Rickel Bros., Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1960

128 N.L.R.B. 448 (N.L.R.B. 1960)

448 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
is required to receive authorization from Richmond before he can pur-
chase such rock from outside sources. Though the local managers of
-CSP and the mining division have autonomy in execution of labor
relations policies, overall policy, including specifically negotiating
policies, is formulated in Richmond. And though the Employer has
discontinued the practice of "rolling," whereby employees in one op-
,eration could bump employees with less seniority in another opera-
tion in times of layoff, it continues to post job vacancies and to permit
bidding in on jobs by employees in either operation. This is true
even with respect to the "operator" classifications of CSP which the
Employer contends require completely different skills than are re-
quired of jobs in the mining division. Such positions are filled either
through the bidding in process or by new employees. The Employer
has no special requirements for filling such positions, and its witnesses
testified that it takes approximately 6 months to train an employee
without experience for such position. The percentage of such posi-
tions is in any event small, and the great majority of positions in
either division require skills which exist among employees of the
other division. Moreover, vacation and insurance benefits continue
to be computed on the basis of seniority in either or both divisions.
In the light of the foregoing, we conclude that the administrative
changes made in the Employer's operations have not so changed work-
ing relationships or functions of employees so as to preclude finding
the unit requested by the competing labor organizations to be
appropriate.
Accordingly, we find that a unit of the following employees is
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All production and maintenance employees of the Employer at its
concentrated superphosphate plant and mining division in Nichols,
Homeland, and Clear Springs, Florida, excluding office clerical em-
ployees, professional and administrative employees, chemists, en-
gineers, department heads, guards, and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
Rickel Bros., Inc. and Retail Clerks Union , Local 34, Retail
Clerks' International Association , AFL-CIO. Case No. 22-CA-
485. August 5, 1960
DECISION AND ORDER
On April 4, 1960, Trial Examiner Paul Bisgyer issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
128 NLRB No. 58.
RICKEL BROS., INC. 449
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions 2 of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Rickel Bros., Inc., Union, New
Jersey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks Union, Local 34,
Retail Clerks' International Association, AFL-CIO, or in any other
labor organization, by discharging, refusing to reinstate, or in any
like or related manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
1 The Respondent 's request for oral argument is hereby denied as , in our opinion, the
record, exceptions , and brief adequately present the positions of the parties
2 The Trial Examiner recommended that a broad cease-and -desist order run against
Respondent , and that Respondent post copies of the notice herein at Respondent ' s stores
located in Succasunna , Union, and Paramus, New Jersey. The Respondent has excepted
thereto. In view of the fact that Respondent's discriminatory activity was directed
solely toward employee Strafford Nicolas and occurred solely at the Succasunna store,
we find merit in Respondent 's exceptions in this regard and shall accordingly limit the
scope of the Order herein.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Strafford Nicolas immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of earning suffered by reason of the discrimination against
him, in the manner set forth in the section of the Intermediate Report
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, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the right to reinstatement under the terms of this Order.
(c) Post at its store in Succasunna, New Jersey, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Twenty-second Region,
shall, after being signed by Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of 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 notice is not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent violated Section 8(a) (1) of the Act
by threatening employees with discharge or other reprisals because of
their union membership or activities.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of,Appeals , Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Retail Clerks Union,
Local 34, Retail Clerks' International Association, AFL-CIO,
or any other labor organization, by discharging or refusing to
reinstate any of our employees, or in any like or related manner
discriminating in regard to their hire or tenure of employment,
or any term or condition of employment.
RICKEL BROS ., INC. 451
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE wnLL offer Strafford Nicolas immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of the dis-
crimination against him.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of Retail Clerks Union, Local 34, Retail
Clerks' International Association, AFL-CIO, or any other labor
organization, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
RICKEL BROS., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with the above parties represented, was heard before the duly
designated Trial Examiner in Newark, New Jersey, on February 8 and 9 , 1960, on
complaint of the General Counsel and answer of Rickel Bros., Inc., herein called
the Respondent . The issues litigated were whether the Respondent , in violation of
Section 8(a)(3) and (1) of the National Labor Relations Act, discriminatorily dis-
charged an employee , Strafford Nicolas, because of his union activity and whether the
Respondent engaged in other conduct in violation of Section 8(a)(1) of the Act.'
At the close of the hearing, the Respondent moved to dismiss the complaint . Ruling
1 In its answer , the Respondent also alleged as an affirmative defense that Retail Clerks
Union, Local 34, filed the charges herein only "unfairly to influence " the employees to
support it in the representation proceeding then pending before the Board. The Respond-
ent's brief to the Trial Examiner is silent with respect to this defense Obviously, the
Union's alleged reason for filing the charges cannot affect the merits of the alleged
discriminatory, discharge.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on this motion was reserved and is now disposed of in accordance with the findings
and conclusions made below. Briefs were received from the General Counsel and
the Respondent which have been carefully considered.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation, is engaged in the business of selling at
retail plumbing, electrical, painting, carpentry, and other related supplies and tools
for "do-it-yourself" home maintenance repairs and construction. It operates a retail
store in each of three cities in New Jersey-Union, Paramus, and Succasunna. The
events herein involved occurred at the Succasunna store. During the past year, the
Respondent purchased goods for its three stores which were shipped directly from
outside the State of New Jersey valued in excess of $800,000. During the same
period, its gross volume of business at these stores exceeded $2,000,000.
Accordingly, I find that the Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that Retail Clerks Union, Local 34, Retail Clerks'
International Association, AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination
This case presents the familiar factual question of whether an employer discharged
a union adherent because of his union activities, as the General Counsel alleges, or
for cause, as the employer contends. Since it is a rare case-which this is not-where
direct evidence of discriminatory motivation is available, determination of this
question must rest upon the facts leading to and the circumstances surrounding the
discharge.2
1. The events
In July 1959, the Union began to organize the Respondent's employees at its three
stores.3 At the Succasunna store, the Union succeeded in enlisting the active support
and assistance of employee Strafford Nicolas 4 in soliciting membership from the
employees there employed.
On August 21, the day before Nicolas' discharge, Nicolas discussed the Union
with Frieda Moeck, a cashier in the Succasunna store, and asked her to join, as he
had been doing with respect to other employees. Receiving a negative reply, Nicolas
told her that he supposed that she just wanted "to get in on the gravy end of it,"
apparently meaning thereby that she probably desired the benefits of unionization
without joining. Moeck testified that, after thinking the matter over for a short
while, she informed Assistant Store Manager Joseph Fleischman, concededly a
supervisor, that Nicolas had solicited her membership in the Union and requested
Fleischman's advice as to whether or not to join. Moeck further testified that
Fleischman told her that she had to make her own decision. Thereafter, Moeck
joined the Union.
Fleischman's testimony varied from Moeck's in that he testifed that Moeck had
told him that Nicolas and Edward Randolph, another store salesman who was not
discharged, had solicited her. However, in two pretrial affidavits given to a- Board
agent, dated September 16 and October 8, 1959, Fleischman stated that Moeck
had informed him that an employee who was not named had solicited her to join
the Union and in the latter affidavit, Fleischman, in addition, specifically stated that
Moeck did not mention Nicolas' name. In view of the inconsistency between Fleisch-
man's testimony and his statements in the pretrial affidavits, I do not credit his
testimony, and find, as Moeck, who impressed me as a thoroughly credible witness,
testified, that she did not tell Fleischman that Randolph had also solicited her,
9 N L R B v Southern Desk Company , 246 F. 2d 53 , 54 (C A 4).
8 There is also evidence that a local of the Teamsters Union was similarly engaged in
organizational activity at the same time.
4 At different times during the hearing , Strafford Nicolas was erroneously referred to
as Mr. Strafford.
RICKEL BROS., INC. 453.
Fleischman further testified that, prompted by his conversation with Moeck, he
immediately summoned to his office "each and every employee in the store, or most
of all of them," 5 individually and "told them that under no consideration [sic] can
anyone direct another to join any organization under coercion or under threat that
they will be penalized in any respect. As far as each and every one of you is con-
cerned . . . you will have to use your own free will." In these conversations,
Fleischman also testified that he told the employees that anyone who threatened
another employee or caused him to join a union against his will would be brought
up on charges by the National Labor Relations Board. He, however, denied
threatening employees that they would be discharged for such conduct. Employees
Edward Randolph and Bruno Bologmni testified concerning Fleischman's remarks
about coercive solicitation. However, contrary to Fleischman's testimony, Ran-
dolph also testified that Fleischman warned him that the offending employee would be
discharged, and Bolognini testified that Fleischman told him that if the main office
learned about the coercion, there would be "serious complications or repercussions." 6
No evidence was adduced at the hearing that any employee had actually engaged
in coercive conduct. The only testimony relating to complaints about such coercion
was that given by Assistant Manager Fleischman ,to the effect that Moeck informed
him when she sought his advice about joining the Union that Nicolas and Randolph
told her that if she did not join then and the Union came in she would be required
to pay an exorbitant initiation fee later. Moeck, however, not only denied, as indi-
cated above, that Randolph had solicited her, but also expressly denied that Nicolas
had made such a statement to her. Although on cross-examination Moeck also testi-
fied that she could not recall telling Fleischman that Nicolas had warned her about
a higher initiation fee, I am persuaded from her entire testimony and the fact that she
apparently had no reason falsely to accuse Nicolas that Moeck did not inform Fleisch-
man that Nicolas had threatened her with payment of an exorbitant initiation fee. I
therefore do not credit Fleischman's contrary testimony. Moreover, in view of
Fleischman's prior inconsistent statements and unreliable testimony, I find, as em-
ployees Randolph and Bolognini testified, that Fleischman threatened to discharge
employees or subject them to other discipline for coercive solicitation.
On August 22, the day following Fleischman's conversations with Moeck and other
employees, Store Manager Paul Syby discharged Nicolas under the circumstances
related below. The Respondent contends that it did so because of an accumulation
of errors and other shortcomings on Nicolas' part which came to a head when he
made a serious error in connection with the sale of a water pump to a Mr. Genaro
on August 21.
2. Nicolas' employment and discharge
The Respondent hired Nicolas as a salesman about December 1958 at its Union
store with the intention of transferring him to its Succasunna store which was sched-
uled to be opened shortly thereafter. Nicolas had some 30 years' experience in the
plumbing, heating, pump, sheet metal, and related lines, during which time he had
been in business for himself. In fact, Manager Paul Syby acknowledged that he him-
self hired Nicolas because of this background which he regarded as being extremely
valuable in Respondent's operation which catered to a "do-it-yourself" clientele. As
contemplated, Nicolas was transferred to the Succasunna store when it opened and,
until his discharge, worked in the plumbing and heating department where he waited
on customers, laid out and estimated jobs for them, and made suggestions. In
addition, as the only experienced employee in the department, he assisted and gave
advice to other salesmen in connection with their transactions with customers.
Nicolas worked on his job until August 22 when he was discharged. He testified
that about 3 o'clock in the afternoon of that day Manager Syby approached him
in the plumbing department, told him that Mr. Rickel and he were disappointed
in his work, and, without giving him any details or the immediate cause for his
(Syby's) action, discharged him, stating that he could finish out his shift or leave
immediately. Nicolas further testified that he then smiled and remarked that he
did not think that he was being terminated because of his inefficiency and nothing
more was said. Syby, on the other hand, testified, in substance, that he had long
5 At that time, there were about 15 full-time and 6 part-time employees employed in
the Succasunna store.
9 Employee Albert J. Fuge credibly testified, without contradiction, that after Fleischman
summoned him to his office, Fleischman told him that union literature was being dis-
tributed in the store and that such distribution was not allowed on company property
and would not be tolerated.
577684-61-vol. 128-30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been dissatisfied with Nicolas ' errors and shortcomings so that when he learned
that Nicolas had sold wrong pumping equipment to a customer named Genaro,
it brought matters to a head , and that he alone then decided to discharge Nicolas.
Accordingly, Syby testified , he told Nicolas about 7 o'clock that evening that, in
view of the Genaro incident and considering Nicolas' past "work habits," he could
no longer continue him in the Respondent 's employ. Stressing the importance of the
Genaro incident in his decision , Syby further testified , "How could I help but men-
tion" the incident to Nicolas at the time of his dismissal . However, when con-
fronted on cross-examination with his pretrial affidavit he had given to 'a Board
agent on October 8, 1959, in which he stated that at the time of Nicolas' discharge,
he did not discuss the Genaro incident with him , Syby testified , "Under the cir-
cumstances , . . . [he could not ] contradict what's on that statement"; it would be
correct. In view of Syby's inconsistent statements and his later retraction , I do not
credit Syby 's conflicting testimony 7 but accept Nicolas' version of the circumstances
of his discharge.
With respect to the Genaro incident, Nicolas testified without contradiction that
on August 21, 1959 , one of the salesmen referred a customer named Genaro to
him; that he thereupon waited on Genaro who told him that he wanted a well pump
to be used at a depth of 60 feet in a 90-foot well; that based on this information he
sold Genaro a one-half horsepower pump, model CJS 4 (also known as CJX 4),
and wrote out a sales slip in which the unit was described as "C-J-S-4 ." 8 It is also
undisputed that , after paying for the merchandise thus purchased , Genaro received
delivery from the warehouseman of a carton containing the CJS 4 pump and a jet
assembly No. 55433 . It appears that the manufacturer packaged these items together
in one carton . According to the uncontradicted testimony of Donald F . Jaeger,
formerly employed by the Respondent as a warehouseman who filled Genaro 's order,
the notation CJS 4 was written on the outside of this carton . When Genaro un-
packed the pumping equipment at his home, he discovered that he had been given
the wrong jet assembly for his purposes . He thereupon complained to the Respond-
ent and on the following day, August 22, he returned the equipment . Since the
correct jet assembly had to be ordered , Genaro refused to wait and his money was
refunded.
Although the manufacturer packaged the CJS 4 pump with a No. 55433 jet
assembly, its catalog, which Nicolas and other salesmen customarily consulted in
their work, specifies that the No. 55433 jet assembly is used with CJX 3 pumps,
which have one-third horsepower . 9 For the 60-foot depth installation required by
Genaro , the manufacturer's catalog concededly calls for jet assembly No. 55465.
It thus appears that , whatever might have been Nicolas' error , the inclusion of
No. 55433 jet assembly in one package with a CJS 4 pump was not indicated by
the manufacturer 's catalog.
7 Manager Syby also demonstrated that he was not a credible witness when he testified
on voir dire and cross -examination that Company Exhibit No . 5, a certain compilation of
records, was prepared at his request by the Respondent ' s bookkeeper a week before the
hearing herein , although it was actually prepared months before , in September 1959, and
not at his instance . However, on redirect, he corrected himself and stated that he assumed
it was a week ago when the compilation was made because it was then that he had first
seen it but did not know when it had actually been made. Syby's unreliability as a wit-
ness was further shown by his testimony , that he overheard; Nicolas' telephone conversa-
tion with Genaro when Nicolas told Genaro that lie could get him a certain jet assembly
for his pump, which was not in stock, the following Monday Syby also testified that he
then told Nicolas, "whether he heard me or not," that it would normally take 10 days to
2 weeks However, in his pretrial affidavit , Syby did not mention the above telephone
conversation but stated that Assistant Manager Fleischman complained to him that
Nicolas had made promises to Genaro to get the jet assembly in a few days . Nicolas
denied any recollection of having had the telephone conversation to which Syby testified
Under the circumstances, and in view of Nicolas ' entire testimony on the subject, I find
that the telephone conversation in question never took place.
8 Other supplies were also purchased and described in the sales slip, which are not
involved in this case.
It appears that after the sale and delivery of the merchandise were completed, Assistant
Manager Fleischman inserted on the sales slip jet assembly number 55433 for book-
keeping purposes.
9 Respondent 'General Manager Bryan . testified that the •55433 Jet assembly could be
used with CJS 3 or CJS 4 pumps . However, only the latter pump , could be used in a
60-foot installation , which Genaro required
RICKEL BROS., INC. 455
The Respondent presented testimony to the effect that Nicolas did not follow
instructions by failing to designate separately on the sales slip the appropriate jet
assembly number, i .e., No. 55465 , and that this jet assembly was not carried in stock
in any of its stores and had to be specially ordered . Nicolas, on the other hand,
testified that the CJS 4 description of the unit was sufficient to include the appro-
priate jet assembly and that it had always been his practice at the store to write
the order in that fashion . However , the manufacturer 's catalog shows that a CJS 4
pump may be used with differently numbered jet assemblies depending on the type
of installation required . It thus appears that Nicolas probably mishandled the
Genaro transaction in failing to specify in the sales slip the particular jet assembly.io
Nicolas credibly testified that no one had ever complained to him about the
Genaro incident and that , in fact, he had first learned about the substance of Genaro's
complaint about a month before the hearing in this case from the attorney for the
General Counsel - " Indeed , Manager Syby admitted on the witness stand that he
did not give Nicolas an opportunity to explain the Genaro sale, although he would
normally give an employee an opportunity to explain an incident on which he
(Syby ) would base a discharge.
As indicated previously , the Respondent also asserts that it had been dissatisfied
with Nicolas ' work performance for some time and that when the Genaro incident
occurred it was the proverbial straw that broke the camel's back and caused Nicolas'
discharge . 12 In support of its contention , the Respondent refers to a number of
errors made by Nicolas in undercharging customers . However, it is clear that the
Respondent did not sustain a financial loss as a result of these errors since the
Respondent customarily deducted the amount of these undercharges from Nicolas'
earnings and the customers reaped the benefits of such errors. Moreover, although
Nicolas did not protest the deductions , the record is not entirely clear that all the
undercharges were due to Nicolas' inefficiency . 13 Finally, according to Nicolas'
uncontradicted testimony , which I credit, no Respondent official or supervisor ever
threatened him with discharge if his pricing errors continued . Indeed , Manager
Syby himself admitted that he never warned Nicolas that he was subject to dismissal
unless he improved.
As additional proof of Nicolas ' alleged inefficiency , the Respondent presented
evidence that it was required to make refunds on sales made by Nicolas. However,
Manager Syby admitted that refunds are common in its business ; that every sales-
man has refunds and returns on merchandise they sell ; and that customers return
purchases for a variety of reasons unrelated to a salesman 's errors, such as, personal
dissatisfaction , defective merchandise , overpurchases , or lack of need. In the case
of Nicolas , Syby could point to only one instance of a refund due to an alleged
error on Nicolas ' part other than the Genaro incident , and that was made on July
12, 1959, for a 60-cent overcharge to a customer . It is obvious that the Respondent
is grasping at weak reeds in its reliance on refunds as evidence of Nicolas'
shortcomings.
The Respondent also gave testimony regarding Nicolas' alleged mishandling of
a sale of base kitchen cabinets nand a formica counter top to a customer named Frey
10 It appears that No. 55465 jet assembly would have had to be ordered specially for
future delivery if Genaro were willing to wait that long
u Nicolas testified that on August 22 when he reported for work, the warehouseman
simply told him that Genaro had complained to the Company
la Although Manager Syby testified on direct examination , as the Respondent contends,
that it was the Genaro incident that precipitated the discharge , he nevertheless in-
consistently stated on cross -examination that had the Genaro incident not occurred he
would have discharged Nicolas for another incident which came to his attention earlier
that day involving Nicolas' alleged mishandling of a customer ' s order for a copper drain-
age fitting . Syby did not recollect discussing this matter with Nicolas. It also appears
that this matter was not mentioned in Syby's direct testimony or in his pretrial affidavit
or at the time of Nicolas ' termination. I, accordingly , do not credit Syby 's testimony
'$ See, for example , Nicolas testimony concerning the sale of a toilet closet combination
wherein Nicolas was charged with the price of the toilet seat Nicolas explained that
from the way the item was displayed and the price marked he reasonably assumed that
the price included the toilet seat and no one at that time told him otherwise
Although there is evidence that Nicolas made more pricing errors than other salesmen,
lie credibly testified , without contradiction , that he wrote at least 7 out of every 10 sales
tickets in his department for the 3 months preceding his discharge . Moreover, sales
tickets are not necessarily written by salesmen in other departments , as, for example,
the paint department , so that the occasion for pricing errors are not the same throughout
the store or for all salesmen
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on July 8, 1959, more than 6 weeks before Nicolas' discharge. Respondent General
Manager Bryan testified that Nicolas erred in not giving Frey an allowance for the
counter top which normally was sold as part of the unit with the cabinets, since the
customer ordered a custom-made top, and that Nicolas violated the Respondent's
instructions in making measurements for the customer for the custom-made top.
Nicolas, on the other hand, denied, in effect, knowledge that the cabinets could
be sold without the top or that he was so informed by management. He also
denied that there was any prohibition against making measurements for customers
and testified, without contradiction, that, in fact, Manager Syby and Assistant Man-
ager Fleischman had on many occasions sent him out to make measurements for
customers. He further testified that Frey complained that the counter top the
Respondent delivered to him was warped. Whether or not Nicolas acted improperly
in connection with the Frey sale, it is significant that he was not reprimanded for
his conduct, much less threatened with discharge.
3. Concluding findings concerning discrimination
It is axiomatic that an employer may discharge an employee for cause or even
no cause at all provided it is not for union membership or activity It is equally
settled law that the existence of-"A justifiable ground for dismissal is no defense
if it is a pretext and not the moving cause." 14
In the present case, it is admitted that immediately upon learning from employee
Moeck that .Nicolas had solicited her to join the Union, Assistant Manager Fleisch-
man was prompted to, and did individually, summon to the privacy of his office
practically all the employees of the Succasunna store and warned them that no
employee may coerce another employee into joining the Union. In these circum-
stances, and in view of the fact that there is no credible evidence that any employee
had been actually coerced or that Fleischman was informed of such coercion,
Fleischman's remarks plainly have more meaning than a simple explanation of
employees' statutory rights. In my opinion, they reveal a subtle concern and dis-
satisfaction with union activity of the Respondent's employees, although the re-
marks themselves do not constitute unfair labor practices. That the Respondent,
and particularly Manager Syby, who shared his office with Fleischman, was aware
of Nicolas' solicitation of Moeck, is not denied.15
I am not impressed with the Respondent's contention that it was not motivated
by Nicolas' union activity in discharging him, and that it was the Genaro incident
that precipitated the discharge. Although Manager Syby originally stated on the
witness stand that he mentioned this incident to Nicolas at the time of the dismissal
because, as he testified, "How could I help but mention it," and normally he would
give an employee pan opportunity to explain the basis of the contemplated discharge,
he retracted this testimony when confronted with his contradictory pretrial affidavit
and, in effect, admitted the truth of the affidavit. It appears to me that Syby did
not give Nicolas this opportunity to explain, but instead summarily discharged him
without prior warning, because the Genaro incident was not the true cause that
triggered the discharge. Although Nicolas probably mishandled the Genaro sale,
I am persuaded that it was the recently acquired knowledge of Nicolas' union solici-
tation that precipitated his dismissal and that the Genaro incident was only a
pretext to rid itself of an active union adherent The fact that the Respondent re-
tained other union supporters in its employ does not exculpate it for the discrimina-
tion against Nicolas.ic
As for Nicolas' alleged history of inefficiency, it is clear from the Respondent's
admissions and contention that it did not regard this asserted inefficiency to be so
serious as to warrant terminating Nicolas who was the only employee in the Re-
spondent's plumbing department with the background and experience so valuable
in its business. Significantly, the record shows that at no time was he warned or
threatened with dismissal unless he improved his work.
In view of the foregoing, and upon the entire record in the case, I find that the
Respondent discriminatorily discharged Nicolas because of his union activity and
thereby violated Section 8(a)(3) of the Act. I further find that, by this conduct,
14 N L.R.B v Solo Cup Company. 237 F. 2d 521, 525 (C.A. 8) ; Wells, Incorporated v.
N.L It B., 162 F 2d 457, 460 (C A 9).
16 Assistant Manager Fleischman testified that he informed Manager Syby about his
conversations with the employees the same day he held them
11 N.L R B. v W. C. Nabors d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (C A. 5)
RICKEL BROS., INC. 457
the Respondent interfered with, restrained , and coerced employees in violation of
Section 8 (a) (1) of the Act.
B. Independent interference , restraint, and coercion
The complaint also alleges that the Respondent , through its agent, Assistant Store
Manager Fleischman, threatened its employees with discharge or other reprisals if
they became and remained members of the Union, or gave assistance or support to
it. As there is no evidence to sustain this allegation , I shall recommend dismissal
of such allegation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which occurred
in connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that the Respondent discriminated in regard to the hire and tenure
of employment of Strafford Nicolas. I will therefore recommend that the Respond-
ent offer him immediate and full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have suffered by reason of
the Respondent's discrimination against him, by payment to him of a sum of money
equal to that which he normally would have earned from the date of his discharge
to the date of the Respondent's offer of reinstatement, less his net earnings during
said period Backpay shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company 90 NLRB 289, 291-294.
In view of the nature of unfair labor practice herein found which, as the Fourth
Circuit Court of Appeals observed, "goes to the very heart of the Act," 17 there
exists the danger of the commission of other unfair labor practices proscribed by
the Act. I will accordingly recommend that the Respondent cease and desist from
in any other manner infringing upon the rights guaranteed employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local 34, Retail Clerk's International Association, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. Rickel Bros., Inc., is an employer within the meaning of Section 2(2) of
the Act
3. By discriminating in regard to the hire and tenure of employment of Strafford
Nicolas, thereby discouraging membership in the above-named Union, the Re-
spondent has engaged in and is engaging in unfair labo1 practices within the mean-
ing of Section 8(a)(3) of the Act.
4. By the foregoing conduct, the Respondent interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed by Section 7 of the Act,
and has thereby committed unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act
6. The Respondent did not violate Section 8(a)(1) of the Act by threatening
employees with discharge or other reprisals because of their union membership
or activities.
[Recommendations omitted from publication.]
17 N L R.B. v. Entwistle Mfg. Co , 120 F. 2d 532 , 536 (C.A. 4),