S. E. Nichols Marcy Corp.

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 75 (N.L.R.B. 1977)

S. E. NICHOLS MARCY CORP.
S. E. Nichols Marcy Corp. and Donald L. Arm-
strong, Michael Hardiman, Carvel K. Ogden,
Brenna Olmstead, Ramona Overrocker, Betty
Vitullo, Donna Briggs, Yolanda LaPorte, Florence
Shaffer, and Edward F. Aubert. Cases 3-CA-
6166-1, -2, -3, 3-CA-6291, -2, -3, -4, 3-CA-
6358, 3-CA-6457, and 3-CA6537
April 19, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 1, 1976, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief. The General Counsel
filed cross-exceptions to the Administrative Law
Judge's Decision and supporting brief, and the
Respondent filed a brief in opposition to General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found, and we
agree, that the Respondent violated Section 8(a)(l) of
the Act by threatening to institute a slander suit
against employee Florence Shaffer because of an
antiunion statement she credibly claimed had been
made to her by a supervisor. The Administrative Law
Judge also found that the Respondent violated
Section 8(a)(l) of the Act by instituting such a
slander action, in the name of the supervisor in
question, against Shaffer, seeking $50,000 in damag-
es. We disagree with this finding.
I The Respondent asserts that the Administrative Law Judge's resolu-
tions of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counsel's witnesses. As
the Supreme Court stated in N.LR.B. v. Pittsburgh Steamship Company, 337
U.S. 656, 659 (1949), '[T otal rejection of an opposed view cannot of itself
impugn the integrity or competence of a trier of fact." Furthermore, it is the
Board's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 138 F.2d 362
(C.A. 3, 1951). We have carefully examined the record and find no basis for
reversing his findings.
2 See, e.g., Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103
(1960): United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB
229 NLRB No. 19
The record shows that the supervisor involved
herein, Assistant Store Manager Lawrence Barton,
told employee Shaffer that if the rumor that she was
in the Union ever became known to Manager Korcz
it would mean her job. Shaffer repeated this
statement at two employee meetings held by Respon-
dent. The credited testimony indicates that the
Respondent's president, during the course of the
second of the above meetings, told Shaffer to "shut
her mouth" and that "they" could sue her for saying
such a thing. Additional testimony in the record
reveals that the Respondent's president told another
employee that "they" were going to sue Shaffer.
The foregoing facts clearly support the Administra-
tive Law Judge's finding that Respondent violated
Section 8(aX)() by threatening to sue Shaffer because
she repeated an antiunion remark made to her by
Barton. The evidence is not clear, however, that the
Respondent actually participated in the filing of the
suit in which only Barton and Shaffer are named
parties. We need not resolve this issue since there is
longstanding Board precedent consistently holding
that the filing of a civil suit, as opposed to the threat
to file a civil suit, does not constitute an unfair labor
practice.2
Consistent with this longstanding Board precedent,
we therefore have decided to reverse that portion of
the Administrative Law Judge's Decision which finds
that the Respondent violated Section 8(a)(l) of the
Act by instituting the slander lawsuit against Shaffer.
Accordingly, we have revised the corresponding
Order and notice provisions to conform to this
Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, S. E. Nichols Marcy Corp., Marcy, New York,
its officers, agents, successors, and assigns, shall take
382, 384 (1971); Frank Visceglia and Vincent Visceglia, t/a Peddie Buildings,
203 NLRB 265 (1973). Only in the 8(bXIlA) and 8(bXIXB) areas has the
Board deviated from this position. In those cases, the Board has found that
court action by a union to enforce illegal fines against employees and
supervisors does constitute a violation of the Act. See, e.g., Booster Lodge
No. 405, International Association of Machinists and Aerospace Workers,
AFL-CIO (The Boeing Company), 185 NLRB 380 (1970), enfd. as modified
459 F.2d 1143 (C.A.D.C., 1972), reversed 412 U.S. 67 (1973); Wisconsin
River Valley District Council of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218 NLRB 1063
(1975). But cf. International Organization of Masters, Mates and Pilots, AFL-
CIO (Cove Tankers Corporation), 224 NLRB 1626 (1976), in which the Board
found a violation of Sec. 8(bXIXA) based on a union's institution of an in
rem action in support of its unlawful picketing and in furtherance of its
unlawful objective to compel the purchaser of a vessel to agree to and
enforce the union's contract with the seller.
75
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that action set forth in the said recommended Order,
as so modified:
1. Substitute the following for present paragraphs
l(f) and (1):
"(f) Promising to improve benefits or working
conditions to discourage the employees from engag-
ing in union activities."
"(1) Threatening court actions against employees
because of their union activities."
2. Substitute the following for paragraph 2(a):
"(a) Offer the 10 employees named herein immedi-
ate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent ones, without prejudice to their seniority
or other rights and privileges, and make them whole
for any loss of earnings they may have suffered by
reason of the discrimination against them in the
manner set forth in The Remedy."
3. Delete paragraph 2(e) and reletter the subse-
quent paragraphs accordingly.
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees as to their
own and other employees' union activities.
WE WILL NOT enlist and/or solicit employee
signatures on antiunion petitions.
WE WILL NOT enlist and/or solicit employees to
withdraw union authorization cards.
WE WILL NOT promise to improve benefits or
working conditions to discourage employees from
engaging in union activities.
WE WILL NOT promise to reward employees for
engaging in antiunion conduct.
WE WILL NOT solicit employees to engage in
surveillance or create the impression of surveil-
lance.
WE WILL NOT threaten employees with dis-
charge or other reprisals because of their union
activities.
WE WILL NOT threaten or warn employees that
management would find out who had signed
cards for the Union.
WE WILL NOT interrogate employees as to the
contents of their affidavits nor direct employees
to obtain copies of the same.
WE WILL NOT threaten any court actions
against employees because of their union activi-
ties.
WE WILL NOT bar employees from the store
premises.
WE WILL NOT discontinue commissions because
of union activities.
WE WILL NOT issue written warnings because of
union activity.
WE WILL NOT refuse to schedule Sunday work
for employees at Christmastime because of their
union activity.
WE WILL NOT discharge, refuse to employ, lay
off, or otherwise discriminate against employees
because of their union activities, or because they
have filed charges or given testimony under the
Act.
WE WILL NOT discourage membership in, or
concerted activities on behalf of, the Union herein
or any other labor organization, by discriminating
against employees with regard to their hire,
tenure, or any other condition of employment.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of their rights to self-organization; to form, join,
or assist labor organizations, including the Union
herein; to bargain collectively through a bargain-
ing agent chosen by our employees; to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or
to refrain from any such activities.
WE WILL offer Donald L. Armstrong, Michael
Hardiman, Carvel K. Ogden, Brenna Olmstead,
Ramona Overrocker, Betty Vitullo, Donna
Briggs, Yolanda LaPorte, Florence Shaffer, and
Edward Aubert immediate and full reinstatement
to their former positions or, if such positions no
longer exist, to substantially equivalent ones,
without prejudice to their seniority or other rights
and privileges, and make them whole with interest
for any loss of earnings they may have suffered by
reason of the discrimination against them.
WE WILL make whole Yolanda LaPorte for loss
of commissions she suffered by reason of discrim-
ination against her.
WE WILL make whole Betty Vitullo, Donna
Briggs, Yolanda LaPorte, and Florence Shaffer
for loss of 1975 Sunday earnings.
WE WILL revoke and rescind the written
warnings notices or letters issued to Brenna
Olmstead, Ramona Overrocker, Yolanda La-
Porte, Donna Briggs, and Edward Aubert, and
expunge such documents from our files.
S. E. NICHOLS MARCY
CORP.
76
S. E. NICHOLS MARCY CORP.
II. THE UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE
PHIL SAUNDERS, Administrative Judge: Based on charges
and amended charges filed by the 10 discriminatees named
herein, on the dates indicated, an amended and consolidat-
ed complaint against S. E. Nichols Marcy Corp., herein the
Respondent, Company, or Marcy, was issued on January
7, 1976, alleging violations of Section 8(aX)(), (3), and (4) of
the National Labor Relations Act, as amended.' Respon-
dent filed answers to the complaints denying it had
engaged in the alleged unfair labor practices. Hearings in
this proceeding were held before me in January and June
1976, and both the General Counsel and Respondent filed
briefs.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor,2 I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent is a New York corporation and, at all times
material herein, has maintained a retail store in Marcy,
New York, and has engaged at this store in retail sale and
distribution of various products. Annually the Respondent,
in the course and conduct of its business operations, sells
and distributes products with a gross value exceeding
$500,000. During the same period of time Respondent
receives goods valued in excess of $50,000 transported to
its place of business in interstate commerce directly from
States other than the State of New York.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters, Butcher Workmen and
Affiliated Crafts of North America, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
The complaint in Case 3-CA6457 was filed on March 26, 1976, and
the complaint in Case 3-CA-6537 was filed on May 13, 1976.
2 The facts found herein are based on the record as a whole and upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N. LR. B. v. Walton Manufacturing Company & Loganville Panis
Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in
contradiction of the findings herein, their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in the light of the entire record.
3 The original charge in Case 3-CA6166-1 was filed by Armstrong on
July 30, 1975; the original charge in Case 3-CA-6166-2 was filed by
Hardiman on July 30, 1975; the original charge in Case 3-CA-6166-3 was
filed by Ogden on July 30. 1975; the original charge in Case 3-CA-166-4
was filed by Olmstead on September 8, 1975, and the amended charge in
It is alleged in the complaints that agents and supervisors
of Respondent interrogated employees; solicited signatures
to an antiunion petition; solicited employees to withdraw
their authorization cards; promised rewards, improved
benefits, and working conditions; solicited employees to
engage in surveillance of others and created the impression
of surveillance; threatened discharges; solicited grievances;
informed employees the Company would ascertain who
signed authorization cards; maintained a rule which
prohibited all union solicitations; interrogated employees
concerning their affidavits and directed that they obtain
such affidavits; instituted a slander action; threatened
other employees with legal action because they filed
charges; solicited employees to withdraw charges; barred
employees from its store; and on or about September 1,
1975, granted company paid health insurance. It is further
alleged that on the dates hereinafter indicated the Compa-
ny terminated Donald Armstrong, Michael Hardiman,
Carvel Ogden, Brenna Olmstead, Donna Briggs, Yolanda
LaPorte, Florence Shaffer, Betty Vitullo, Edward Aubert,
and constructively discharged Ramona Overrocker. It is
further alleged that Respondent issued warning letters to
certain of the alleged discriminatees, and also that
Respondent did not schedule Sunday work for Vitullo,
Briggs, LaPorte, and Shaffer, and ceased paying commis-
sions to Yolanda LaPorte.3
The Union started its organizational campaign at the
Respondent's Marcy store, the only facility or store
involved in this proceeding, in late May or early June
1975. 4 Several union meetings were held in June, at which
time authorization cards were passed out to the Respon-
dent's attending employees who, in turn, contacted and
signed up fellow employees. On July 17 the Union filed its
petition for representation with the Board, which was
served upon Respondent on or about July 18. The General
Counsel maintains that, immediately upon being served
with the petition, Respondent began engaging in an
antiunion campaign including a massive amount of
conduct violative of Section 8(aX)(1), (3), and (4) of the Act.
A notice of hearing was given in the representation case on
July 25, and on August 21 the Board conducted a
representation election. The Union lost the election.
During the summer months of 1975, the Company
Case 3-CA-6166-4 was filed by Olmstead on December 9, 1975. The
original charge in Case 3-CA-6291 was filed by Overrocker on October 24,
1975, and the amended charge in that case was filed by Overrocker on
December 8, 1975. The original charge in Case 3-CA-6291-2 was filed by
Vitullo on November 4, 1975, and served by registered mail on Respondent
on or about November 6, 1975, and the amended charge in that case was
filed by Vitullo on December 20, 1975. The original charge in Case 3-CA-
6291-3 was filed by Briggs on November 18, 1975, and the amended charge
was filed by Briggs on December 29, 1975. The original charge in Case 3-
CA-6291-4 was filed by LaPorte on November 18, 1975. and the amended
charge was filed by LaPorte on December 29, 1975. The original charge in
Case 3-CA-6358 was filed by Shaffer on December 8, 1975, and the
amended charge was filed by Shaffer on December 29, 1975. The original
charge in Case 3-CA-6457 was filed by Aubert on March 3. 1976; the
original charge in Case 3CA-6537 was filed by Aubert on April 29, 1976.
4 All dates are 1975 unless stated otherwise.
DECISION
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admittedly held "a lot" of small and large meetings with
their employees at the store. 5
A threshold issue in this case is the allegation that
Michael Dewey, Manny Mazzola, Sharon Michel, Nancy
Musa, and Robert Riggalls are agents of the Respondent.
As pointed out, rank-and-file employees were well aware of
Nancy Musa's agency status even before union activity
started, as she frequently carried official company forms
around the store for employees to sign. In addition, Musa
and Manny Mazzola on different occasions were also
specifically designated by Respondent as their agents.
Numerous times, at Respondent's frequent meetings with
employees as aforestated, the employees were informed by
Respondent's management personnel to see Nancy Musa
or Manny Mazzola in order to retract their union cards,
and this record further reveals that it was Musa and
Mazzola who later sent employee withdrawal letters and
antiunion petitions to the Union. As indicated, Mazzola
admits sending antiunion petitions to the Union and
soliciting employees to sign one such petition, and Musa
admits sending 10 to 12 letters to the Union signed by
employees asking that their cards be retracted. Even Store
Manager Korcz' testimony that he told employees to
withdraw cards with the help of an "experienced person,"
but did not name Mazzola or Musa, constitutes ratification
of Musa's and Mazzola's violative conduct and also further
reveals their agency status. In one meeting run by Manager
Korcz, Mazzola even spoke out and solicited employees to
withdraw their union cards on the occasion when Korcz
had made some previous reference to retracting their cards
by writing to the Union. It was also Nancy Musa who
solicited Sharon Michel on July 19 to circulate one of the
antiunion petitions, and which Michel then agreed to do,
and after circulating the petition Store Manager Korcz
thanked her as she was leaving the store. On or about July
21, Korcz himself told Michel that Musa wanted to see her,
and that Musa had something for her to do. On this
occasion Musa again asked Michel to circulate the
antiunion petition, and while she was doing so she passed
Korcz on the sales floor.6 On or about July 22, Korcz again
specifically thanked Sharon Michel for obtaining signa-
tures, and then asked Michel if she could get additional
cards retracted and if she would talk to Carol Quinn, which
Michel did. Because of this, Quinn and another employee
wrote letters to the Union requesting the withdrawal of
their cards. Later in the day Manager Korcz informed
Michel that she would be "rewarded."
Michael Dewey, a high school student who had not
signed a union card, was called to work by Korcz an hour
earlier than his normal starting time on July 19. When he
appeared at the store Korcz told him to go to the appliance
department and when he arrived there, Robert Riggalls,
5 The following-named persons occupied positions set opposite their
respective names, and have been and are now agents of the Respondent at
its Marcy store, acting on its behalf, and are supervisors within the meaning
of Sec. 2(1 1) of the Act:
Manfred Brecker
James Mitchell
Henry Korcz
Linda Abramezyk
President
District Manager
Store Manager
Assistant Store Manager
then in charge of the appliance department, had Dewey
circulate an antiunion petition to all male employees,
which Dewey then did at Riggalls' request. Dewey
obtained about 15 signatures on the petition and after
completing his task was asked by Riggalls which of the
employees had refused to sign the petition. Dewey replied
that Don Armstrong and Michael Hardiman (two of the
alleged discriminatees) had refused.
In the instant case the Respondent, as pointed out,
actively sought out these five people to engage in antiunion
activity and then thoroughly endorsed their actions. Of
course, when the Respondent constituted or designated
these employees to be their agents, the Respondent is then
legally responsible for their statements made to employees
relating to the Union and also for the consequences of such
statements. In the final analysis, this record clearly shows
that the Company conferred or gave certain antiunion
instructions and duties to the five employees here in
question, and then fully ratified their actions in carrying
out such instructions. 7 For purposes here, I find that
Dewey, Mazzola, Michel, Musa, and Riggalls were agents
of the Respondent.
The Respondent also placed the supervisory status of
Thomas Smoulcey in dispute. Smoulcey was the manager
in the home center department, was not eligible to vote in
the Board election on August 21, and was not placed on the
Excelsior list by Respondent. As also indicated, Smoulcey
totaled and ascertained the commissions paid to employees
in his department, he was present when employees in this
department were discharged or disciplined, signed disci-
plinary warning letters issued to employees in the area
marked "supervisors signatures," assigned and directed
employees' work, moved employees to different work as
needed, and had his own desk in the stockroom which no
other employee had. In addition, Respondent informed at
least one employee in the home center department that
Smoulcey was the immediate supervisor. From this record
it is obvious that Smoulcey has many of the indicia of
supervisory status as set forth in Section 2(11) of the Act
and, accordingly, I find him to be a supervisor and agent of
the Respondent.
Portions of the 8(a)(l) conduct dealing with numerous
efforts and statements by agents of the Respondent, to
have employees retract their union cards and sign anti-
union petitions, have been previously set forth herein with
my discussion on agents of the Respondent, and those
portions of the testimony cited therein need no further
amplifications here.
On or about July 19, Store Manager Krocz asked
employee Aubert if he and other employees had signed
cards for the Union, inquired if Aubert knew anything
about the Union, stated that if Aubert had a card he would
help him get rid of it, that Aubert would be "taken care of'
Thomas Smoulcey Home Center Manager
Lawrence Barton Assistant Store Manager
6 Musa's agency status is also apparent regarding her role in obtaining
William Nugent's affidavit as it was Musa who gave Nugent the registered
mail receipt for the letter he sent to the Board requesting a copy of his
affidavit.
I If they were not in fact vested with actual supervisory authority, they
were repeatedly placed in positions by Respondent whereby employees
would reasonably believe that they were acting as agents on its behalf.
78
S. E. NICHOLS MARCY CORP.
and would be up to a certain wage at the end of the year,
and then asked Aubert to let him know "what he heard."
On the same day Respondent's agent Mazzola also asked
Aubert if he and other employees (naming them) had
signed union cards, and if so to send a letter to the Union
and get his card back. About a week later Mazzola again
asked Aubert the same questions, and a day or so later
Respondent's agent Musa also inquired of Aubert if he had
written the Union for retraction of his card - and Musa
supplied Aubert with the necessary language, and his letter
was then written and mailed, but Aubert did not supply the
stamp. During the latter part of July, Aubert had another
talk with Mazzola and on this occasion Mazzola informed
him that if the Union was successful the Company would
cut the work force in half, and if the Union did not get in
- "the ones that signed cards would be fired." On or about
July 30, Respondent District Manager Mitchell asked
Aubert if he had signed a card, and then told him "we're
going to subpoena the cards."
Additional 8(a)(1) statements and conduct took place on
or about July 25 when Assistant Store Manager Lawrence
Barton told Florence Shaffer that he had heard a rumor she
was in the Union, and further stated that if this rumor got
back to Manager Korcz it would mean her job. Thereafter,
at one of Respondent's meetings held the next day, Shaffer,
during a discussion of job security, told Supervisor
Mitchell, "If our jobs are so secure, why did Mr. Barton
say that if the rumor got back that I was in the Union to
Mr. Korcz it would mean my job." At another meeting by
management held at the store on or about August 17, job
security was again brought up and this time in the presence
of Respondent President Manfred Brecker, and on this
occasion Shaffer replied that Supervisor Barton had
threatened her job. Brecker then told Shaffer she better
"shut her mouth" because she could be sued for saying
such things. Supervisor Barton, who had been on vacation,
returned to work on August II, and Shaffer then con-
fronted him with his prior statement of being fired if the
rumor about her union activities got back to Korcz, but
Barton replied "he couldn't remember that much" but if he
said it "he didn't mean it as a threat or a warning." Later
the same day, Brecker was again conducting a small
meeting with employees, and on this occasion told them
that if Barton had made the statement attributed to him by
Shaffer, as aforestated, it would go on his record and he
would be terminated. However, Barton, who was also
present, then suddenly announced to the assembled
employees that Shaffer would be sued for slander. Within a
day or so thereafter Shaffer was served with a summons in
a slander action, filed by Assistant Manager Barton,
seeking $50,000. After Shaffer was served with the
summons, she then went crying to employee Betty Vitullo
about being sued. That same day Vitullo said to another
employee in Barton's presence that Shaffer had been sued
by Barton for $50,000 and this definitely showed a union
was needed. After Vitullo returned from lunch she was
8 The Board in The Paymaster Corporation, 165 NLRB 381, 384 (1967),
held that for a respondent to threaten employees with legal action because
they gave testimony, and to accuse employees of giving false testimony,
interfered with the Board's statutory process in violation of the Act.
9 In these situations and cases the Board and the courts have generally
ordered such prosecutions halted. See N.LR.B. v. Granite State Joint Board,
called into the conference room by Korcz, with two other
employees present. Korcz informed Vitullo that she had
made a statement that Shaffer had been served with a
summons, and Vitullo readily admitted this. Korcz then
said he had a grapevine, that it used to take a few days for
information to get back to him, but that now it worked a
little faster and in this situation it took less than an hour.
Korcz went on to tell Vitullo that he paid her salary, that
she worked for him, and she was to mind her own business.
A few days later employee William Nugent had a
conversation with Brecker and he asked Brecker what was
going to happen with Shaffer. Brecker then told Nugent
that they knew Shaffer was lying, and they were going to
sue her. It has been held by the Board that in certain
instances the institution of a lawsuit against an employee
violates the Act, and it follows, therefore, that prosecution
of such lawsuits constitutes restraint and coercion.8
Certainly, the continuing prosecution of the lawsuit against
Shaffer because of the union statement and sentiment she
credibly attributed to Supervisor Barton, and the subse-
quent threat of additional legal action against another
employee, as hereinafter detailed, are both clearly attribut-
able to Respondent by the credited testimony in this
record, and constitute violations of the Act. I am in
agreement that it would be is difficult to think of a more
coercive action than suing an employee (Shaffer), earning
the minimum wage, for damages of $50,000. 9
On or about July 19 Home Center Manager Smoulcey
inquired of Yolanda LaPorte if she had signed a union
card, and "wished" that she would withdraw it. On or
about July 23 Respondent's agent, Nancy Musa, asked
Brenna Olmstead if she knew anything about a union, also
inquired if she had signed a card, said that Olmstead could
lose her job "because of this," mentioned something about
the possibility of retracting her card, and then informed
Olmstead that they were going to subpena the Union's
cards to find out who had signed them. On or about July 19
Respondent's agent, Mazzola, asked employee Keith
Ogden what he knew about a union. A few days later he
wanted to know from Ogden about others who had signed
cards, and told Ogden to inform them that they could write
for a retraction, and to also tell employees that Musa
would mail their letters. On July 19 Respondent's agent,
Dewey, asked Ogden if he had signed a card, and did so at
the time he was passing around the antiunion petition, as
aforestated. On July 21 Mazzola asked Michael Hardiman
if he would sign the antiunion petition, and Hardiman
replied that he would not. Before the election, but after
they had been discharged, Korcz informed former employ-
ees Armstrong and Ogden that they were not welcomed or
allowed in the store and following the election he again
informed them that they were not welcome and requested
that they leave the store.
On or about August 20 employee William Nugent
informed Respondent President Manfred Brecker that he
had given a statement of affidavit to an agent of the Board.
Textile Workers Union of America, Local 1029, AFL-CIO [International
Paper Box Machine Co.], 409 U.S. 213 (1972); Booster Lodge No. 405,
International Association of Machinists d Aerospace Workers AFL-CIO
[Boeing Ca], v. N.LR.B. 412 U.S. 84 (1973); and Sheet Metal Workers
International Association, Local Union No. 29 (Metal-Fab, Inc.), 222 NLRB
1156(1976).
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few weeks later Manager Korcz then asked Nugent if he
had received a copy of his statement from the Board agent,
and on September 13 Korcz again asked Nugent if he had
received a copy of his statement. Nugent said that he had
not and Korcz then asked if he was going to write for it,
and Nugent replied that he would. On September 29 Korcz
again asked Nugent if he had written for a copy of his
affidavit, and Nugent said he had not. Korcz then asked if
he would now write for it, and Nugent then acceded to his
wishes. Korcz took Nugent to the office and dictated what
to write, and Nugent signed the letter. On the next day
Nancy Musa came to Nugent with a certified mail receipt,
and Respondent then mailed to the Board the letter
requesting Nugent's affidavit.
On or about October 3, Musa asked Nugent if he had
received a copy of his affidavit, and Nugent said that he
had not. (Nugent had in fact received it that morning).
Nugent testified he did not want the Respondent to get it,
but on the next day Nugent finally gave Musa his affidavit,
and shortly thereafter Musa told Nugent there was nothing
in the statement that could hurt him and not to worry
about it. Several days later Nugent received a call from
Brecker. By this time Brecker had a copy of Nugent's
affidavit, and asked Nugent why he had said certain things
contained in his affidavit. Brecker then told Nugent if he
wanted to he could listen to the store tapes of the meetings
that the Respondent had, and he would also go see the
Respondent's lawyer. On or about October 9 Manager
Korcz asked Nugent if he was ready to go over his
affidavit, and Korcz then took Nugent's affidavit and went
through it and in some instances Korcz would write
paragraph changes as they went along. Korcz then asked
Nugent if he wanted to see the Respondent's lawyer and
Nugent agreed to see him. Korcz then drove Nugent to see
Attorney Basloe in Herkimer, New York. When they
arrived in Kerkimer, Korcz spoke alone with Basloe, and
then Nugent went into Basloe's office. At this time Basloe
dictated an affidavit, but told Nugent if he had any
objections to anything that was said to stop him. Nugent
interrupted Basloe a few times and corrected things he said.
The affidavit was then typed up and, after making a change
in it, Nugent signed it. Nugent received his regular wages
for this entire day.
Respondent's insistence that Nugent secure a copy of his
affidavit taken by an agent of the Board is violative of the
Act, as Nugent made it clear on repeated occasions, and by
his delays, that he did not want his affidavit seen by
management. Nor can it be said that this coercion could
fall into the category of pretrial preparation. The Board has
set several safeguards which must be met before such
interrogation of an employee can take place. It is apparent
by this record that the Respondent has trampled upon
these safeguards. See Johnnie's Poultry Co. and John Bishop
Poultry Co., Successor, 146 NLRB 770 (1964), and cases
cited therein.
On Octber 24 Ramona Overrocker filed charges against
the Respondent. On November 5 Korcz told Nugent some
'o Respondent also put into this record and exhibits a certain tape which
recorded the meeting with employees Brecker conducted on August 7, and
which supposedly substantiates Respondent's various positions taken and
statements made. However, this tape cannot in any way detract from or
of the girls in the store "were playing with the Union" and
then Korcz told Nugent they were going to sue Ramona
Overrocker "for perjury." On November 10 Korcz held a
store meeting with the employees and on this occasion
repeated that they were bringing Overrocker up on charges
of perjury. As indicated earlier herein, such threats of legal
action are clearly violative of the Act.
Brecker testified that during the several weeks he,
himself, spent in the Marcy store, management had "lots of
meetings" with employees concerning the "uproar in the
store," and it was necessary for him to get the store back to
normal. Brecker further stated that his meeting with
employees were "pretty happy ones," jokes were told,
different employees also spoke, and he said he was under
the impression that everyone enjoyed his meetings.' 0 It is,
of course, well-established Board and court law that, in
determining whether an employer's conduct amounts to
interference, restraint, or coercion within the meaning of
Section 8(a)(l), the test is not the employer's intent or
motive, but whether the conduct is reasonably calculated
or tends to interfere with the free exercise of the rights
guaranteed by the Act; the fact that employees were
neither fearful nor apprehensive of their rights is also
immaterial.
The foregoing testimony which has been credibly
attributed to the Respondent includes several instances of
interrogating its employees concerning their own and other
employees' union activities; enlisting and soliciting em-
ployee signatures and signing of antiunion petitions;
enlisting and soliciting employees to withdraw union cards;
promising to improve benefits or working conditions;
promising to reward employees for engaging in antiunion
conduct; soliciting employees to engage in surveillance of
union activities and creating the impression of surveillance;
threatening employees with discharges or other reprisals
because of union activities; warning employees that the
Company would find out from the Board who had signed
cards; interrogating employees as to affidavits given to the
Board and directing an employee to obtain a copy of his
affidavit; instituting a slander court action against an
employee because of her union activity; threatening
another employee with legal actions because she had filed
charges with the Board; and barring employees from the
store.
There is also an allegation in the complaint that the store
granted to its employees company-paid health insurance
on or about September 1. However, the credited evidence
reveals that at almost every meeting with employees several
of them were concerned about benefits under Blue Cross-
Blue Shield and questions concerning these matters were
continually raised. Management officials did mention this
subject matter at their meetings, but only in respect to the
fact that some of the Respondent's other stores already had
such health benefits, and "sooner or later" the store in
Marcy would also be getting it (which it did). But there is
no evidence credibly attributed to the Respondent to the
effect that the Company would be paying for it, or that it
change coercive statements made to employees on all of the other occasions,
as detailed herein, and in view thereof I place little or no reliance on this one
particular tape or meeting.
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S. E. NICHOLS MARCY CORP.
would become effective on September I or on any other
definite date. It appears that such health plans or programs
had prior arrangements as to the effective date in each
store. This allegation, paragraph VII, subparagraph (t), is
hereby dismissed and, in the same paragraph, I also dismiss
subparagraphs (k) and (r).
I turn now to the alleged discriminatees. It is readily
apparent from this record that Respondent was well aware
of the fact that the 10 alleged discriminatees named herein
were all active on behalf of the Union, and clearly, as
pointed out, the atmosphere which prevailed at Respon-
dent's store was conducive to a situation whereby employ-
ees and agents continually informed management of their
fellow employees' union activities. Moreover, at several of
Respondent's store meetings employees spoke up and, even
in the presence of supervisors or agents, accused fellow
employees of being in the Union, and Store Manager
Korcz also admitted that he had "a grapevine," as
aforestated. In addition, Respondent's employee agent,
Sharon Michel, was one of the first employees contacted by
the Union and, along with circulating authorization cards,
she also attended union meetings with other employees, so
Michel had firsthand knowledge of all those interested and
active on behalf of the Union. Respondent's agent,
Mazzola, also attended union meetings with other employ-
ees, so he too observed first hand those employees active
for the Union. In addition, Respondent's agents, Mazzola
and Dewey, were quite busy circulating antiunion peti-
tions, as aforestated, so they were again in an excellent
position to observe employees both for and against the
Union, and the same can be said for agents Michel and
Musa by their continual efforts in extending opportunities
so that employees could retract their authorization cards.
Michael Hardiman was terminated on July 21, after
being with the Company about 30 days. He had signed a
union card on July 8, attended several union meetings, and
had solicited a few employees to join the Union. On or
about July I Hardiman had been told by Manager Korcz
that the paint department where he worked "looked very
good." On Saturday, July 19, Hardiman had been asked by
Dewey to sign an antiunion petition, but Hardiman refused
to as he wanted to get more information. Dewey, after
finishing soliciting signatures for the petition, was then
asked by Robert Riggalls, also an agent of the Respondent
as aforestated, which employees had refused to sign the
petition, and Dewey replied that both Armstrong and
Hardiman had refused to sign, and on this occasion
Hardiman's supervisor, Smoulcey, was also present and
witnessed Hardiman's refusal.
I am in agreement that Respondent's reasons as to why
Hardiman was terminated were inconsistent. Hardiman
was supposedly told by Korcz that he had been on a
probationary period, and that he had not worked out.
However, as pointed out, there is no other evidence in this
record to indicate that a probationary period even existed
I His immediate superior, Smoulcey, testified that he was very slow, was
told how to mix paint but kept on making mistakes, and stated that they had
several customer complaints and that several customers returned a total of
27 gallons of paint. Korcz then further testified that he spoke to Hardiman
about his shortcomings on several occasions: that, for example, he took
several days to check a shipment of paint that normally would take a half
day and even then the merchandise was priced incorrectly, he testified that
at Respondent's store, and several employees testifying
were not even aware of a probationary period. Manager
Korcz also contended that Hardiman's bookwork was not
accurate. However, on cross-examination Korcz admitted
that he "didn't pay much attention to Mike's (Hardiman's)
books because he didn't have time to really get into them
yet," and that he never checked Hardiman's books after
the first 10 to 15 days of his employment." In the final
analysis, even if Hardiman had made some of the mistakes
the Respondent assigned to him, there is still no credible
evidence in this record which actually shows that any work
related problem really caused his discharge, but what
clearly had precipitated Hardiman's discharge was his
union activity including his refusals to sign the two
antiunion peitions presented to him on July 19 and 21.
Donald Armstrong was also discharged on July 21. He
started working for the Company in July 1974 and spent
most of his time in the home center department of the
store. Armstrong had been quite active on behalf of the
Union. He attended several meetings, signed a union card,
solicited employees to join the Union, and obtained
signatures from them on union authorization cards. On
July 19 he, like Hardiman, also refused to sign the petition
against the Union being circulated by Michael Dewey. On
this occasion Armstrong inquired of Dewey who had given
him the petition, and he replied that Korcz had given it to
him. Then a few days later, on July 21, Manny Mazzola
also asked Armstrong if he would sign the antiunion
petition Mazzola was circulating, and at this time Arm-
strong did so.'2
Manager Korcz contended that Armstrong neglected his
work, refused to count merchandise coming into his
department when Korcz directed him to do so, and that he
gave Korcz an insolent response relative to working a
certain late night shipment. Korcz also stated that
Armstrong was careless about his books, didn't keep
accurate records of incoming merchandise in his depart-
ment, that he neglected to keep records of raincheck orders
and slips, that he was rude to customers, and further
testified that Armstrong was late in relieving Keith Ogden
in an adjacent department so that all clerks could take their
lunch at an appointed time. Respondent argues that, if
further evidence is needed that Armstrong was an insolent
and uncooperative employee, it was Armstrong's reaction
to a public address call to him that he couldn't understand;
when Armstrong called back to the office and got the
manager he then asked, "who made that dumbass an-
nouncement?" Supervisor Smoulcey testified that he
repeatedly had to get after Armstrong in order to keep his
merchandise stock up, and that he spoke to Armstrong four
or five times in a 6-month period about it.
While Armstrong was probably guilty of rule fractions
from time to time, and may well have also given a few
uncalled for answers or comments on different occasions, I
am still convinced that his discharge was actually triggered
in keeping his list book Hardiman penciled in his own ideas of proper prices
that he made up himself, and put these prices on the merchandise.
12 Between July 19 and 21, Armstrong and other employees involved
herein had checked with Union Representative Donald Johnson as to
whether or not they should sign such a petition, and Johnson had advised
Armstrong and possibly others that the circulating of such a petition by the
Company was an "illegal act," but nevertheless to go ahead and sign it.
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and motivated because of his union activities. For instance,
Korcz stated that Armstrong was late and did not punch
out when he was supposed to, but, as explained by
Armstrong, he could not punch out at his designated time
when he was running a cash register or when he was with a
customer, and there is no testimony of any particular
incident of this sort occurring immediately preceding
Armstrong's discharge. Moreover, as also pointed out,
Respondent's contention that they discharged Armstrong
for a variety of reasons, most of which had occurred
months before, is particularly difficult to believe in view of
the fact that before the Respondent had knowledge of his
union activity, Armstrong was assigned many of the duties
of Supervisor Smoulcey during Smoulcey's vacation, and
Armstrong was later praised by Korcz for having done an
excellent job. It is also noted that Armstrong's discharge
came as a surprise to his immediate supervisor, Smoulcey.
During his testimony Smoulcey also contended that an
incident which occurred about a week before Armstrong's
discharge, and which resulted in a warning letter being
issued to Armstrong, was a factor in Armstrong's July 21
discharge. However, Smoulcey later acknowledged that
Armstrong got the warning letter more than 3 months
previous to his discharge. As found herein, it was
Armstrong's union activity which precipitated his dis-
charge.
Keith Ogden was discharged by the Respondent on July
26 after having worked at the store ever since 1971. He was
designated as one of the four "key persons" by the Union
and was in attendance at the first union meeting on June 9.
In addition, Ogden signed a union card, attended subse-
quent union meetings, solicited employees to join the
Union, and obtained signed authorization cards from
employees. On July 19 Respondent's agent, Dewey,
inquired of Ogden if he would sign the antiunion petition
Dewey was circulating, but Ogden refused, and a few days
later Mazzola asked Ogden to sign the same or a like
petition, as aforestated.
The Respondent contends that, a day or so prior to his
discharge, Ogden had neglected to bring merchandise into
his department and to price it at a special sale price, nor
did he post the notices and inform the night man of the
sale.' 3 Apparently Korcz was also having some difficulties
with Ogden about certain charge-backs that had been
delayed in processing. Korcz further stated that Ogden was
sarcastic to customers, and was careless in several aspects
of his bookkeeping. However, I find that Ogden was
discharged because of his union activities. He had never
received a written warning during his employment, and
shortly before his discharge Ogden was told by Korcz that
he was doing a "real fine job" and should be getting a raise
and an increase in percentage. As pointed out, Korcz
stated that Ogden had failed to post a copy of a store ad in
his department announcing a sale on certain items, but it
appears that failure to post such an ad on time is a more or
13 Korcz testified that there was no excuse for not setting up the sale, that
two men could have done it and still take care of customers, and that the
sale was planned with advertisement, but not conducted.
:4 Charge-backs are forms filled out and used when the store receives
defective goods or merchandise is shipped to them by mistake. A white copy
is then attached to the merchandise, but the merchandise itself then "sits in
the store" or in a stockroom. Korcz admitted that on occasions such
less common occurrence in the store, and that no discipline
was meted out for failure to post store ads. Ogden had no
knowledge about any customer complaints, and it is
apparent from the testimony in this record that charge-
backs can remain unprocessed and little is ever done about
them, and charge-back merchandise is obviously not of
critical importance to the store, especially in view of the
fact that Ogden had never received a written warning
about his handling of them. 4
In the final analysis, it is difficult to understand, if his
conduct was really as intolerable as it was pictured to be,
why Ogden was retained in the Respondent's employ as
long as he was, and without even a warning being issued or
made against him. The inescapable answer for his retention
is that actually Ogden was a satisfactory employee, but
then became an unsatisfactory employee when his union
activities became known to the Respondent.
Brenna Olmstead started working for the Company in
1974, was laid off on a seasonal basis in December 1974,
then rehired a few months later, and in the same job as a
cashier. The termination in question in this proceeding
occurred on September 4. Olmstead signed a union card,
solicited an employee to join the Union, and attended
union meetings including the July 29 meeting at which
Mazzola was present. Carol Quinn, also an early supporter
of the Union, was told by Linda Abramezyk, an admitted
supervisor, in early September just before Olmstead's
termination, to answer a page from Olmstead as Brenna
was her "partner in crime." Both Quinn and Olmstead had
signed cards and worked for the Union together. Similarly,
employee Linda Barbeau was told by Korcz not to work
with Brenna Olmstead as she was not "a good influence."
In July, Sharon Michel contacted Olmstead with an
antiunion petition to sign, and Nancy Musa also spoke to
her relative to the Union, as aforementioned herein. Also
of note is the fact that Korcz "walked Brenna out the door"
when Olmstead and Barbeau returned to the store on or
about September 9.
Respondent points out and argues that the reason for
Olmstead's discharge was the excessive shortages in the
cash register, and Korcz was having difficulties in monitor-
ing the cash register.1 5 Korcz testified that he spoke to
Olmstead in July about shortages; that there were shortag-
es on August 22 and 30 and September 1, and that these
shortages were not accounting errors as in most cases, but
actual shortages - the cash was missing. Korcz also said
she accepted an Air Force voucher as cash, and as a result
of her neglect a customer got away without paying.
Olmstead was given the only written warning she ever
received from the store on or about July 30 for taking the
above voucher and was given the warning despite the fact
that cashiers had not received specific instructions on how
to handle vouchers of this type, but on this occasion
Olmstead also called the office, and was then instructed
how to handle the voucher. Eventually, with the exceptions
merchandise might stay with them for "months" or "years" and it made
little difference since his store would have received credit from the charge-
back.
J5 Brecker had testified that the store had shortages in excess of $150,000
the previous year, and Korcz attributed most of it to cash register
operations.
82
S. E. NICHOLS MARCY CORP.
of a few cents, the store got the money for this purchase.
On or about August 30, Olmstead made a mathematical
error in subtraction and undercharged a customer $10, but
the day after this happened the customer called the store to
say she had found an error and would send the store $10.
Olmstead was also discharged on the basis that there were
shortages at her cash register, as aforestated. However, this
record reveals that on numerous occasions other cashiers
were also frequently over or short at their registers and,
even assuming that Olmstead was improperly operating her
cash register, yet she was not given any opportunity to
work elsewhere in the store as other cashiers under such
circumstances had been allowed to do. As Christmas was
approaching Respondent had even more of an opportunity
to place Olmstead elsewhere in the store, but yet she was
discharged. Moreover, prior to Olmstead's engaging in
union activity, Respondent had exhibited confidence and
satisfaction with her work as she was recalled from a
seasonal layoff in March or April. Olmstead performed
well as a cashier according to head cashier Ramona
Overrocker. Overrocker said that she was never asked by
management to watch Olmstead's work although she was
asked to watch other girls on cash registers who were
having difficulties with the job. I agree that by issuing
Olmstead a warning letter on July 30, shortly after Mazzola
had attended the union meeting which Olmstead had also
attended, it is apparent that Respondent was attempting to
build a record against her in order to substantiate a poor
work record, and this was the pretextual situation the
Company desired in order to discharge Olmstead.
Ramona Overrocker began working for the Respondent
in 1971 as head cashier and the General Counsel alleges
that she was constructively discharged on September 11.
She signed a union card on June 18, and at one of the
meetings presided over by Brecker prior to the election,
Doris Randall identified Overrocker as being "wined and
dined" by the Union. Furthermore, on or about July 19,
Korcz asked his agent, Sharon Michel, if she thought
Overrocker had anything to do with the Union. Similarly,
Nancy Musa called Overrocker on or about July 20 and
asked her several questions about the Union, and if she
would retract her card. Like the other discriminatees
named herein, there can be no serious question but that the
Respondent had prior knowledge of Overrocker's union
activity and interest. On September 11, Korcz informed
Overrocker that a customer had gotten out of the store with
a set of towels without paying, that she was incompetent
and unable to handle her job, and as a result she was being
demoted from head cashier to cashier with a cut in pay
(from $2.35 to $2.20 per hour). Overrocker then informed
Korcz that such treatment was unfair for "one mistake out
of four years," and that she was quitting.
Manager Korcz testified that the head cashier's job was
the most important one in the store, that thousands of
dollars pass through the registers every hour; the head
cashier's job is to monitor the cashiers and, if a cashier is
short or had a void, to approve the shortage on a slip; if the
shortage is significant the head cashier is then to notify the
office. Korcz further stated that Overrocker was demoted
on September 11 because he could no longer trust her in
this sensitive position since she had lied to him in that
someone had approved a void for Brenna Olmstead which
enabled a customer to get away with a set of towels. Korcz
testified he then inquired of Overrocker who had approved
the void, and her response was that she did not know.
Korcz' testimony is that she at first denied signing the void,
but when he informed Overrocker he was going to get the
void back from the New York office, she then stated that
she may have signed it.
First of all it is noted that Overrocker served in the
position of head cashier from 1971 until September 11,
1975, so at least during this period she must have been
considered by Korcz as a very satisfactory employee.
According to Korcz, Overrocker was demoted on Septem-
ber 11 because she did not recall whether she had approved
a void made out by Olmstead, and she was also then given
a warning letter over this incident. This record shows,
however, that voids were a commonplace occurrence at
Respondent's store; yet it is Respondent's position that,
because Overrocker could not at first recall this particular
void, which document was not even presented for her to
see, she was then demoted for this one incident after
serving for several years as head cashier. The General
Counsel points out that Korcz' contention to the effect he
could not rely on Overrocker to give him a straight answer
does not stem from this incident, but rather from the fact
that Overrocker denied involvement in the Union during
unlawful interrogations conducted by Korcz and by Nancy
Musa.
As pointed out, to demote an employee and cut the pay
because of union activity which results in the employee
quitting his employment is a constructive discharge in
violation of the Act. In the instant matter Overrocker made
it clear to Korcz that she was quitting because of his
actions against her, hence Respondent's actions in demot-
ing her and cutting her pay, which resulted in Overrocker's
quitting, violate Section 8(aX)() and (3) of the Act, as does
the issuance of the warning letter to Overrocker which was
obviously being used in an attempt to build a record
against her.
It is alleged in the complaint that the Company
discriminated against Briggs, LaPorte, Shaffer, and Vitullo
by not allowing them Sunday work, beginning on Novem-
ber 2 and going through the Christmas rush period. They
are also named as discriminatees, as aforestated, and I will
consider such allegations later on. This record shows that,
on or about November 2, the Respondent's Marcy store
began operating on Sundays for the 1975 Christmas season,
and Shaffer, LaPorte, Briggs, and Vitullo were not asked to
work the Sundays in this period despite the fact that in
prior years of their employment they had been asked to
work Sundays and had done so. Briggs stated that
management had contacted and asked those employees
who actually did work on the Sundays in question, and he
testified that the main job on such Sundays during the
Christmas rush period is operating the cash registers.
LaPorte said that everyone else in her department either
was asked or volunteered to work on these Sundays.
Korcz testified that generally 90 percent of those who
work on these Sundays volunteered their services and the
rest are asked as needed, but in 1975 it was not necessary to
ask anyone. In its brief Respondent points out and argues
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the 1975 Sunday work involved herein had scarcely
started when these four employees filed charges; that
Korcz was then interviewed by a Board agent the first week
of November, at which time Korcz asked if these four
people would resolve the issue if the Company asked them
to work on Sunday; that the Board agent promised him he
would let Korcz know, but did not do so. Respondent
further contends these four employees were apparently
more interested in embarrassing Korcz than in working
these few Sundays.
As pointed out, the reasons given by Korcz as to why
these four employees did not work on Sunday include:
Asking first of all for volunteers and if any of the four had
volunteered they would have worked; stating that no one
wants to work Sundays; wanting to have the employees
earning the least amount of money be the ones who worked
on Sundays; and giving testimony to the effect that if the
Board attorney or agent had called back and told him that
the four employees wanted to work, they could have done
so. I agree that these statements are obviously inconsistent
with one another, and especially Korcz' statement that
volunteers are sought first. This position cannot possibly
jibe with the testimony that the Respondent sought to save
money by having the least paid employees work, as there
would be no way of knowing beforehand who the
volunteers would be - the high-paid or the low-paid
employees. Moreover, a comparison of the salaries or
wages of Briggs, Shaffer, LaPorte, and Vitullo with those of
the employees who did work Sundays makes it apparent
that the cost could not have been a factor in deciding who
worked, since LaPorte was the highest paid of the four
earning only $2.30 an hour, and yet numerous employees
earning more than $2.30 an hour worked during the
Sundays in question.
As further indicated, out of the approximately 86
employees that were on the payroll in November, only 14
of them did not work Sundays, not including Shaffer,
Briggs, Vitullo, and LaPorte. But out of these 14 employees
several were truckdrivers, mechanics, or stockroom person-
nel having nothing to do with sales, and several others did
not want to work on Sundays. Therefore, as pointed out,
only Briggs, Shaffer, LaPorte, and Vitullo were employees
who performed the work done on Sundays during their
nomal workweek, who wanted to work Sundays and had
done so in prior years, yet were not allowed or given the
opportunity to work Sundays during the period in question
here. Similarly, the large percentage of employees who did
work on Sundays, as aforestated, belies any contention by
Korcz that Sunday work was not desirous or that no one
wanted to work Sundays.16 It is clear that the only reason
these four employees were not asked to perform work on
Sundays was for discriminatory reasons in violation of
Section 8(a)(l), (3), and (4) of the Act.
16 More cashiering is done on these Sundays than at any other time, and
these four employees' jobs had been transformed into almost strictly
cashiering work on Sundays. Korcz even admitted that Vitullo was one of
his better cashiers, yet she too was not asked to work on the days when the
need for cashiers was the greatest.
IT It appears that most of the meetings held by management with
employees were done so on working time.
's Vitullo had filed her original unfair labor practice charge against
All four of these employees were also discharged on
December 23, and I now turn to that aspect of this case.
Betty Vitullo signed a union authorization card, solicited
employees to join the Union by passing out cards, and
attended both union and company meetings. A few weeks
prior to the August election, Vitullo was attending one of
the many meetings held by management, as aforestated; 17
on this occasion Respondent President Brecker inquired if
anyone had belonged to a union before, and Vitullo raised
her hand and signified that she had. In addition, shortly
before the election, she refused to sign an antiunion
petition, and on or about the same date was named by an
employee at a company meeting with Brecker as being
"wined and dined" by the Union. Moreover, in late July,
Sharon Michel admitted talking to Nancy Musa, both
agents of Respondent, and on this occasion Musa had
inquired of Michel if she knew who had started the Union's
campaign and Michel replied that she had started it, but
then Musa stated that they believed Durante (Vitullo's
maiden name) and Al Goncalves were among the employ-
ees who started the union movement as they were both
previously union members. At another company meeting
in August, Musa made it clear, in Brecker's presence, that
Vitullo supported the Union.
Vitullo started working for Respondent in 1973, and at
one time was a department head in cosmetics. In August
her duties had been altered to the point where she was
primarily a cashier. Vitullo was acknowledged by Korcz to
be one of the store's better cashiers, and was given a wage
raise about 3 weeks prior to the time when the Union's
organizing efforts began.' 8 On December 23, Korcz
informed Vitullo that he was going to have to lay her off
because of a seasonal employee cutback, but in a few
months she would be called back when business picked up.
Korcz testified that Vitullo became angry when the
cosmetic department was rearranged to supply more self-
service. He then explained that this change was not a
change in the Marcy store only, but was made in the
cosmetic departments of every store in the chain. Korcz
concluded from observing her that "she really hated me."
Respondent argues that a salesgirl in a retail store who
detests her employer can do the Company untold damage,
and points out that her first showing of petulance was when
she lectured Korcz as to her rights as a union member, and
on another occasion, relating to a store party, she
deliberately planted this insulting remark with an employee
so that it would get back to the store manager, - she said
as to Korcz, "I have to work with him, I don't have to drink
with him."
Korcz once again had conflicting explanations as to why
Vitullo was terminated. His explanation that she was not
retained because of a change in cosmetics is difficult to
understand in view of the fact that Vitullo could have been
placed elsewhere in the store, and she had been working as
Respondent on November 4, for not being permitted to work on Sundays
and because at a store meeting on November 10, Korcz, after making a
speech in which he mentioned the "diehards" in the store who wouldn't let
the Union die, then went on and specifically signaled out Briggs, Shaffer,
and Vitullo by asking them if they had any questions. Briggs and LaPorte
filed original charges on November 18, and Shaffer filed her original charge
on December 8.
84
S. E. NICHOLS MARCY CORP.
a cashier almost exclusively anyway. Moreover, Korcz took
great pains and time to emphasize how important the job
of cashier is, and how he could lose his profits if they had a
bad cashier and yet, as pointed out, he discharged a good
cashier in Vitullo.19 It is apparent that Respondent
discharged Vitullo in violation of Section 8(a)(1), (3), and
(4) of the Act, and I so find.
Donna Briggs started working for the Company in
August 1972, and from time to time Briggs performed
various jobs in the store. She worked in the stationery
department, took care of the record department for I hour
a day, and occasionally relieved the head cashier of her
duties. It is also clear that Respondent was well aware of
the union activity of Briggs. She was the Union's observer
at the election on August 21, signed a union card, helped
set up the first union meeting, attended all of the union
meetings, passed out union cards to employees, and, in
fact, was the second employee contacted by the Union. In
addition, Nancy Musa, at a store meeting in Brecker's
presence, a few weeks prior to the election, accused Briggs
of being the cause of the Union's campaign, and on
another occasion Musa told Briggs that there was no way
that Briggs could ever make her believe that she was not
involved with the Union.
Respondent again contends that Briggs was also a part of
the reduction in force following the Christmas rush period,
as aforestated. Moreover, that her duties were in stationery,
cashiering, and making signs, and, according to Korcz,
when she was on vacation he got another girl to make signs
who made them faster and better, so that when Briggs
returned from vacation he left the sign painting to the other
girl, but said that Briggs resented this. Korcz stated that
Briggs' other duties were to maintain stock and take care of
the stationery counter as well as the cash register as
needed, but that the stationery counter remained shabby.
Korcz also testified to an incident when she briefly refused
to run a cash register upon request, but then after a short
hesitancy did so. Korcz then testified he did not retain
Briggs because of her attitude, which changed for the worst
in August.
Respondent offers numerous conflicting statements as to
why Briggs was terminated. Now, and at the hearing before
me, the above-mentioned reasons were all assigned as a
basis for the discharge yet, on December 23, Korcz
informed Briggs that she was being laid off because of a
seasonal cutback in personnel. If there was any validity to
the reasons now enumerated in the testimony of Korcz
then, certainly, these reasons would have at least been
mentioned and discussed with Briggs on December 23.
In one phase of his testimony Korcz stated that in
August "her attitude" changed. As pointed out, it is
apparent from this record that it was not Briggs' attitude
that changed, but rather it was Respondent's attitude
toward Briggs that changed as they viewed her as being one
of the instigators for the Union. Evidence of Respondent's
viewing her in this fashion occurred after Briggs had visited
various stores, including an S. E. Nichols store in New
Hartford. She was confronted by Brecker and Korcz a few
19 In its brief Respondent also maintains that Donna Briggs, Yolanda
LaPorte, Florence Shaffer, and Betty Vitullo were terminated December 23,
1975, as a part of a reduction in force after the Christmas rush, and further,
weeks prior to the election and Brecker then told her she
was suspected of soliciting for the Union in other stores in
the area.
On or about December 10, Briggs was getting ready to go
to lunch and was asked by Korcz to attend and start
working at a cash register. Briggs replied it was 3 minutes
of 12 and her lunch period was from 12 to 1. Korcz states
he then told Briggs to open the cash register as it was 5
minutes to 12, but Briggs hesitated before she opened up
her register. Korcz then made the assertion that the
hesitancy which he complained of was the fact that it took
her "a couple of seconds" to walk from where they were
talking to her register, and for this he issued the first
written warning Briggs ever received during her entire
employment with Respondent. It becomes increasingly
evident, and I find, that her union activities were the real
motivation which triggered the discharge, and by doing so
the Respondent again violated Section 8(aX)(1), (3), and (4)
of the Act.
Yolanda LaPorte starting working for Respondent in
November 1972. She signed a union card, attended various
union meetings, and solicited an employee to join the
Union. As pointed out, there can be no doubt that
Respondent was aware of her activities and support on
behalf of the Union. On July 19, she was interrogated by
Supervisor Smoulcey as to whether she had signed a union
card, as aforestated, and LaPorte then admitted to him that
she had signed a card. LaPorte also refused to sign the
antiunion petition presented to her on the first occasion in
July, but subsequently did sign one in hopes she would
then be left alone.
Supervisor Smoulcey testified that LaPorte had a lot of
merchandise without charge-backs, that he had asked her
about them, and he relied on her promise to take care of
them. Korcz testified that when annual inventory time
came around, December 10, the charge-backs had not been
taken care of and as a result she was written up for this.
Korcz further stated that her attitude also changed and
uncharacteristically so in view of her past performance; he
said that she threw away a fluorescent bulb on which a
claim was to be filed in order for the Company to get
credit, and this again exhibited a change in attitude toward
her employer.
Although LaPorte had been asked to work Sundays and
had worked them in every prior year of her employment,
she was not asked to so work in 1975, as aforestated, even
though she spent about 75 percent of her time operating a
cash register. After not being allowed to work Sundays,
LaPorte also filed an unfair labor practice charge included
in an amended complaint and served on Respondent on
December 10, and on or about this same date Korcz issued
her a warning letter relating to the accumulation of charge-
backs, despite the fact that Supervisor Smoulcey had given
her 2 weeks in order to write up these charge-backs. After
receiving this warning letter she was then given assistance
on her cash register which then enabled her to write up the
charge-backs. LaPorte said that at the time of her discharge
that between 18 and 20 employees were terminated in the reduction of work
force between December 22 and 24.
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on December 23, most all of the charge-back merchandise
she had written up was still in the stockroom.
On December 13, LaPorte received a second written
warning and this time for throwing away a broken
lightbulb. This was the second warning she received since
Respondent was served with the amended complaint 3
days earlier, as aforestated, and was the second warning
she had received during her entire employment with
Respondent, as prior to December 10 she had never
received any warnings.
As pointed out, even clearer indication of the hostility
harbored toward LaPorte by the Respondent is found in
the elimination of commissions paid to her for the sale of
lamps, which she had received since May when she began
working in department 13. On December 1, LaPorte was
informed by Smoulcey that she was no longer to receive
commissions for such sales as a result of Korcz' orders. On
cross-examination, among other statements, Korcz testified
that LaPorte could have received commissions, that the
commissions could have ceased on December 1, and that
he might have stopped them. Korcz then went on to say he
remembered telling Smoulcey that, if commissions were
being paid on lamps, it was to be stopped as it was an error.
He concluded his testimony regarding commissions on
lamps by saying, "I would imagine he was paying them." 20
I am in agreement that the warning letters issued to
LaPorte were merely an attempt to build a record against
her, and Respondent violated Section 8(a)(l), (3), and (4) in
its actions towards her as alleged in the complaint.
Florence Shaffer has worked for Respondent since
August 1974. She signed a union card, attended union
meetings, including the July 29 meeting which Mazzola
also attended, and solicited an employee to sign a union
authorization card. Korcz testified at the hearing that
Shaffer was not retained because of her dispute with
Supervisor Barton, and that she was sullen and uncoopera-
tive, so he transferred her to another department. It
appears that the only specific complaint against Shaffer
was a customer to whom she refused to issue a receipt and,
on November 10, during store hours and in front of
customers, when she executed some sort of a dance around
her cash register.
As previously detailed herein, Respondent aimed one of
its most coercive actions of its antiunion campaign toward
Shaffer when it sued her for $50,000. However, Respondent
was not satisfied with this, but continued its unlawful
pattern by also terminating Shaffer on December 23, after
having previously failed to schedule her to work Sundays,
as aforestated. Shaffer had never been laid off before, and
once again there is no adequate explanation why Shaffer
was fired. Korcz' only explanation appears to be that one
day in November she "was dancing around the register,"
and that her attitude had changed as evidenced by a
customer complaint. Prior to November, Shaffer had never
received a warning and, as pointed out, if Shaffer did in
fact receive a warning for dancing in November (it has not
"I On December 23, Korcz merely informed LaPorte that she too was
being laid off because of seasonal cutbacks. Again, had the other reasons
now given as a basis for the discharge had any validity, it is highly likely
they would have at least been mentioned to her on December 23.
21 Other cases wherein S. E. Nichols has been involved are: S. E. Nichols-
Dover, Inc., 159 NLRB 1071 (1966). enfd. 374 F.2d 115 (C.A. 3, 1967); S. E.
been placed in the record), that certainly is not justification
for being discharged. It is readily apparent from this record
that Shaffer was discharged in violation of Section 8(a)(1),
(3), and (4) of the Act, and I so find.
It is further pointed out that numerous employees with
less seniority than Shaffer, LaPorte, Briggs, and Vitullo
were not discharged and continued their employment at
the end of the 1975 Christmas season. Of the approximate-
ly 68 employees on the Respondent's January 10, 1976,
payroll, more than half had less seniority than Vitullo,
LaPorte, and Briggs, and about 30 employees had less
seniority than Shaffer. This record and the exhibits reveal
that approximately 20 employees who had been part-time
people in November were not discharged and were still
working in January 1976 (see G. C. Exhs. 41 and 42).
It would appear, as further detailed, that Respondent, in
relation to Shaffer, Vitullo, Briggs, and LaPorte, is again
attempting to utilize a defense which the S. E. Nichols'
chain of stores has unsuccessfully tried to use previously in
a similar case. In S. E. Nichols-Dover, Inc.; Spencer Shoe
Corporation and IMA C Food Systems, Inc., 167 NLRB 832,
835 (1967), Nichols claimed it laid off two employees as a
result of its normal Christmas layoff and because one of
the employees had a bad attitude. Administrative Law
Judge Boyd Leedom set forth reasoning which fits into the
pattern followed in the instant case. He stated:
The reasons given her by management personnel were
vague and inconsistent; and the reason for her
discharge that seemed to emerge from the evidence
offered in behalf of Respondents at the hearing, that is
that she was let go as a part of a normal reduction in
force following Christmas hirings to meet the Christmas
increase in business, is wholly unpersuasive. She had
not been hired for the Christmas rush and employees of
much less service in the store were retained when she
was discharged. Likewise the reason given her at the
time of her discharge that she was being let go because
of "incompatability" and again by other representatives
of management that she was let go because of "bad
attitude" are completely devoid of substance and
appear to be only a word and a phrase seized upon as
excuses to avoid acknowledging that she was being
discharged because of her union activity. 2l
It is also alleged that Respondent discriminatorily
discharged Edward Aubert on April 8, 1976. Aubert
testified at the first hearing before me in January 1976 and
related a number of conversations with Respondent's
supervisors and agents in which those individuals made
statements violative of Section 8(a)(1) of the Act, as
aforestated. The General Counsel contends that Aubert's
real difficulties began after he so testified, and from then
on Manager Korcz would no longer make "small-talk"
with Aubert as had been his past practice. Aubert had
worked at the Respondent's store in Marcy for about 5-1/2
Nichols Company, el al., 156 NLRB 1201 (1966), enfd. in part 380 F.2d 438
(C.A. 2, 1967); S. E. Nichols of Ohio, Inc., 195 NLRB 939 (1972), enfd. 472
F.2d 1228 (C.A. 6), contempt proceeding now pending before a special
master; S. E. Nichols Shillington Corp., 195 NLRB 189 (1972), enfd. 475
F.2d 1395 (C.A. 3, 1973), cert. denied 414 U.S. 860 (1973), consent contempt
adjudication entered January 15, 1976.
86
S. E. NICHOLS MARCY CORP.
years, and during his last 7 months was in the receiving
department.
The record shows that on February 6, 1976, Aubert
received a shipment of Hershey's candy. The delivery
driver placed the boxes on the conveyor leading to the
storeroom, and Aubert then stacked the boxes 3 high and
in 11 rows. The driver and Aubert both counted the boxes,
and Aubert signed the freight bill and the delivery driver
left. Aubert then had Supervisor Lawrence Barton count
the number of cartons or boxes and he gave Barton the
tally. At this time Aubert left for lunch and was gone for
about 1 hour. About 15 minutes after Aubert returned from
lunch, Korcz approached him and asked why he had
signed for 33 boxes of candy when there were only 32.
Aubert assured Korcz that there had been 33 boxes when
he left for lunch and said that something must have
happened to the missing box while he was gone, but Korcz
would not accept this explanation, and told Aubert that he
was tired of his excuses.
On February 9, 1976, Aubert was summoned to the
office. When he arrived Korcz told him that he was being
given a written warning for the box of candy that was
missing, and for his failure to promptly send out a watch
on a charge-back. Aubert replied that he had never seen
the watch before, but Korcz told him that Barton had
found the watch underneath Aubert's desk, and that he
wanted charge-backs to go the same day they were
received. Aubert then referred to the candy situation and
told Korcz that he would have known if the box of candy
was missing since he had stacked them in 3 rows of 11
boxes and both he and the driver had counted them. A
week or so later Aubert informed the truckdriver who had
initially delivered the Hershey candy that he had received a
warning slip over the shipment, and the driver involved
then told Aubert that his employer had extra cartons of
candy and he would get one of them, but it would take a
while to do so. Within a few weeks the driver replaced the
missing carton of candy and Aubert then informed Barton
that the driver had brought in the candy that was short,
and Barton replied that he didn't care how Aubert got it
"so long as he got the right number of cartons."
On or about March 1, Korcz questioned Aubert
concerning a tally of hardware distributions that had been
made out for 18 cartons instead of the 17 cartons which the
freight bill indicated. In his testimony Aubert conceded
that he may have made a mistake, but stated that
employees in the home center department, who had
actually received the shipment had not marked off the
freight bill properly to reflect the shortage of goods.
Nevertheless, Korcz told Aubert it was his responsibility
and then proceeded to give Aubert his second written
warning. Korcz also informed Aubert that he would be
terminated for his next mistake, that they would be
watching for it, and that Aubert would not be able to
collect unemployment if he received another warning.
On March 2, Aubert had a conversation with Supervisor
Smoulcey, the one who had actually received the hardware
distributors and signed the freight bill for them. On this
occasion Aubert told Smoulcey that it was not his fault that
22 On March 3, 1976, Aubert filed charges with the National Labor
Relations Board over the two written warnings he had received.
he had been written up, and Smoulcey then replied, "I
know what they're doing but there's nothing I can do about
it." 22
On March 8, Assistant Manager James Warden asked
Aubert if he had filed charges against Korcz with the
Board. Aubert admitted that he had, and then told Warden
that Korcz had left him no choice, and that "when a rat
gets cornered, he fights back."
The next main event in sequence occurred on April 7,
1976, when Aubert received a shipment of 35 cartons of
Wyler's soft drink mix, and 70 cartons of Kool-Aid. Aubert
and the truckdriver counted the cartons while they were on
the truck and another employee took the pallets off the
truck with a towmotor. When the truck had been unloaded
Aubert and the driver again counted the cartons and again
came out with the result of 35 cartons of Wyler's and 70
cartons of Kool-Aid, and Aubert signed the driver's freight
bill and the driver left. Aubert then went to the receiving
room to make space for the cartons, and after that was
accomplished placed the cartons on the conveyor, and then
stacked the cartons as they arrived in the receiving room.
The following morning Korcz informed Aubert that
employee Edie DeLong had found the above shipment of
soft drinks one carton short when she checked it in, and
told Aubert to go back and count the cartons. Aubert then
found out that there were 34 boxes of Wyler's stacked in
the receiving room (only 104 counting the 70 cartons of
Kool-Aid), and accordingly, informed Korcz that there
was one carton missing. Aubert offered to contact the
shipper to try to obtain another carton, but as Korcz was
leaving the receiving department, he said to Aubert "when
a rat gets cornered he fights back." Aubert then called the
shipper and thereafter informed Korcz that they were to
make the proper notation on the freight bill when it came
in. However, about 30 minutes later Aubert was called into
the conference room, and at this time Korcz read the two
prior warnings that had been issued to him, and then
informed Aubert "that the National Labor Relations
Board wasn't running the store, Amalgamated Meat
Cutters wasn't running the store, that Nichols was running
the store and he would do what they tell him. They paid his
paycheck." Korcz also then again stated, "When a rat gets
cornered he fights back," and further told him that he
wouldn't be able to collect unemployment. After this
termination conference Aubert left the store. In addition to
testifying against the Company in January 1976, Aubert
had also signed a card for the Union, and in July 1975 had
been subject to numerous and repeated interrogations and
offers by supervisors and agents of the Respondent, as
detailed earlier herein.
In its defense and arguments the Respondent points out
the following: That there had been no union activity since
the election; that Aubert was not an active organizer and
he constituted no threat to the employer; that, in March,
Korcz assigned Assistant Manager Abramezyk to work
with Aubert for a few days and to help him in his duties;
that the receiving clerk is an extremely important employee
and must be alert, accurate, and scrupulously honest, and
if Aubert reported a full shipment and it was short, the
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company would have no knowledge of it unless it was
discovered by the inaccurate method of matching invoices
with inventory and sales; and that at various times Aubert
was careless in his procedures and refused to mend his
ways, and on several prior occasions Korcz had spoken to
Aubert about his shortcomings.23
Aubert's first warning was given to him because he was
supposedly short one box of candy and because he did not
send out a watch on charge-back. First of all I will consider
the candy situation and circumstances. Aubert gave
credited testimony to the effect that both he and the
truckdriver counted 33 boxes of candy, and further
testified he had stacked the boxes in II rows of 3 each.
Thus, if there actually had been a box missing it would
have been obvious to him when he was stacking them.
Aubert also credibly testified that he then had Barton
count the number of boxes and he gave Barton the tally
before going to lunch. Thus, it seems clear that there were,
in fact, 33 cartons of candy in the receiving room before
Aubert went to lunch.
With regard to the watch, Aubert testified that he had
never seen the watch before, as aforestated. Moreover,
Korcz seemed to have had some difficulty remembering
where he found the watch. Thus, on direct examination he
testified that he found the watch on Aubert's desk, whereas
on cross-examination he testified that he found the watch
under Aubert's desk. Aubert testified that he was told by
Korcz that Barton found the watch under his desk.
Moreover, according to Korcz, the watch was brought to
Aubert's desk on January 29 and found by him, undeliv-
ered, on February 9. Korcz also testified that he ordinarily
rummaged around Aubert's desk "maybe several times a
week." The General Counsel argues that if this was true,
why did it take nearly 2 weeks for Korcz to find the watch?
It appears to me that Aubert received his second written
warning on March I because he merely overlooked an
improper notation on the freight bill in making out his
tally, and the individual in the home center department
who had received the goods was the one who did not make
the proper notation on the freight bill, but, despite the fact
that it was the home center department that caused
Aubert's tallying error, it was Aubert who received the
warning. I also agree that the issuance of this warning
seems especially suspicious in light of Korcz' testimony
that, since January 1976, the only written warnings issued
to anyone at the store were those issued to Aubert. As
pointed out, it is not as if Respondent had a policy of
handing out written warnings for minor mistakes, but, to
the contrary, it obviously had such a policy only when the
recipient of the warning had testified in a Board proceed-
ing or engaged in other activity protected by Section 7 of
the Act.
Turning now to the events and circumstances surround-
ing the 35 cartons of Wyler's soft drink mix. Both Aubert
and the truckdriver testified that they had counted 35
boxes of Wyler's, not once, but twice on April 7. Yet, by
the morning of April 8, there were only 34 cartons. From
this record it can be surmised that Edie DeLong supposed-
ly informed Korcz of this "missing" carton sometime
2' Korcz testified that, prior to January 1976, he had verbally told
Aubert to pay particular attention to merchandise coming in and if a
before 2 or 2:30 p.m. on April 7, and Aubert did not finish
work that night until about 5:30 p.m., but Korcz did not
confront Aubert until he punched in for work the following
morning. From these circumstances the General Counsel
maintains that if there really had been a "missing" carton
and DeLong had actually informed Korcz of it around
2:30 p.m., why did Korcz then wait until the following
morning to confront Aubert with this fact?
The record reveals that both Aubert and the truckdriver
had counted the merchandise while it was still on the
pallet, but Korcz maintained in his testimony that the
cartons should not have been counted while they were on
the pallet since the cartons could have been stacked on the
pallet in such a way that the absence of a carton was
concealed. However, Aubert and the truckdriver both
testified that they were stacked on the pallet in five layers
of seven to a layer, and the truckdriver, James Inman,
testified that the seven boxes to a layer formed a perfect
square on the 4' x 4' pallet, such that if a carton was
missing it would be visible. Finally, on cross-examination,
Korcz testified that Aubert was with him when they
unloaded palletized shipments so he knew the procedures
but then admitted he had never specifically instructed
Aubert not to count merchandise on the pallet. I am in
agreement that the only conclusion which can be reached
from the credited testimony is that something happened to
the 35th carton after Aubert had counted and stacked it.
The General Counsel argues that it would surely not be
surprising if Respondent's supervisors and agents were
responsible for its disappearance.
As pointed out, Aubert may not have been a model
employee, but surely any glaring fault or deficiencies in his
work would have surfaced during his 5-1/2 years with the
store. Aubert openly admitted that he had been short in
receiving in the past and has also made errors in his tallies.
Yet, he had never been told that these mistakes would
result in formal discipline. In fact, as recently as the
beginning of January 1976, prior to Aubert's testifying in
this proceeding, when he informed Korcz of a tallying error
he had made, Korcz told him: "Don't worry about it.
We're all human. We all make mistakes." Thus, in spite of
these admitted faults, Respondent continued to employ
him and, in fact, never even issued him any formal
discipline - not until he was openly identified with the
Union, as detailed previously herein. Moreover, Respon-
dent's motivation for the warnings and termination, also
pointed out, was amply demonstrated by Korcz when he
twice repeated to Aubert at the time of Aubert's termina-
tion the ditty that Aubert had told Supervisor Warden:
"When a rat gets cornered he fights back." It also seems
suspicious that when Aubert was being discharged, Korcz
attempted to justify his action by asserting that neither the
Board nor the Amalgamated Meat Cutters was running his
store, and then followed this assertion with the "rats
fighting back" remark.
In his final analysis, the General Counsel presented a
strong argument; he stated:
shipment was short or damaged to note it on the freight bill as this was the
only way he would know about it.
88
S. E. NICHOLS MARCY CORP.
Aubert had never received a written warning in over 5
years of employment with Respondent prior to his
testimony in this case on January 22. Then, inside of 2
months, he received three written warnings and was
terminated. And, according to Korcz, these were the
only written warnings issued by Respondent between
February and June 22, 1976. Given the mysterious
circumstances surrounding the issuance of these warn-
ings, the timing of the warnings, and Respondent's
prior history of retribution toward those of its employ-
ees who exercised their Section 7 rights, it strains
credulity for the Respondent to argue that Aubert's
discharge was for work-related reasons.
Respondent also agures that, at the time of Aubert's
discharge, there were no union activities and the election
had been over for several months, as aforestated. However,
this overall record exemplifies that in many instances, as
detailed herein, management continued and even intensi-
fied many aspects of its antiunion campaign, including
discharges, after the election, and obviously Korcz was also
well aware of the persistent and continued interest in the
Union since he mentioned in a store meeting in late 1975
that the "diehards" in the store would not let the Union
die.
It is readily apparent to me that Aubert was discharged
on April 8, 1976, in violation of Section 8(a)(1), (3), and (4)
of the Act, and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action set forth below designed to
effectuate the policies of the Act.
It having been found that the Respondent discriminato-
rily discharged Donald L. Armstrong, Michael Hardiman,
Carvel K. Ogden, Brenna Olmstead, Ramona Overrocker,
Betty Vitullo, Donna Briggs, Yolanda LaPorte, Florence
Shaffer, and Edward Aubert, I shall recommend that the
Respondent offer them immediate and full reinstatement
to their former or substantially equivalent position, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them
by payment to them of a sum of money equal to that which
they would normally have earned from the date of their
24 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.
discharges, less net earnings during said period. All
backpay provided herein shall be computed, with interest
on a quarterly basis, in the manner described by the Board
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Further, I shall recommend that Yolanda LaPorte, in
addition to her backpay as provided above, also be
immediately restored to the commission payments for the
sale of items in department 13, as had been the practice
prior to the discrimination against her, and be made whole
for all such commissions and moneys lost from the date of
such discrimination against her.
As to the nonscheduling of Sunday work from November
2, 1975, to the end of the 1975 Christmas rush period, I
shall recommend that Betty Vitullo, Donna Briggs, Yolan-
da LaPorte, and Florence Shaffer, in addition to the above,
be made whole for such loss of 1975 Sunday earnings by
paying them the difference in the hours they worked on the
Sundays during a comparable period in 1974. The exact
amounts due each of them can be determined in a backpay
proceeding if the parties are voluntarily unable to agree.
In view of the nature and extent of Respondent's unfair
labor practices, I deem it necessary, in order to effectuate
the policies of the Act, to recommend a cease-and-desist
order couched in broad terms to prohibit any violations of
employee rights under the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in
Section 7 of the Act, as detailed herein, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(aX 1) of the Act.
4. By discharging, refusing to employ, laying off, or
otherwise discriminating against them because of their
union activities, or because they have filed charges or given
testimony under the Act, thereby discouraging membership
in the Union, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 24
Respondent S. E. Nichols Marcy Corp., Marcy, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
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.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in the Union, or any other
labor organization of its employees, by discriminating
against them in regard to their hire and tenure of
employment or any terms and conditions of employment.
(b) Discharging, refusing to employ, laying off, or
otherwise discriminating against employees because of
their union activities, or because they have filed charges or
given testimony under the Act.
(c) Interrogating employees as to their own and other
employees' union activities.
(d) Enlisting and soliciting employee signatures on
antiunion petitions.
(e) Enlisting and soliciting employees to withdraw union
authorization cards.
(f) Promising to improve benefits or working conditions.
(g) Promising to reward employees for engaging in
antiunion conduct.
(h) Soliciting employees to engage in surveillance and/or
creating the impression of surveillance.
(i) Threatening employees with discharge or other
reprisals because of union activities.
(j) Threatening or warning employees that management
would find out who had signed union cards.
(k) Interrogating employees as to their affidavits and
directing employees to obtain copies of same.
(1) Instituting and/or threatening court actions against
employees because of their union activities.
(m) Barring employees from the store premises.
(n) Discontinuing commissions because of union activi-
ties.
(o) Issuing written warning letters because of union
activities.
(p) Refusing to schedule Sunday work for employees
because of their union activities.
(q) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
25 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
(a) Make whole the 10 employees named herein for any
loss of earnings they may have suffered by the discrimina-
tion against them in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Make whole Yolanda LaPorte for loss of commis-
sions as provided in the "The Remedy."
(c) Make whole Betty Vitullo, Donna Briggs, Yolanda
LaPorte, and Florence Shaffer for loss of Sunday earnings
in 1975, as provided for in "The Remedy."
(d) Revoke and rescind the written warning notices or
letters issued to Brenna Olmstead, Ramona Overrocker,
Yolanda LaPorte, Donna Briggs, and Edward Aubert, and
expunge such documents from Respondent's files.
(e) Withdraw and dismiss the slander or any other
judicial proceeding instituted against Florence Shaffer, and
remit any damages collected and pay any and all legal and
court expenses or costs suffered by Florence Shaffer as a
result thereof.
(f) 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 amount of backpay due under the
terms of this recommended Order.
(g) Post at is store in Marcy, New York, copies of the
attached notice marked "Appendix." 25 Copies of said
notices, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 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 said notices are not altered, defaced, or covered
by any other material.
(h) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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