Read's, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1973

205 N.L.R.B. 302 (N.L.R.B. 1973)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Read's, Inc . and Retail Store Employees Union, Local
692, AFL-CIO, affiliated with Retail Clerks Inter-
national Association , AFL-CIO. Cases 5-CA-5776,
5-CA-5830, and 5-CA-5873-3
August 7, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 28, 1973, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent and
the General Counsel filed exceptions and supporting
briefs, and the Respondent filed an answering 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Read's, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
1 These findings are based , in part , upon credibility determinations of the
Administrative Law Judge to which the Respondent has excepted After
careful review of the record , we conclude that these credibility findings are
not contrary to the clear preponderance of all relevant evidence . According-
ly, we find no basis for disturbing these findings Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951)
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge in Case 5-CA-5776 was filed on September 25,
1972.1 A complaint was issued on November 10. The charge
in Case 5-CA-5830 was filed on October 30. The two cases
were consolidated for hearing and a consolidated complaint
was issued on December 1. The charge in Case 5-CA-
5873-3 was filed on November 30 and amended on Decent-
1 Dates are 1972 unless otherwise specified
ber 14. A complaint was issued on January 9, 1973. All three
cases were consolidated for hearing the same day. The hear-
ing was held on January 22, 23, 24, 25, 29, and 30, 1973, in
Baltimore, Maryland.
The complaints allege as violations of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, dis-
crimination against three employees as well as various inde-
pendent violations of Section 8(a)(1). At the conclusion of
the General Counsel's case in chief, I granted Respondent's
motion to dismiss the allegation that Respondent had discri-
minated against Dianne Lee Roycroft on or about Novem-
ber 29 by reducing her overall hours of work and scheduling
her for more weekend work on the ground that the General
Counsel had failed to make out a prima facie case as to
motive. For the reasons set forth below, I find Respondent
did not violate the Act when it discharged Virginia Schec-
kells on September 19, did when it discharged Karol Florio
on November 3, did not violate Section 8( a)(1) in some of
the ways alleged, and did in others.
Upon the entire record, including my observations of the
demeanor of the witnesses, and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent, a Maryland corporation, operates drug
stores in that State. During the year preceding issuance of
the complaints, it grossed more than $500,000 and pur-
chased products valued at more than $50,000 which were
shipped directly to it by suppliers located outside the State
of Maryland.
II THE UNFAIR LABOR PRACTICES
A. Background
The Charging Party began a campaign to organize
Respondent's drug stores in July. It filed a petition in Case
5-RC-8233 on August 25. Hearing was held on September
28 and October 6 and 12. The Regional Director issued his
Decision and Direction of Election on November 14. The
unit comprised all full-time and regular part-time employ-
ees, approximately 1,400 in number, in all of Respondent's
stores in the State of Maryland. These numbered approxi-
mately 80 drug stores and 1 restaurant. The election was
tentatively scheduled for December 15. It was not held,
being blocked by this proceeding.
The Charging Party campaigned by sending organizers
into Respondent's stores to solicit employees. This led to a
series of incidents which are euphemistically referred to in
the record as "hassles" in which Respondent sought to curb
the organizers' activities. In October Respondent had three
organizers arrested when they refused to leave store 31,
located in Mondawmin Shopping Center in Baltimore.
They were convicted of trespassing. Their convictions were
on appeal at the time of the hearing in this proceeding.
Respondent's attorneys conducted two meetings for store
managers, assistant managers, and other officials at which
instructions were issued on Respondent's legal rights and
205 NLRB No. 57
READ'S, INC.
how supervisors should conduct themselves in the face of
the Charging Party's campaign. One of the instructions was
that the manager and assistant manager in each store should
keep a diary in which to record any incidents, including the
names of any employees who were witnesses of what oc-
curred during the hassle. The record does not reveal what,
if anything, was actually written in any of these diaries.
There is no indication in the record that any employee ever
saw what was written in any of these books. One employee
was told by an assistant manager that the purpose of the
book was "to record everything, any incident that goes on
in the store pertaining to union representatives; like, who
talks to them or exactly just what happened, from the time
they came in to the time they left." (I do not credit the denial
of Dode Allan Hoskins, the assistant manager, that this
conversation took place.)
The Charging Party has filed numerous unfair labor prac-
tice charges against Respondent since the campaign began.
Respondent had filed none against the Charging Party as of
the close of the hearing herein. It filed an 8(b)(1)(A) charge
on March 9, 1973. From September 9 until the hearing
opened the Charging Party filed 12 charges. All except the
three involved in this proceeding were withdrawn by the
Charging Party after investigation by the Regional Office.
A charge filed on the first day of the hearing was dismissed
by the Regional Director on February 26, 1973. The Charg-
ing Party also filed charges on February 26, 1973, and
March 2, 1973.
B. The Discharge of Virginia Sheckells
1. Facts
Virginia Sheckells was hired by Respondent in November
1970 as a greeting card detailer. Detailers are supervised by
buyers. They go from store to store in order to assure that
the particular product line for which they have been given
responsibility is being properly stocked and merchandised.
By April 1972 Ms. Sheckells had become dissatisfied with
her job, principally because of a running dispute with an-
other detailer about the work. As a result, Joel Fried, the
greeting card buyer, suggested to Ms. Sheckells that she
transfer to another product and to Eileen Spittel, the cos-
metics buyer, that she take on Ms. Sheckells as a detailer.
Fried told Ms. Spittel that Ms. Sheckells had been having
a problem with lateness and absenteeism. When Ms. Spittel
interviewed Ms. Sheckells about the transfer, she told Ms.
Sheckells that she would expect her to be at the stores where
she was supposed to be when she was supposed to be there.
She also told Ms. Sheckells that she would expect her to
dress properly for her job. (Ms. Sheckells, an attractive,
full-figured young woman, prefers not to wear a brassiere.)
Ms. Sheckells agreed to the conditions. As a result, in April,
Ms. Sheckells transferred from the supervision of Fried to
the supervision of Ms. Spittel and became detailer of Goody
products, a line of hair ornaments and accessories.
From April until September Ms. Sheckells was a less than
perfect employee. She frequently failed to turn in the report
of each store visit, which Respondent requires of its detail-
ers and for which it provides a form, on the ground that the
reports served no useful purpose. She frequently arrived at
303
the first store on her day's itinerary later than 9 a.m., the
time she was supposed to be there. (In July, she was late in
arriving on the first day at the place where Respondent was
holding its 2-day Christmas merchandise show for store
managers . It is especially important that detailers be on time
at this annual event in order to set up the display of their
product line in conjunction with the manufacturer's
salesman .) On several occasions Ms. Spittel could not locate
her at the store where she was supposed to be. Ms. Spittel
spoke to her about these various shortcomings on several
occasions . In July, apparently just before the Christmas
show, the Goody salesman made an indecent proposal to
Ms. Sheckells. Ms. Sheckells reported the incident to
Respondent's top management. As a result, Goody's na-
tional sales manager came to Baltimore for a conference
with Donald Cardelle, Respondent's director of merchan-
dising, Ms. Sheckells, and Ms. Spittel, as a result of which
the offending salesman was taken off Respondent's ac-
count. On this occasion, Ms. Spittel reprimanded Ms. Shec-
kells for not wearing a brassiere while working. On each of
the occasions when Ms. Spittel spoke to Ms. Sheckells about
her shortcomings as an employee, Ms. Sheckells promised
to do better. Her attitude and performance remained essen-
tially unchanged.
Ms. Sheckells signed an authorization card for the Charg-
ing Party in August and obtained cards from approximately
30 other employees. On one occasion she went to lunch with
an organizer , leaving from and returning to one of
Respondent' s stores with him. On their return , a guard in
the store asked the organizer to leave the store, consonant
with Respondent's no-solicitation rule (see the section enti-
tled "Respondent's No-Solicitation Rule" below). During
the last week in August Ms. Sheckells held a meeting at her
home which was attended by employees and union organiz-
ers. A day or two before this meeting Donald Crossney,
manager of store 53, the store at which Ms. Sheckells cus-
tomarily picked up her paycheck, asked her in passing how
the Union was coming along. Ms. Sheckells replied, "Fine,
but I'll let you know in a couple of days after I have a
meeting ." (Crossney denied this conversation, apparently
relying on the fact that he was on vacation from August 17
through 24. However, since Ms. Sheckells placed the meet-
ing in the week prior to her vacation, which began on Sep-
tember 8, and not specifically on August 18, the
"on-or-about" date alleged in the complaints , it is obvious
that the conversation could have taken place as testified by
Ms. Sheckells. While I have credited Ms. Sheckells over
Crossney to find that this conversation did take place, I
have not discredited Crossney generally. I have relied on his
testimony for my findings below as to what Ms. Sheckells
said to him on the day of her discharge.)
Respondent's vacation policy calls for 1 week after 1 year
of employment, 2 weeks after 2 years. Hired in November
1970, Ms. Sheckells became eligible for a 1-week vacation
in November 1971. She took it in December 1971. In No-
vember 1972, if she had remained in Respondent's employ
that long, she would have become eligible for a 2-week
vacation. She elected to go on vacation in September.
Ms. Sheckells arranged to take off the week beginning
Monday, September 11. However, she changed her plans so
as to begin her vacation on Friday, September 8. In both
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instances, she reported to Pat McLaughlin, Ms. Spittel's
secretary, and Ms. McLaughlin gave her approval. Ms.
Sheckells had also told Ms. McLaughlin at the time she
arranged for the week of September I I that she might also
take off Monday, September 18. In the event, Ms. Sheckells
did exactly that. As a result, she was away from work for
7 consecutive workdays, from Friday, September 8, through
Monday, September 18.
Ms. Spittel tried to contact Ms. Sheckells around 4 p.m.
on Thursday, September 7. Ms. Spittel was under the im-
pression that Ms. Sheckells' vacation was not scheduled to
begin until the following Monday, the period Ms. Spittel
had authorized. When Ms. Spittel learned that Ms. Shec-
kells had already left work to begin her vacation, Ms. Spittel
asked Ms. McLaughlin how come. Ms. McLaughlin said
that she had told Ms. Sheckells she could begin her vacation
on Friday without first clearing the change with Ms. Spittel
because she thought Ms. Spittel would not mind.
Ms. Spittel calculated that Ms. Sheckells, having begun a
1-week vacation on Friday, September 8, would return to
work on Friday, September 15. When Ms. Sheckells failed
to appear that day, Ms. Spittel went to Cardelle and recom-
mended that Ms. Sheckells be discharged. Cardelle instruct-
ed Ms. Spittel to have Ms. Sheckells report to him first thing
Monday morning. When Ms. Sheckells failed to appear on
Monday, the meeting was rescheduled for Tuesday, Sep-
tember 19.
On her return from her vacation, Ms. Sheckells received
word to report to Ms. Spittel first thing Tuesday morning.
She went to Respondent's main office as instructed. Car-
delle and Ms. Spittel were unable to see her immediately
because they were tied up in a buyers' meeting. While she
was waiting, Ms. Sheckells received a message from her
husband that he needed some tools which were in the trunk
of Ms. Sheckells' car. Consequently, Ms. Sheckells left to
take the tools to her husband. When the buyers' meeting
ended in mid-morning and Cardelle was ready to see her,
Ms. Sheckells was not in the office. She returned around
lunchtime. She went to lunch with Ms. Spittel in the office
cafeteria. They did not discuss the fact that Ms. Sheckells
was about to be discharged. Immediately after lunch Ms.
Sheckells reported to Cardelle in his office. Cardelle dis-
charged her.
Late that afternoon Ms. Sheckells stopped by store 53. As
she was leaving, she told Crossney that she would not be
coming in any more because she had been fired. Crossney
asked why. Ms. Sheckells said, "Well, I think that they
couldn't find me half the time, but I think it was more my
union connection."
Crossney said, "Union connection?"
Ms. Sheckells said, "Yes, I was having meetings at my
house and soliciting in the stores. But I don't care."
Crossney said, "What are you going to do now?"
Ms. Sheckells said, "I am going to get pregnant and stay
home and raise a family."
2. Analysis and conclusions
Whether Ms. Sheckells' discharge violated the Act turns
on what Cardelle said to Ms. Sheckells when he discharged
her. According to Ms. Sheckells, the interview went like
this:
Well, I went in and I sat down and he came in and
I was so nervous because I had to talk to him and he
was talking about something. I really didn't hear what
he was saying, but he ended up saying that because of
the new company policy, because of my union activi-
ties and my tardiness and absenteeism, that I was ter-
nunated and he gave me a check for 15 hours. I was,
like, really shocked and I said "I can't believe that you
are firing me." I just couldn't believe, so I jumped up
and thanked him and left.
According to Cardelle, it went like this:
I greeted her and said, "hello, Mrs. Schekells", and
asked her to have a seat, which she did. I sat at my desk
and I said to her, "Things have not worked out well,
and we are going to have to terminate you." At that
point I was cut off, and Mrs. Scheckells rubbed her
hands and said, "Hey, that's great" with a big smile on
her face.
*
She said, "Hey, that's great. When is this effective?"
I said, "Immediately. As a matter of fact I have a
check," and I reached into my pocket, "paying you
through today " Then I handed her the check.
She said, "Is that all? Is there anything else?" And
I said, "No, not unless you would like an explanation,
or you have any questions." With that, Mrs. Scheckells
got up, said "Thank you very much", and left my of-
f ice.
I credit Cardelle over Ms. Sheckells as to this crucial
conversation. In doing so I rely principally on Ms. Shec-
kells' conversation with Crossney later that afternoon. Ms.
Sheckells was first asked about this conversation on cross-
examination during presentation of the General Counsel's
case in chief. She was only asked about the pregnancy part
of the exchange, which she readily admitted. Crossney testi-
fied as a witness for Respondent during presentation of its
case in chief. He testified as I have found at the end of the
"Facts" section above. Ms. Sheckells subsequently returned
to the stand as a rebuttal witness for the General Counsel.
She was not asked any questions at that time about this
conversation. If, in fact, Cardelle had told her she was being
discharged for union activities, she would not have told
Crossney "I think it was more my union connection." The
fact that the General Counsel did not attempt to dispute
Crossney's testimony that those were the words she spoke
even though she was recalled to the stand for purposes of
rebuttal convinces me that she was uncertain about why she
had been discharged when she spoke to Crossney. Her attri-
buting the specific words "because of my union activities"
to Cardelle is simply another example of the postdischarge
rationalization which caused her to tell Crossney "I think it
was more my union connection."
The basic issue with respect to the discharge of Ms. Shec-
kells is not whether Respondent, in the persons of Ms. Spit-
tel and Cardelle, had knowledge of Ms. Sheckells' union
activities (although I credit their denials that they had such
knowledge), for the knowledge of Crossney, gained from his
READ 'S, INC.
conversation with Ms. Sheckells in late August , can be at-
tributed to Respondent and would be technically sufficient
to support a finding of violation if all other elements were
present . The basic issue is, rather , motive . Since there is no
evidence of any officials other than Ms. Spittel and Cardelle
participating in the decision to discharge Ms. Sheckells, it
turns on whether the General Counsel has proved that they
were discriminatorily motivated . If I had credited Ms. Shec-
kells over Cardelle as to what he said when he discharged
her, that would be the end of the matter , for "because of my
union activities" is an admission of a discriminatory motive.
Once Cardelle is credited over Ms. Sheckells , the question
arises of whether Respondent 's stated reasons for discharg-
ing Ms. Sheckells are a pretext masking a discriminatory
motive.
Cardelle was asked why he discharged Ms. Sheckells,
thus:
Q. How would you summarize your reasons for
discharging Mrs. Scheckells?
Q. Primarily based on the report which I got from
Mrs. Spittel , who was one of six buyers at the time.
Buyers hold very responsible positions , and they are
primarily responsible for the supervision of the detail-
ers.
Mrs. Spittel has had a long record of integrity and
loyalty with the Read's company . When she came to
me and stated these problems, I had no reason to be-
lieve that they were not true exactly as she reported
them to me. I can recall Mrs. Scheckells-would you
restate that question again?
JUDGE BLACKBURN He wants to know why you fired
her? What was your reason for firing her?
THE WITNESS Because of absenteeism . Because on
many occasions, much more than being absent, the
buyer , Mrs. Spittel in this case , could not locate her
during the working day, the fact that she left early, she
would not comply with our policies in terms of filling
out the reports on a regularly scheduled basis, she did
not submit her schedule on time on a regular basis as
all detailers are supposed to do, and as an aftermath,
and I think probably "the straw that broke the camel's
back" you might say, was the fact that she arbitrarily
did not show up on Friday or Monday without report-
ing to her immediate supervisor.
All of the sins of omission and commission cited by Cardelle
are true . In fact , Ms. Sheckells admitted them . But those
which occurred prior to Ms. Sheckells' vacation avail Re-
spondent little, for it is clear from the record as a whole that
Ms. Scheckells differed from other detailers in these re-
spects, if at all, in degree only. But they do explain the
nature of Ms. Spittel 's relationship with Ms. Sheckells so
that when the straw of Ms. Sheckells' extended vacation was
added to her burden , Ms. Spittel 's recommendation that
Ms. Sheckells be discharged takes on crucial significance.
It is possible to argue that "the straw that broke the
camel 's back" is pretextual for two reasons. The first is that
Ms. Sheckells was absent on Friday , September 15, and
Monday, September 18, with permission, relying on the
undisputed facts that Ms. McLaughlin told her it was all
right for her to start on the former day and that Ms. Shec-
kells told Ms. McLaughlin she might take on an extra day
305
at the end. But the question here is not whether Ms. Shec-
kells acted with Ms. McLaughlin 's permission or even
whether Ms. McLaughlin had authority to grant her that
permission . The question is whether Ms. Sheckells acted
with Ms. Spittel's approval . That she did not is uncontro-
verted . Therefore , the fact that Ms. Sheckells may have
acted innocently in absenting herself on 2 days when Ms.
Spittel expected her to be on the job does not make Ms.
Spittel's reaction to that absence any less bona fide.
Second , it is possible to argue that Ms. Sheckells was
entitled to 7 days of vacation time rather than 5 days and
was, therefore , off on Friday, September 15, and Monday,
September 18, as a matter of right. (The General Counsel
took this position during the hearing, although no mention
of Ms. Sheckell 's vacation appears in his discussion in his
brief of why the discharge should be found violative of the
Act; rather, the General Counsel relies solely on Ms. Shec-
kells' version of the exit interview .) This argument is based
on a misreading of Respondent 's vacation policy as set forth
in its employees' manual. It reads, in pertinent part:
Read's vacation policy is as follows:
The employee' s anniversary date determines his eligi-
bility for:
1-week's vacation after 12 months of service have
been completed;
2-week's vacation after 2 years completed service;
2. General [i .e., nonretail ] personnel may take vaca-
tions at any time approved by the person to whom the
individual is responsible.
Vacation must be taken within 365 days of the time in
which it is earned . There will be no "carry over" from
one year to another or any payment permitted for vaca-
tion time that is not used.
As can be readily seen, vacations are given on a calendar
year basis . (The only other possible explanation of "within
365 days of the time in which it is earned" and "from one
year to another," i.e., that Ms. Sheckells was entitled to only
one 1-week vacation between November 1971 and Novem-
ber 1972, is fatal to the General Counsel 's case , for it would
mean that Ms. Sheckells was AWOL in September for 7
days, not just 2. The fact that Respondent gave her 5 days'
vacation , of course , demonstrates Respondent 's calendar
year practice .) Since Ms. Sheckells was hired in November
1970, she qualified for a 1-week vacation in 1971 , provided
she took it, as she did , before the end of the year. If she had
elected not to take a vacation in 1971, she would have been
entitled to a 1-week vacation in 1972 anytime prior to No-
vember and to a 2-week vacation if she elected to wait until
November or December . There is nothing in Respondent's
written vacation policy or in any of the testimony adduced
from officials of Respondent to justify a finding that Re-
spondent prorates a second week of vacation when an em-
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee elects to take a vacation during the calendar year in
which his second anniversary falls but prior to his anniver-
sary date. Therefore, when Ms. Sheckells elected to go on
vacation in September , she was entitled to I week (i.e., 5
working days) off, no more and no less. Whether , in fact,
Respondent would have permitted her to take a second
week in November or December (a point not fully devel-
oped in the record) is irrelevant to the question of the seri-
ousness of her absenting herself on Friday , September 15,
and Monday, September 18, in weighing for evidence of
pretext Respondent 's ostensible reason for discharging her.
I conclude that the uncontroverted and undisputed facts
immediately surrounding the discharge of Ms. Sheckells
gave Ms. Spittel cause to recommend her discharge and
Cardelle cause to accept that recommendation and dis-
charge her Absent any evidence from which Ms. Spittel's
or Cardelle's knowledge of Ms. Sheckells' union activities
prior to her discharge can reasonably be inferred, I con-
clude that the reasons advanced by Respondent for dis-
charging her are not a pretext. Since the General Counsel
has failed to establish a discriminatory motive by a prepon-
derance of the evidence, I find that Respondent did not
violate Section 8(a)(3) and (1) of the Act by discharging
Virginia Sheckells on September 19.
The complaints also allege an independent violation of
Section 8 (a)(1) in that , on or about August 18, Donald
Crossney interrogated an employee. This allegation is based
on the predischarge conversation between Ms . Sheckells
and Crossney at store 53 in which Crossney asked how the
Union was doing and Ms. Sheckells replied, in effect, that
she could give him a better answer after the meeting she was
planning to hold in her home. I find no violation of the Act
in this brief exchange . Crossney's query was a passing re-
mark from one friend to another . It contained no coercive
overtones whatsoever.
C. The Discharge of Karol Florio
1. Facts
Allen Cohen manages Respondent's store number 16 in
Baltimore. In the latter half of September, Louise Scott, his
cosmetician , gave notice that she was going to quit. Cohen
sent a request for an experienced cosmetician to replace her
to Respondent 's central personnel office, where it was post-
ed in accordance with Respondent's usual procedures. A
cosmetician is a clerk whose primary responsibility is sale
of cosmetics . A knowledge of fashions in cosmetics and a
capacity to model them are useful but not essential attrib-
utes of a cosmetician.
When his request to the personnel office failed to produce
any immediate results and Louise Scott left, Cohen placed
a "help wanted-apply within" sign in the store window.
Karol Florio, a married woman in her early 20's who lived
in the neighborhood, applied. She spoke to the assistant
manager and, at his request, filled out an application form.
When she got to the part of the form which asked about her
work experience , she explained to the assistant manager
that she had no prior experience as a clerk in a retail store.
She did not mention that she had worked for short periods
of time as a bookkeeper for Mil-Spec Fasteners Corporation
and Pimlico Furniture Company. On the form, she left
blank three sections which asked where she was last em-
ployed, where before that, and where before that. In the
remarks section she wrote, "I have never been employed by
anyone outside of my home. I have worked during the sum-
mer when I was attending school, but for relatives doing
typing, filing etc. I also worked for my sister in a beauty
salon two years ago."
Cohen interviewed Ms. Florio and hired her for the
cosmetician 's job on Wednesday, October 11. She went to
work that evening. During the interview, Cohen told Ms.
Florio about the union organizing campaign that was going
on. He explained the situation with respect to the in-store
hassles between organizers and Respondent and told Ms.
Florio to let him know if she was approached by organizers
in the store . He also asked her to vote against the Union
when an election was ultimately held. Ms. Florio explained
that the job was not vital to her and that her main interest
was in working near her home. She asked Cohen what were
the chances that Respondent might transfer her to another
store. Cohen told her that there was a possibility if the
Union succeeded in organizing the stores, but that she
should not worry about it. He explained that, in the event
unionization led to higher operating costs for Respondent,
thus forcing it to close some of its marginal stores, employ-
ees in those stores with seniority over her might be transfer-
red to store 16, thus taking her place. After he hired Ms.
Florio, Cohen did not cancel the request he had on file with
the personnel office for an experienced cosmetician.
A union organizer approached Ms. Florio in store 16 on
the morning of Wednesday, October 18. She talked to him
and a colleague in a car on the parking lot outside the store
during her lunchbreak. She signed an authorization card for
the Charging Party and took a number of blank cards to
distribute to other employees. When she returned to the
store, she talked to other employees about the Union, invit-
ing them to a meeting with the organizers at her home on
Saturday, October 21.
On Thursday morning, October 19, Cohen asked Ms.
Florio whether union organizers had been in the store the
day before. She told him they had, without, however , reveal-
ing her own union activities. Cohen asked her what she
thought about the Union. She said she did not think any-
thing yet. Following this conversation, she canceled the
meeting she had scheduled in her home. (She apparently
took this step the next day, although the record is not clear.)
On that Thursday morning Cohen received telephone
calls from Willard Gilbert, Respondent's director of securi-
ty and personnel, and Eugene Balcerak, Respondent's dis-
trict supervisor with jurisdiction over Cohen's store. They
informed him that Mary Bray, an experienced cosmetician
who had become excess to the needs of store 12 due to a
reduction in the size of the store, was being transferred to
fill Cohen's request and would report for work the next day.
Sometime during the day Ms. Florio conferred in the
store with Jo Cozzi, a saleswoman for the Revlon company,
about her role in ordering Revlon cosmetics . (Respondent's
stores stock Revlon and other high fashion lines of cosmet-
ics directly from the manufacturers , as distinguished from
so-called budget cosmetics which are ordered through
Respondent's centralized purchasing system. Consequently,
READ 'S, INC.
store cosmeticians deal directly with the representatives of
such suppliers as Revlon .) Following their conference, Ms.
Cozzi told Cohen that , while inexperienced , Ms. Florio
showed promise as a cosmetician . (Ms. Florio is an attrac-
tive , stylish young woman who possesses the capacity to
model cosmetics effectively.)
That evening , as Ms. Florio was preparing to leave the
store for the day, Cohen spoke to her again . He told her the
personnel office had located an experienced cosmetician
that morning as a result of his request , and that she was
being transferred to the store the next day. Ms. Florio asked
whether her work had been satisfactory . Cohen said that it
had. Ms. Florio asked whether this meant she was dis-
charged . Cohen said not necessarily , Respondent might be
able to find a place for her in another store . Ms. Florio said
she would telephone Cohen in the morning and left.
When Ms. Florio called Cohen on the morning of Friday,
October 20 , he instructed her to call Gilbert. She did so. She
explained to Gilbert that Cohen had hired her for the
cosmetician 's job at store 16, that she had worked for 6 days,
that Cohen had laid her off because an experienced cosmeti-
cian had been transferred into the store , and that she was
calling because of Cohen 's suggestion that Respondent
might be able to transfer her to another store . Gilbert said
the posting board indicated an opening at the Mondawmin
store . Ms. Florio asked whether it would be a regular Mon-
day-through -Friday, daytime schedule such as she had en-
joyed at store 16. Gilbert said no , she would have an
alternating schedule which would require her to work some
evenings . Ms. Florio said she would accept thejob neverthe-
less. Gilbert asked her to hold on while he checked to make
sure the job was still open . Gilbert contacted the manager
of the Mondawmin store . The latter 's request was for an
experienced drug clerk . They discussed Ms. Florio and con-
cluded she would not be suitable for the job. Gilbert re-
turned to the line on which Ms. Florio was waiting . He told
her that the Mondawmin job was not available . He asked
her whether she wanted to be put on Respondent 's place-
ment list in case a job opened up for which she might be
qualified. Ms. Florio said she would let him know. She
subsequently called Gilbert back and asked to be placed on
the list.
Gilbert filled out a personnel status form and placed it in
Ms. Florio's file. He dated it October 20. On it he indicated
that Ms. Florio had worked at store 16, that her last day
worked and paid for was October 19, and that her date of
employment was October 11. As reason for termination he
checked a box labeled "laid off (lack of work)." In response
to the question "would you reemploy?" he checked a box
labeled "yes." In a section labeled "detailed explanation for
above action" he wrote , "Refered [sic] to me by store man-
ager when supervisor transfered [sic] full time employee
from # 12-no opening-will wait for opening."
Mary Bray reported to store 16 on October 20 as sched-
uled. She worked into the following week when she was in
an automobile accident. She has not worked since. At the
time of the hearing she was still on sick leave. The position
of cosmetician at store 16 remained unfilled (although, of
course , the cosmetics department was manned by noncos-
metician clerks ) until Kandy Canavan was given the title 3
weeks before the hearing when she went from part -time to
307
full-time clerk.
When Ms. Florio learned that Ms. Bray was not working
at store 16 , she called Gilbert and asked for her job back.
Gilbert turned her down on the ground that Cohen had not
requested a cosmetician to take Ms. Bray's place. (Whether
this conversation took place before or after Gilbert ordered
a background investigation on Ms. Florio on October 26 is
not clear in the record .) Ms. Florio made several subsequent
attempts to contact Gilbert by telephone without success.
On Thursday, October 26, Cohen received a phone call
from a woman who identified herself as Angela and said
that she was from the Labor Board . The caller said that
Cohen was being sued for firing Ms. Florio and asked him
to come downtown to answer some questions. When Cohen
demurred , the caller asked if she could come to the store to
talk to Cohen . Cohen refused . (I have no reason to think
that this call was made by Angela Anderson , counsel for the
General Counsel in this proceeding . The charge in Case
5-CA-5830 that alleged the discriminatory termination of
Ms. Florio was dated October 26 by the Charging Party.
However , it was not filed in the Regional Office until Mon-
day, October 30. Ms. Anderson stated at the hearing she had
no knowledge of the matter . Who actually made the call to
Cohen is a mystery.)
Cohen immediately telephoned Gilbert and told him
about the call he had received. Gilbert had previously
looked at Ms. Florio's application for employment when he
talked to her on October 20. He had been struck at that time
by the anomaly of a 22-year -old woman in good health who
had no prior employment record . Now suspicious that Ms.
Florio had been planted in store 16 by the Charging Party
as part of its organizing campaign , he telephoned a private
detective agency which Respondent uses and ordered a
background investigation of her.
Ms. Florio went into store 16 on Friday, October 27, to
pick up her paycheck. Cohen told her about the telephone
call he had received the day before and asked her what she
knew about it. Ms. Florio told him she thought she had been
treated shabbily but denied knowing anything about suit
being filed against Cohen . She said she thought it might be
something her husband had done. The charge in Case 5-
CA-5830 involving the discharge of Ms. Florio was filed on
October 30. A copy was mailed to Respondent at store 16
that day. It was received by Cohen on Friday, November
3. (Why it took a registered letter from Monday to Friday
to travel from the Federal Building in downtown Baltimore
to the Drumcastle Shopping Center on York Road in north
Baltimore is unexplained in the record .) Cohen forwarded
it to Respondent 's office.
On November 3 Marshall Meyer, director of the detective
agency retained by Respondent, called Gilbert and reported
Ms. Florio had worked for two companies , Mil-Spec Fas-
teners and Pimlico Furniture , before being hired by Cohen.
Meyer asked Gilbert to send him a copy of Ms. Florio's
application and a written authorization so that he could get
on with the investigation . Gilbert did so. He also retrieved
the personnel status form he had placed in Ms. Florio's
personnel file on October 20 and wrote across the face of
it in red ink "DO NOT USE FALSIFIED APPLICA-
TION." As reason for termination he checked the box la-
beled "other." In response to the question "would you
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemploy?" he checked the box labeled "no." Both x's were
made in red ink. He returned the form to Ms. Florio's file.
On November 21 Ms. Florio called the detective agency
and protested to Meyer that she was being harrassed. She
offered to tell Meyer anything he wanted to know about her.
In the course of the conversation she told Meyer that she
had worked for a short time at a Holiday Health Studio, as
well as off and on for Mil-Spec and Pimlico.
Meyer submitted his written report on Ms. Florio, dated
November 22, to Gilbert on November 28.
2. Analysis and conclusions
The complaints, parroting the charge, allege that Respon-
dent "terminated the employment" of Karol Florio on or
about October 19. The General Counsel elected to try the
case on that theory. Viewed from that perspective, the issues
which must be resolved are the state of Respondent's knowl-
edge of Ms. Florio's union activities as of October 19 and
its motive for telling her at that time that she could no longer
work as a cosmetician in store 16. Reduced to its simplest
dimensions, Respondent's knowledge becomes Cohen's
knowledge, Respondent's motive becomes Cohen's motive,
and the ultimate issue is whether the General Counsel has
established by a preponderance of the evidence that
Coehn's ostensible motive for laying Ms. Florio off at store
16 was a pretext masking a motive growing out of her union
activities . But it is obvious from uncontroverted parts of the
Respondent's case that Ms. Florio's employee relationship
with Respondent did not cease until November 3 when
Gilbert decided that she would not be called back to work
when a job opened up for which she could qualify. Viewed
from the perspective of a "termination on or about Novem-
ber 3," Gilbert's knowledge and motive become the issues
on which Ms. Florio's case turns. At their heart lies a credi-
bility conflict between Cohen and Gilbert.
Because of the approach taken by the General Counsel at
the hearing, Cohen was Respondent's key witness in de-
fending the Florio aspect of this proceeding. (The General
Counsel's theory, as it finally evolved in his brief, involves
a plot among Cohen, Gilbert, and Balcerak, as of October
19, to get rid of Ms. Florio because they were suspicious that
she had been planted in store 16 by the Charging Party, with
the transfer of Mary Bray from store 12 to store 16 arranged
to give them a pretext on which to lay her off.) I found
Cohen to be an honest man. The only part of his testimony
which caused me any doubt was his denial that, on the
morning of October 19, he asked Ms. Florio whether union
organizers had been in the store the day before. As indicated
by my findings in the "Facts" section above, I have credited
Ms. Florio over him as to this important detail. I was partic-
ularly impressed by Cohen's frank admissions that he heard
a rumor in the store on October 19 that Ms. Florio was
going to hold a union meeting in her home and that the
mystery phone call he received on October 26 caused him
to think Ms. Florio had been planted in his store by the
Union. In light of my overall impression of Cohen's honesty
and forthrightness, I can only attribute his disagreement
with Ms. Florio about what he said on the morning of
October 19 to a lapse of memory. In all other respects, I
have credited his testimony.
The conflict between Cohen and Gilbert concerns what
Cohen said to Gilbert on October 26 when Cohen reported
he had received the mystery call. It is vital because the
question of Gilbert's knowledge as of the moment he decid-
ed to discharge Ms. Florio on November 3 hinges on it.
(Gilbert testified he was not sure whether Meyer, the private
detective, had telephoned him on November 3 or 4. My
finding that the call, and the consequent changing of Ms.
Florio's personnel status form, occurred on November 3 is
based on the note, in evidence, which Gilbert sent to Meyer
with a copy of Ms. Flono's application. The note is dated
November 3.) Gilbert testified that he did not become suspi-
cious that Ms. Florio was a union plant until after Novem-
ber 3, thus:
Q. When did you find out that NLRB charges had
been filed or had first been filed against Dr. Cohen's
store?
A. I think I first discovered it about two days after
the results of the investigation on [her].
Q. And when would that be?
A. It would have either been Tuesday the 4th or
Wednesday the 5th.
Q. What I really want to know is if you have any
idea if you ever became suspicious that Carol Florio
may have been a union plant.
MR BUCHSBAUM Objection.
JUDGE BLACKBURN Overruled. No argument, Mr. Bu-
chsbaum.
A. I think when we learned that Miss Florio had
signed a complaint with the NLRB and in view of our
wondering about this original Labor Department com-
plaint, the feeling was-my feeling was anyway that
Mrs. Florio may have been planted there by the union.
Gilbert' s reference to "this original Labor Department com-
plaint" grows out of his prior testimony that Cohen had
indicated to him on October 26 that the mystery caller
mentioned the Labor Department, i.e., the Maryland De-
partment of Labor and Industry's Wage and Hour Division,
and that he assumed Ms. Florio had gone to that agency
because she claimed wages were due her, a not uncommon
event when employees are laid off. Respondent's position
that Gilbert terminated Ms. Florio on November 3 before
the possibility that she was a union plant entered his mind
is based on Gilbert's testimony above that he only became
aware that Ms. Florio had gone to the Labor Board after his
telephone conversation with Meyer on November 3.
(Gilbert's reference to "Tuesday the 4th or Wednesday the
5th" is an obvious error November 4 was a Saturday, No-
vember 5, a Sunday.) Whether Gilbert was aware prior to
November 3 that Ms. Florio had gone to the Labor Board
and not the Labor Department thus becomes the key ques-
tion.
Gilbert's testimony as to the call he received from Cohen
on October 26 about Cohen's mystery telephone call is as
follows:
Q. Did Dr. Cohen call you later?
A. I spoke to him the following week [i.e., the week
after October 19].
Q. About when did you speak to him the following
week?
A. It would have been Thursday [October 26] when
READ'S, INC.
he called my office.
Q. And what did he tell you?
A. He told me that he had had a call, a telephone
call from the Labor Department, someone representing
themselves as being from the Labor Department and
that he was being sued, a complaint had been filed
against him and he asked me what the company's posi-
tion would be and I told him that if he had any further
calls to refer them to my office because we were accus-
tomed to handling the calls from the Labor Depart-
ment and I asked him who he was told was suing him
and he said, Miss Florio.
Q. Did he say Labor Department or National Labor
Relations Board?
A. I think he said the Labor Department.
Cohen's testimony was as follows:
Q. And can you relate to us, if you would, the first
occasion on which you saw [Ms. Florio] after the 19th?
A. She came in Friday, a week later, to pick up her
paycheck and either Thursday or Friday of the same
day, earlier in the day, I had received a telephone call
from persons unknown but purporting to be from the
NLRB stating that a suit was being instituted and
charges were being filed against myself and Read's,
since I did not know who I was speaking to, I told them
"That's very nice; goodby," and I called the office and
reported that. Then Friday-whether I received the call
Thursday or Friday is not clear in my mind-when
Carol [sic] came in to pick up her check, I asked her
what she knew about it, and she told me that she
thought that she had been treated shabbily, was the
polite way of putting it.
Q. Did you suggest [to] anyone of upper manage-
ment at Read's that they should do . . . an investiga-
tion [of Ms. Florio]?
A. Of course not. I did call my office as soon as I
heard somebody from the NLRB was suing me because
I wanted to know what was going on and I asked what
the company's position would be, if in fact, a suit had
been filed against me.
For the reasons already set forth, I credit Cohen over
Gilbert. Therefore, I find that Cohen told Gilbert on Octo-
ber 26 that he had received a call from the National Labor
Relations Board about Ms. Florio; Gilbert did not misun-
derstand the import of what Cohen said to him; and Gilbert
ordered a background investigation of Ms. Florio that day
because he suspected she was a union plant.
Gilbert's suspicion that Ms. Florio was a union plant
prior to and thus at the time he terminated her supplies the
requirement of "knowledge" of her " union activities." (She
was, in fact, not a plant, having applied for the job at store
16 without any prior knowledge that a union organizing
campaign was underway. As she cogently testified, she fell
in with the organizers ' plans and decided to hold a meeting
in her home because she decided she "wanted to be a Joan
of Arc of York Road. That is the answer. I wanted to do
something . That's all.") The only remaining question is
309
whether that suspicion motivated Gilbert on November 3
when he terminated her. I find that it did. I am persuaded
primarily by the blatant speciousness of his attempt to ex-
plain away any such suspicion until after November 3 on
the ground that he thought Ms. Florio had gone to the
Labor Department instead of the Labor Board when
weighed against Cohen's frank admission that the specific
message he conveyed to Gilbert was that she had gone to
the Board. I am also persuaded by the weakness of his
ostensible reason that he terminated Ms. Florio because she
had falsified her application. While it is true that the private
detective's investigation turned up two prior employers,
Mil-Spec Fasteners and Pimlico Furniture, whom Ms. Flo-
rio had failed to list on her application, the information he
developed is not inconsistent with what Ms. Florio told the
assistant store manager when she filled out the application,
namely, that she had no prior experience as a retail sales-
clerk. (The detective's written report states that Ms. Florio
worked for Mil-Spec from 1969 until 1971 as a clerk typist,
for Pimlico Furniture from April to June 1972 as a clerk.
The context indicates that the latter word is used in the
sense of an office clerical rather than a salesclerk.) Her
application is, therefore, "false" only in the most technical
sense. It is significant, I think, that while the report is derog-
atory in that both former employers indicated they would
not rehire Ms. Florio, Gilbert relied only on her failure to
mention the former jobs on the form she filled out, not any
shortcomings as a worker on thosejobs. I am also persuaded
by the general situation prevailing between Respondent and
the Charging Party in late October and early November.
The battle lines were fully drawn. Emotions were at a fever
pitch on both sides. Gilbert would not, I think, have even
bothered to order an investigation if he had not been moti-
vated by his suspicion that Ms. Florio was a union plant.
His action was triggered on October 26 by Cohen's message
that Ms. Florio had gone to the Labor Board. His ordering
an investigation was simply another manifestation of the
attitude of Respondent's officials toward the Charging
Party's efforts to organize its employees which is exempli-
fied by the hassles and the store diaries. Finally, I am per-
suaded by Gilbert's admission that, when he received
Meyer's initial report on November 3, he did not bother to
check with Ms. Florio whether Mil-Spec Fasteners and Pim-
lico Furniture were the relatives she had worked for as an
office clerical before he discharged her, even though he was
aware that her application contained such a statement. He
thought she was a union plant. The information turned up
by Meyer gave him a good excuse for refusing to put her
back to work. He seized on that excuse to change her status
from laid-off employee with a reasonable expectation of
employment in the near future to discharged employee with
no such expectation, thus ending the possibility that a union
plant might get back into one of Respondent's stores. I find,
therefore, that Respondent violated Section 8(a)(3) and (1)
of the Act on November 3, 1972, when Willard Gilbert
discharged Karol Florio. (As to the General Counsel's theo-
ry, I find that Ms. Florio was not discriminated against on
October 19 because the ostensible reason advanced for her
layoff at that time by Cohen was Respondent' s real reason.
The fact that Cohen's and Gilbert's suspicions were not
aroused until October 26 precludes a contrary finding.)
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaints also allege an independent violation of
Section 8(a)(I) in that, on or about October 19, Allen Cohen
interrogated an employee. This allegation is based on
Cohen's conversation with Ms. Florio on the morning of
October 19 in which he asked her whether organizers had
been in the store the day before, I find that a violation
occurred when Cohen asked this question. Unlike the ques-
tion which Donald Crossney posed to Virginia Sheckells in
late August, this was no passing pleasantry from one friend
to another. When coupled with the explanation of hassles
which Cohen had given to Ms. Florio when he hired herjust
the week before and his instructions that she should let him
know if she was approached by organizers, Cohen's query
was an unwarranted intrusion on an employee's right to be
prounion if she chose and thus coercive. Midwest Hanger
Co. and Liberty Engineering Corp., 193 NLRB 616, enfd. 474
F.2d 1155 (C.A. 8, 1973).
D. Surveillance at Store 16
The complaints in this proceeding allege two surveillance
episodes at store 16 involving Allen Cohen, one on or about
October 19 and the other on or about November 2. One
charges that Cohen created the impression of surveillance,
the other that he actually engaged in surveillance. As the
record developed, however, it became clear that there was
no important difference between the two incidents, regard-
less of whether they were considered from the standpoint of
actual surveillance or merely creating such an impression.
There is no essential dispute about what occurred, although,
of course, the parties take opposite views of what legal
significance attaches.
Around October 19 union organizers undertook to hand-
bill store 16 at closing time. The store closed at 9:30 p.m.
Around 10 p.m. the employees left in a group. Half an hour
is not an unusually long time for employees to spend closing
out their cash registers at the end of the day. It is also not
unusual for them to leave in a group, as they did on this
occasion. Cohen let them out of the store and stood there
as they walked to their cars. None of them accepted any of
the literature the organizers were attempting to hand to
them. It is not unusual for Cohen to open the locked front
door to let employees out or for him to watch them to their
cars. Earlier that evening Cohen had mentioned to Dianne
Roycroft, one of the clerks, that organizers were outside the
store and that he would watch to make sure they did not
harass her when she left.
On November 10 essentially the same thing happened.
Dianne Roycroft and Kandy Canavan were let out by Co-
hen, who stood in the door as they walked to their car. They
accepted a handbill from the organizers. The handbill an-
nounced a union meeting to be held on November 16. Ms.
Canavan asked Cohen whether she should go to the meet-
ing. Cohen told her to do what she wanted to do. Ms.
Roycroft and Ms. Canavan attended the meeting and
signed authorization cards. Cohen never raised the subject
of their union activities with either one of them.
I find nothing violative in either of these incidents. As I
have already indicated, I found Cohen to be a reliable wit-
ness. I credit his denial that he intended to engage in surveil-
lance or to create such an impression in the minds of the
employees at his store. I credit his assertion that what he did
on these two evenings did not depart from his usual, but not
invariable, practice as he closed up his store at the end of
the day. Relying especially on the General Counsel's failure
to produce any evidence offsetting the latter fact, I find that
Respondent did not commit surveillance type violations of
Section 8(a)(1) of the Act by the activities of Allen Cohen.
Franklin Stores Corporation, 199 NLRB No. 10. (An allega-
tion of the complaints that Samual Cooper, who supervises
the food operations in 17 of Respondent's stores, engaged
in surveillance at store number 13 is discussed in the section
entitled "Other Interrogation" below.)
E. Respondent's No-Solicitation Rule
Respondent has had a no-solicitation rule in its stores for
a number of years. Prior to the organizing campaign out of
which this proceeding grows, it was set forth in an inconspi-
cuous sign in most of the stores which read "Non-employees
are not permitted to solicit or trespass for any purpose in-
side this store, its building, or on its property." When the
hassles over union organizers soliciting in the store devel-
oped, Respondent had this rule reprinted in a large format
and placed copies in the windows of and in conspicuous
locations inside all its stores. Under this rule, Respondent
permits its employees to speak to but not to be solicited by
nonemployee organizers in the stores. However, it assumes
that any employee seen talking to an outside organizer is
being solicited and thus is in violation of the rule. Whether
the employee is on or off duty at the time is immaterial.
Respondent's enforcement of its rule gave rise to an inci-
dent at store 13 which is alleged in the complaints as an
independent violation of Section 8(a)(1) of the Act. Once
again, there is no essential dispute about what occurred.
On October 16 Clinton Dilworth, one of the Charging
Party's organizers, went into store 13 to meet Barbara Cher-
ry, who worked in the food department. Dilworth and Ms.
Cherry are personal friends. They were scheduled to go to
a party together when Ms. Cherry got off work. Dilworth sat
down in a booth in the fountain area. Three clerks, who
were on their dinner break, were eating in another booth.
Dilworth asked them if they were planning to attend an
upcoming union meeting. One of them, Antoinette Kues,
immediately reported to Margaret Henry, store manager,
that an organizer was in the store and soliciting employees.
(The statement in Respondent's brief that Dilworth was in
violation of Respondent's rule at this point is not accurate.
Ms. Kues and her companions were not on duty when Dil-
worth spoke to them. Thus, as developed below, Ms. Kues
was giving Respondent's published rule the same too-broad
interpretation that Ms. Henry gave it when she reprimanded
Ms. Cherry.) Ms. Henry went to the area and posted herself
where she could keep an eye on Dilworth. When Ms.
Cherry's shift ended, she came out of the kitchen in her
uniform and headed for the place in the building where she
had left her street clothes. Her route took her past the booth
where Dilworth was sitting. She sat down and started talk-
ing with him. Ms. Henry came to the booth and asked Ms.
Cherry to accompany her. She took Ms. Cherry aside and
reprimanded her for talking to Dilworth in the store, con-
trary to Respondent's rule. Ms. Cherry explained that Dil-
READ'S, INC.
worth and she had not been talking about the Union at all.
Ms. Henry said it did not make any difference what they
were talking about.
Respondent 's no-solicitation rule pops up at several
points in this record. There are, for example, the instruc-
tions Allen Cohen gave to Karol Florio when he hired her
on October II that she should let him know if any organiz-
ers tried to talk to her in the store. There is also the episode
at the Mondawmin store around this time in which three
organizers were arrested and prosecuted for trespassing.
Neither of these is alleged as a violation in the complaint,
nor is there any allegation that the rule as posted is invalid.
Consequently , no effort was made to litigate issues that
might have been raised in these areas . An argument might
be made that Cohen's instructions to Ms. Florio violated the
Act on the authority of Morrison Cafeteria Company, Inc.,
179 NLRB 593, 596, 602. (The legality of other things Cohen
said to Ms. Florio on October I I is considered in the section
entitled "Respondent's Election Campaign" below.) There
two new employees were requested by the supervisors who
interviewed them to report to management if anyone spoke
to them concerning the Union. However, in Morrison this
was treated as an invalid no-solicitation rule. Here, under
the precedents which control no -solicitation rules in retail
stores, Respondent's rule as published is clearly valid. Cen-
tral Hardware Company, 181 NLRB 491, and cases cited at
footnote 3 therein. That point is enough to distinguish the
Cohen-Florio conversation of October 11 from those set
forth in Morrison, even if the issue were said to have been
fully litigated though not alleged.
A finding that Respondent 's rule is valid does not, of
course, dispose of the Henry-Cherry allegation. In Mont-
gomery Ward & Co., Incorporated, 162 NLRB 369, 375, 379,
an incident on all fours with this one was found to be the
promulgation of an unlawfully broad no-solicitation rule.
Here, Ms. Henry did not promulgate a no-solicitation rule,
thus there is no basis for requiring Respondent to abrogate
its basic rule. She did, however, apply a valid rule in an
invalid manner . I find , therefore, that Respondent violated
Section 8(a)(1) of the Act when, on October 16, Margaret
Henry reprimanded Barbara Cherry for talking to a union
organizer in one of Respondent's stores at a time when Ms.
Cherry was not on duty.
F. Other Interrogation
I have already found, in the section entitled "The Dis-
charge of Karol Florio" above, that Respondent committed
an interrogation type violation of Section 8(a)(1) on Octo-
ber 19 when Allen Cohen asked Karol Florio whether union
organizers had been in the store the day before . Other alle-
gations in the complaints raise the same issue.
The first involves a credibility conflict between Samuel
Cooper, a district food supervisor whose jurisdiction includ-
ed store 13, and Barbara Cherry. Cooper denied that the
conversation relied on by the General Counsel to support
the allegation in the complaint ever took place , describing
an earlier, nonviolative conversation with Ms. Cherry as the
only occasion when the organizing campaign came up be-
tween them . Ms. Cherry recalled the earlier incident as well
as the later , agreeing that Cooper's version of the former
311
was accurate. The conflict, thus, is between a witness who
says that a certain conversation took place and one who
says that it did not. I have no reason to doubt Ms. Cherry's
veracity or power of recall. Therefore, I have credited her
over Cooper.
Early in the campaign Ms. Cherry carried a supply of the
Charging Party's literature and authorization cards into the
kitchen at store 13 and placed it on a shelf. Cooper found
it there. He said, "What the hell is this?"
Ms. Cherry said, "I don't know, I just got it. I haven't
even had a chance to read it."
Cooper said that Respondent's employees already had all
of the benefits outlined in the literature. He threw the mate-
rial into a trash can. Around October 18 Cooper again came
into the kitchen while Ms. Cherry was working. He said,
"Barbara , how do you feel about the Union?" Ms. Cherry
said she did not have any feelings one way or the other at
that time. Cooper then walked over to Ella McDonald, a
dishwasher who was working nearby, and asked her the
same question.
Unlike the Crossney-Sheckells exchange in late August,
Cooper's question was not a casual pleasantry between
friends but, like the Cohen-Florio conversation, an unwar-
ranted intrusion by a supervisor into employees' Section 7
rights. I find that Respondent violated Section 8(a)(1) of the
Act around October 18 when Samuel Cooper interrogated
employees about their interest in the Charging Party.
The complaints also allege that Cooper engaged in sur-
veillance at store 13 in September and October. In support
of this allegation the General Counsel called as a witness
Mary Scelsi, manager of store 13's food department at the
time. Ms. Scelsi testified to a conversation with Cooper in
September in which he asked her to find out which of the
employees were for the Union and which were against it.
Cooper denied that such a conversation took place. I credit
Ms. Scelsi over Cooper to find that it did. In the course of
a dispute over admissibility of evidence, counsel for Re-
spondent took the position that Ms. Scelsi was a supervisor
within the meaning of the Act. Counsel for the General
Counsel took the position that she was not. (However, the
complaint was subsequently amended to add an allegation
of an interrogation type violation by Respondent in the
person of Mary Scelsi. ) On the basis of Respondent 's posi-
tion and Ms . Scelsi's description of her duties and responsi-
bilities, I find that she was a supervisor. On
cross-examination , Ms. Scelsi testified , in part, as follows
about her own activities at store 13 during the organizing
campaign:
Q. Were you in the hearing room when Mrs. Cherry
testified?
A. Yes, sir.
Q. Did you hear her testify?
A. Yes, sir.
Q. Did you push the union?
A. No, sir. Did I push the union?
Q. Yes.
A. No, sir. I asked questions about it, but I never
pushed it.
Q. Who did you ask questions?
A. Barbara, anybody, you know, the cooks in the
kitchen, what they felt about it and things like that; but
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I never pushed the union.
Q. Were you in favor of the union?
A. The truth?
Q. Yes.
A. No.
Q. Did you tell them you were in favor of the union?
A. No, I never told them one way or the other.
Once again, there is no indication that there was anything
casual or friendly about the questions which Ms. Scelsi put
to the employees who worked under her. I find that Respon-
dent violated Section 8(a)(1) when Mary Scelsi interrogated
employees about their interest in the Charging Party.
As to the surveillance aspect of the complaints, I also
credit Ms. Scelsi 's testimony that she did not mention
Cooper's request to her to employees and that she did not
report to Cooper who was for and who was against the
Charging Party. The evidence of surveillance or creation of
an impression of surveillance at store 13 is thus reduced to
a conversation between two supervisors to which no em-
ployee was privy. I find, therefore, that Respondent did not
commit a surveillance type violation of Section 8(a)(1) at
store 13 through the activities of either Samuel Cooper or
Mary Scelsi.
G. Respondent's Election Campaign
The remaining independent 8(a)(1) allegations in the
complaints grow out of Respondent's efforts to persuade its
employees to vote against the Charging Party. They are that
Allen Cohen, on several occasions, threatened employees
that, if the Union won, the Respondent would close "slow-
er" stores and either terminate or transfer less senior em-
ployees; that Merlin Miller, Respondent's executive vice
president and general manager, on or about November 21
at Cohen's store "promised that Respondent's employees
would receive a pay increase should the Union be unsuc-
cessful in its organizing campaign"; and that Harry Genda-
son, a district supervisor over 13 stores, on or about
November 11 at store 43 "threatened an employee with
discharge should the Union be successful in its organiza-
tional campaign."
As to the first, I had already found that, during his Octo-
ber 11 interview with Karol Florio, Cohen explained to her
that, in the event unionization led to higher operating costs
for Respondent, thus forcing it to close some of its marginal
stores, senior employees in those stores might take the
places of less senior employees in stores that remained open.
Cohen also admitted making the same point to Dianne
Roycroft and other employees at store 16. (Where there is
disagreement between the testimony of Cohen and Ms.
Roycroft as to what was said between them, I have credited
Cohen. Therefore, I find that Cohen did not, on November
23, tell her flatly, in the presence of a truckdriver named
Lou Sedlak, she would probably be laid off if the Union got
in.This credibility resolution played no part in my granting
of Respondent's motion to strike the 8(a)(3) and (1) allega-
tion with respect to changes in Ms. Roycroft's hours at the
end of the General Counsel's case in chief, of course, for,
at that point, Cohen had not yet taken the witness stand to
deny making any such statement. I deny the "request" con-
tained in the General Counsel's brief that I reverse that
ruling.)
The second of these three allegations is based on Ms.
Roycrof is version of a long conversation she had with Mill-
er on November 21 at store 16. Miller admitted that the
conversation took place, having talked to each employee in
the store that day as part of Respondent's campaign.
(Where there is disagreement as to what he said, I have
credited Miller over Ms. Roycroft.) The thrust of his mes-
sage was that a victory for the Charging Party would not
automatically lead to increased benefits for employees but
only to bargaining. He said bargaining could be a long
process during which working conditions would stay the
same while the results could be either up or down, depend-
ing on the give and take of negotiations. On the subject of
wages, Miller mentioned that employees were about to get
a raise by operation of law in a short time anyway when
Congress enacted an increase in minimum wages that was
then pending.
The possibility of a raise without the intervention of a
union cropped up in other places. In a third conversation
between Samuel Cooper and Barbara Cherry around Octo-
ber 20 at store 13 which the General Counsel does not
contend was violative, Ms. Cherry asked Cooper for a raise.
Cooper replied, "Well, everybody is going to get a raise the
first of the year." He explained that a higher minimum wage
law would take effect at that time and that Respondent was
already budgeting for a 20-cent-an-hour raise for everybody
as a result. He pointed out that her dues, in the event the
Union got in, would be $8 per month and that the 20-cent
raise would be hers whether the Union got in or not. Prior
to this, Cooper had instructed Mary Scelsi to figure on a
20-cent raise when she figured her 1973 budget for the food
department at store 13. As events turned out, the 92nd
Congress adjourned without raising the minimum wage.
Respondent's employees got no raise in January 1973.
The third allegation is based on an incident at store 43 on
November 1 l or 18 when Harry Gendason spoke to Patricia
Lang, a waitress. Gendason was on a mission similar to
Merlin Miller's at store 16 on November 21. He spoke to
various employees about why they should vote against the
Charging Party, including Ms. Lang. (Where there is dis-
agreement as to what was said, I have credited Gendason
over Ms. Lang.) He mentioned the possibility of a 20-cent
pay raise the first of the year when the minimum wage was
due to go up. As he was trying to explain to Ms. Lang the
benefits already offered by Respondent, she said that she
was dissatisfied. He asked her what was wrong. She com-
plained about her schedule and said that the fountain man-
ager was picking on her. Gendason said, "Look, Pat, you've
been with Read's 15 years and you've got all these benefits
and yet you seem to be so dissatisfied, but if you think you
can better yourself, I wouldn't stand in your way. I don't
have a ball and chain around you."
Respondent conducted (and is still conducting) a vigor-
ous campaign to keep the Charging Party from winning
representation rights in its stores. As part of that campaign,
prior to January 1973, it told its employees, truthfully, it was
making the necessary plans to give them a raise if, as was
anticipated at the time, Congress raised the minimum wage
by 20 cents an hour. As another part of that campaign, it
told its employees that senior employees would have prion-
READ'S INC.
ty over junior employees in the event it could not afford to
keep marginal stores open following bargaining with the
Charging Party. This was not a contingency solely within
Respondent's control but a reasonable prediction of one
possible consequence of unionization. N.L.R.B. v. Gissel
Packing Company, Inc., 395 U.S. 575 (1969); J. J. Newberry
Company, 202 NLRB No. 53; B. F. Goodrich Footwear
Company, 201 NLRB No. 46. Neither message went beyond
the parameters of free speech laid down in Section 8(c) of
the Act. Harry Gendason did not tell Patricia Lang she
would have nojob if the Union got in. I find, therefore, that
Respondent did not violate Section 8(a)(1) of the Act by
threatening its employees or promising them benefits.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Read's, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 692, AFL-CIO,
affiliated with Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Karol Florio on November 3, 1972,
because it thought she had been planted in one of its stores
by the Charging Party, Respondent has violated Section
8(a)(3) and (1) of the Act.
4. By interrogating its employees on various dates in Sep-
tember and October 1972 about their interest in the Charg-
ing Party, Respondent has violated Section 8(a)(1) of the
Act.
5. By reprimanding an employee on October 16, 1972, for
talking to a union organizer in one of its stores at a time
when the employee was off duty, thus applying too broadly
its valid written no-solicitation rule, Respondent has violat-
ed Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. The allegations of the complaints that Respondent
violated Section 8(a)(3) and (1) of the Act by terminating
the employment of Virginia Sheckells on or about Septem-
ber 19, 1972; that it violated Section 8(a)(1) of the Act by
Donald Crossney's interrogation of an employee on or
about August 18, 1972, concerning her membership in, ac-
tivities on behalf of, and adherence to the Charging Party;
and that it violated Section 8(a)(1) by the acts of various
supervisors at various times in threatening employees,
promising them benefits, engaging in surveillance of their
union activities, and creating the impression that it was
engaging in surveillance of their union activities have not
been sustained.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that Respondent be ordered to cease and desist from
the unfair labor practices found and remedy them. For the
313
discrimination practiced against Karol Florio, I will recom-
mend the usual remedy of reinstatement and backpay com-
puted on a quarterly basis, plus interest at 6 percent per
annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. If it had been possible to find that Ms. Florio's tele-
phone call to Willard Gilbert in which she pointed out that
Mary Bray had been injured and was not working came
before November 3, but after Allen Cohen's October 26 call
to Gilbert which aroused Gilbert's suspicion that Ms. Florio
had been planted in store 16 by the Charging Party, I would
have found that Respondent terminated her employment
when Gilbert failed to recall her at that time. Absent evi-
dence on which to base such a finding, there is no ground
for finding that Gilbert was discriminatorily motivated until
he took the decisive action on November 3 of altering her
personnel records to show that she would never be recalled
from layoff. However, the job to which Ms. Florio shall be
recalled under the terms of my recommended Order is that
of cosmetician at store 16, provided that job still exists and
is not being filled by Mary Bray. (Since Respondent's rea-
son for laying off Ms. Florio on October 19 was not discri-
minatory, Ms. Bray's claim to that job is greater than Ms.
Florio's.) In the event that the cosmetician's job at store 16
no longer exists or in the event Ms. Bray has returned to
work and is filling that job, reinstatement shall be to a
substantially equivalent job at store 16. Only in the event
that no substantially equivalent job is available at store 16
shall reinstatement be to a substantially equivalent job at
another of Respondent's stores. If it is possible, during the
compliance stage , to establish that Ms. Florio' s conversa-
tion with Gilbert about Ms. Bray took place on a date after
October 26 and before November 3, the backpay period
shall begin on that date. If not, the backpay period shall
begin on November 3, 1972. I will also recommend that
Respondent be required to post appropriate notices in all its
stores. Since I agree with the General Counsel that Respon-
dent did not embark "on a campaign of massive and fla-
grant unfair labor practices" but merely "crossed the line
which separates the legal from the illegal" through the "ov-
erzealousness that supervisors and management may be ov-
ercome by when trying to beat the union at the polls," I will
recommend a narrow rather than a broad order.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER2
Read's, Inc., its officers, agents, successors, and assigns,
shall:
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discharging employees because it thinks they are or
have been engaged in union activities.
(b) Interrogating employees about their interest in a
union.
(c Reprimanding employees for talking to union organiz-
ers in its stores at times when the employees are off duty.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Karol Florio immediate and full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her sen-
ionty or other rights and privileges, and make her whole for
any earnings she lost, plus interest, as a result of the discri-
mination against her in the manner set forth in the section
entitled "The Remedy" above.
(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
recommended Order.
(c) Post at its stores in Maryland, copies of the attached
notice marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for Region 5, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by it 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.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaints be dismissed insofar
as they allege Respondent violated Section 8(a)(3) and (1)
of the Act by terminating the employment of Virginia Shec-
kells on or about September 19, 1972; that it violated Sec-
tion 8(a)(1) of the Act by Donald Crossney's interrogation
of an employee on or about August 18, 1972, concerning her
membership in, activities on behalf of, and adherence to the
Charging Party; and that it violated Section 8(a)(1) by the
acts of various supervisors at various times in threatening
employees, promising them benefits, engaging in surveil-
lance of their union activities, and creating the impression
that it was engaging in surveillance of their union activities.
3 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
Dated By
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by discharging Karol
Florio because we thought she had been planted in one of
our stores by the retail clerks union, by interrogating em-
ployees about their interest in the Union, and by repn-
manding an employee for talking to a union organizer in
one of our stores at a time when the employee was off duty,
we hereby notify you that:
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge you because we think you are
or have been engaged in union activities.
WE WILL NOT interrogate you about your interest in a
union.
WE WILL NOT reprimand you for talking to union or-
ganizers in our stores while you are off duty.
WE WILL NOT, in any like or related manner, interfere
with you or attempt to restrain or coerce you in the
exercise of the above rights.
WE WILL offer Karol Florio immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and make her whole for any earnings she lost, plus
interest, as a result of our discrimination against her.
All our employees are free, if they choose, to loin Retail
Store Employees Union, Local 692, AFL-CIO, affiliated
with Retail Clerks International Association, AFL-CIO, or
any other labor organization.
READ'S, INC
(Employer)
APPENDIX
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
READ'S, INC. 315
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone . its provisions may be directed to the Board's Office, Federal
This notice must remain posted for 60 consecutive days Building, Room 1019 , Charles Center, Baltimore , Maryland
from the date of posting and must not be altered , defaced, 21201, Telephone 301-962-2822.
or covered by any other material.