Pay 'N Save Corp.

National Labor Relations Board - Board Decisions

Feb 22, 1980

247 N.L.R.B. 1346 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pay 'N Save Corporation and Retail Clerks Union
Local No. 381, Chartered by United Food and
Commercial Workers International Union, AFL-
CIO.' Case 19-CA-10414
February 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 17, 1979, Administrative Law Judge
Martin S. Bennett issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief.
Pusuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 Administrative Law Judge and to
adopt his recommended Order, as modified herein.
1. The Administrative Law Judge found that
Respondent's unwritten rule against wearing political
or controversial buttons, including union buttons,
violated Section 8(a) (1) of the Act, and that, by
suspending and later discharging employees Frederick
and Berry for wearing union buttons on their store
jackets, Respondent violated Section 8(a) (3) and (1)
of the Act. However, the Administrative Law Judge
found that Respondent did not disparately apply its
rule in violation of Section 8(a) (1). The General
Counsel excepts, contending that Respondent's rule
was disparately applied. We agree.
Respondent's director of training, Collette, testified
it is companywide policy that no buttons are allowed
which endorse any particular religion, political candi-
date, or particular drives, other than the Company's
own promotional campaigns for products and new
stores. Nonetheless, the record reveals that employees
had been allowed to wear various kinds of religious
buttons bearing such slogans as "Have a nice eterni-
ty," "Jesus loves the children and I Love Jesus,"
"Jesus loves you," and religious holiday buttons such
' The name of the Charging Party, formerly "chartered by" Retail Clerks
International Union. AFL-CIO, is amended to reflect the change resulting
from the merging of the Retail Clerks International Union and the
Amalgamated Meatcutters and Butcher Workmen of North America. AFL-
CIO. on June 7, 1979.
The Administrative Law Judge dismissed the 8(a) (5) allegation although
he also found that the Union was and is the majority representative of the
employees. In the circumstances of this case. we are constrained to agree with
the Administrative Law Judge. Thus. we note that even the prcxof of the
247 NLRB No. 184
as Christmas trees and large Saint Patrick's Day
buttons. Other buttons were permitted as well, such as
"Love" buttons and a sticker which said, "Try me,
I'm fresh," which some of the employees had removed
from raisin boxes. Assistant Manager Jennings testi-
fied that he had seen employees wearing religious
buttons, but had never "paid that close attention to
them." Manager Hanrahan's and Assistant Manager
Jennings' testimony reveals that they decided on a
completely arbitrary basis which buttons were accept-
able and which were not. In view of the above, it is
clear that Respondent disparately enforced its button
policy against Frederick and Berry in violation of
Section 8(a) (1).
2. The complaint alleged Respondent violated
Section 8(a) (5) by suspending and discharging Fred-
erick. The Administrative Law Judge, without any
explication, stated only that he saw no basis for
making such a finding and dismissed the allegation.2
However, the Administrative Law Judge also failed to
even discuss the bargaining order that was alleged in
paragraph 1 of the complaint as necessary to remedy
the suspensions and discharges of Frederick and
Berry. The General Counsel excepts to the Adminis-
trative Law Judge's failure to grant a bargaining
order. We find merit in the exceptions, for, in our
opinion, a bargaining order is clearly warranted here.
As the Administrative Law Judge found, Respon-
dent discharged employees Frederick and Berry in
violation of Section 8(a) (3) and (1). Frederick was the
leading union adherent who originally contacted the
Union and solicited the other employees to sign the
cards. Berry was the Union's next most obvious
supporter and wore union buttons more than any of
the other employees except Frederick for which she,
like Frederick, was discharged. The Board and courts
have long held that the discriminatory discharge of
leading union adherents has an especially pervasive
effect on other employees, and serves to accomplish
the destruction of employee support for unionization
as would a greater number of unfair labor practices
which individually have a lesser impact. See, e.g., A. J.
Krajewski Manufacturing Co., Inc., 180 NLRB 1071
(1970); Motel 6, Inc., 207 NLRB 473 (1973). More-
over, in a small unit, the impact of such discharges has
a far greater effect than in a larger one and practically
makes a fair election impossible. See, e.g., Plastic
Composites Corp., 210 NLRB 728 (1974); American
Union's majority status arose in the context of showing that Frederick
obtained signed cards from 10 of 13 unit employees. Moreover, although the
complaint alleges the Union demanded recognition and bargaining and that
Respondent refused to recognize or bargain. the General Counsel introduced
no evidence of the demand and refusal. Finally, the inartfully worded
complaint does not even allege that Respondent refused to bargain with the
Union in violation of Sec. 8(a) (5), but only that that section was violated by
the suspensions and discharges
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PAY 'N SAVE CORPORATION
National Stores, Inc., 195 NLRB 127 (1972). Since the
Union had a valid majority (10 authorization cards in
the 13-employee unit), we are of the opinion that the
authorization cards are a better expression of employ-
ee sentiment than an election would be. Accordingly,
we find that, in order to protect the statutory rights of
the employees and to remedy the violations of Section
8(a) (1) and (3) of the Act, it is essential that a
bargaining order issue. Under the principles set forth
in Trading Port. Inc.. 219 NLRB 298 (1975), we will
date the order from May 17, 1978, the date upon
which Respondent commenced its unfair labor prac-
tices by suspending employees Frederick and Berry.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Pay 'N
Save Corporation, Port Angeles, Washington, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended."
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Upon request, recognize and bargain with
Retail Clerks Union Local No. 381, chartered by
United Food and Commercial Workers International
Union, AFL-CIO, as the exclusive representative of
all the employees in the appropriate unit set forth
below, with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if an
understanding is reached, embody such understanding
in a written, signed agreement. The appropriate unit
IS:
"All employees of Respondent at its Port An-
geles, Washington, store, excluding office clerical
employees, store manager, assistant manager,
department managers, pharmacists, guards and
supervisors as defined in the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' Since Respondent admitted in its answer the demand and refusal to
bargain as set forth in the complaint. Chairman Fanning would date the
bargaining order as of that date of refusal, or May 19. 1978. instead of
prospectively. Cf. Beasley Energy. Inc.. d/b/a Peaker Run Coal Company.
Ohio Division No. 1. 228 NLRB 93 (1977).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend, discharge, or other-
wise discriminate against any employee for engag-
ing in union activities, including the wearing of
union buttons, on behalf of Retail Clerks Union
Local No. 381, chartered by United Food and
Commercial Workers Union, AFL-CIO, or any
other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
WE WILL offer Dawn Frederick and Joyce
Berry immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights
or privileges, and WE WILL make each of them
whole for any loss of pay suffered as a result of
our discrimination against them, with interest.
WE WILL, upon request, recognize and bargain
collectively with the above-named Union as the
exclusive bargaining representative of the em-
ployees in the appropriate unit set forth below,
and, upon request, embody in a written, signed
agreement any understanding reached. The ap-
propriate unit is:
All employees employed by us at our Port
Angeles, Washington, store, excluding office
clerical employees, store manager, assistant
manager, department managers, pharmacists,
guards, and supervisors as defined in the Act.
PAY 'N SAVE CORPORATION
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard in Seattle, Washington, on September 26
and 27, 1978. The complaint, issued June 28 and based upon
a charge filed May 22, 1978, by Retail Clerks Union Local
No. 381, chartered by Retail Clerks International Union,
AFL-CIO, herein the Union, alleges that Respondent, Pay
'N Save Corporation, has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) and also
8(a)5) of the Act. Briefs have been submitted by the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel and Respondent and have been carefully
considered.'
Upon the entire record in the case and from my
observation of the witnesses, including their demeanor, I
make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Pay 'N Save Corporation is a Washington corporation
which, inter alia, maintains an office and place of business at
Port Angeles, Washington, where it is engaged in the retail
sale of drugs and other miscellaneous goods. It annually sells
and ships goods and provides services from its Washington
facilities to customers outside that State, or sells and ships
goods or provides services to customers within said State
who in turn are themselves engaged in interstate commerce
by other than indirect means, in a total value exceeding
$50,000.
It also annually purchases and causes to be transferred
and delivered to its facilities within the State of Washington
goods and materials valued in excess of $50,000 directly
from sources outside that State or from suppliers within said
State who in turn obtain such goods and materials directly
from sources outside Washington. I find that the operations
of Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOLVED
Retail Clerks Union Local No. 381, chartered by Retail
Clerks International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issues
Early in May 1978 the Union commenced an organiza-
tional campaign among the sales and clerical employees of
Respondent. Several organizational meetings were held, with
cards signed by a majority of said personnel. At least two
employees commenced wearing union buttons on the salesfl-
oor during working hours; these were worn on the bright
orange smocks or jackets provided by Respondent. The
buttons are about 1-1/4 inches in diameter with black print
on a yellow background and bear the legend "Vote Yes
Retail Clerks Union AFL-CIO" or "Vote Retail Clerks
Union AFL-CIO." Two employees, Dawn Frederick and
Joyce Berry, were suspended and then terminated that same
month for wearing these buttons. The complaint further
alleges that a majority of Respondent's employees in an
appropriate unit had signed cards for the Union, that the
Union demanded recognition and filed a petition for an
' After the close of the hearing I received in evidence a decision by a
Commissioner of the Employment Security Department of the State of
Washington involving the complainants herein. I deem it unnecessary to rely
upon this. See Bolla Drainage Inc.. 242 NLRB 728 (1979).
: In Case 19-RC-8900 involving Respondent, its labor relations assistant,
Brian Brudvik, urged to the Regional Office that a unit of all employees at the
Port Angeles store, excluding office clerical employees, the store manager, the
election, and that Respondent has refused to recognize and
bargain by its conduct to Frederick and Berry.
B. Sequence of Events
Respondent operates approximately 180 stores which are
engaged in the retail sale of drugs and other products. About
35 percent of these are organized, but its store at Port
Angeles, Washington, the only store involved herein, was
not. In early May 1978 the Union commenced an organiza-
tional campaign among the employees of this store. Ten of
the approximately 13 rank-and-file employees signed autho-
rization cards; these were obtained by complainant Dawn
Frederick.'
Frederick, an employee since August 1975, commenced
wearing the above-described button on the front of her store-
provided jacket while on the salesfloor on May 15 as well as
May 16. As she testified, Assistant Manager Gary Jennings
spoke to her on May 17 about noon on the salesfloor and
directed her to remove the button; she refused. He respond-
ed that he had conferred with top management in Seattle, as
indeed he had, and she was to remove it. Frederick again
refused, Jennings suspended her, and Frederick promptly
left the premises.
Joyce Berry entered the employ of Respondent in May
1977 and wore a button on May 15 and 16 in identical
fashion. She too, was suspended on May 17 by Jennings
precisely as Frederick was. She testified later that Jennings
had not told her she could wear her button on her personal
clothing. Jennings testified in turn that he spoke with Store
Manager Hanrahan on May 17 about the problem and was
directed to suspend the two employees if they refused to
remove the buttons from their store jackets. He was asked if
he advised the girls that they could wear the buttons on their
own clothing and replied that he had. Jennings then
ambiguously stated that he did not recall saying whether or
not they could wear them on their own clothing. He did
testify, "I don't remember saying that they could or could
not wear it on their own clothing." Jennings was not aware
of any written policy treating with the wearing of union
buttons on such. The record does demonstrate that Respon-
dent's handbook treating with employee procedures and
decorum is silent on this topic.
Hanrahan basically confirmed the testimony of Jennings,
testifying that he decided the wearing of the buttons was
contrary to store policy and that he likened them to the
wearing of political buttons which Respondent had previous-
ly discouraged. However, the record does reveal that
Respondent permits and indeed encourages the wearing of
buttons in connection with commercial promotions such as
the sale of cosmetic products. After checking the matter
with his superiors, Hanrahan directed the two suspensions
on May 17.
According to Frederick, Hanrahan telephoned her at
home later that day, Friday, May 17, and told her that if she
assistant manager, department managers, guards and supervisors was appro-
priate for the purposes of collective bargaining. Respondent's answer admits,
and I find, that this is a unit appropriate for said purpose within the meaning
of Sec. 9(b) of the Act. I further find that at all times material herein the
Union was, and now is, the majority representative of these employees within
the meaning of Sec. 9(a) of the Act. There is no additional evidence of the
Union's seeking recognition.
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PAY 'N SAVE CORPORATION
did not remove the button by Friday, May 19, she would be
terminated. She telephoned Hanrahan later that day and
asked if she could wear the button on her personal clothing
and he replied that she could. She returned to work the
following day and wore the button until May 27 on a scarf
where it was visible above her store jacket.
Berry testified similarly that Hanrahan telephoned her at
home on May 17 and told her that if she did not remove the
button he would be forced to terminate her. According to
Hanrahan, Berry did not scheduled to work on the following
day but did report to work on May 19 and wore her button
on a scarf in the same manner as Frederick did.
On May 27 the instant dispute came into focus. According
to Frederick, she and Berry, by agreement, wore the button
on their store jackets that day. Hanrahan called her to the
office and stated that if she did not remove the button she
was terminated. She asked then if she could wear it on her
personal clothing, and he forbade her to wear it on the
premises. According to Berry, she wore two union buttons
on May 27, one on her shirt and one on her store jacket.
Hanrahan directed her to remove the buttons on penalty of
discharge; she did not and she was terminated. He made no
reference to wearing a button on her personal clothing.
Hanrahan testified somewhat ambiguously that he said on
May 27 that Frederick could not wear the button, but that
she did not ask, on that occasion, if she could wear it on her
personal clothing.
Respondent has argued that it did not forbid the wearing
of the button on personal clothing, and it is true that
Respondent tolerated this from May 17 through May 27.
The General Counsel. in turn, argues that the employees
were not given the choice on May 27. While this is true, the
fact is that the employees brought this to a head on May 27
so the ultimate issue is Respondent's refusal to permit union
buttons to be worn upon store jackets on the salesfloor
where they made contact with customers.
C. Concluding Findings
It has long been recognized that an employee is protected
when wearing union insignia or buttons while at work on
employer premises and that absent "special circumstances"
a rule prohibiting this conduct is violative of Section 8(a)(l)
of the Act. Republic Aviation Corporation v. N.L.R.B., 324
U.S. 793 (1945) and Floridan Hotel of Tampa, Inc., 137
NLRB 1484 (1962). These special circumstances have been
recognized in areas involving employee efficiency, safety,
and discipline. This would involve a claim that buttons
would interfere with work or production as recognized in
Hanes Hoisery, Inc., 219 NLRB 338 (1975), and Standard
Fittings Co., et al., 133 NLRB 928 (1961). Recognition is
also extended to a situation where a badge will create a
safety hazard as in United Parcel Service, inc., 234 NLRB
223 (1978), and Brown Manufacturing Corp., 235 NLRB
1329 (1978). And it has been extended to a situation where
friction may arise from animosity between rival unions or
union and nonunion groups where buttons might be banned
to avoid disruption and discord. Davidson-Paxon Division of
R. H. Macy & Company v. N.L.R.B., 462 F.2d 364 5th Cir.
'But cf. The Singer Co. Friden Division. 199 NLRB 1195 which was a case
where the employees were required to wear their shop coats only in rare
1972 United Aircraft Corp., Pratt & Whitney Aircraft
Division, 134 NLRB 1632 (1961).
However, the Board and the courts have recognized that
where services are supplied to the public and where
employees are in regular contact with the public, additional
"special circumstances" may exist. But in Floridan Hotel of
Tampa, supta, the Board noted the absence of evidence to
show that union buttons detracted from the dignity of the
employer or caused a loss of business. This view was
recognized by the Board in Harrah's Club, 143 NLRB 1356
(1963), but the court of Appeals, on review, reversed this
holding in 337 F. 2d 177 9th Cir. In that case, the court
referred to the employer's having a special interest in
projecting a certain image to the public, more specifically, a
clean and neat uniform. It is noted, however, that in the
instant case the buttons were worn as part of an organiza-
tional campaign, normally concerted and protected activity
as recognized in Montgomery Ward, Incorporated, 226
NLRB 184 (1976).
In this case, the rule was not disparately applied because
there is evidence that employees were told to remove
political buttons in a past political election. But the record
well demonstrates that the buttons were not garish in any
fashion. The concern of Respondent apparently was that
customers not obtain an impression that Respondent sup-
ported a controversial cause.
In Glenlyn, Inc. d/b/a McDonald's Drive-In Restaurant,
204 NLRB 299 (1973), the Board affirmed a finding of an
administrative law judge that there was no valid business
consideration or other special circumstance to justify depriv-
ing an employee of his statutory right to wear union insignia.
There was language that the writer was not impressed by a
contention that business judgment warranted the prohibition
of wearing a union button so as to prevent misleading the
public. This concept, it must be conceded, was recognized in
Republic Aviation Co. v. N.L.R.B., supra, in which case the
Board had used language that the wearing of a steward's
button was not tantamount to a representation that the
employer either approved or disapproved or recognized a
union as the representative of its employees, particularly
where there was no competing labor organization in a plant.
The right to wear union buttons at work was referred to as a
long-recognized legitimate form of union activity. Thus, it
would seem that this does not amount to a "special
circumstance" warranting the forbidding of the wearing of a
union button.'
I find, under all the foregoing circumstances, that by
suspending and later terminating Frederick and Berry for
wearing union buttons on their shop coats, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(aX3) and (1) of the Act.
D. The Alleged Refusal To Bargain
The complaint has alleged that by the suspension and
discharge of Frederick and Berry, Respondent has engaged
in unfair labor practices within the meaning of Section
instances, unlike the present case. And cf. Baptist Memorial Hospital, 242
NLRB 642 (1979).
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(5) of the Act. On this record, I see no basis for such a
finding and recommend the dismissal of the allegation.'
Upon the basis of the foregoing finding of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Pay 'N Save Corporation is an employer within the
meaning of Section 2(2) of the Act.
2. Retail Clerks Union Local No. 381, chartered by Retail
Clerks International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By suspending and then terminating Dawn Frederick
and Joyce Berry, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not otherwise engaged in unfair labor
practices.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
I have found that Respondent has violated Section 8(a)(3)
and (I) of the Act by suspending and thereafter terminating
Dawn Frederick and Joyce Berry on May 17 and 27, 1978. I
shall, therefore, recommend that Respondent offer them
immediate and full reinstatement to their former positions
without prejudice to seniority or other rights and privileges.
See The Chase National Bank of the City of New York, San
Juan, Puerto Rico Branch, 65 NLRB 827 (1946).
I shall further recommend that Respondent make each of
them whole for any loss of earnings suffered as a result of
this discrimination by payment of a sum of money equal to
that each normally would have earned from the date of said
discrimination, less net earnings, with interest thereon to be
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), Florida Steel Corporation, 231 NLRB
651 (1977), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962). See also Hansen Cakes, Inc., 242 NLRB 641
(1947).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section IO(c) of the
Act, I hereby issue the following recommended:
'Although majority representation has been found See fn. 1.
In the event no exceptions are filed as provided in Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
ORDER s
The Respondent, Pay 'N Save Corporation, Port Angeles,
Washington, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Suspending, discharging, or otherwise discriminating
against any employee for wearing union buttons at its store.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the right
to self-organization, to join or assist Retail Clerks Union
Local No. 381, chartered by Retail Clerks International
Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Dawn Frederick and Joyce Berry immediate and
full reinstatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions, without
prejudice to seniority or other rights and privileges, and
make each of them whole for any loss of pay she may have
suffered by reason of the discrimination against her, plus
interest, in the manner provided above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its premises at Port Angeles, Washington,
copies of the notice attached marked "Appendix."' Copies of
said notice on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof and maintained 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.
(d) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
· In the event that 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 enforcement an Order of the National
Labor Relations Board."
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