969 As already indicat-
ed, Addington admitted hearing of her union activity
from Chapman Also Proe testified that he learned from
one McDowell, his assistant manager , that Patton had
given McDowell a union card, and Proe reported to
Addington that Patton was handing out union cards
Addington and Proe received their knowledge of Patton's
union activity on or about January 4, 1969, a few days
before the discharge
On the afternoon of January 10, Proe notified Patton
of her discharge According to Patton, Proe told her
that he was doing so reluctantly but was under orders
from his superiors, J D Westmoreland and Tom Cun-
ningham , who were from HFD's New Jersey headquar-
ters but were in Tulsa during the week in which Patton
was fired Patton testified that Proe told her at the
time that she was discharged because she "stood
around " She also admitted to two episodes involving
herself and Proe several weeks before, one of which
concerned her unwillingness to move a pile of rugs
which she felt was too heavy for her, and the other
concerned his disconnecting a telephone she was using
and telling her not to talk too long on the telephone
Finally, Patton testified that Proe told her he would
give her a good recommendation to any prospective
employer
Proe testified to the rug moving and telephone inci-
dents, adding that Patton had made an offensive retort
to him on the latter occasion (which she denied), but
he did not mention the episode to his superior, Westmore-
land According to Proe, Westmoreland had been urging
Patton's discharge on every trip Westmoreland made
to Tulsa (he made approximately 10 trips during her
employment prior to the trip on which she was dis-
charged) Westmoreland testified that he recommended
Patton's discharge on four occasions (June, September,
October, and December) before his final success Proe
testified that he gave Patton her November raise hoping
it would give her an incentive to improve her theretofore
poor work, Westmoreland testified that the raise was
given notwithstanding his disagreement with Proe on
the matter
As to the actual discharge, Proe contradicted Patton's
testimony that he expressed any reluctance over the
action, and denied offering to give her any recommenda-
tion According to Proe, he had had to warn Patton
more than the others over shortcomings in her work,
and on the day of her discharge (to quote his direct
testimony)
A I just came up to her and told her that Mr
Cunningham, Mr Westmoreland and myself had
all agreed that her work was not what it should
be, and that we could just no longer use her
Q Was there any further conversation9
A Yes She asked me if it was on account
of the union
Q And what did you say?
A I told her, no, that I knew nothing about
the union
If Proe ' s testimony is to be credited , he was guilty
of a gross prevarication in his final interview with Patton
As just noted , he testified that he told her he "knew
nothing about the union ," but only a few days before
he had informed Store Manager Addington that Patton
was distributing union cards At that time Addington
told Proe "to forget it , to take no action whatsoever "
Addington testified that he had informed all the depart-
ment managers ` not to discharge anyone unless they
first had a conference with us as the general management
of the store " that these instructions had been "constant-
ly" repeated and had been reiterated within I to 3
weeks before Patton ' s discharge , and that the purpose
of the rule was to avoid ' unfair labor charges against
the store , of course " Addington , however , did not
learn of Patton ' s discharge until after the event, and
still later learned, either from Proe or Westmoreland,
"that she was discharged because of her failure to
perform her duties as they thought she should "
Apparently Proe's action in discharging Patton was
not only a violation of Addington's instructions but
also contravened the orders of Westmoreland The latter
testified that he told Proe to talk to Addington before
Proe 'did anything' about the discharge , that Proe
should have checked it through the store owner or
store manager ," and that it was 'standard procedure
anytime anyone is released from a department that nor-
mally they go through the store manager in any store "
There is no testimony as to why Proe contravened
general instructions, special instructions and ordinary
practice in discharging Patton without going to Adding-
ton Proe testified that Westmoreland and Cunningham
were not "satisfied with her work that she just
didn 't put out what she should " Westmoreland and
Cunningham both testified that they recommended her
discharge Indeed Westmoreland , who had been so rec-
ommending for some time , testified that throughout the
period of her employment Patton was notoriously worse
than the other employees , and on the last occasion
he observed nothing different about her from what he
had on other occasions Cunningham also testified to
being dissatisfied with Patton ' s work on this occasion,
and to recommending her discharge , although his testimo-
ny lacks particulars as to Patton ' s shortcomings
Finally it should be noted that Oertle was opposed
to having the Union organize the employees ,4 and that
in undergoing expenses as part of its antiunion efforts
(such as, for example, retaining counsel and hiring extra
guards ), it obtained authorization from HFD under which
the latter agreed to pay its share of the cost
" Respondents in their brief rely on their exhibits 1 2 3 6 and
7 (statements they circulated to supervisors and employees) as showing
that they were not hostile to the Union Exhibits I and 7 defeat
that claim Indeed the latter even refers to our side of the case
which the employees are urged to consider before you decide to
loin a union No claim is made that the statements are illegal and
indeed hostility to the Union is not illegal but the denial of hostility
borders on the absurd
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon these facts it seems clear to me as it did
in Betts Baking Co., 155 NLRB 1313, enfd. 380 F.2d
199 (C.A. 10), that Patton's union activity was, at the
very, least, "a partial motive for the discharge." 380
F.2d at 203. As in that case, I trust I am "well aware
of the controlling law" and shall again attempt to "com-
prehensively appl[y] it to the facts." 380 F.2d at 205.
Manifestly, Patton's union activity cannot shield her
from a discharge caused by poor work, and even employ-
ers hostile to the Union do not by that hostility forfeit
their right to discharge for cause. On the other hand,
as the Tenth Circuit observed; "Rarely, if ever, does
an employer admit that an employee has been discharged
for participation in union activities . Discrimination must,
therefore, usually be proved by circumstantial evidence,
and properly so." 380 F.2d at 204. What are the circum-
stances here? What is it that led Proe, after resisting
Westmoreland's repeated suggestions to fire Patton, sud-
denly to accede to that suggestion, and indeed discharge
her so precipitately that he violated general practices
and special instructions in not clearing the matter with
Addington9 Assuming merit in the rather generalized
complaints about Patton's work, there was no specific
episode or incident related to her work which caused
Proe to act. But the discharge did occur a few days
after Proe learned of her union activity in distributing
a card to McDowell, a matter which Proe felt was
of general concern as he immediately reported it to
Addington. And Addington appears to have assessed
both' Proe and the situation when he told Proe to take
no action whatsoever, as Addington wanted not to "com-
mit any acts of unfair labor policy."
Upon these facts I think it reasonable to infer, as
I do, that Patton' s union activity was, at the very
least , a contributing cause of her discharge . Cf. N.L.R.B.
v. Sequoyah Mills, Inc., 70 LRRM 3388 (C.A. 10).
The discharge therefore violated Section 8(a)(3) and
(1) of the Act.
C. Liability of the Several Respondents
The complaint alleged' that Oertle and HFD were
"joint employers," and that Oertle possessed and exer-
cised control over the working conditions and tenure
of HFD's employees. Other allegations of the complaint
name Chapman, Addington, and Proe as agents'of both
Respondents, and ascribe the unfair labor practices to
both Respondents.
The contract between the Respondents refers only
briefly to employment relations. Paragraphs 26, 27, and
28 read as follows ("Owner" refers to Oertle, "Opera-
tor" to HFD):
26. Employees: Operator agrees to staff the
Department with an adequate and competent force
of employees in such numbers as 'may be reasonably
required to conduct the business thereof properly.
Operator shall require its employees to observe
such rules and regulations as Owner shall reasonably
formulate from time to time for their conduct and
for the conduct of all employees of Owner or
other operators of departments in the Store. Owner
agrees that it will employ and maintain at all times
a qualified and competent store manager who is
experienced in merchandising and general retailing
operations and shall furnish and engage such other
employees, including advertising and other execu-
tives, as may be reasonably necessary for the
efficient operation of the Store.
27. Employee Compensation and Taxes: Opera-
tor shall have the exclusive right to regulate and
fik the salaries and commissions 'of its employees
and all the other terms of their employment. Opera-
tor shall be solely liable for the payment of contribu-
tions, taxes and other sums imposed by Federal,
state and local authorities upon employers of others
for or relating to withholding taxes, unemployment
insurance, old age pensions, disability benefits or
social security in respect of employees or other
persons who perform work or services for Operator
pursuant to or in connection with the operation
of the Department.
28. No Partnership 'or Joint Venture: The Depart-
ment shall be conducted solely under the name
of Owner or a name designated by Owner but
nothing herein shall in any way be construed to
create a copartnership or joint venture or a contract
of employment between the parties hereto, nor
impose upon Owner any obligations for merchan-
dise, fixtures, supplies or equipment purchased by
Operator'.
These provisions should be contrasted with those prevail-
ing in other cases involving similar establishments. For
example , in Gaylord Discount Stores, 137 NLRB 557,
561: .
Gaylord reserved the right to require each lessee
"immediately to dismiss from its employment any
employee deemed unsuitable . or who shall
in any way conduct himself to the dissatisfaction
of [Gaylord's] . . ." The agreements further provid-
ed that if Gaylord entered into a collective-bargain-
ing agreement , the employment terms there estab-
lished would be observed by the lessee with respect
to its employees. [Footnote omitted.] The agree-
ments also provided that Gaylord employees might
be made available to lessees, and that employees
of lessees were to be available to Gaylord, and
in each case the party using the employee would
reimburse the employee ' s regular employer for his
services.'
Similarly in Parkview Drugs, Inc., 138 NLRB 194, 197,
the "operator" agreed to comply with the labor policies
of the "owner," and the latter had to approve hiring,
proposed by the operator, and could compel discharges.
Although the contract in this case does not give
Oertle any authority in the discharge of HFD's employ-
ee, the testimony of HFD officials, noted above, estab-
lishes that in ordinary practice HFD would not discharge
an employee at this 'store Without prior consultation
with Oertle. Also, as Addington's testimony shows,
the store • manager for Oertle would tell a supervisor
employed by HFD whether to take action with respect
to an employee.
OERTLE MANAGEMENT COMPANY, INC
The evidence further establishes that Proe, the local
HFD manager, attended meetings called by Oertle to
discuss the union campaign, received instructions from
Oertle as to what he as a department head should
and should not do with respect to the campaign, and
reported to Oertle' s manager on the union activity of
an HFD employee Finally, the record shows that Oertle
notified HFD of Oertle' s intention to oppose the Union's
efforts to organize, that HFD replied that it "agreed
with anything [Oertle was] going to do," and that HFD
would bear its share of the expense (including the cost
of extra guards)
Under these circumstances HFD would seem liable
along with Oertle for the unlawful surveillance found
above, particularly as it was Patton, an HFD employee,
whose activities were reported to the store manager
By the same token, Oertle as well as HFD would seem
liable for the unlawful threat of Proe, who said that
12 people were to be dischargedi because of the Union
(HFD employed only three or four), and who attended
management meetings conducted by Oertle for the pur-
pose of discussing the union campaign To be sure,
Proe was not instructed to utter any such threat, but
Oertle, having placed Proe in the position where the
employees could reasonably regard him as reflecting
Oertle policy, must be liable for his excesses
I reach a contrary conclusion concerning Oertle's
responsibility for the discharge Oertle's representative,
Addington, expressly told Proe not to discharge Patton,
as Addington wanted to avoid involving the establishment
in an unfair labor practice The discharge was accom-
plished in the teeth of this directive and without further
notice to Oertle Nothing in the contract gives Oertle
power to compel HFD to rescind such a discharge
I therefore find that only HFD, and not Oertle, violated
the Act by discharging Patton
CONCLUSIONS OF LAW
I Respondents by expressly or impliedly instructing
security guards to report on the union activities of
employees, and by threatening that employees would
be discharged for union activities, engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act
2 Respondent HFD by discharging Bernice Patton
because of her union activity engaged in an unfair labor
practice affecting commerce within the meaning of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the
Act
General Counsel argues that the two Respondents are joint employ
ers Although the matter is not free from doubt I incline to the
view that their relationship is less close See Esgro Anaheim Inc
150 NLRB 401 404--406 S A G E Inc of Houston 146 NLRB 325
Certainly the responsibility for making Patton whole should rest on
HFD and if the Board should find the two Respondents to be joint
employers Oertle would become jointly liable for a violation it did
all it could to prevent Indeed its inability to prevent the discharges
is strong evidence that it is not a joint employer
THE REMEDY
727
As to Respondent Oertle, I shall recommend an order
directing that it cease and desist from violating Section
8(a)(1) of the Act, and that it post appropriate notices
As to Respondent HFD I shall recommend an order
directing it to cease and desist from violating Section
8(a)(1) and (3) of the Act, that it offer to reinstate
Bernice Patton with backpay computed in accordance
with the formulas set forth in F W Woolworth Compa-
ny, 90 NLRB 289, and Isis Plumbing & Heating Co ,
138 NLRB 716, and that it post appropriate notices
For reasons suggested in B VD Company, 157 NLRB
978, 982, fn 6, I am omitting the "Armed Forces"
reference from the recommended notice
Accordingly, upon the foregoing findings and conclu-
sions and upon the entire record, I recommend, pursuant
to Section 10(c) of the Act, issuance of the following
ORDER
A Respondent Oertle Management Company, Inc ,
its officers, agents, successors, and assigns, shall
I Cease and desist from
(a) Threatening that employees will be discharged
for being members of, or engaging in activities in behalf
of, a labor organization
(b) Expressly or impliedly directing any guard or any
other person to report the name of any employee engag-
ing in union activity
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act ,
2 Take the following affirmative action necessary
to effectuate the policies of the Act
(a) Post at its Tulsa, Oklahoma, store copies of the
attached notice marked "Appendix A "' Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by its representa-
tive, shall be posted by Respondent Oertle 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 Oertle to insure that said notices are
not altered, defaced, or covered by any other material
(b) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent Oertle has taken to comply here-
with I
' In the event that this Recommended Order is adopted by the
Board the words a Decision and Order shall be substituted for
the words the Recommended Order of a Trial Examiner in the
notice In the further event that the Board s Order is enforced by
a decree of a United States Court of Appeals the words a Decree
of the United States Court of Appeals Enforcing an Order shall
be substituted for the words a Decision and Order
' In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 16 in writing within 10 days from the date of
this Order what steps Respondent Oertle has taken to comply herewith
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent H F D #11, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from
(a) Discharging or threatening to discharge employees
for membership in, or activity on behalf of, a labor
organization.
(b) Expressly or impliedly directing any guard or any
other person to report the name of any employee engag-
ing in union activity.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to reinstate Bernice Patton to her former
or a substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and make
her whole in the manner described in the portion of
the Trial Examiner's Decision entitled "The Remedy"
for any loss of earnings suffered by reason of the
discrimination against her.
(b) Notify Bernice Patton if presently serving in the
Armed Forces of the United States of her right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, made available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Decision.
(d) Post at the Oertle Tulsa, Oklahoma, store copies
of the attached notice marked "Appendix B."" Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by an
authorized representative, . shall be posted by the
Respondent HFD 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 HFD to insure that said
notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
See fn 6, supra
See fn 7, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge , or threaten to discharge,
or otherwise discriminate against, any employee
because of his union membership or activity.
WE WILL NOT direct any person to report the
names of any employees engaging in union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in their right
to join or assist Retail Clerks Union, Local No.
13, or any other labor organization.
OERTLE MANAGEMENT
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 817-334-2921.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL offer Bernice Patton her former job,
and will pay her for losses she suffered as a result
of our having discharged her in January 1969.
WE WILL NOT discharge, or threaten to discharge,
or otherwise discriminate against, any employee
because of his union membership or activity.
WE WILL NOT direct any person to report names
of any employee engaging in union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in their right
to join or assist Retail Clerks Union, Local No.
73, or any other labor organization.
HFD#11, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 8A24 Federal
Office Building , 819 Taylor Street, Fort Worth, Texas
76102, Telephone 817-334-2921.