Solo Serve Co.

National Labor Relations Board - Board Decisions

Jul 23, 1975

219 N.L.R.B. 395 (N.L.R.B. 1975)

SOLO SERVE CO. 395
Solo Serve Co . and Retail Clerks Union, Local No.
455, Retail Clerks International Association, AFL-
CIO. Case 23-CA-5215
July 23, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY, AND MEMBERS FANNING AND
PENELLO
"(c) Utilizing the services of an agency which ad-
ministers lie detector tests to interrogate you con-
cerning your union activities, sympathies, member-
ship meetings, petitions, or to ask you to give the
names of employees who are active on behalf of Re-
tail Clerks Union, Local No. 455, Retail Clerks Inter-
national Association, AFL-CIO, or any other labor
organization."
2. Substitute the attached notice for that of the
Administrative Law Judge.
On February 13, 1975, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions, a supporting brief, and supplemental excep-
tions; and the General Counsel filed limited excep-
tions to the Administrative Law Judge's Order and
notice and a brief in support of his substantive deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Solo
Serve Co., San Antonio, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order, as so modified:
1. Add the following as new paragraph 1(c) and
reletter the succeeding paragraph accordingly:
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 In the circumstances of this case , particularly the Respondent's use of a
private polygraph agency to interrogate its employees concerning their
union activities, we agree with the General Counsel's request that our Order
and notice include a specific provision advising employees that it is unlaw-
ful for the Respondent to utilize the services of an agency which administers
lie detector tests to employees to interrogate them concerning their union
activities, or sympathies, or the union activities of other employees. In all
other respects, however, we believe that the Admtntstratve Law Judge's
recommended Order and notice are adequate and we therefore reject the
General Counsel's request for further modifications of the Order and notice
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate in regard to the hire and tenure of employ-
ment or any term or condition of employment of
our employees because of their membership in,
and activities on behalf of, the Union herein or
of any other labor organization of their choice.
WE WILL NOT interrogate our employees con-
cerning their union activities, sympathies, mem-
bership meetings, petitions, nor inquire as to the
identification of employees signing authoriza-
tion cards.
WE WILL NOT utilize the services of any agency
which administers lie detector tests to interro-
gate you concerning your union activities, sym-
pathies, membership meetings, petitions, nor to
ask you to give the names of employees who are
active on behalf of Retail Clerks Union, Local
No. 455, Retail Clerks International Associa-
tion, AFL-CIO, or any other labor organization.
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
bargaining agent chosen by our employees, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or pro-
tection, or to refrain from any such activities.
WE WILL offer to Michael Tapia his former job
or, if such job no longer exists, an equivalent
position, without prejudice to his seniority, if
any, or other rights and privileges, and WE WILL
pay him for any loss of pay he suffered by rea-
son of our discrimination against him together
with interest thereon.
SOLO SERVE CO.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Law Judge : Based on a
charge filed on August 12, 1974, by the Retail Clerks Inter-
national Association, AFL-CIO, herein the Union or
Charging Party, a complaint against Solo Serve Co., herein
the Respondent, was filed on October 7, 1974,' alleging
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended . Respondent filed an answer to
the complaint denying it has engaged in the alleged unfair
labor practices . A hearing in this proceeding was held be-
fore me and both the General Counsel and Respondent
filed briefs.
Upon the entire record in this case , and from my obser-
vation of the witnesses and their demeanor , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is a Texas corporation having offices and
places of business located in San Antonio , Texas, where it
is engaged in the business of operating three retail depart-
ment stores.
During the past calendar year Respondent 's gross reve-
nue from retail sales exceeded $500,000 from points and
places located outside the State of Texas , which were
shipped directly to its San Antonio, Texas, locations.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Ii. THE LABOR ORAGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged that on certain dates in March the
Respondent 's supervisors unlawfully interrogated or ques-
tioned employees concerning various aspects of their union
activities , and it is also alleged that on March 20 the Re-
spondent discriminatorily discharged employee Michael
Tapia.
The Respondent is a retail department store offering
goods to the public ranging from sundry notions to home
furnishings . It operates three stores identified as the north
side, south side , and the downtown store . It is the down-
town store involved in this matter before me.
In its organizational structure there is the president,
M. C. Brenner , several vice presidents , each in charge of
purchasing and merchandising over several departments in
each of the three stores , and Vice President Carl Brenner is
the overall personnel supervisor . Directly beneath him is a
personnel manager , Sally Cordell. In each of the three
All dates are 1974 unless stated otherwise.
stores there is a store manager and an assistant store man-
ager, and the stores are also divided into departments, and
in each of the departments there is a department or section
head.
All personnel employed at the stores wear identification
badges of different colors . All rank-and-file employees
wear blue badges , all department heads or section heads
wear yellow badges, and all executives are distinguished by
white badges . All personnel wearing white badges are sala-
ried, whereas those wearing yellow and blue badges are
paid an hourly rate.
The campaign to organize the Respondent started on
about March 7, when Union Representative Juan Sierra
visited Michael Tapia in his home. On this occasion Tapia
signed a union card and was given union booklets to dis-
tribute.
Threshold questions in this case are whether or not Joe
Davila and David Daniels are supervisors . The General
Counsel maintains they are nonsupervisory leadmen, but
the Respondent contends that both are bona fide supervi-
sors and, therefore, the Respondent is not in violation by
interrogating them.
Joe Davila wears a yellow badge and at times material
hereto worked in the home furnishings and fabrics depart-
ment . Davila explained that people with yellow badges are
individuals who are put , "so to speak ," in charge of a de-
partment-who have the responsibility of putting up the
stock , and making sure that the right merchandise is on the
floor. Davila was hired as a yellow badge by Respondent's
vice president, Robert Grimm, and testified that when
hired Grimm told him he was going to send him to the
different stores to learn the business, and if he learned
"well enough", Grimm would make him a part of the man-
agement team . Davila stated the time never arrived when
he was made a part of management . Davila testified that
about 50 percent of the time Assistant Buyer George Ho-
gue was at the downtown store and in his department, and
at the beginning of each week Supervisor Hogue would
give him (Davila) certain instructions as to assignments,
and would even write out a list of things to do during the
week,2 Davila stated that overtime work was very rarely
scheduled, but on such occasions Hogue would give him
the names of those who were to work overtime , and when
employees wanted off early or did not come in, he would
contact the personnel office and would also check with
Hogue. Davila testified that from 85 to 96 percent of the
time he was engaged in actual physical work within the
department, and also testified that he made weekly sched-
ules for employees in the home furnishings and fabrics de-
partment, but they would have to be approved by Hogue
and then sent to the personnel office . Davila further stated
that many of the employees had been with the store for
such a long period they knew their hours or schedules, and
generally all had the same hours each week. He testified
that each day he would also ascertain if the timecards of
the employees in his department reflected the correct hours
and also checked the cards to see whether or not the em-
2 In the home furnishing department there are only two full-time employ-
ees, but in the fabrics department there are eight or nine full-time employ-
ees. Altogether, there are about 10 yellow badge people in the downtown
store.
SOLO SERVE CO.
ployees had exceeded their 10-minute break period.3
David Daniels , in the periods material hereto , worked in
the drug department of the Respondent's downtown store.
Daniels stated that at the time he was promoted to a yellow
badge employee, his hourly rate of pay went from $2 to
$2.15 per hour, but he did not have any additional authori-
ty and it was only considered a "merit promotion." Daniels
stated that Merchandise Buyer and Supervisor Ernest Val-
dez "called all the shots" in the drug department, and Val-
dez either informed him what to tell other employees-the
six blue badge employees-or he left written notes instruct-
ing them what to do. Daniels also testified that no execu-
tive or white badge supervisor ever told him he had any
authority to fire, discharge, or to discipline employees, nor
did he have any authority to effectively recommend any of
the above. He stated that Valdez had to approve all over-
time work and transfers, and if any one wanted time off
these matters were handled through the personnel depart-
ment. Daniels said that he made out the weekly schedule
for the drug department, but it also had to be approved by
Valdez .4
There is insufficient evidence in this record to show that
either Davila or Daniels possessed sufficient powers to be
considered supervisors. Neither one of them had any au-
thority to hire, suspend, lay off, recall, promote, discharge,
reward, or discipline other employees or to adjust their
grievances, or to effectively recommend any such action.
There is some testimony that occasionally Davila and/or
Daniels transferred employees, checked timecards, and as-
signed work to other employees in their respective depart-
ments , but it readily appears these duties merely involved
routine and standard directions requiring little or no dis-
cretion , and all such actions were also subject to immediate
review by the supervisors , and thereby could be approved
or disapproved as they finally determined. And, of course,
it is well established that the Respondent's designation of
these employees as department or section heads is not con-
trolling in the absence of delegation to them of bona fide
managerial powers.
As pointed out, where only routine direction is given,
requiring little or no discretion, the statutory test is not
met. Thus in Cumberland Shoe Corporation, 144 NLRB
1268, enfd. 351 F.2d 917 (C.A. 6, 1965), the Board found
employees White and Johnson to be nonsupervisory lead-
men rather than supervisors. At 1270 the Board stated:
Although several employees testified that either White
or Johnson gave them orders, it appears that the or-
ders referred to were those described [returning defec-
tive work to the employees responsible therefor and
pointing out defects , reassigning employees from one
3 George Hogue testified that Davila was in charge of the home furnish-
ings and fabrics department, and that he had about 14 employees (blue
badges) under him . However , he admitted that all lateness in reporting to
the store and overtime work was handled through the personnel office, and
that all work schedules are also submitted to the personnel office.
° Valdez admitted that , when he was on the floor of the drug department,
he made a list of "things" the yellow badge people should tend to , and also
admitted that he had discussions with the yellow badge people as to plans
for the coming week, and that he would also give written instructions-such
as items that needed to be marked down and items that needed to be filled
in or ordered.
397
machine to another in order to balance production]
and merely routine directions which didn't require the
exercise of discretion or the use of independent judg-
ment. Certain of these "orders" were, in fact. commu-
nications from the foreman and the plant superinten-
dent which here merely relayed through White and
Johnson to the employees for whom they were intend-
ed. Under these circumstances we find that White and
Johnson are not supervisors as defined in the Act and
are, therefore, included in the bargaining unit.
This record in the instant case further shows that the
various departments in the store were actually controlled-
particularly as to warnings, attendance, and discipline for
violating rules-by the Respondent's personnel manager,
and in these respects yellow badge people were merely used
for relaying messages and information. Thus, Davila and
Daniels had no authority whatsoever regarding the disci-
pline of employees. On rare occasions Davila might ask
one of the blue badge employees to bring some material or
item to the department, but it appears that such directions
were strictly routine, sporadic, and also repetitive. The
making of the weekly work schedules was obviously rou-
tine, and in cases where independent judgment was re-
quired Davila had to get the approval of Hogue and Dan-
iels had to check with Valdez. I find therefore, based on the
foregoing, that Davila and Daniels are not supervisors.
On or about March 12, Daniels informed Supervisor
Valdez that there was "something" going on in the store
that he and the two Brenners should know about, and then
told Valdez, "There's little groups getting together, and
they are talking about union." Valdez immediately relayed
this message to both Milton and Carl Brenner, and during
the same afternoon a meeting with Daniels was held in the
conference room at the store, and both the Brenners and
Valdez were present. At this meeting, Daniels was asked by
management who were the employees and department in-
volved, and Daniels then mentioned someone from the
fabrics and receiving departments and also gave manage-
ment the names of Jesse Trejo, Joe Davila, and two truck-
drivers-Joe Mata and Sam Dominguez. When asked how
he knew these people were involved, Daniels replied,
"Well, the same group is always in one corner of the lounge
talking about things." 5 Before the meeting terminated,
Daniels further informed the owners and supervisors about
a petition being circulated and that within a few days an-
other meeting was scheduled at "some church on the west
side," but was unable to specify any further details. Several
days later, on or about March 16, Valdez asked Daniels if
Michael Tapia had signed a union card. Tapia himself
credibly confirmed that he overheard this conversation or
a similar one.
Michael Tapia testified that on March 14 he was called
into the conference room, and in the presence of Vice Pres-
ident Robert Grimm and Carl Brenner was asked general
questions about how things were going with him in the
store and whether he would run the store differently if he
5 Daniels also told management on this occasion that the reason he was
bringing this matter to their attention was because he did not want to get
involved, and that he was "afraid" he would get "in trouble" and lose his
job.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were part of management. After some additional discus-
sions on these matters, Carl Brenner asked Tapia how he
felt about the Union, and concluded the conversation by
telling Tapia that if he had anything else he wanted to say
to come back or call them later.
Both Grimm and Brenner denied that the conversation
ever occurred. Called as a rebuttal witness, David Garcia,
still employed at the store, reported seeing Tapia on the
occasion in question proceeding to the conference room in
the presence of Grimm and Brenner . However, Brenner
again took the stand and asserted that Garcia must have
been talking about an occasion when Tapia approached
him near the conference room close to Easter time, to dis-
cuss a shoplifting incident. Tapia credibly denied any con-
versation with Brenner on the subject of shoplifting, and
further stated he had never received any reward for report-
ing any such activity at any time.
On March 15, prior to the morning opening of the stores,
Carl Brenner made a speech to the employees at the down-
town store advising them of the Respondent's policy re-
garding its opposition to unionization. Grimm made the
same speech at the southside store while M. C. or Milton
Brenner was at the northside store giving the same speech .6
On March 18, Joe Davila was called to a meeting with
Carl Brenner and Bob Grimm, and was asked questions
concerning his knowledge of union activity in the store,
who was involved in such activity, and was also asked
whether he had signed a union card. Davila stated that at
this meeting he was also given a petition and asked if he
had ever seen it before, and in response to a question asked
by Brenner, Davila said he was willing to undergo a poly-
graph test to substantiate what he had just told them.
It is alleged in the complaint that on or about March 20
that Joe Low Polygraph Service, as agent of Respondent,
unlawfully interrogated employees concerning their union
activities and sympathies. Carl Brenner admitted that on
March 20 he sent Joe Davila to the Low Polygraph Service
for a polygraph examination. Furthermore, Respondent of-
fered in evidence a letter I Brenner caused to be hand de-
livered to Joe Low on March 20 containing written ques-
tions to be asked Davila. In the ordinary course of
business , Low performs some 30 to 40 preemployment po-
lygraph examinations of prospective employees each month
for Respondent at the rate of $15 per examination, but in
these regular preemployment tests there are no questions
whatsoever regarding unions or feelings toward unions.
There can be no doubt that Low Polygraph Service was a
duly constituted agent for the Respondent. There is testi-
mony in this record that, when Carl Brenner initially at-
tempted to have this test administered, Low objected and
considered it unlawful to ask subjects about union activity,
but with assurances the matter had been checked out, and
on the basis that Davila was a supervisor, and that it would
be violative of the law if supervisors did anything to help a
labor organization get started,' Low agreed to give the test
6 There is no allegation that any unlawful statement was made in the
speeches, but the General Counsel argues that the Respondent 's policy,
reflected in these speeches and coupled with other endeavors, led to the
discovery of Tapia' s involvement and to his subsequent discharge
7 Resp. Exh I I
if Davila had full knowledge and gave his consent. Further,
Low asked Brenner to put the questions in writing, and
Brenner complied with this request, as aforestated.
Davila testified that he mentioned Tapia's name when a
question was asked of him as to who was involved during
the general interview with Low prior to being actually sub-
mitted or hooked-up to the lie detector machine or instru-
ment . Low testified that in the preinterview he obtained
from Davila a release and advised him of the questions,
and after Davila consented to be confronted with them, he
then read them to Davila about his union activities from
Respondent's Exhibit 11 and recorded them on his work-
sheet.
Immediately following this interview with Davila, Low
called Carl Brenner and repeated to him the answers to the
questions given by Davila. Joe Low testified that at no
point during his interview and questioning of Davila was
Tapia's name ever mentioned.
In relation to this allegation the only defense raised by
the Respondent is its right to question Davila because of
his supervisory status. However, as detailed earlier, I have
found Davila to be lacking in supervisory status, and of
course, as an employee, the Respondent's conduct and
questioning of Davila about his union activities was clearly
violative of the Act .9
It is well established Board and court law that, in de-
termining whether an employer's conduct amounts to in-
terference, restraint , or coercion within the meaning of Sec-
tion 8(a)(1), 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 and, of course, the fact that employees were
neither fearful nor apprehensive of their rights is immateri-
al.
The foregoing testimony which has been credibly attri-
buted to the Respondent includes instances of interroga-
tions as to the employees involved in the organizational
attempts of the Union, how the names were known, asking
who had signed union cards, inquiring how an employee
felt about the Union, asking and referring to the circula-
tion of a petition, and, in the situation involving Davila
and Respondent's agent Low, asking at least eight specific
and individual questions pertaining to organizational ef-
forts along with the identity of those involved, and all of
the above within the initial and most critical period of an
organizing campaign. These are types of employer conduct
and interrogations which directly concern the union sym-
pathies and desires of employees and the sympathies and
desires of their fellow employees and are clearly prohibited
by Section 8(a)(1) and consistently held violative of the
Act. It is also well established by the Board and the courts
that the illegality of such inquiries or remarks is not cured
by the casual nature of the conversation or the personal
relationship of the parties thereto, nor by the employee
rejection of such questions or statement.
Michael Tapia was hired by the Respondent in July 1973
and, until his discharge, worked mainly in the stockroom
s See the introductory paragraph in Resp Exh 11.
9 There is no argument or contention before me that Davila as an employ-
ee ever waived his statutory rights under the Act by consenting to be inter-
rogated
SOLO SERVE CO. 399
of the drug department in the downtown store. On March
7 he signed a union card and subsequently circulated cards
and talked with other employees about the Union. Accord-
ing to former Personnel Manager Sally Cordell, Tapia was
discharged on March 20 because his hair extended to
about the midpoint on his shirt collar. For some time the
Respondent has had in their dress code a regulation or rule
restricting the length of employees' hair and specifying that
male employees should not wear their hair below "their
shirt collar."
Personnel Manager Cordell testified that on March 15
she had given Tapia a verbal warning about his long hair,
and at this time told him to get it trimmed, but a few days
later noticed that his hair had not been cut. She then con-
tacted Carl Brenner and informed him that they "had
grounds to fire him."
The Respondent also points out that up to September
1973 some 11 charges had been filed against them by the
Equal Employment Opportunity Commission (EEOC) and
maintains that in the investigations of these charges it be-
came clear that the EEOC considered their hair code a
violation of the prohibition against sex discrimination.
Cordell said that as the personnel manager she was primar-
ily involved and was therefore fully aware of the EEOC
position on the hair code. Cordell further testified that,
while reading an article in U.S. News and World Report,
she came across the column entitled "What Businesses Can
and Cannot Do," and noticed an item stating that the
courts did not support the EEOC in its position pertaining
to hair code and had upheld an employers right to enforce
their dress code.
Cordell stated that on March 20, when she determined to
recommend the discharge of Tapia, she was still aware of
the sensitivity of the EEOC pertaining to long hair, and
thus consulted with Carl Brenner. Upon receiving word,
Brenner immediately went to the personnel office with a
camera, and upon arrival took pictures of Tapia.10 When
Brenner testified before me he was asked why he took a
picture of Tapia when he had not done so in other cases,
and in reply stated he was thinking about the EEOC and
did not want any question as to the length of hair, and to
show that the hair length was a violation of the
Respondent's dress code."
The Respondent further maintains that other employees
were also discharged for violation of the dress code, includ-
ing Carlos Villoneuva and Ronnie Winfield, and argues
that the rule or dress code had been uniformly enforced,
and points out that neither the Union nor the General
Counsel could come up with the names of any employees
who had hair longer or as long as Tapia.
The Respondent maintains it had no knowledge of any
union activity on the part of Tapia. I reject this argument.
On March 14 Carl Brenner directly asked Tapia in the
conference room at the store how he felt about the Union,
and on March 16 Supervisor Valdez inquired of Daniels if
Tapia had signed a union card. Joe Davila also gave credi-
ble testimony to the effect that when he took the lie detec-
tor test on March 20, and earlier in the day of the dis-
charge , Joe Low initially asked him questions in a "dry
run" before actually connecting the instrument to him, and
it was during this preliminary examination that Low asked
questions concerning who was involved in the union activi-
ty and whether anyone, specifically including Michael Ta-
pia, had approached him about signing a card, and Davila
then gave Low an affirmative answer regarding Tapia. By
this method the Respondent had direct knowledge that Ta-
pia was involved and, upon completion of the polygraph
test, Low immediately contacted Carl Brenner by phone to
relay the results of his inquiries.12 The Respondent now, of
course, attacks the credibility of Davila, yet it is interesting
to note, as pointed out, that Joe Low admittedly found
Davila to be a truthful witness, and indicated the same
when he reported his evaluations to Carl Brenner immedi-
ately following his testing.13
There can be no doubt but that Respondent, through its
supervisors and agents, engaged in an intensive search to
ferret out information regarding the involvement of Tapia
in the union campaign. Such activities reveal that it sus-
pected Tapia of being involved in the union activity, and
this suspicion was then duly verified during the initial ex-
amination of Davila by Respondent's outside polygraph
agent.
Tapia testified that, prior to his actual discharge on
March 20, no one in management had ever said anything
to him about his hair and stated he had always worn his
hair the same length during his entire employment with
Respondent. Tapia stated that he had observed several em-
ployees with hair length coming down to around the mid-
dle of their collars and named David Daniels, Joe Davila,
and Robert Mercer. He testified that most of the employ-
ees with long hair were stockboys, like himself, who had
little or no contact with the public, and further stated that
he spent about 75 percent of his time in the stockroom.
Tapia maintained that during his employment the
Respondent's dress code pertaining to hair length was not
enforced.
Davila admitted that he and other employees had been
warned by Sally Cordell about the length of their hair, but
then stated that the majority of the stockboys had long hair
since they were not usually viewed by the public, and said
that after receiving his warning he had his hair thinned, but
the length itself stayed the same-below the top of his col-
lar-that he continued working for the Respondent and
nothing further was said to him.
Stockboy David Garcia testified that, the day before his
appearance as a witness in this proceeding, he had been
told to get his hair cut, but that prior thereto, his hair was
about the same length as Tapia or longer, and nothing had
been said to him.
I have set forth in some detail the above-credited testi-
mony by witnesses for the General Counsel, because after
12 The General Counsel points out that the introduction of the letter from
Brenner purportedly containing the questions Low was to have asked Davi-
la, as aforestated , was nothing more than an attempt to give the appearance
that these were the only questions to be asked.
13 Davila's testimony at the tnal that Low specifically asked him about
10 See Resp . Exhs . 9 and 10 . Michael Tapia is also supported by his affidavit Davila is no longer em-
it On April 4 Tapia filed a charge with EEOC alleging his discharge on ployed by the Respondent and had no apparent reason or motive to give
the basis of color or race . false testimony either in his affidavit or at the trial.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a careful evaluation of these statements and other related
aspects of this case , it becomes quite obvious that while
supervisors would occasionally give warnings to the stock-
boys about the length of their hair-this was the total ex-
tent of their participation in the enforcement of the dress
code up and until the Union appeared on the scene.
Personnel Manager Cordell conceded that Respondent
also utilized a formal written warning procedure, using
pink slips, on which an employee had to write his signa-
ture . Yet, Tapia received no written warning . Even assum-
ing that Manager Cordell asked Tapia on March 15 to
have his hair cut, as she testified , her suggestion carried
with it no warning of discipline , much less discharge, and it
is argued by the General Counsel that the reason Cordell
did not threaten discipline , again assuming she made such
a request on March 15, is that she was aware of the formal
warning procedure and knew that such procedures would
have to be utilized before discipline could be imposed. As
pointed out, only 3 working days following March 15, but
without benefit of a written warning, Tapia was neverthe-
less discharged . The urgency, of course, was the discovery
that Tapia was indeed actively organizing on behalf of the
Union.
The record shows that employee Ronnie Winfield was
discharged on April 9, but had received two written warn-
ings concerning his violations of the dress code . 14 However,
it is also quite obvious that the actual discharge of Winfield
resulted because of serious difficulties and consequences
involving another employee , and the dress code violations
in themselves did not bring about his termination . There is
insufficient evidence in this record to make any sound
evaluations as to the discharge of Carlos Villoneuva.
Carl Brenner also testified that he did not make pho-
tographs of Winfield's hair, as he did of Tapia's to provide
a defense against an EEOC investigation, because Winfield
is an Anglo , and Anglos receive "short shift" from the
Equal Employment Opportunity Commission . However, as
pointed out, it is obvious that Respondent was not as much
concerned with an EEOC investigation regarding Tapia as
it was with an NLRB investigation , and, as further argued
by the General Counsel, it is more logical and probable
that Brenner made photos of Tapia's hair to provide a de-
fense against an unfair labor practice charge , and having
no indication that Winfield was involved in an organizing
campaign, Respondent saw no need to take a photograph
of his hair length.
I find that the stated reason for the discharge was pretex-
tual and that the Respondent was motivated to discharge
Tapia because of their discovery that he was engaged in
activity on behalf of the Union.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. A broad cease-
and-desist order is warranted in view of Respondent's dis-
14 See G .C. Exhs. 4 and 5.
criminatory conduct and other violations.
It has been found that Respondent unlawfully terminat-
ed Michael Tapia on March 20, 1974. It will therefore be
recommended that Respondent offer him immediate and
full reinstatement to this former position or, if such posi-
tion no longer exists , to a substantially equivalent position,
and without prejudice to his rights and privileges, and to
make him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him by pay-
ment of a sum equal to that which he would normally have
earned , absent the discrimination , from the date of the dis-
crimination to the date of Respondent 's offer of reinstate-
ment, with backpay and interest computed in accordance
with the Board's established standards.15 It will be further
recommended that Respondent preserve and, upon re-
quest, make available to the Board all payroll records, so-
cial security payment records , timecards , personnel records
and reports and all other records necessary and to analyze
the amount of backpay under the terms of these recom-
mendations.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing 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 discharging Michael Tapia on March 20, 1974,
thereby discouraging membership in the Union, the Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act.
4. By interfering with, restraining , and coercing their
employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, as enumerated herein , the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 16
The Respondent, Solo Serve Co., San Antonio, Texas, its
officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization of its employees , by discharging
employees or otherwise discriminating against them in re-
gard to their hire and tenure of employment or any term or
condition of employment.
(b) Interrogating employees concerning their union ac-
tivities , sympathies, meetings , memberships, petitions, and
the identification of employees signing authorization cards.
1s F W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co , 138 NLRB 716 (1962).
16 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 Order recommended herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
SOLO SERVE CO.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights to self-
organization , to form , join , or assist labor organizations,
including the above -named organization , to bargain collec-
tively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer to Michael Tapia immediate and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent position , without prejudice to his
seniority , if any , or other rights and privileges , and make
him whole for any loss of earnings he may have suffered by
reason of the discrimination against him in the manner set
forth in the section of this Decision entitled "The Reme-
dy.
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying all pay-
roll records , social security payment records , timecards,
401
personnel records , and reports , and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its place of business copies of the attached
notice marked "Appendix ." 17 Copies of said notice, on
forms provided by the Regional Director of Region 23,
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 , including all places,
where notice to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered , defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order , what steps
have been taken to comply herewith.
17 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "