Sportsman's Service Center

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 195 (N.L.R.B. 1995)

195
317 NLRB No. 28
SPORTSMAN’S SERVICE CENTER
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 Woolford filed her unfair labor practice charge on July 16, 1993.
The complaint issued on August 17, 1993. I held a hearing in the
matter in Annapolis, Maryland, on July 27 and 28, 1994. The Gen-
eral Counsel and Sportsman’s have filed briefs. Sportsman’s admits
that its revenues exceed $500,000 per year and that during the 12
months preceding the issuance of the complaint Sportsman’s pur-
chased goods valued in excess of $5000 directly from points located
outside the State of Maryland. I accordingly find and conclude that
Sportsman’s is an employer engaged in commerce within the mean-
ing of Sec. 2(2), (6), and (7) of the Act.
Sportsman’s Service Center and Sherry Woolford.
Case 5–CA–23714
April 28, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On December 30, 1994, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Sportsman’s
Service Center, Chester, Maryland, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Sherry Woolford immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to 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 discrimi-
nation against her in the manner set forth in the rem-
edy section of the decision.’’
2. In paragraph 2(d) insert footnote reference 3 after
the word ‘‘Appendix’’ and add the following as foot-
note 3.
3 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
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.’’
Ronald Broun, Esq., for the General Counsel.
Matthew W. Oakey, Esq. (Gallagher, Evelius & Jones), of
Baltimore, Maryland, for the Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, Sportsman’s Service Center (Sportsman’s or the
store), is a store in Chester, Maryland. It is owned by Rena
and Roger Dye (wife and husband). Sportsman’s sells hunt-
ing and fishing supplies. The Charging Party, Sherry
Woolford, previously was an employee of Sportsman’s.
Sportsman’s fired her on May 28, 1993.
The General Counsel contends that Sportsman’s fired
Woolford because she called the National Labor Relations
Board’s Regional Office in Baltimore to complain of the
Dyes’ treatment of the store’s employees and that, by Sports-
man’s so doing, it violated Section 8(a)(1) and (4) of the Na-
tional Labor Relations Act (the Act).1 Sportsman’s denies
that it violated the Act in any respect and argues that the
Dyes fired Woolford solely because of Woolford’s unaccept-
able performance and behavior as an employee.
My conclusion is that: (1) Sportsman’s had ample lawful
reasons to terminate Woolford’s employment; but (2) Sports-
man’s would not have fired Woolford when it did but for
Woolford’s telephone call to the Board; (3) Sportsman’s ac-
cordingly violated Section 8(a)(1) and (4) of the Act.
I. WOOLFORD’S RECORD AS AN EMPLOYEE
Sportsman’s first hired Woolford, as a part-time cashier, in
1987. Woolford choose to end her employment in July 1988.
But 2 months later Rena Dye urged Woolford to return to
Sportsman’s. Woolford did and remained employed as a
cashier by Sportsman’s until the Dyes fired her on May 28,
1993. (I will sometimes refer to Rena Dye as Rena and
Roger Dye as Roger.) Until about the start 1992, the Dyes
considered Woolford to be at least satisfactory as an em-
ployee. But that began to change in February 1992.
It was that February that Sportsman’s became computer-
ized, with the store’s cash registers tied directly to a com-
puter. The Dyes chose one of Woolford’s fellow cashiers,
Amy Williams, to be the computer operator. As a result Wil-
liams began working ‘‘upstairs’’—in the store’s office.
Woolford did not like Williams and considered herself to
be a more able employee than Williams. Accordingly
Woolford was upset that the Dyes had chosen Williams for
the computer operator position. Worse yet, from Woolford’s
vantage point, was that: the computerization of the store
meant that the cashiers had to learn a new set of procedures;
it was Williams from whom the cashiers had to learn the
new procedures; and it was Williams who corrected the cash-
iers when they made mistakes in ringing up sales.
Woolford responded to these circumstances by occasion-
ally ignoring the new cashier procedures, by blaming any
computer problems on Williams’ mistakes, and by talking to
the store’s other employees about what an awful person Wil-
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
liams was. Woolford continued this behavior throughout her
employment with Sportsman’s.
On Williams’ part, she appears to be the kind of person
who is on the lookout for insults, often seeing one when
none was intended. Williams thus believed that all of
Woolford’s failures to follow the store’s cashier procedures
were deliberate efforts by Woolford to make life difficult for
Williams. And whenever Williams saw Woolford huddled in
conversation with another employee, Williams saw that as
Woolford gossiping nastily about Williams (which, some of
the time, it was).
Rena Dye handles all of the store’s administrative work
and supervises the cashiers. As it happens, Rena had a closer
relationship with Williams than with she had Woolford, if
only because Williams worked in the store’s office, where
Rena spent much of her time. Indeed, Williams’ desk is next
to Rena’s. Williams enrolled Rena into viewing Woolford the
way Williams did. Thus Rena began to see Woolford as a
kind of provocateur, deliberately making cash register errors
and fomenting morale problems among the other employees.
Later in 1992, Sportsman’s ‘‘floor manager,’’ Marty Bar-
kley, reported that he had noticed Woolford putting cus-
tomers’ money in a cash register after hitting the ‘‘no sale’’
button. That led Rena to conclude that Woolford might be
engaged in petty thievery (a conclusion that Rena might have
been more reluctant to reach but for the mindset about
Woolford that Rena had developed by that point). But there
was no easy way to prove that Woolford was taking money
that belonged to the store. Further, in other respects,
Woolford performed competently. Most notably, her relation-
ship with customers was excellent. Additionally, the town in
which Sportsman’s is located, Chester, is a small one. Every-
one knows everyone, and the Dyes’ children go to school
with Woolford’s. Even more importantly, Woolford’s hus-
band, Fritzie, had long been an excellent customer of Sports-
man’s and a friend of the Dyes. As a result, no thought was
given to discharging Woolford.
Meanwhile Woolford was becoming increasingly irritated
with the Dyes, because, among other things, the Dyes (as
Woolford saw it) were giving preferential treatment to other
employees (including Williams).
In February 1993 the store’s business plummeted. (Feb-
ruary is always a bad month for Sportsman’s; but February
1993 was worse than usual.) Layoffs were called for. Rena
Dye wanted to use the occasion to terminate Woolford’s em-
ployment because of what she believed to be Woolford’s de-
liberate failures to follow procedures, because of Woolford’s
denigration of Williams, the store, and the Dyes in whispered
conversations with other employees, and because of the pos-
sibility of Woolford’s thievery. But Roger Dye, focusing on
the impact that the firing of Woolford would have on the
Dyes’ relationship with Fritzie Woolford, argued in favor of
retaining Woolford as an employee. Roger won; Woolford
stayed on.
The downturn in business led the Dyes to sharply reduce
the hours worked by each of the employees and, therefore,
each employee’s income. Because of that, and because by
this time Woolford took as a personal affront any action by
the Dyes that adversely affected her, Woolford became in-
creasingly angry and vocal about the way Rena Dye sched-
uled Woolford’s hours. (The schedule affected each employ-
ee’s total hours worked, the times of the day worked, and
the days of the week worked.) Woolford sounded off not just
to Rena and the other employees, but also to a few of
Sportsman’s regular customers who stopped in virtually
every morning for coffee and conversation and whom
Woolford had gotten to know well. As one of the customers
who testified put it, Woolford became ‘‘obsessed’’ about the
way Sportsman’s scheduled her. Inevitably, at least one of
the customers on the receiving end of Woolford’s complaints
about Sportsman’s told the Dyes about Woolford’s behavior.
All the while, Williams kept reporting to Rena Dye that
Woolford was failing to perform her cashier job up to par.
And while Williams may have imagined a poorer perform-
ance on Woolford’s part than was actually the case, some of
her reports to Rena undoubtedly were accurate.
In April (1993) Roger Dye found proof of what looked to
him to be theft by Woolford. Again, it involved Woolford’s
use of the ‘‘no sale’’ button when ringing up small amounts.
As Roger put it, from this time on Woolford was ‘‘a dis-
trusted employee.’’ (Needless to say, I make no finding
about whether Woolford in fact did steal anything. My find-
ing is only that Roger and, therefore, Rena believed that
Woolford did.)
About this same time (April) Woolford began to avoid
performing some of the odds-and-ends types of work (such
as cleaning up the area around the cash register) that cashiers
were supposed to handle. The pace of her work slowed to
subpar levels.
Also about this time there was an increase in the fre-
quency with which Woolford came to work late. By May it
got to the point that Woolford was coming in late several
times a week. Not infrequently Barkley (the floor manager)
would telephone Woolford to find out why she was not at
work only to be told that she was still in bed.
Woolford, that is to say, was virtually demanding that
Sportsman’s fire her. Certainly her employment at Sports-
man’s was on very thin ice. This was the state of affairs that
prevailed at the time that Sportsman’s fired Woolford at the
end of May 1993.
II. THE EVENTS OF MAY 27, 28, AND 29, 1993
A. Sportsman’s Fires Woolford
I am first going to discuss the events relevant to
Woolford’s call to the Board and to the Dyes’ firing of
Woolford that I consider clearly established by the record
(often, in fact, undisputed). I will then consider the conten-
tions by Sportsman’s about when and why the Dyes decided
to fire Woolford.
Thursday, May 27, and Friday, May 28, were days off for
Woolford. She was scheduled to work on May 29, starting
at 5 a.m.
At 10:55 a.m. on May 27 Woolford telephoned the
Board’s Regional Office in Baltimore. She told a Board
agent that Roger Dye had sexually harassed a number of
Sportsman’s female employees. (Woolford did not claim that
she had been subjected to such behavior.) Additionally, she
said, Williams and the Dyes had been spying on the store’s
employees by means of microphones connected to the
antitheft cameras located throughout the store. The Board
agent to whom Woolford spoke indicated that the problems
that Woolford described did not seem to be the kind that the
197SPORTSMAN’S SERVICE CENTER
Board handled and suggested several other agencies that
Woolford might contact.
Later that day Woolford spoke to several women who had
previously worked for Sportsman’s and to one current em-
ployee, Donna McGee. Woolford told them that she had
called the Labor Board and planned to call other govern-
mental entities in order to press sexual harassment charges
against Roger Dye. (I make no findings about whether there
was any basis to Woolford’s charges.)
No later than about 2 p.m. on the following day, May 28,
one of the store’s regular customers, Jim Heath, told the
Dyes that Woolford had called the Labor Board the day be-
fore. McGee (an employee) may also have told the Dyes
about Woolford’s call. (In a statement that Rena Dye sent to
the Regional Office on September 13, all that Rena wrote
about knowing of Woolford’s call to the Board was: ‘‘I have
not had any factual knowledge of her going to the Labor
Board.’’ On the witness stand Rena sought to justify those
words by saying that the information about Woolford’s call
that she got from Heath and, possibly, McGee was second
hand and thus did not represent ‘‘factual knowledge.’’ But
I consider the quoted part of Rena’s statement to be an indi-
cation of Rena’s willingness to shade the truth.)
Some time between early in the morning and midafternoon
on May 28, Rena Dye prepared what was obviously meant
to be Woolford’s last paycheck. That is to say, the record is
clear that, no later than mid-afternoon on May 28, the Dyes
had decided to fire Woolford.
At 8:45 p.m. on May 28 Barkley called Woolford to say
that Woolford was not needed in the store the next day. Al-
though there is no doubt at all that by this time the Dyes
had decided to fire her and that Barkley’s call to Woolford
was a function of that decision, there is a dispute about
whether Barkley told Woolford that she had been fired. (Bar-
kley testified that he did; Woolford testified that he did not.)
But whether Barkley directly said so or not, Woolford knew
that her employment by Sportsman’s had ended. Barkley told
Woolford that her paycheck was ready and that she should
come to the store to pick up the check. (Woolford did imme-
diately go to the store, Barkley handed her the check, and
Woolford returned it to him on the ground that it did not in-
clude her vacation pay.)
Sometime between 9 and 10 p.m. Woolford called Barkley
and asked why she’d been let go. Barkley said that she
would have to talk to the Dyes about that but that Woolford
had been ‘‘causing trouble’’ and ‘‘you don’t bite the hand
that feeds you.’’
Woolford then telephoned Rena Dye. There are significant
differences in the testimony of Woolford and Rena about
what was said during that telephone call. Most importantly,
Woolford testified that Rena said, ‘‘We hear you’ve been
talking to the Labor Board and if you’re that unhappy with
your job you can find another one.’’ Rena, on the other
hand, testified that while she did mention the Labor Board,
it was merely to ask Woolford ‘‘why she went to the Labor
Board.’’ I am unable to conclude that either witness’ testi-
mony about this conversation is more credible than the oth-
er’s. What I do find is that during that telephone conversa-
tion: (1) Rena confirmed that the Dyes no longer wanted
Woolford at the store; and (2) Rena mentioned Woolford’s
call to the Board.
Early the following morning (May 29), Woolford ap-
proached the Dyes as they were about to enter the store.
Woolford was there to ensure that the Dyes could not later
contend that she had failed to show up for a scheduled day’s
work. Woolford yet again was told that she was not wanted
at the store. Roger did the talking this time; Rena said noth-
ing. Additionally, Roger, leaning close to Woolford, said,
‘‘You sold me up the river.’’
B. What Sportsman’s Contends About Why the Dyes
Fired Woolford on May 28
The discussion in this part of the decision (II,B) represents
a summary of the contentions by Sportsman’s, to the extent
that those contentions do not conflict with my earlier find-
ings. The discussion in this part should not be taken as find-
ings by me about the facts in this case.
According to Rena Dye’s testimony and a written state-
ment Rena sent to the Board’s Baltimore office on Septem-
ber 13, 1993, the precipitating factor in the decision to fire
Woolford was the departure of another of the store’s employ-
ees, Kathy Belanga.
Belanga had been a cashier at Sportsman’s—a very good
cashier—until May 26. She had been off work on May 24
and 25 and was scheduled to work on May 26. But on the
morning of May 26 she called Rena Dye to say that she quit,
effective immediately. Belanga said that she was quitting be-
cause her baby sitter had quit and because she could not get
along with one of the store’s employees.
In Rena’s September 13 statement, Rena wrote that ‘‘later
that day [the day that Belanga quit] I discovered it was main-
ly because of Mrs. Woolford that [Belanga] had quit.’’
On the witness stand, Rena’s story was different. Rena did
not ‘‘discover’’ anything about the reasons that Belanga had
quit. Rather, Rena simply disbelieved the reasons that
Belanga gave for why she quit. Rena knew that Woolford
and Belanga ‘‘chit-chatted’’ (to use Rena’s phrase) a great
deal, knew that much of what Woolford had to say to other
employees had to do with Sportsman’s being a terrible place
to work, and concluded that Woolford’s conversations with
Belanga had been of that ilk. Rena testified that this, in turn,
convinced her that Belanga had quit because of the nasty
things that Woolford had been saying about Sportsman’s and
because Woolford had urged Belanga to quit.
On the morning of May 27, Rena called Belanga in an at-
tempt to convince Belanga to return to work at Sportsman’s.
Belanga refused. Rena testified that it was at that moment
that she determined to fire Woolford. Woolford was costing
too much in terms of stress and upset for Rena, workplace
turmoil, and employee morale to be permitted to work for
the store any longer. Rena recognized, she testified, that fir-
ing Woolford would mean that Sportsman’s would be two
cashiers short on the very busy Memorial Day weekend. But
she had had it with Woolford and was willing to personally
work the shifts of both Woolford and Belanga in order to be
rid of the source of such upset.
Rena told Roger of her decision. He agreed that Woolford
should be fired. Roger telephoned Woolford’s home to give
her the news, but Woolford was not there. Rena then told
Barkley to call Woolford and tell her that her employment
was terminated. Barkley called Woolford’s home. Woolford
was still not home. But, testified Rena, Barkley left a mes-
sage on Woolford’s answering machine for Woolford to call
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the store. Rena testified that she does not know whether Bar-
kley subsequently talked to Woolford that day (May 27).
On the morning of May 28 (Friday), Rena prepared
Woolford’s paycheck—Woolford’s last paycheck. Then, a
couple hours later, possibly as late as ‘‘noontime,’’ Rena pre-
pared all of the other payroll checks. (Normally Rena does
the payroll on Saturdays; but because Rena was going to be
working Woolford’s shift on Saturday morning, she decided
she better take care of it a day early.)
About 2 p.m. Rena came across Heath (the long-time cus-
tomer) and McGee (an employee) in the store. Heath told
Rena that Barkley had told him that Woolford had been
fired. Heath then went on to tell Rena that Woolford had
contacted the Labor Board. (The record does not tell us how
or where Heath learned of Woolford’s call to the Board. The
likelihood is that McGee told him.) Rena spent a few min-
utes talking to Heath and McGee, then had to rush out of
the store to get ready for her son’s graduation that was to
take place later that same day.
In sum, Sportsman’s argues that as of the end of May
1993, Woolford’s performance and behavior had been a seri-
ous and worsening problem for months (a position with
which I agree, as discussed in part I). Sportsman’s then goes
on to contend that Belanga’s quitting on May 26, which
Rena attributed to Woolford, pushed Rena over the edge—
Rena was simply unwilling to tolerate having Woolford em-
ployed in the store a moment longer. Accordingly, on May
27 Roger Dye and then Barkley called Woolford’s home in
unsuccessful attempts to tell Woolford that she had been
fired. It was a day later, on May 28, that the Dyes first
learned that Woolford had contacted the Board. Although
Woolford may not have been told that she was fired until
after the Dyes had learned about the call to the Board, that
is only because Woolford happened not to be home when
Roger and Barkley called her on May 27.
C. My Findings and Conclusions About Why
Sportsman’s Fired Woolford
On July 21, 1993, the Dyes gave an affidavit to a Board
agent concerning the events leading to Woolford’s being
fired. (The affidavit is signed only by Roger. But Rena testi-
fied that both she and Roger met with the Board agent and
provided the information contained in the affidavit.) That af-
fidavit says nothing whatever about Belanga’s quitting. Rath-
er, according to the affidavit, ‘‘the final straw’’ in the Dyes’
decision to fire Woolford ‘‘was complaints from customers.’’
I consider that difference between the Rena Dyes’ testi-
mony and the Dyes’ affidavit to be devastating to the store’s
position. If Belanga’s quitting had in fact been the defining
event in Rena’s decision to fire Woolford, it is extraor-
dinarily unlikely that the Dyes would have overlooked it
when, less than 2 months after that event, they told a Board
agent of their reasons for firing Woolford. I conclude, there-
fore, that the Dyes’ firing of Woolford was unrelated to
Belanga’s quitting. Rather, the likelihood is that Rena Dye
falsely testified that there was such a connection in order to
provide a lawful reason for the Dyes’ termination of
Woolford’s employment 1 day after Woolford telephoned the
Board.
There are three further reasons to reject the contention of
Sportsman’s about how Woolford came to be fired. They
might not alone be enough to lead to me disbelieve Rena that
Belanga’s quitting was the event that made up Rena’s mind
about firing Woolford. But they add to the improbability that
Woolford was fired on May 28 for the reason claimed by
Sportsman’s.
First, Barkley, the first person to indicate to Woolford that
she had been discharged, did not talk to her until close to
9 p.m. on May 28. If Rena had decided midday on May 27
to fire Woolford, it is unlikely that the Dyes would have al-
lowed 30 hours or so to pass before communicating that ac-
tion to Woolford, particularly because Woolford was sched-
uled to work the shift that began at 5 a.m. on May 29.
Sportsman’s contends that the store did try to reach
Woolford during the day on May 27. But that does not ex-
plain the absence of any call to Woolford reasonably early
during the day on May 28.
Second, according to Rena, Heath predicated his mention
of Woolford’s call to the Board by saying that he had heard
that Woolford had been fired. But that would have been long
before Woolford had heard that she had been fired. For that
to have happened, Barkley would have had to have given the
news to Heath before he had told it to Woolford. Although
that is possible, on the face of it the odds are against it. Yet
Sportsman’s did not ask either Barkley or Heath about that
alleged communication when they were on the witness stand.
Third, when Woolford applied for unemployment com-
pensation, the state agency handling such matters asked
Sportsman’s to fill out a form stating why Woolford was no
longer working there. Rena Dye did so. Sportsman’s failed
to keep a copy of the form, and neither the General Counsel
nor Sportsman’s sought to get a copy from the state agency.
But the agency’s summary of what Sportsman’s stated was:
The claimant was discharged or suspended as a dis-
ciplinary measure by Dye, Roger . . . because of al-
leged malicious gossip/slander.
It is the word ‘‘slander’’ that gives one pause. It is un-
likely that the agency would have used that term unless it
was used by Sportsman’s. And while it could be, of course,
that Sportsman’s was referring to Woolford’s complaints
about Sportsman’s to the store’s customers and employees,
that would be an unusual way to describe Woolford’s behav-
ior.
What about ‘‘complaints from customers’’ about Woolford
being the ‘‘final straw’’—as stated in the Dyes’ affidavit?
My conclusion is that simply is not so. It was Rena who
made the decision to fire Woolford, and she did not testify
that such complaints were the immediate reason that she de-
cided to discharge Woolford. Additionally, there is no credi-
ble evidence that the store’s customers suddenly started com-
plaining about Woolford in the day or two just before May
28, or that customer complaints about Woolford reached a
crescendo then. And the Memorial Day weekend is an ex-
traordinarily busy one for Sportsman’s. Absent some sudden
new information about Woolford, the Dyes would not have
chosen the start of that weekend to fire her, particularly in
view of the fact that the store was already one cashier short
because of Belanga’s departure.
I have no doubt that, when Belanga called to say that she
was quitting, Rena did assume that Woolford had something
to do with it. That meant that as of May 26 Woolford was
even closer to getting fired than she already had been. But
199SPORTSMAN’S SERVICE CENTER
my conclusion is that the Dyes did not decide to fire
Woolford until May 28. At some point during the morning
or early afternoon either Rena or Roger, or both, heard from
either Heath or McGee, or both, that Woolford had called the
Board to complain about Sportsman’s. That was the ‘‘final
straw.’’ Rena Dye prepared Woolford’s last paycheck and
then the rest of the payroll. The Dyes told Barkley to call
Woolford to say that she was fired and then left for the day
in order to, as Rena testified, attend their son’s high school
graduation.
D. Animus
Rena Dye testified that she was not concerned about em-
ployees calling the Labor Board. If that were so then, of
course, Woolford’s call to the Labor Board could not have
been the reason that the Dyes fired Woolford.
In that connection Rena testified that, about a month be-
fore Woolford was fired, she heard either McGee or Belanga
say that Woolford was going to the Labor Board about some-
thing. According to Rena, ‘‘with all of the problems that had
been going on, I didn’t think anything of it.’’
But that testimony conflicts with two other statements by
Rena. One was that, according to Rena, she was ‘‘very sur-
prised’’ when Heath told Rena about Woolford’s call to the
Board. More significantly, recall that when Rena spoke to
Woolford on the evening of May 28, she asked why
Woolford had gone to the Labor Board. Rena testified that
she posed that question because ‘‘I hadn’t heard anything
about the Labor Board before.’’
I conclude that it is probable that Rena testified falsely
when she said that she had previously overheard Woolford
referring to the Labor Board.
Of course, an absence of credible evidence that the Dyes
were unconcerned about employee calls to the Board does
not constitute evidence that the Dyes were concerned about
such calls, so much so that they would fire the offending em-
ployee. And apart from Woolford’s being fired, there is no
evidence that the Dyes would respond unfavorably to a call
by an employee to the Board. But the timing of an employ-
er’s discharge of an employee and false testimony by the em-
ployer about the reason for the discharge can constitute evi-
dence of an illicit motive, and I conclude that the cir-
cumstances here show that to be the case. See, e.g., Fiber
Products, 314 NLRB 1169 (1994); Active Transportation,
296 NLRB 431, 432 fn. 8 (1989).
E. Other Matters
The conclusions that I have expressed above reflect, to
some extent, the General Counsel’s contentions. But the
General Counsel argues that many more facets of the record
constitute evidence that Sportsman’s fired Woolford because
of her call to the Board than I believe to be the case.
1. The General Counsel contends that Barkley held a
cookout at his home on the evening of May 27, that McGee
and Heath attended, that McGee there told Barkley that
Woolford had called the Board, and that Barkley promptly
told the Dyes. But the General Counsel failed to show that
Barkley held a cookout on May 27 or that, even if there was
one, Barkley learned of Woolford’s call. In that connection,
I credit Barkley that he did not know why the Dyes decided
to fire Woolford.
2. As discussed earlier, when Woolford asked Barkley why
she was fired, Barkley used the words ‘‘causing trouble’’ and
‘‘you don’t bite the hand that feeds you.’’ Those words sig-
naled, argues the General Counsel, that Sportsman’s fired
Woolford because of her call to the Board. But those words
are descriptive of Woolford’s behavior at Sportsman’s. They
accordingly add nothing to the General Counsel’s case (even
apart from the fact that I have found that Barkley did not
know why the Dyes fired Woolford).
3. Rena Dye testified that Barkley tried to telephone
Woolford on May 27 to tell Woolford that she had been
fired, that Woolford was not home, and that Barkley left a
message on Woolford’s answering machine (asking Woolford
to call Barkley). Woolford, however, does not have an an-
swering machine. I am not sure what to make of that dis-
crepancy. If Barkley told Rena that Woolford was not home
but that he had left a message, Rena could easily have sim-
ply assumed that Barkley had left the message on an answer-
ing machine. Thus the mistaken reference to an answering
machine might not mean much. On the other hand, I have
found that the Dyes did not decide to fire Woolford until
May 28. I perforce additionally find that neither the Dyes nor
any other agent of Sportsman’s called Woolford on May 27
regarding the termination of Woolford’s employment.
4. In the Dyes’ July 21 affidavit, they state that Wool-
ford’s final paycheck was dated May 26. The General Coun-
sel argues that that was a deliberate attempt to mislead. But
I credit Rena Dye’s testimony that that was an inadvertent
mistake.
5. The General Counsel called as witnesses two of the
store’s most regular customers, Heath and Bill Comegys.
Each testified that, prior to Woolford’s being fired, he had
not said anything to either of the Dyes about Woolford’s
complaints. I have considered that testimony. But as indi-
cated earlier (in part II,A), I am confident that at least one
of the store’s regular customers talked to the Dyes about the
fact that Woolford frequently and bitterly complained to the
store’s regular customers about the Dyes.
6. Woolford had been employed by Sportsman’s for al-
most 5 years when the Dyes fired her. Yet: (1) Sportsman’s
had given Woolford no prior warnings that she was heading
toward discharge; (2) Sportsman’s gave Woolford no notice
whatever—she was scheduled to start work at 5 a.m. on May
29 and was fired, effective immediately, on the evening of
May 28. The General Counsel argues, and I initially be-
lieved, that both of these circumstances are proof that the
Dyes believed that Woolford had done something remarkably
reprehensible on or not long before May 28, and that could
only be Woolford’s call to the Board. But I no longer hold
that view. That is because the record shows that the Dyes
never, or virtually never, hand out disciplinary warnings and
that when they fire employees, they always do so without
notice.
7. The Dyes testified that they were certain, or nearly so,
that Woolford engaged in petty theft. The record, however,
shows that the indications of such theft were ambiguous. The
General Counsel argues that that shows that the Dyes’ testi-
mony about Woolford taking money that belonged to the
store is a lie. But as the discussion in part I of this decision
shows, I am convinced that the Dyes honestly believe that
Woolford stole money from the store.
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Boards Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
8. In September 1993, the Dyes asked Barkley (the floor
manager) and Williams (the computer operator) to prepare
statements describing Woolford’s performance as an em-
ployee and the reasons Woolford was fired. The Dyes told
Barkley and Williams that the statements would be part of
the store’s defense in the Board proceeding. But they left
Barkley and Williams on their own as to what to say. More-
over the Dyes instructed both Barkley and Williams to seal
their statements in envelopes without showing the statements
to either of the Dyes. The Dyes, that is, neither instructed
Barkley or Williams on what to write nor even read either
Barkley’s or Williams’ statement. As it turned out, Barkley’s
and Williams’ statements varied considerably from the Dyes’
testimony about why Woolford was fired. (Neither, for in-
stance, said anything at all about any connection between
Belanga’s quitting and Woolford’s getting fired.) And
Barkley’s statement varied from his testimony. Most notably,
in his statement Barkley wrote that he discussed with Roger
Dye Woolford’s many deficiencies and ‘‘we decided it was
in the best interest of the business to let her go.’’ But on the
witness stand Barkley testified (credibly) that it was not his
place to recommend that an employee be fired, he did not
have any such discussion with Roger about Woolford, and
the Dyes did not tell him why they decided to fire Woolford.
The General Counsel argues that such inconsistencies are
evidence of a coverup. But that does not appear to be the
case. In fact the Dyes’ willingness to have Barkley and Wil-
liams send their unreviewed statements to the Regional Of-
fice reinforces my conclusion that the Dyes’ testimony about
Woolford’s deficiencies as an employee should be credited
as, in the very least, an honest expression of the Dyes’ be-
liefs on the subject. On the other hand, the Dyes knew that
neither Barkley nor Williams had any information at all
about why the Dyes chose to fire Woolford when they did—
at the start of the Memorial Day weekend. Thus the Dyes’
request to Barkley and Williams indicates nothing about the
veracity of the Dyes’ testimony on that subject.
III. CONCLUSION
It may well be that, notwithstanding Woolford’s telephone
call to the Board’s Baltimore office, Sportsman’s would not
have fired Woolford on May 28 if Woolford’s performance
and behavior as a cashier had been satisfactory. And, cer-
tainly, Woolford was in any case perilously close to being
fired for lawful reasons. But Sportsman’s failed to prove that
it would have fired Woolford on May 28 absent her call to
the Board. See, in this connection, Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). In fact the record
affirmatively shows that Sportsman’s would not have fired
Woolford that Memorial Day weekend but for her call to the
Board. Sportsman’s accordingly violated Section 8(a)(1) and
(4) and the Act. NLRB v. AA Electric Co., 405 U.S. 117
(1972). Cf. Sea-Land Service, 280 NLRB 720 (1986), enf.
denied 837 F.2d 1387 (5th Cir. 1988).
IV. REMEDY
It is unlikely that Sportsman’s would have retained
Woolford as an employee much longer even had Sportsman’s
not learned of her call to the Board. But nothing in the
record proves just when Sportsman’s would have fired
Woolford absent that call to the Board. Accordingly, since I
have concluded that Sportsman’s fired Woolford for reasons
that violated the Act, I see no alternative but to recommend
that Sportsman’s be required to reinstate Woolford and make
her whole for any loss of earnings and other benefits she suf-
fered as a result of that unfair labor practice from May 28,
1993, to the date of a proper offer of reinstatement. Loss of
earnings and benefits shall be computed on a quarterly basis,
less any interim net earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest to be com-
puted in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Sportsman’s Service Center, Chester,
Maryland, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging any employee for contacting the National
Labor Relations Board.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Sherry Woolford immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudrivileges pre-
viously enjoyed, and make her whole for any loss of earn-
ings and other benefits suffered as a result of the discrimina-
tion against her in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify Sherry Woolford in writing that this has
been done and that the discharge will not be used against her
in any way.
(c) Preserve and, on 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 Order.
(d) Post at its store in Chester, Maryland, copies of the at-
tached notice marked ‘‘Appendix.’’ Copies of the notice, on
forms provided by the Regional Director for Region 5, after
being signed by a representative of Sportsman’s, shall be
posted by Sportsman’s immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Sportsman’s 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 Sportsman’s has taken
to comply.
201SPORTSMAN’S SERVICE CENTER
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge you for contacting the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Sherry Woolford immediate and full rein-
statement to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
any other rights or privileges previously enjoyed and WE
WILL make her whole for any loss of earnings and other ben-
efits resulting from her discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Sherry Woolford that we have removed
from our files any reference to her discharge and that the dis-
charge will not be used against her in any way.
SPORTSMAN’S SERVICE CENTER