S & R Sundries, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1984

272 N.L.R.B. 1352 (N.L.R.B. 1984)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S & R Sundries, Inc and Margaret E Coleman
Case 21-CA-21328
30 November 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER AND
DENNIS
On 17 March 1983 Administrative Law Judge
Earldean V S Robbins issued the attached deci
sion The Respondent filed exceptions and a sup
porting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings ' and
conclusions 2 and to adopt the recommended
Order
1 The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We correct two Inadvertent errors of the judge In sec B 1 of the deci
sion the judge incorrectly stated that the date of a conversation between
Battieste and McManamon was 17 December 1981 rather than 17 No
vember 1982 and that the date of a conversation between McManamon
and R Rodriguez was 18 December 1981 rather than 18 November 1982
These inadvertent errors do not affect the conclusions reached here
2 Contrary to our dissenting colleague we agree with the judge that
the Respondent violated Sec 8(a)(1) of the Act by coercively threatening
and interrogating employee Kathleen McManamon As found by the
judge the evidence establishes that the Respondent s General Manager
James Battieste a high level management representative informed
McManamon on two occasions that the Respondent might terminate her
in retaliation for testifying at the scheduled hearing in this proceeding
Although our dissenting colleague notes that Battleste also expressed the
view that he too might be terminated for testifying we reject the view
that Battieste s remarks about his own job security removed the coercive
elements from his statements directed at McManamon s job status In our
view an employee facing discharge in retaliation for testifying at a Board
hearing is likely to find little solace in the fact that his employer is also
contemplating the discharge of a management representative for testify
ing at the same hearing Further in evaluating the coercive nature of
General Manager Battieste s remarks we find it significant that McMana
mon s testimony at the upcoming hearing concerned an allegedly unlaw
ful discharge by the Respondent—the identical subject matter of Bat
tieste s threatening remarks—and that Battleste himself was a principal
actor in that discharge according to McManamon s credible testimony
Accordingly McManamon had ample reason to believe that General
Manager Battieste spoke for management when he remarked about her
anticipated retaliatory loss of employment We find therefore that Bat
tieste s statements were coercive and violative of Sec 8(a)(I)
We also agree with the judge that the Respondent violated Sec 8(a)(1)
when Executive Vice President Robert Rodriguez asked McManamon
before the opening of the hearing whether she previously had talked to
the General Counsel In this regard we note that on the date of the hear
ing McManamon was employed by the Respondent and appeared at the
hearing as a witness for the General Counsel By asking McManamon
whether she had spoken to the General Counsel before the hearing date
the Respondent was effectively ascertaining whether McManamon was
voluntarily cooperating in the General Counsel s preparation of the case
or Instead was testifying under compulsion of a subpoena Accordingly
Rodriguez inquiry placed McManamon in the position of having to
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent S & R Sun
dries, Inc City of Industry California its officers
agents, successors and assigns, shall take the action
set forth in the Order
MEMBER HUNTER, dissenting in part
Contrary to the majority, I would reverse the
judge's findings that the Respondent violated Sec
tion 8(a)(1) of the Act by allegedly interrogating
and threatening employee Kathleen McManamon
Otherwise I join with my colleagues in adopting
the judge s findings and conclusions
The alleged interrogation occurred just before
the opening of the hearing in this proceeding The
record reveals that the Respondent s executive vice
president Robert Rodriguez approached bookkeep
er MaManamon in the hearing room and discussed
with her certain records she had prepared for the
Respondent in response to the General Counsel s
subpoena duces tecum McManamon testified that
Rodriguez was concerned whether the Respondent
was required to provide sales figures for the year
1982 McManamon informed Rodriguez that, al
though 1982 sales figures were not requested, she
had nonetheless prepared those figures, but the
documents were still at the Respondent s office
Rodriguez then asked McManamon if she previous
ly had talked to the General Counsel McManamon
replied in the affirmative and Rodriguez then con
cluded the conversation and left the area
The majority finds that, by asking whether she
had previously spoken to the General Counsel the
Respondent coercively interrogated McManamon
in violation of Section 8(a)(1) I disagree In my
view it is evident from the context in which the
inquiry was made that Rodriguez question to
bookkeeper McManamon pertained solely to corn
phance with the General Counsel s subpoena duces
tecum and that by asking whether McManamon
had previously spoken to the General Counsel Ro
driguez was seeking only to determine if the Gen
eral Counsel was seeking 1982 sales figures Inas
much as the Respondent had the responsibility to
reveal her loyalties to the Respondent and was coercive much like a
coercive inquiry into an employee s previously unknown participation in
union or protected concerted activities We also note that Rodriguez in
quiry was made only 1 day after General Manager Battieste s most recent
coercive statement that the Respondent might terminate McManamon in
retaliation for testifying at the hearing Finally had the Respondent been
concerned only with its obligation to provide subpoenaed documents as
contended by our dissenting colleague it could easily have made an in
quiry concerning the scope of the documents sought directly to the Gen
eral Counsel rather than interrogating bookkeeper McManamon about
her discussions with the General Counsel
272 NLRB No 208
S & R SUNDRIES INC 1353
comply adequately with the subpoena, and as it is
clear that this is precisely the limited scope of Ro
driguez inquiry, I discern no basis to conclude that
this innocuous reference to the General Counsel
had a tendency to coerce McManamon in the exer
cise of Section 7 rights Further, it is readily appar
ent that Rodriguez inquiry to McManamon re
ferred to her role in preparing subpoenaed docu
ments for the Respondent and contrary to the ma
jority not to her role as a witness for the General
Counsel Thus, it is evident that the Respondent
did not seek to ascertain the extent of McMana
mon s participation in assisting the General Coun
sel's pretrial preparation Accordingly, I would
find Rodriguez inquiry was not coercive and did
not violate the Act
The alleged threat occurred on 16 and 17 No
vember 1982 during two brief informal conversa
tions between bookkeeper McManamon and the
Respondent s general manager James Battieste Ac
cording to McManamon, the first conversation oc
curred while she and Battieste were chit chatting
near a photocopy machine at the Respondent's
premises On this occasion, Battieste said Who
knows after Thursday [the scheduled hearing date],
maybe neither one of us will be at S & R Sundries
anymore," and McManamon replied Well, you
never know' McManamon then joked that they
would have to meet at the unemployment office'
[b]ut I guess first, we 11 have to stop at the labor
board According to McManamon, Battieste re
plied, Amen to that," and laughed Battieste then
finished making his photocopies and left the area
The second conversation occurred on 17 Novem
ber 1982 at McManamon's desk when McManamon
started a conversation with Battieste by informing
him that she and Battieste would likely be the only
witnesses at the Board hearing currently employed
by the Respondent Battieste replied, Oh boy,'
and repeated his statement of the previous day
Well, I guess by the time we get through Thurs
day neither one of us will be employed here Bat
tieste also remarked that, if he was asked at the
hearing about his job duties he would testify he
did not have authority to discharge employees and
that I will not lie for anyone According to
McManamon she stated, Well, who knows what s
going to happen She again remarked to Battieste,
Ill meet you at the unemployment office after we
stop at the labor board,' and Battieste in reply
kind of snickered, and he said, Well, amen,
amen
1 The principal issue at the upcoming Board hearing concerned the al
leged unlawful discipline of employee Margaret E Coleman because of
her Involvement in an unemployment compensation matter
I find that Battieste s remarks about the possible
loss of employment were not coercive and did not
violate Section 8(a)(1) A fair reading of McMana
mon s testimony reveals that it was Battieste who
was concerned about losing his employment and
that his reference to McManamon was made in a
passing offhanded manner having no coercive ten
dencies This is amply demonstrated by McMana
mon's jocular reaction to Battieste's comments in
which she sought to assure Battieste that, notwith
standing his concerns about job security, [W]ho
knows what s going to happen Indeed, McMana
mon concluded by joking that they could meet to
gether at government offices afterward, presum
ably to file claims and charges jointly against the
Respondent This is hardly the reaction of an em
ployee who has just been coercively threatened In
short, the record reveals that Battieste jokingly
shared with McManamon his concerns about his
own job security, and that McManamon on her
own intiative joined with Battieste in joking about
those concerns by discussing joint action against
the Respondent In this context, Battieste did not
coercively threaten McManamon with the retalia
tory loss of employment for testifying at the Board
hearing I also note that Battieste's remarks were in
the posture of a guess" as to their future employ
ment In these circumstances, my colleagues distort
the record in concluding that Battieste thereby in
formed McManamon that the Respondent might
terminate her in retaliation for her testimony at the
Board hearing
I would therefore dismiss the amended complaint
insofar as it alleges that the Respondent violated
Section 8(a)(1) by the comments to bookkeeper
McManamon
DECISION
STATEMENT OF THE CASE
EARLDEAN V S ROBBINS Administrative Law Judge
This matter was heard before me in Los Angeles Cali
forma on November 18 19 and 22 1982 The charge
was filed by Margaret E Coleman an individual (Cole
man) on June 10 1982 and was served on S & R Sun
dries Inc 1 -; (Respondent) on June 11 1982 The corn
plaint which issued on July 23 1982 alleges that Re
spondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) The basic issue herein is wheth
er Coleman engaged in protected concerted activity and
whether she was discharged therefor
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the parties I make the following
' The complaint and all the formal papers herein were amended at the
hearing to reflect the correct name of Respondent
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
At all times material herein Respondent a California
corporation with its principal office and place of business
located in the City of Industry California has been en
gaged in the wholesale distribution of health and beauty
aid products Respondent in the course and conduct of
said business operation annually purchases and receives
products valued in excess of $50 000 directly from sup
pliers located outside the State of California
The complaint alleges Respondent admits and I find
that Respondent is now and at all times material herein
has been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is wholly owned by Santiago Rodriguez
(S Rodriguez) and his son Robert Rodriguez (R Rodri
guez) They are both active in the management of Re
spondent S Rodriguez is Respondent s president and R
Rodriguez is Respondent s executive vice president On
October 15 1981 2 employee Laura Alcala a computer
operator was separated from her employment with Re
spondent According to her testimony as to the circum
stances surrounding her separation she was discharged
by R Rodriguez under circumstances which could rea
sonably be construed as sexual harassment R Rodriguez
denies all allegations of sexual harassment and contends
that Alcala voluntarily quit her Job in order to return to
school
Alcala contends that at the time of her separation
when she asked R Rodriguez what she should tell the
State Unemployment Office he instructed her to tell
them she was laid off Around November 8 Alcala did
apply for unemployment benefits stating that she was
laid due to lack of work About 2 weeks later she re
ceived her first unemployment check In mid November
according to Kathleen McManamon a bookkeeper in
Respondent s employ she asked S Rodriguez what she
could do with regard to a notification from the State Un
employment Office that Alcala had filed a claim for un
employment benefits stating that she was laid off due to
lack of work whereas her personnel file showed that
she had quit to return to school S Rodriguez said that
Alcala was not laid off she quit and the response to the
State Unemployment Office should make that clear
On November 18 McManamon returned the form to
the State Unemployment Office after indicating thereon
that Alcala quit to return to school Thereafter Alcala
was notified by the State Unemployment Office that the
reason given by her for leaving her employment did not
correspond to the reason given by the Employer Alcala
testified that on receiving this notification she asked her
cousin Margaret E Coleman who was employed by Re
spondent as a salesperson if she would ask R Rodriguez
why Respondent was contesting her claim Coleman said
she would try
2 All dates hereinafter will be in 1981 unless otherwise indicated
Coleman s undemed testimony is that a week or two
after Alcala left Respondent s employ she asked R Ro
dnguez what had happened He replied that he was Just
tired of Alcala s bullshit and he did not have to put up
with it Sometime in November according to Coleman
Alcala telephoned her and said that R Rodriguez had
cut off her unemployment benefits that she did not
know what was going on that she would like for Cole
man to find out why he was doing this The next day
Coleman met R Rodriguez in the hallway He handed
her a memo and said Here give this to your cousin
Laura tell her there was nothing I could do about it
that McManamon had intercepted her paper from unem
ployment stating something different than what he had
already said R Rodriguez asked Coleman to tell Alcala
he was sorry but there was nothing he could do about It
Coleman then told Alcala what Rodriguez had said
Alcala inquired if Coleman had asked him to at least try
to get her unemployment benefits for her Coleman re
plied that R Rodriguez was upset that you could not
argue with him
On December 11 Alcala returned to the State Unem
ployment Office and complained that she was discharged
and she felt the real reason was sexual harassment In Al
cala s presence Jean Umoh from the unemployment
office spoke to Robert and Santiago Rodriguez on the
telephone According to Alcala Umoh stated that Alcala
was there and that she stated she had been terminated
because she refused social engagements with R Rodn
guez and that Alcala said she had witnesses to support
this claim
Alcala further testified that on either that day or the
following day she called Coleman and asked her if she
would testify on Alcala s behalf Coleman replied that
she would help the best she could 3 Coleman testified
that she is unsure when Alcala spoke to her but she
thinks it was during the first 2 weeks of December when
she was on sick leave
Following her sick leave Coleman returned to work
on December 14 On December 15 Battieste gave her an
evaluation of her work performance According to Cole
man Battieste pointed out certain areas where he felt she
needed improvement but stated that he felt that she had
good potential and could handle it He then told her that
R Rodriguez was planning to terminate her and that if
she cared anything about her job she should do some
thing about it Later that afternoon Coleman returned to
Respondent s facility and asked R Rodriguez if she
could have a few minutes of his time He said no he was
too busy She then asked S Rodriguez if she could speak
with him He said yes whereupon Coleman S Rodri
guez and Battieste went to S Rodriguez office
According to Coleman she said she was aware that R
Rodriguez was planning to terminate her S Rodriguez
said he did not know what she was talking about Cole
man said Sure you do I was informed She then re
quested that if she was going to be terminated she be
given at least 2 weeks notice and be told exactly what
3 Coleman did testify at the hearing on Alcala s appeal from the De
cember 18 denial of unemployment benefits However this was subse
quent 10 Coleman s discharge
S & R SUNDRIES INC 1355
she was doing wrong that she did not feel it was fair or
right to just be let go She also asked him to put her
on probation S Rodriguez said No no I m tired of
this I ought to just let the whole sales force go and hire
nothing but professionals Coleman said it was Christ
mastime and she was Just returning from sick leave and
asked him please to not let her go Battieste said Now
look Margie you really think about it Do you really
think you should stay ? Coleman said Yes I ve been
with the Company for quite a while and I think I m
doing a pretty good job She then said to S Rodriguez
Are you really that upset with me that you just want to
let me go Just like that ? S Rodriguez did not answer
Coleman said Look I know why you re really letting
me go All this other stuff you re telling me has nothing
to do with it It all has to do with Laura and Bob S
Rodriguez said I don t know what you re talking
about Coleman said Sure you do Santiago Robert is
your son and you re going to stick by him 100 percent
no matter what You know I don t blame you
At this point according to Coleman Battieste asked
her to leave the room which she did When she returned
about 5 minutes later S Rodriguez and Battieste told her
that if she would resign they would give her a week s
vacation and a week s pay She was not entitled to the
vacation At first Coleman said no and asked Battieste if
she could talk to him Battieste said yes so they went to
his office Coleman said Look I can t accept something
like that That s the same kind of offer that was made to
my cousin Laura Like she was told she would get her
unemployment benefits and she s not getting them and I
know they wouldn t give them to me either Battieste
said Look Margie I 11 make sure you get your bene
fits Battieste then proceeded to telephone someone that
he said was a friend of his at the unemployment office
and asked this person if Coleman was to volunteer to
quit would she still be able to collect unemployment ben
efits After Battieste concluded his telephone conversa
tion he assured Coleman that she would get unemploy
ment benefits 4 According to Coleman she was still hesi
tant but she knew that she was going to be terminated so
she said Okay Ill volunteer to quit Coleman further
said that when she applied for unemployment benefits
she was going to state that she was asked to volunteer to
quit because her sales had decreased Battieste said
Fine Margie yes you do that Battieste then wrote
out a letter of resignation which Coleman signed
S Rodriguez testified that Coleman and Battieste came
into his office and told him about the problem Coleman
was having with declining sales and that Battieste had
told her that she had to improve or she would be termi
nated S Rodriguez showed her her sales figures and
made some remarks regarding the number of times she
took off on personal affairs and accused her of trying to
condense the route into 3 days They also discussed her
failure to open new accounts According to S Rodn
guez they talked 10 to 20 minutes Coleman said that on
several occasions she had met a sales manager for an
other company in the same type of business that she
knew the company route and the product and she would
have no problems finding another company where she
would not have to open new accounts 5 Coleman said if
she had to leave Respondent she would like to resign in
stead of being discharged because she wanted to have a
clean record S Rodriguez agreed Coleman said she
would like to stay for one or more weeks because of the
Christmas season S Rodriguez said he did not think this
was a good idea since their previous experience had
been that when a salesman was leaving he would over
load the customer in order to make additional commis
sion However he told her that even though she was not
entitled to any vacation at this time he wanted to help
her and he would pay her for the remainder of the week
plus an additional week Coleman then went to Bat
tieste s office and signed a resignation
Battieste testified that on the morning of December 15
R Rodriguez told him that he was quite dissatisfied with
Coleman s sales Battieste said he was aware of a number
of problems with Coleman in terms of her follow
through and he thought it was time to talk to her regard
ing her work performance R Rodriguez told him to
page Coleman in the field meet with her and let her
know that he was dissatisfied with her performance He
denies that he was instructed to tell Coleman she was
terminated He did meet with Coleman later that day He
went over various areas of the evaluation form with her
and indicated how her performance rated in each area
Coleman admitted that her performance was deficient
She specifically mentioned opening new accounts stating
that this was an area that she found very difficult and
she did not think she had the makeup for making presen
tations to prospective accounts He admits that Coleman
asked if Respondent had any plans to terminate her
however he did not testify as to what his response was
At the conclusion of their conversation Battieste re
turned immediately to the office arriving about 3 30 p m
Between 3 40 and 4 p m according to Battieste Cole
man telephoned him said she was concerned about the
evaluation and wanted to talk to S Rodriguez regarding
her position with the Company and what she felt was a
way to perhaps resolve some of the differences and to
establish how she was going to look at it in terms of her
performance for the remainder of the time she was with
the Comp-any Battieste told her to return to the office
which she did within 10 or 15 minutes Coleman asked
Battieste if she could see R Rodriguez He checked and
then told her that R Rodriguez was busy She then
asked if she could speak to S Rodriguez Battieste
checked and S Rodriguez said he would meet with her
Battieste and Coleman then went to S Rodriguez
office where they discussed Coleman s performance until
almost 6 p m Battieste testified that on several occasions
he left the office for short periods of time He further
testified that Coleman began the conversation by saying
I understand that S & R is very dissatisifed with my
performance at the present time S Rodriguez said
Yes we are He then proceeded to mention that there
were many days when Coleman was rot in the field to
5 Coleman denies stating that she wanted to look for other employ
4 Subsequently Coleman did receive unemployment benefits ment
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cover her territory that the volume for her territory had
been declining significantly that he was quite concerned
and felt he could no longer tolerate the way her territory
was being covered and how she approached her job
They talked quite awhile regarding the Company s dis
satisfaction with her work She said she understood she
was not performing as expected and that it would not be
tolerated She then asked if her employment would be
continued At this point Battieste said
Well Margie I think it s a good time right now to
make a decision relative to your continued employ
ment with the Company You understand that we
cannot continue to see things go the way they have
So I think this is the time for you to make a deci
sion relative to how you are going to approach it
Are you going to remain with the Company and try
to improve in these areas or what9
At this point Battieste had to leave the office again so he
did not know what her response was other than as he
was leaving she stated to S Rordriguez that she had
been there for a certain number of years
Battieste further testified that when he returned to the
office S Rodriguez said Well I m in agreement with
Mr Battieste in terms of you making a decision at this
time if you re going to continue with the Company and
perform as we expect Coleman said Well I don t
have too much choice I feel as though if I don t per
form I eventually will be fired Battieste said Margie
you re right because we cannot continue to tolerate the
same sort of performance So you know if we can come
to agreement now in terms of what you want to do we
can go on from here Coleman said Well I don t think
I have too much choice Battieste said Well as it
stands now you have two decisions to make One is to
continue or else resign He further said Margie this is
the time to make a decision because if your performance
continues you re going to be fired You could either be
fired down the road or you can resign now Coleman
said Well what options do I have9 How will it be
looked at? Battieste said
Well in terms of your resigning I am quite sure
that San [S Rodriguez] would make arrangements
you know to pay you for your vacation time and
whatever time up until the time you resign or up
above when you resign And we will also give you
a recommendation Down the road if you re fired I
don t know what your option will be in terms of
how the Company will look at helping you out in
any way But it s a decision that you have to make
According to Battieste Coleman asked him to explain
again what he said regarding discharge versus resigning
Battieste asked S Rodriguez what the normal procedure
was as to vacation pay and any additional money due
when there was a resignation S Rodriguez explained
Coleman was told she would be given the vacation to
which she was entitled and paid her salary through the
remainder of that day or the following day and all sales
commision to which she was entitled He recalls nothing
being said regarding additional severance pay or vaca
tion pay There was also some discussion as to whether
or not she would be eligible for unemployment Battieste
admits that he typed the letter of resignation and that he
told Coleman that he would give her a recommendation
Battieste further testified that nothing occurred on De
cember 15 that leads him to believe that Coleman was
dischared however according to him there was discus
sion regarding the potential of her being discharged and
whether it would be better for her to voluntarily quit or
to face a future discharge Battieste denied that he told
Coleman that anyone was planning to terminate her He
admits that he told Coleman during her evaluation that
she had the ability to improve
Battieste testified that on several occasions prior to
December 15 R Rodriguez told him he was not satisfied
with Coleman s performance because they had lost a sig
nificant amount of business in the area she was covering
and that he was dissatisfied that she was not spending the
necessary time in her territory Battieste admits that at
one point during the meeting in S Rodriguez office he
asked Coleman to leave the room While she was gone
he and S Rodriguez discussed the pay to which she was
entitled if she resigned that day and how it was to be
handled He left the meeting two or three times Each
time he was out of the office no more than 3 to 5 min
utes
McManamon testified that on December 15 around 1
p m S Rodriguez called her into his office and asked
her to prepare a check for Margie that she would be
paid for 2 days 6 McManamon asked if he meant Margie
Coleman and he said yes McManamon asked what hap
pened S Rodriguez replied Well Bob [R Rodriguez]
feels that we are going to have a problem with Laura
[Alcala] so we might as well get rid of Margie now
McManamon said okay and started to leave S Rodri
guez then said You know that Margie and Laura are
cousins? McManamon said yes S Rodriguez said
Well that s why McManamon said All right and
as she was leaving further said that 11 teach you to hire
relatives
Conclusions
The General Counsel argues that Coleman was term!
nated because Respondent suspected that she was a pos
sible witness for Alcala or that she would otherwise aid
Alcala in the pursuit of her claim for unemployment ben
efits Respondent argues that when given the option of
improving her work performance or resigning Coleman
opted to resign and thus her separation must be consid
ered as a voluntary quit Further Respondent argues
even assuming arguendo that the circumstances of Cole
man s separation from Respondent s employ is consid
ered as constituting a discharge she was discharged for
legitimate business reasons—her poor sales performance
I credit Coleman that she signed the resignation only
because she was told to either resign or quit I do not
credit Respondent s witnesses that she was essentially
6 According to McMananom when S Rodriguez asked her to prepare
a check she only did the computation and he actually prepared the
check This was done when people were paid in the middle of the work
week Normally paychecks are computer prepared
S & R SUNDRIES INC 1357
given the option of remaining in Respondent s employ
with the understanding that if she did not improve she
would be discharged at some later date Battieste had
earlier Informed her that her performance would have to
improve and she had agreed to try to improve Santiago
admits that she asked to stay on for a couple of weeks
because it was the Christmas season If she had indeed
been given the option of remaining in Respondent s
employ there would have been no need to make such a
request Further as more fully set forth below Battieste
told Coleman earlier that Respondent Intended to termi
nate her and S Rodriguez had previously told McMana
mon that he intended to terminate Coleman In these cir
cumstances I find that Coleman did not resign voluntan
ly but rather that she was constructively discharged
Laz Z Boy Tennessee 233 NLRB 1255 1265-1266 (1977)
It is undisputed that not only had Coleman failed to
meet her sales quota almost every week in 1981 her
volume of sales had declined from that of 1980 Further
although it is unclear from the record to what extent this
decline resulted from the state of the economy and a
general decline in Respondent s business it is undisputed
that Coleman had difficulty acquiring new accounts
which might have served to offset any decline in sales to
old accounts Also while the record indicates that the
sales of at least one other salesperson declined the evi
dence is insufficient to support an inference of unlawful
disparate treatment Thus the record establishes what
could be a legitimate substantial business reason to dis
charge Coleman The critical question is whether the as
serted reason is pretextual and she was in fact dis
charged for an unlawful reason or if there was a dual
motivation whether she would have been discharged
absent any protected concerted activity
Respondent argues that even if it is found that Cole
man was discharged its conduct was not unlawful since
she engaged in no protected concerted activity or if she
did it had no knowledge thereof This argument is not
persuasive An employee s action in aid of a fellow em
ployee s attempt to obtain unemployment compensation
benefits is concerted activity for the purpose of their
mutual aid and protection within the meaning of Section
7 of the Act Supreme Optical Co 235 NLRB 1432
(1978) Further in the circumstances herein I agree with
the General Counsel that it is irrelevant whether Cole
man actually engaged in such activity or whether Re
spondent had knowledge thereof The pertinent inquiry
here is whether Respondent discharged Coleman in the
belief that she would testify or otherwise assist Alcala in
her attempts to secure unemployment compensation ben
efits Riverfront Dinner Theatre 235 NLRB 319 320
(1978)
I credit Coleman that Battieste told her that R Rodn
guez was planning to terminate her There would be no
other reason for her to rush to the office to see R Rodn
guez regarding her employment status Battieste admits
that he tried to keep his evaluation on a positive note
stating that he was confident that she could improve her
work performance and R Rodriguez admits that he had
previously discussed with Coleman in similar terms the
need to Improve her work performance Nothing else in
the conversation with Battieste would seem to be such as
would generate such alarm or urgency Moreover Bat
tteste does not specifically deny making this statement
I also credit McManamon that earlier in the day prior
to the S Rodriguez Battieste Coleman conversation S
Rodriguez asked her to prepare the computations for
Coleman s check and when she inquired as to what hap
pened S Rodriguez responded Well Bob [Rodriguez]
feels that we Just might have a problem with Laura
[Alcala] so we might as well get rid of [Margie Cole
man] now I found McManamon to be an honest reli
able witness who impressed me as endeavoring to tell the
truth Also there is no evidence to indicate any reason
for her to be untruthful in this regard and she is still in
Respondent s employ a circumstance which the Board
has found to enhance the reliability of testimony adverse
to the witness employer Georgia Rug Mill 131 NLRB
1304 (1961) Avon Mirror & Distributing Co 247 NLRB
225 (1980) Further S Rodriguez did not specifically
deny making this statement
In all the circumstances particularly the timing within
a few days after Umoh Informed Respondent that Alcala
was disputing Respondent s claim that she voluntarily
left her employment and the statement by S Rodriguez
to McManamon which indicated that he intended to dis
charge Coleman that day I find that Coleman was dis
charged because Respondent believed that she would tes
tify for or otherwise assist Alcala in obtaining unem
ployment benefits I further find even assuming ar
guendo that Respondent was partly motivated by Cole
man s work performance that the General Counsel has
made a prima facie showing that protected concerted ac
tivity was a motivating factor and that Respondent has
failed to demonstrate that Coleman would have been dis
charged absent its belief that she had engaged or would
engage in protected concerted activity Accordingly I
find that Respondent by discharging Coleman violated
Section 8(a)(1) of the Act
III ALLEGED THREATS AND INTERROGATION
A Facts
McManamon testified that on Tuesday November 16
she had a discussion with Battieste regarding the hearing
herein According to her they were Just chit chatting
when Battieste said Who knows after Thursday
maybe neither one of us will be at S & R Sundries any
more Right" McManamon replied Well you never
know Battieste said Well by the time we all get
through what do we do if we are not employed here9
McManamon said Well I guess Battieste Ill have to
meet you at the unemployment office Battieste laughed
and McManamon said But I guess first we 11 have to
stop at the labor board Battieste said Amen to that
Juanita Sanchez and Erica Caballero were present during
this conversation but did not testify
McManamon further testified that on November 17
she had another conversation with Battieste which she
initiated by saying Ed Cochran is not going to be at
the hearing tomorrow Battieste said Oh he s not9
McManamon said No Battieste asked if Eddy or Bea
were going to be there McManamon replied No I
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guess not It s just you and me Battieste said Oh
boy And then he said Well I guess by the time we
get through Thursday neither one of us will be em
ployed here McManamon said Well if that s the way
its going to be that s the way it s going to be I really
don t care Battieste then said Well I hope that the
young attorney asks me directly if I ever had the author
ity to fire anyone because I will tell them I never had
the authority to fire anyone that that decision ultimately
rests with Santiago and Bob McMananom said Oh
that s good Battieste said The last time I had that
conversation about the authority to fire people I was
with Bob and Santiago and Frank Revere And they
tried to tell me that I had the authority and I told them
I never had the authority Battieste then said that Frank
Revere said Well you did have the authority You ve
always had the authority you just never realized it
Battieste further said Well if they ask me directly I
will tell them I never had the authority to fire anyone
and also I will not he for anyone McManamon said
Well who knows what s going to happen Battieste
said That s right McManamon said Well like I told
you yesterday Battieste I 11 meet you at the unemploy
ment office after we stop at the labor board Battieste
snickered said Well amen amen and walked away
Battieste admits that he spoke to McManamon on No
vember 16 regarding his testifying in this matter Ac
cording to him McManamon told him she was going to
be a witness He denies threatening her in any way
during that conversation He further denies that he told
her if she gave testimony she might lose her job or that
he told her anything that represented company policy
with regard to what might happen if she testified He
admits that McManamon asked What do you think is
going to happen when we testify on this matter Ac
cording to him he replied Well you shouldn t be too
concerned you know we live and die by the truth Be
sides the way things are going anyway who knows
where we will be We re subject to be in the bread line
by Thursday And besides it really doesen t matter I m
going to tell the truth regardless According to Bat
tieste when he mentioned being in the bread line he was
referring to the general state of the economy and that
within the preceding 30 days the Company had lost a
significant amount of business He denies that he was re
fernng to her being in the bread line because of her testi
mony herein Battieste did not testify with regard to a
conversation with McManamon on December 17
McManamon testified that on December 18 the first
day of the hearing herein R Rodriguez approached her
in the hearing room shortly before the hearing corn
menced He told her that she had not given him all of
the sales figures he needed that she did not give him the
figures from 1982 She told him he did not need 1982
He then opened a folder he had in his hand and showed
her a subpoena and stated that the subpoena requested
records from 1979 through 1982 McMananom explained
that those dates were for the employee records not for
the sales figures and insisted that he would need those
figures for 1982 McManamon told him if he needed 1982
she had prepared them but they were at the office He
then asked Have you talked to her attorney 9 McMan
amon said No I just arrived here ahead of you guys
R Rodriguez said I don t mean today I mean have
you talked to her attorney before today 9 McManamon
said Yes At this point counsel for the general Coun
sel entered the hearing room and R Rodriguez walked
away
R Rodriguez admits that he spoke to McManamon in
the hearing room on the first day of the hearing regard
ing the subpoenaed information He admits that he asked
McMananom whether she had spoken to the attorneys
representing Coleman but testified that upon McMana
mon answering in the affirmative he said nothing further
to her
B Conclusions
As indicated above I found McManamon to be an
honest, reliable witness I credit her as to her conversa
bons with Battieste and R Rodriguez I find that Bat
neste s statements to McManamon constituted a threat
that Respondent might discharge McMananom if she tes
tified on Coleman s behalf Accordingly I find that Re
spondent thereby violated Section 8(a)(1) of the Act I
further find that Respondent violated Section 8(a)(1) of
the Act by R Rodriguez interrogation of McManamon
as to whether she had given testimony to an agent of the
National Labor Relations Board
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 By unlawfully discharging Margaret E Coleman in
the belief that she had or would testify for or otherwise
assist Laura Alcala in obtaining unemployment benefits
Respondent has committed unfair labor practices in vio
lation of Section 8(a)(1) of the Act
3 By interrogating an employee concerning whether
she had given testimony to an agent of the National
Labor Relations Board and by threatening an employee
with discharge if she testified adverse to Respondent at
the hearing herein Respondent has committed unfair
labor practices in violation of Section 8(a)(1) of the Act
4 The above described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that Respond
ent cease and desist therefrom and take certain affirma
tive action in order to effectuate the purposes of the Act
Having found that Respondent unlawfully discharged
Margaret E Coleman in violation of Section 8(a)(1) of
the Act I shall recommend that Respondent be ordered
to offer Coleman immediate and full reinstatement to her
former job or if that job no longer exists to a substan
tially equivalent position without prejudice to her se
nionty or any other rights or privileges previously en
joyed and make her whole for any loss of earnings she
may have suffered by reason of the discrimination
against her plus interest in the manner prescribed in F
S & R SUNDRIES INC 1359
W Woolworth Co 90 NLRB 289 (1950) and Florida
Steel Corp 231 NLRB 651 (1977) 7
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed8
t ORDER
Respondent S & R Sundries Inc City of Industry
California its officers agents successors and assigns
shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of their protected concerted activi
ties
(c) Threatening employees with discharge or other re
prisals if they testify in proceedings before the National
Labor Relations Board
(b) Interrogating employees as to whether they gave
testimony to an agent of the National Labor Relations
Board
(d) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to employee Margaret E Coleman immediate
and full reinstatement to her former job or if that job no
longer exists to a substantially equivalent position with
out prejudice to her seniority or any other rights or
privileges previously enjoyed and make her whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set
forth in the remedy section of the decision
(b) Expunge from its files any reference to the dis
charge of Margaret E Coleman on December 15 1981
and notify her in writing that this has been done and that
evidence of this unlawful discharge will not be used as
basis for future personnel actions against her
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in the City of Industry Ca'dor
nia copies of the attached notice marked Appendix 9
7 See generally Isis Plumbing Co 138 NLRB 716 (1962)
8 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
9 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
Copies of the notice on forms provided by the Regional
Director for Region 29 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
lion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT Interrogate our employees as to wheth
er they have given testimony to an agent of the National
Labor Relations Board
WE WILL NOT threaten to terminate our employees if
they testify against us at a National Labor Relations
Board hearing
WE WILL NOT discharge and thereafter refuse to rein
state employees because they engage in protected con
certed activities
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer to Margaret E Coleman immediate
and full reinstatement to her former job or if that job no
longer exists to a substantially equivalent position with
out prejudice to her seniority or any other rights or
privileges previously enjoyed and WE WILL make her
whole for any loss of earnings and other benefits result
ing from her discharge less any net interim earnings
plus interest
S & R SUNDRIES INC