S. E. Nichols-Dover, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1966

159 N.L.R.B. 1071 (N.L.R.B. 1966)

S. E. NICHOLS-DOVER, INC. 1071
APPENDIX
NOTICE TO ALL MEMBERS OF INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA, AFL-CIO AND LOCAL 22, INDUSTRIAL UNION OF MARINE
AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO (UNITED STATES LINES
COMPANY)
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT expel employees from membership in our organizations because
they have filed unfair labor practice charges with the National Labor Relations
Board against us or our officials without first exhausting their internal union
remedies.
WE WILL reinstate Edwin D. Holder to membership in our organizations
without loss of any status as a member because of our expulsion of Holder
from membership.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights guaranteed in Section 7 of the National Labor Rela-
tions Act.
INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS
OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL 22, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA, AFL-CIO (UNITED STATES LINES
COMPANY),
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Fifth
Floor Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone
751-5500.
S. E. Nichols-Dover, Inc. and Retail Store Employees Union
Local #692, Retail Clerks International Union, AFL-CIO.
Case 5-CA-3314. June 23,1966
DECISION AND ORDER
On May 5, 1966, Trial Examiner Harold X. Summers issued his
Decision in the above-entitled case, finding that the 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 attached Trial Examiner's
Decision. Thereafter, the Respondent filed a memorandum except-
ing to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
159 NLRB No. 114.
1072 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's memorandum, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]'
1 The telephone number for Region 5, appearing at the bottom of the notice attached
to the Trial Examiner's Decision, is amended to read : Telephone 752-8460, Exten-
sion 2159.
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint' of the General Counsel of the National
Labor Relations Board, herein called the Board, alleging that S. E. Nichols Com-
pany had engaged in and was engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,
(herein, the Act). Respondent's answer to the complaint (both complaint and
answer were amended at the hearing) admitted some of its allegations and denied
others; in effect, it denied the commission of any unfair labor practices. Pursuant
to notice, a hearing was held before Trial Examiner Harold X. Summers, at Dover,
Delaware, on March 11, 1966. All parties were afforded full opportunity to appear
and to examine and cross-examine witnesses, to argue orally, and to submit briefs.
Upon the entire record of the case, including my evaluation of the reliability of
the witnesses based upon the evidence and upon my observation of their demeanor,
I make the following:
FINDINGS OF FACT
I COMMERCE
S. E. Nichols-Dover, Inc.,2 herein called Respondent, is a Delaware corporation
operating a retail department store located at Dover, Delaware.3 In the course of
the operation of this store during the 12 months preceding the issuance of the instant
complaint, Respondent received general merchandise valued at in excess of $50,000
from points outside the State of Delaware; and, during the same period, its retail
sales exceeded $500,000.4
Respondent is, and at all times material has been, an employer engaged in com-
merce within the meaning of the Act.
II. THE UNION
The Charging Party, Retail Store Employees Union Local #692, Retail Clerks
International Union, AFL-CIO, herein called the Union, is a labor organization
within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events
In the late summer and early fall of 1965, the Union was engaged in an organiz-
ing campaign involving the employees of the Nichols-Dover department store. Even
'The complaint was issued December 10, 1965. The charge initiating the proceeding
was filed October 7, 1965.
2 The name of the case is here corrected to reflect the actual name of Respondent.
3 Although the record lacks details, it appears that the corporation Is wholly owned by
S. E. Nichols Company, an unincorporated entity which operates other retail department
stores throughout several States of the United States.
4 This finding Is based upon a stipulation of the parties.
S. E. NICHOLS-DOVER, INC. 1073
before the store opened for business, Oscar Hollinger, business agent for the Union,
made efforts to communicate with employees already hired.
In the course of these efforts, according to Hollinger's testimony, an incident
occurred which bears, or might bear, on Respondent's receptivity to the unioniza-
tion of its employees.5 On or about August 1-he testified-he and Union Vice'
President Reichenberg were in an automobile on the store's parking lot talking to
employee Charles ("Nick") Spano, seated in his car alongside, when an individual
approached and, identifying himself only with, "I'm a supervisor," and noting that
the union agents "had no business on the lot," asked them to leave Assuming,
without finding,6 that the incident occurred, I would not attribute it to Respondent.
The store was opened for business on August 26.
At approximately 11 a.m. on "a Tuesday in September"-the date cannot more
definitely be fixed-one Mrs. Spano (the mother of employee Nick Spano, referred
to earlier) approached Kathleen Kendall, a salesgirl in the record department, and
asked her to meet in the ladies' room in 10 minutes. Because she had no relief
help, Kendall said she could not do this; at which, Mrs Spano displaying some
cards-which, in context, I find to be union authorization cards-asked Kendall if
she would sign one. (She did not sign.) A day or two later, Store Manager
Donald Miller 7 asked Kendall to follow him to the stockroom. She did. There, he
asked her about "the lady that was in here about the union, [the one who] was talk-
ing to [you] in' the record department" and if Kendall had seen her before. (Ken-
dall's answer: No.) He asked what Mrs. Spano had talked about and what she
said. Kendall told him of the invitation to meet at the ladies' room and of the
request to sign a caid. Finally, he asked her what she thought of "the union."
(Kendall: I don't need it.) A sequel occurred several weeks later. near the cosmetic
counter, Miller told Kendall that Mrs. Spano was writing to Nichols' New York
office to complain about her "being followed" in the store, and he asked Kendall if
she would write a letter to the effect that Mrs. Spano had spoken to her about a
union; and , at a later time, he asked Kendall if she had written the requested letter-
if so, she should give it to him for transmission to New York. (She never did
write the letter.) 8
During the weeks following the store opening, Hollinger entered upon the selling
areas on a number of occasions . The primary reason for his visits , I find, was to
gather information about the number and identities of employees for use in the
organizing campaign. As far as this record reveals, his on-premises conversations,
if any, with employees did not go beyond an exchange of greetings.
During the late morning on or about Friday, September 17, Hollinger made one
of his visits to the store. Aubrey Cephas, assistant store manager ,9 watched him
walk about the store, several times decline sales help, then order a soft drink at the
snackbar. As he sipped the drink, Cephas came up to him, sat down, said he was
the assistant store manager, and suggested that Hollinger' leave the premises. Hol-
linger refused. As they sat, Cephas asked Hollinger how he was "making out";
when Hollinger said, "Fine," Cephas commented that was "too bad."
Now, Donald Miller took Cephas' place. Identifying himself as the store man-
ager, he told Hollinger he knew who he was and told him the police would be
5 The incident is not alleged to be an unfair labor practice.
8 The occurrence, particularly the self-identifying remark of the "supervisor," smacks of
the improbable. Hollinger, in other aspects of his testimony, displayed a "patness" com-
bined with a hopeless confusion as to dates of events which cast doubt upon his reliability
as a witness . In the findings contained in this Decision , I do not rely on any of his
testimony if it is contradicted . ( With respect to the instant "incident ," Spano, who was
called by the General Counsel, did not testify ; and John Rerchenberg, who was present in
the hearing room, was not called as a witness.)
7 A supervisor within the meaning of the Act.
8 The findings in this paragraph are based upon Kendall 's uncontradicted , credited testi-
mony. I do not , however, credit that part of her testimony to the effect that, during their
first conversation , Miller told her it did not matter to him whether or not she joined the
Union. On the witness stand , she clearly displayed that she was in fear , I find no
probative value in her negative answer to counsel's question : "Did [Miller] say any-
thing about whether you'd suffer any loss or anything of that nature if you joined the
union or didn't join the union?"
A supervisor within the meaning of the Act.
243-084-67-vol. 159-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called if he did not leave. Hollinger sipped on, told Miller to call the police if
he wished to. Miller left. (No police ever arrived.)
His glass empty, Hollinger left the snackbar and went out to the walk in front
of the store. Cephas also went out and stood beside him. (It is quite apparent,
and I find, (1) that Cephas was watching and following Hollinger and (2) that
Hollinger was aware of this.) Hollinger walked to the right, beyond and around
the corner of the building; Cephas followed and, at the corner, met Hollinger
retracing his steps. (Unabashed, Cephas commented on value of walking-exercise
on a day such as this.) Hollinger, followed by Cephas, returned to the center-
front of the store, paused, then walked off to the left-front corner, where the
maneuver was repeated. Hollinger-and Cephas-returned to the center, at which
point Assistant Store Manager Thomas Gottschalk 16 relieved Cephas. Hollinger
repeated the performance-first right, then left-followed by the new shadow.
It was now between 12:30 and 1 p.m., and a number of employees were leaving
the building for lunch. Hollinger saw one of them get into her car and turn to
the right onto the access road. He boarded his car (one of an unusual purple
hue),11 hoping to intercept and speak to her. As he approached the parking lot
exit, however, he saw that Cephas was entering an automobile, a Volkswagen
stationwagon; so, instead of following the girl directly, he turned left. Shortly, he
turned around and proceeded back. There, parked at the store-lot exit, Cephas
waited. For the purposes of this case, it is necessary to recite details of the chase
which followed. Suffice it to say that, whither went the purple vehicle, there went
the Volkswagen; when the one stopped--.as it did twice-the other waited patiently
a short distance away; the one lost the other at a traffic light, but only temporarily;
and the spectacle ended only when, after about 15 minutes, Hollinger stopped at a
roadside restaurant-he never caught up with the employee he sought-and Cephas
returned to the store.12
On September 20, following her lunch period, Carol Roxby,13 floorgirl, was
entering the selling area from the store's stockroom when she encounteed Hollinger
at the luggage counter. As they spoke, Gottschalk emerged from around a comer
and asked Roxby what she was doing. She said she was talking to Hollinger, upon
which he told her to go to Cosmetics-not her normal workplace. He then asked
Hollinger if he could help him, an offer which Hollinger refused.
Hollinger proceeded to the snack bar, sat down and ordered a drink. Gottschalk,
following him there, requested that he leave the store. Hollinger asked for and
was given Gottschalk's name; then he asked if all the store's customers were simi-
larly treated. Gottschalk's reply: "No, We know who you are, and we want you
to leave." Hollinger noted that the store was open for business, that he had pur-
chased a drink, and that he intended to finish it before he left. Gottschalk said
he would call the police if Hollinger did not leave, a threat which (for the second
time) did not persuade Hollinger to leave-he stayed for 30 minutes and then left.14
Later the same day, Carol Roxby's employment was terminated. The termina-
tion is discussed in detail infra.
On Wednesday, September 22, Nick Spano, an employee referred to earlier, was
in the receiving section of the store's stockroom. Cephas came up next to him and
asked, "Nick, how is Local " (He omitted the number as if expecting
Spano to fill it in.) Spano said he did not know the number, and Cephas asked
how he "felt about" the Union. Spano said he was "all for it" and had signed a
card. Cephas' face formed an expression of disapproval. Next morning, as the
same two passed each other in the store, Cephas asked how the Union was doing
and what its Local number was."
B. Independent interference, restraint, coercion
I find, as alleged in the complaint, that Respondent; through Store Manager,
Miller, interrogated an employee about the Union; 16 through Assistant Store Man-
10 Also a supervisor within the meaning of the Act.
11 It had been pointed out to Cephas and identified as Hollinger's 4 days earlier.
12 The findings contained in the preceding four_;paragraphs are based upon the credited
testimony of Hollinger and Cephas. Where their versions parted, I-have credited Cephas.
18 Then Carol Braun ; so listed in the complaint herein.
14 The findings in the preceding two paragraphs are based on Hollinger's uncontra-
dicted, credited testimony.
16 This is based on the credited, uncontradicted testimony of Spano.
26 The reference is to Miller's questioning of Kendall, as outlined supra.
S. E. NICHOLS-DOVER, INC. 1075
ager Cephas, engaged in the surveillance of the activities of a union organizer; 17
and, through Cephas, interrogated an employee concerning the Union and his atti-
tude toward it.18 These actions, considered alone and in context,19 constituted
interference with, and restraint and coercion of, employees in the exercise of their
self-organizational rights.
C. The termination of Carol Roxby
In July, 1965, before the Nichols-Dover store opened, Carol Roxby was hired as
a checkout girl. On or shortly after the store was opened---on August 26-she
was promoted and given a wage increase. Finally, on September 20, she was told
by Assistant Store Manager Gottschalk that her services were no longer required
in view of the current lack of business.
The complaint alleges that Roxby was "discharged" and thereafter refused rein-
statement because of her membership in, activities on behalf of, or adherence to
the Union. The answer denies this; elucidating at the hearing, Respondent con-
tends that Roxby, among others, was "laid off" because of a post- opening lull in
the store's sales and that no consideration was given to recalling her, when the
occasion for recalling old or hiring new employees arose, because, to the employ-
er's knowledge, (1) she had moved away from the area, and/or (2) she was not
interested in returning to Nichols-Dover.
Several weeks after she was hired, Roxby met Union Business Agent Hollinger
on the store parking lot and became acquainted with him; on August 10, she signed
a card authorizing the Union to represent her for collective bargaining purposes.
A few hours before her employment was terminated, as recounted supra, Assist-
ant Store Manager Gottschalk came upon Roxby talking to Hollinger and sent her
away. (Thereafter, as noted, Gottschalk stayed with Hollinger, asked that he leave
the premises, and threatened to call the police.) That evening at or about Rox-
by's quitting time, she was given news of her termination by Gottschalk.
The store is a "self-service" operation. At the opening of the payroll period
during which Roxby's employment was terminated, there were, in addition to the
manager and his thiee assistants, 119 full- and part-time employees-a floorgirl,
checkout girls who operated cash registers, salespeople (some of whom, when nec-
essary, operated registers), stockmen, night maintenance employees, and office
employees.
Roxby was the floorgirl. Ordinarily stationed near the 10 checkout stations at
the front of the store, she had the responsibility of keeping in operation a sufficient
number of checkout registers, and no more. (The required number depended upon
customer traffic; it varied not only from day to day, but from hour to hour.) She-
and she alone among the 119-had a key to the cash registers.
Depending on requirements, she opened up or closed down checkout lines; as
she did so, she called for the requisite cashiers from among those on the selling
floor or sent cashiers back to the floor, whichever was appropriate. In emergency
situations, she manned a register herself. Also, she was called upon to "okay"
customers' personal checks and to take appropriate action in, the event of "over-
rings." Finally-for about 30 percent of her time-she maintained stock and order
in Candy, Flowers, and Greeting Cards, three departments in the vicinity of the
checkout stations.
Without doubt, hers was considered a responsible position. At the time of her
promotion from checkoutgirl to floorgirl;, she had been selected from among
approximately 10 considered eligible, and she had been given a 10-cent hourly
wage increase.
17 1 refer to the out-of-store following of Hollinger on or about September 17.
38 Spann, on September 22. '
19 Together with Cephas ' expression of disappointment at Hollinger's report of orga-
nizational progress , these incidents establish a pattern of Respondent 's opposition to the
unionization of its employees In so finding , however, I do not rely on the two occasions
on which management representatives "clung" to Hollinger within the store and ordered
him to leave-which conduct was not alleged to be violative of the Act ; in the absence
of'full litigation thereof, I find these incidents to convey the existence of Respondent's
concern over its employees' unionization rather than animus toward it.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During her tenure as a floorgirl, Roxby had received no criticism of her work.20
On the contrary, she had no reason to believe that management was not completely
satisfied with her.
As a matter of fact, on the day prior to her termination, Roxby had received
what she considered to be-justifiably, I find-reassurance as to her future with
Respondent. There had been a number of girls laid off, among them girls whom
Roxby had called upon from time to time for cashier work. Roxby asked Manager
Miller about the layoffs and expressed concern about the decrease among girls sub-
ject to call to the checkout lines. He told her not to be concerned and named a
number of girls (still employed) whom she could call; then he told her not "to
panic," that she was doing a fine job.21
Respondent' s preopening hiring had been based upon the sales which might be
expected to accompany the opening of a new store. It was not anticipated that the
opening sales activities could be maintained indefinitely, and persons being hired
were told that, depending on their performance, their jobs might end upon a drop
in business.
In point of fact, sales did fall. After maintaining a fairly stable workforce dur-
ing each of the 3 weeks preceding September 15 (119, 120, and 119, respectively),
Respondent decided that a cut was in order, and during the week ending Septem-
ber 22, the employment of 18 individuals, including Roxby, was terminated. 22 Since
the General Counsel has neither contended nor offered testimony that the layoff of
18 persons was dictated by other than Respondent's economic situation , the sole
remaining issue is whether the selection of Roxby among the 18 was unlawfully
motivated under the Act.
According to testimony offered by Respondent, the selection of those to be laid
off, including Roxby, was made by Store Manager Miller. At least in Roxby's case,
he selected her without the recommendation of or consultation with any of his
three assistant managers. (On the witness stand, Assistant Manager Gottschalk,
who had been designated to convey the news to Roxby, quite strongly emphasized
that the decision was Miller's alone. Although he sought to defend Miller's "privi-
lege" to make selections for layoff, clearly, in my opinion, he sought to disassoci-
ate himself from this action. Allegedly, Miller made the decision as to Roxby some
4 or 5 days earlier, and he passed it on to Gottschalk for implementation during
the late afternoon of the day of termination.
The reason for Roxby's selection for layoff, according to Miller, was that "actu-
ally, partly, I was dissatisfied with Carol's work " In annotation, he said that,
although "she was an average girl" and "we really had no difficulty with her," it
was also a fact that "we had not much outstanding work from her"; specifically, on
three or four occasions (the last, 4 or 5 days before her termination), she had
failed to answer the ringing of checkout bells and "she did seem to be rather flirta-
tious with one of our stockmen, Mi Roxby." 23 Respondent states that Miller's
dissatisfaction with Roxby's work was based upon these reasons only,24 and her
selection for layoff was bottomed upon this dissatisfaction.
2 At the hearing, Roxby testified , in response to a leading question , that, on the day
of her termination-after the "Hollinger incident" occurred-Assistant Manager Gotts-
chalk was "critical" of her work. As instances , she said he had ordered her to take
down a display she had set up, had himself closed down registers , and had ( in words un-
specified ) spoken "harshly" to her. Giving full consideration to her testimony in this
respect , in the light of Gottschalk 's explanations given under oath , I conclude and find
that the latter 's conduct in this respect ( 1) was not out of the ordinary , and (2 ) did not
constitute criticism of her work . Her attitude that afternoon , I find , was colored by her
nervousness arising out of her having been found in conversation with a union agent.
21My findings as to the September 19th interchange between her and Miller is based
upon her credited testimony , as corroborated , in effect, by Miller . I do not credit Miller's
slightly contradictory testimony to the effect that his was a response to her inquiry as to
whether she was going to be laid off ; in view of what she considered to be the security
of her position , r consider this to lack plausibility.
22 During the following week, another 16 were laid off, and the resulting staff-85 In
number-was maintained thereafter except that it was augmented early in December for
the Christmas rush.
a' Whom she married , several months later.
u Specifically, neither the fact that Roxby received higher pay than almost all, if not
all, the other girls, her conversing with Hollinger on the day of her termination, nor
the "display" incident which followed is assigned as playing any part in the layoff.
S. E. NICHOLS-DOVER, INC. 1077,
A word as to Respondent's general policy in selecting employees for layoff. In
addition to the checkout registers at the front of the store, there are a number of
registers within the selling perimeter which, when they are open, are the responsi-
bility of assigned girls in specific sales departments. Other things being equal,
those sales girls who were not qualified also to operate cash registers would be first
to go, even if this meant transferring checkout girls to sales departments.
I have carefully considered all of the facts which I have found above and, upon
such consideration, I am persuaded, and I find, that the employment of Carol Roxby
was not terminated for the reason(s) assigned by Respondent.
Clearly, as late as 3 weeks before, Roxby was regarded as the most promising
of Respondent's nonsupervisory personnel. I have heard nothing which causes me
to believe that management subsequently changed its mind With respect to the
alleged instances of failure to answer a register bell, Store Manager Miller conceded
that, on the infrequent occasions on which the floorgirl was otherwise occupied, it
was specifically provided that one or another of the four supervisors or an office
girl would fill in for her; as for her "seeming" to be "rather flirtatious" with her
future husband, this record lacks details as to the effect of this activity upon
Roxby's working time. At any rate, management thought so little of these bases
for dissatisfaction (if it existed) that they failed to discuss it with each other, let
alone with Roxby.
I find that the termination action was triggered by Roxby's being found exchang-
ing greetings with Hollinger. Considering the timing of events that afternoon,
viewed in the light of the union animus displayed by Respondent in the relatively
contemporaneous acts of inteiference with, and restraint and coercion of, employees
in the exercise of self-organizational rights above found, I am convinced, and I
find, that by making an example of Roxby, Respondent sought to demonstrate to
other employees that contact with a union organizer was fraught with peril, thereby
discouraging membership in the Union.
Respondent, on the question of timing, points out that Roxby was but one of 18
let go that payperiod and but one of 10 on the list of layoffs that day. The argu-
ment implicit in this contention is rejected. For one thing, only three or four regu-
lar checkout girls were employed at the time and none of them was laid off; in
view of the layoff policy above noted, I do not believe that Roxby would have been
among the first 10-or the first 18-selected for layoff in the absence of a compelling
reason to deviate from the policy. For another, the evidence is unclear 25 as to
whether anyone but Roxby was laid off on the day in question, (1) certainly, some
girls were laid off earlier-this was the occasion of the previous day's "reassurance"
conversation between Miller and Roxby; moreover (2), if a sales-drop were the
dispositive factor, why was Roxby not laid off at the close of a busy weekend-
for example, during her September 19 conversation with Miller-rather than at the
end of Monday? To put it simply, I do not believe her name was on a layoff list
until after her encounter with Hollinger
In summary, upon the entire record and on what I am convinced is a fair pre-
ponderance of the ciedible evidence, I conclude and find that Respondent terminated
the employment of Caiol Roxby and thereafter failed to reinstate her 26 to cause
other employees to avoid contact with a union organizer, thereby discouraging
membership in the Union and interfering with, restraining, and coercing, employees
in the exercise of their self-organizational rights, in violation of Section 8(a)(3)
and (1) of the Act.
Upon the foregoing factual findings and conclusions, I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2 No company records were introduced.
is I am assuming that the "failure - and-refusal -to-reinstate" allegation appearing in the
complaint is a pro forma one and does not seek to allege a separate unlawful refusal to
hire Roxby. At any rate, I find that the General Counsel has not, by a preponderance of
the evidence , demonstrated a separate unlawful refusal to hire. The case for Roxby stands
or falls on the lawfulness of her original termination of employment.
'1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of Carol Roxby by terminat-
ing her employment on September 20, 1965, in order to cause employees to avoid
contact with a union organizer, thereby discouraging union membership, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By the foregoing conduct, by interrogating employees concerning the Union
and concerning their attitude toward the Union, and by engaging in the surveillance
of the activities of a union organizer, Respondent has interfered with, restrained,
and coerced employees in violation of Section 8(a)(1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure
of employment of Carol Roxby, I shall recommend appropriate action. I shall
recommend that Respondent offer her full and immediate reinstatement to her
former or substantially equivalent position without prejudice to her seniority or
other rights and privileges, and make her whole for any loss of earnings suffered
by her because of the discrimination by payment to her of a sum of money equal
to the amount she would have earned from the date of her discharge to the date
of Respondent's offer of reinstatement, less her net earnings during said period.
Backpay shall be computed on a quarterly basis in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6
percent per annum computed quarteily.27
As the unfair labor practices committed by Respondent are of a character strik-
ing at the roots of employee rights safeguarded by the Act, it will also be recom-
mended that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I hereby issue the following:
RECOMMENDED ORDER
S. E. Nichols-Dover, Inc., of Dover, Delaware, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization by discriminating in
regard to hire, tenure, or other conditions of employment.
(b) Interrogating employees about a union or about their attitude toward a union.
(c) Engaging in the surveillance of the activities of a union organizer.
(d) In any other manner, interfering with, restraining, or coercing their employ-
ees in the exercise of their right to self-organization, to form labor organizations,
to join or assist any labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or any other mutual aid or protection, and to refrain from any
and all such activities except to the extent that any 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.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Carol Roxby reinstatement to her former position even though this
may necessitate displacement of a present incumbent (or, if her former position no
longer exists, to a substantially equivalent position), without prejudice to her se-
niority or other rights and privileges, in the manner set forth in the section above
entitled "The Remedy."
a+ This record contains evidence that, on a date subsequent to the termination of her
employment, Roxby told a Board agent that she would not return to work for Respond-
ent. The circumstances of her making the statement were not explored herein, and the
matter was not fully litigated . In compliance proceedings , formal or informal , I would
expect consideration to be given this aspect ; but, pending modification therein, I shall
recommend reinstatement and reimbursement of backpay without qualification.
S. E. NICHOLS-DOVER, INC. 1079
(b) Make her whole for any loss of earnings suffered by reason of the discrimi-
nation against her, in the manner set forth in the section above entitled "The
Remedy."
(c) Notify her if presently serving in the Armed Forces of the United States of
her right to full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security records, timecards, and
personnel records and reports necessary to analyze the amount of backpay due and
the right of reinstatement.
(e) Post at its place of business at Dover, Delaware, copies of the attached
notice "Appendix." 28 Copies of such notice, to be furnished by the Regional
Director for Region 5, shall, after being duly signed by an authorized representa-
tive of Respondent, be posted immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 5, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.29
23 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforce by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court,of Appeals, Enforcing an Order" for the
words "a Decision and Order."
sa In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 5, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail Store Employees Union Local
#692, Retail Clerks International Union, AFL-CIO, or any other labor
organization, by discriminating as to the hire, tenure, or any other term or con-
dition of employment of any of our employees.
WE WILL NOT ask employees about a union or about their attitude toward a
union; and WE WILL NOT engage in the surveillance of the activities of union
organizers.
WE, WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization; to form, join, or
assist a labor organization, to bargain collectively through a bargaining agent
chosen by themselves; to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection; or to refrain from any
such activities (except to the extent that the right to refrain is limited by the
lawful enforcement of a lawful union-security requirement).
WE WILL offer Carol Roxby her former or substantially equivalent job (with-
out prejudice to seniority or other employment rights and privileges), and WE
WILL pay her for any loss suffered because of our discrimination against her.
All employees are free to become or remain members of any labor organization.
S. E. NICHOLS-DOVER, INC.,
Employer.
Dated------------------- By-------------------------------------------
'(Representative) (Title)
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if serving in the Armed Forces
of the United States of her right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159.
Hughes Aircraft Company and H. Charles Starner, an Individual
Electronic & Space Technicians Local 1553, AFL-CIO (Hughes
Aircraft Company) and H . Charles Starner. Cases 31-CA-58
(formerly 21-CA-6588) and 31-CB-15 (formerly 21-CB-9d527).
June 23, 1966
DECISION AND ORDER
On March 11, 1966, Trial Examiner Irving Rogosin issued his
Decision in the above-entitled proceeding, finding that Respondents
had not engaged in unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that
the complaint be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Respondent filed an answering brief.
Pursuant to the provisions of Section 3 (b) of the Act, the
National Labor Relations Board has delegated its powers in connec-
tion with these cases to a three-member panel [Chairman McCulloch
and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in these cases, and finds that the General Counsel's exceptions
have merit. The Board therefore adopts the Trial Examiner's find-
ings, conclusions, and recommendations only to the extent consistent
herewith.
1. The underlying facts are not seriously disputed and may be
summarized essentially as follows :
The Company engages, among other things, in various aerospace
projects such as manufacturing the Surveyor spacecraft designed to
land on the moon. Because components for these projects must vir-
tually be flawless, expert workmanship by all production personnel
is one of management's most vital concerns.
Department 76, the one involved in this case, employs a total of
22 machinists. Thirteen of these were recommended for promotion
159 NLRB No. 100.