The May Co.

National Labor Relations Board - Board Decisions

Oct 6, 1975

220 N.L.R.B. 1096 (N.L.R.B. 1975)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company , d/b/a The
May Company and John Zaffle . Case 8-CA-8867
October 6, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 27, 1975, Administrative Law Judge Sam-
uel M. Singer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and Charging Party filed a
reply brief.
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.
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 and hereby
orders that Respondent, The May Department
Stores Company, d/b/a The May Company, Cleve-
land, Ohio, its officers, agents, successors , and as-
signs, shall take the action set forth in the said rec-
ommended Order.
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT ; LABOR ORGANIZATION INVOLVED
Respondent , a New York corporation , operates retail de-
partment stores and a warehouse in the Cleveland, Ohio,
area. Its annual gross sales exceed $500 ,000 and its annual
purchases and shipments in interstate commerce from
points outside Ohio exceed $50,000 . I find that at all mate-
rial times Respondent has been and is an employer en-
gaged in commerce within the meaning of the Act , and that
assertion of jurisdiction here is proper.
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local No. 507
(Local 507) is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background ; Respondent 's managerial and warehouse
employees
The May Company in Cleveland, Ohio, is a wholly
owned autonomous subsidiary of The May Department
Stores Company. In connection with its retail department
operations there, it operates a warehouse where Charging
Party was employed at the time of his termination on Sep-
tember 24.1 John Moisio is the warehouse superintendent
or manager responsible for the overall operations of the
warehouse . Alvin Fuote is the assistant warehouse fore-
man, responsible for assigning jobs to the 49 individuals
employed in the warehouse. Douglas Coffey is vice presi-
dent and personnel director, responsible for overall admin-
istration of company personnel policies at Respondent's
seven stores in the Cleveland area.
Respondent's warehouse employees (warehousemen, ele-
vator men, and material handlers-but not furnituremen)
are represented by Teamsters Local 507. Its most recent
collective agreement with that union covers the period July
1, 1972, to July 1, 1975. The warehouse furnituremen, who
move equipment from one part of the building to another,
are represented by Teamsters Local 392.
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This case
was heard before me in Cleveland, Ohio, on April 30, pur-
suant to charges filed on January 10, and complaint issued
on March 5, 1975. The complaint alleges that Respondent
violated Section 8(a)(1) and (3) of the National Labor Re-
lations Act, as amended, by suspending and thereafter dis-
charging Charging Party for engaging in protected concert-
ed or union activities, including the filing and processing of
grievances in his capacity as union steward.
All parties appeared and were afforded full opportunity
to be heard and present evidence and argument. General
Counsel and Respondent filed briefs. Upon the entire rec-
ord and my observation of the testimonial demeanor of the
witnesses , I make the following:
2. Zaffle's employment and union activities
Charging Party Zaffle, one of two stewards in the ware-
house prior to his September 24 termination, was elected to
that position in July 1972. He had been in Respondent's
employ since April 1941-over 33 years-most recently as
a stockman in the carpeting department where he would
stock carpets, cut material, and haul it to the delivery de-
partment. Employees would ask him in his capacity of
steward, to take up problems with management , chiefly
with Assistant Warehouse Manager Fuote. Zaffle would
check on company action on such matters as vacations and
overtime to assure conformity to the collective agreement
1 All dates are 1974 unless otherwise indicated.
220 NLRB No. 168
THE MAY COMPANY
(infra, sec. A, 5). Although that agreement provides that
"in order to be considered a grievance under this Agree-
ment [a complaint] must be submitted with the shop stew-
ard or at the Local Union," Fuote acknowledged that "it
was proper for [the steward] to try and iron things out
informally first before filing a [written] grievance."
3. The September 24 incident leading to Zaffle's
suspension and discharge
On Tuesday, September 24, James Morris, a warehouse-
man and Local 507 member, reported to Zaffle (the Local
507 steward) that Sebastian Massa, a furnitureman and Lo-
cal 392 member, was operating one of the warehouse eleva-
tors-work which Morris and Zaffle claimed were within
Local 507 jurisdiction? Stating that he would immediately
check on the matter, Zaffle, accompanied by Morris, pro-
ceeded to the elevator. When Zaffle told Massa that he was
"not supposed to be running this elevator," the latter an-
swered, "Yes, I know, but my boss told me to run it "
Zaffle said, "All right, you run it and I'll go check it with
[Assistant Warehouse Manager] Fuote." 3
Zaffle then proceeded to Fuote's office on the second
floor and informed Fuote that a furniture hauler was "op-
erating our elevator that shouldn't be running it," adding,
"[e]ither take him off or I will call the Hall . . . and have
the representatives come here and take him off." 4 Fuote
replied that he "would talk with the furniture people about
the matter." After Zaffle left, Fuote called Moisio (his su-
perior) to tell him about the "problem at the elevator" and
to ask him "to look into the matter because [he] was tied
up. sr
Moisio immediately went to the elevator on the first
floor (Elevator No. 3), where he encountered Zaffle with
three or four employees clustered around him. A shouting
argument ensued, wherein Zaffle accused the Company of
improperly allowing a furniture mover to operate an eleva-
tor and Moisio accused Zaffle of "wandering around the
building," admonishing Zaffle that "[i]f you have a griev-
ance, file it in the normal manner" in writing "rather than
having a yelling contest at the front of the elevator." 5 Moi-
sio also said, "John [Zaffle], I'm sick and tired of your
interference . . . I want you to leave. I am going to pull
your time card and I want you to leave." Zaffle countered,
"I am not leaving" 6 and announced that he was going to
2 As already noted , Respondent's collective agreement with Local 507
provides for representation of elevator operators by Local 507. There is
nevertheless evidence that furniture movers (Local 392 members) on occa-
sion operated elevators in performance of their duties.
3 The above findings are based on the testimony of Zaffle, corroborated
by Morris and Massa.
Although Fuote first testified that Zaffle "came bursting" into his office
while he was interviewing a job applicant , on cross-examination he testified,
"I wouldn 't say bursting, but he just opened the door and came in."
s Moisio admitted on cross-examination that it was "perfectly all right to
discuss" grievances orally and that grievances had been handled in that
manner, although the collective agreement calls for written grievances.
Fuote testified to the same effect . Zaffle denied "wandering around the
building" for reasons other than legitimately checking out a union gnev-
ance . As to the latter , sec. 10 of art . III of the collective agreement states:
"The privilege of stewards to leave their work during working hours without
loss of pay is extended with the understanding that the time be devoted to
the prompt handling of grievance and will not be abused."
1097
the union hall during his lunch hour (a half hour later) to
discuss the incident. At this, Moisio said that he should
"leave now." 7 At this point, Moisio told Zaffle that he was
suspended until further action by the personnel depart-
ment. As the two were leaving the scene, Zaffle said, "If
you think you are shaking now,8 just wait and see how I'm
going to make you shake." 9
Zaffle thereupon reported the incident to the Union by
telephone. Business Agent Oxford instructed him not to
leave "until you are fired." Informing the security sergeant
as to "what had happened" and alerting him that he
"might be called upon," Zaffle left for lunch.
When Zaffle returned from lunch, Fuote summoned him
to the office and told him, "John, Mr. Moisio told you to
leave the building." Zaffle znswered, "Yes, I know, and I'm
not leaving." Fuote retorted, "Now, I am telling you to
leave" and Zaffle again answered that he was not leaving,
explaining, "I have talked to the union and they said. to
stay until you fire me." After further discussion, Zaffle
said, "Mr. Fuote, do you want me to leave?" When Fuote
responded, "Yes, I do," Zaffle stated, "Well, then, call your
security to escort me out." Fuote did so and the guard
escorted Zaffle to his locker to collect his belongings and
leave the premises. According to Fuote, Zaffle also asked
for a "witness," but when he (Fuote) suggested calling the
other union steward, Zaffle remarked, "I don't trust him.
He's on your side." 10
6 Based on Zaffle 's credited testimony, Moisto was vague and evasive on
the subject of whether he made the "sick and tired" remark-first stating
that he could not "recall it" although it "might have been" made, then
claiming that he "absolutely" did not make it, and later retreating that he
could not "honestly recall" uttering it.
7 Motsto testified that he took Zaffle's statement about going to the union
hall as a "threat ," implying "something I would regret."
8 I.e., a Parkinson 's disease symptom, which Moisio's cosupervisor
(Fuote) described as a "slight medical problem . . tend[ing] to give [Moi-
the shake of the hands sometimes."
Although I credit Moisio's testimony that Zaffle made this reference to
his physical condition, Moisio's testimony as to the precise moment when he
made the remark (i.e., whether before or after he suspended Zaffle) is con-
fusing and self-contradictory Thus, at times he places the suspension after
the claimed Parkinsonian reference-indeed, just before Zaffle was escorted
out of the building by a security guard (infra). By his own admission, Moi-
sio was unsure when he made the suspension remark. His preheating affida-
vit specifies (as does his testimony at some points) that the Parkinsonian
remark followed the suspension . Thus, the affidavit reads.
Zaffle said that he'd wait until lunch time . I told him no, if he was
going to go , punch out now and leave the building. I then told Zaffle
that he was suspended until I found out what disciplinary action the
store would take . I started back to my office. Zaffle followed me about
six feet behind. He kept muttering about going to the union, about
straightening out the warehouse , and, in reference to my having
Parkinson's Disease , he said, "If you think you're shaking now, wait
until you see how I'm going to make you shake."
10 These findings concerning the September 24 incident are based on the
composite testimony of Zaffle , Moisio, and Fuote- to the extent credited. I
have already noted (supra, Ins. 6 and 9) my reservations as to the reliability
of Moisio as a witness As to Fuote, he admitted having no independent
recollection of the September 24 incident , testifying on this and other (prior)
incidents involving Zaffle (infra, sec. A, 5) from writings. He could not
recall a single detail on any single incident without consulting these writ-
ings. Fuote impressed me as a loyal member of the managerial hierarchy,
impelled to go far to conform his testimony to what he regarded as the best
interest of his employer-fashioning, if need be, a case against Zaffle . This
is not to say that Zaffle, for his part, was altogether frank and forthright in
his testimony ; he was not altogether averse to minimizing events and with-
Continued
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Zaffle's discharge
Later the same day (September 24) Assistant Warehouse
Manager Fuote and Warehouse Superintendent Moisio
telephoned Personnel Director (also Vice President) Coffey
and reported the incident with Zaffle . Coffey testified that
he felt that "the fairest thing to do" was to suspend Zaffle
"pending an investigation of the incidents " and "until a
decision could be reached" as to reinstatement or "some-
thing . . . which could be as serious as termination"; that
it was his "recommendation" to Moisio and Fuote that
Zaffle be suspended ; I I and that he asked them to send him
Zaffle's "personnel record from the warehouse and any in-
formation that they had." 12
Coffey also testified that later in the day (2 p .m., Sep-
tember 24) he met with Zaffle at the latter 's request. Ac-
cording to Coffey, the 45-minute session (also attended by
Security Director Clark) dealt with "a serious security mat-
ter at the warehouse," although he (Coffey) also let it be
known that he had "personally" asked for Zaffle 's suspen-
sion earlier in the day. Coffey testified that Zaffle stated
that there were "many dishonest employees at the ware-
house," that "thefts were occurring ," and that Moisio and
Fuote were "dishonest" and "perhaps were taking mer-
chandise." According to Coffey, although he was "sure"
that Zaffle supplied "sincere information," it was not "spe-
cific enough" to warrant further investigation and no "fol-
low-up action" was taken.
Finally, Coffey testified that after reviewing the person-
nel file and information on Zaffle he decided the next
morning (September 25) that Zaffle "had to be terminat-
ed"-indicating that it "wasn 't an easy decision because
Mr. Zaffle had been an employee of The May Company
almost as many years as [Coffey] had been alive." Accord-
ing to Coffey , the "prime reason for [this] decision was
insubordination"-"gross and repeated in that he had, in
the presence of numbers of people , referred to his supervi-
sors as liars, had referred to them as being dishonest indi-
viduals, questioned their integrity and had made personal
insults on several occasions against Mr. Moisio ." As "sec-
ondary considerations" for the decision to discharge Zaf-
fle, Coffey assigned inability "to effectively get Mr. Zaffle
to remain in his work area" and that Zaffle was "disrup-
tive" to other employees.
On the same day (September 25), Coffey sent a memo-
randum to Moisio and Fuote, with a copy to Zaffle's union
(Local 507), notifying them of Zaffle's discharge. Coffey
cited Zaffle 's "eccentric behavior . . . over the past several
days, weeks and months"; "the correspondence and warn-
ings in John Zaffle's [personnel] folder with regard to his
holding facts inimical to his interest ; such as flatly denying that he had so
much as referred to Moisio 's physical condition.
11 It is to be noted , however, that Moisio testified that he had already
suspended Zaffle (i.e., prior to his telephone call to Coffey) at or near the
elevator and before or after (Moisio testified both ways) Zaffle made the
disparaging reference to Moisio's Parkinson 's disease (supra, In. 9). Both
Moisio and Coffey testified that only Coffey had authority to discharge (as
opposed to suspend) an employee with 5 or more years of service . It will be
recalled that Zaffle had been in Respondent 's employee for over 33 years.
12 Fuote testified that he supplied Coffey with "notes" on Zaffle's alleged
misconduct since 1970 (supra, In. 10).
leaving his work assignment and wandering the ware-
house" since 1970 ; and the need to remove him from the
company premises on September 24.
5. Respondent's contentions ; pre-September 24 incidents
At the hearing, Respondent contended that the Septem-
ber 24 incident was "a culmination of many acts"-some
"connected" and others not to Zaffle 's responsibilities as
steward-"disruptive of the business and the operation of
[the] warehouse building." Assistant Warehouse Manager
Fuote testified to almost all of the alleged incidents-as-
sisted by notes which he read and summarized .13 First, he
mentioned a 1970 episode in which Zaffle had allegedly
complained about Fuote's allowing others to do Zaffle's
work; Zaffle offered to do his work "regardless of what he
was doing ... he would return and do it." Another 1970
incident involved a complaint that Warehouse Superinten-
dent Moisio had improperly instructed an appliance re-
pairman to do stock work. Fuote detailed no other prob-
lems with Zaffle until March 1972 when, he testified, Zaffle
began "reverting back to the way he had been a couple of
years prior." 14 Fuote described a discussion at a March 2,
1972, meeting between management, Zaffle , and the then
steward about Zaffle's "wandering throughout the building
and . . . soliciting problems" and a remark by Zaffle that
changes would be made when the new contract between
Respondent and the Union "came into effect"; an accusa-
tion by Moisio (apparently at the same meeting) that Moi-
sio and Fuote were "security risks";15 a March 10 incident
when Zaffle "wandered" in the building "telling people
how to do the job easier"; and a March 30 episode when a
contractor 's manager (Gutzky) complained about "threats"
from Zaffle, the nature of which Fuote did not disclose.
Fuote admitted that Respondent had no "problems"
with Zaffle between April 1972 and September 1974.16 He
adverted to a series of incidents commencing on September
9, 1974-about 2 weeks before Zaffle's September 25 dis-
charge.17 The first, involving Zaffle's complaint about job
assignments , was discussed at a September 9 meeting
among management , Zaffle , and union business agents
(one of them Rusnak). According to Fuote, Zaffle became
13 As already noted (fn. 10), Fuote admittedly was devoid of independent
recollection of the events antedating the discharge . The notes in question
were never made known to Zaffle.
14 Warehouse Superintendent Moisio, Fuote 's superior, also allegedly re-
called some episodes: (1) a meeting with Zaffle , attended by shop stewards,
in which Moisio complained that Zaffle "went around throughout the build-
ing and didn't follow . . . his work orders"-but without indication by
Moisio concerning what "work orders" were involved; (2) Zaffle eating his
lunch during work hours on two occasions ; and (3) Zaffle (in September
1970) asking for sick leave although he had previously been given a week off
on a doctor's recommendation , but Moisio did not claim that the second
request was unjustified . Personnel Director Coffey also recounted an al-
leged 1970 incident when , as a result of a customer complaint, he restricted
Zaffle 's work to the warehouse, but Coffey did not supply details, not even
as to the nature of the alleged complaint.
15 Coffey, who testified about this meeting, recalled Zaffle calling the two
"liars" and "dishonest."
16 Coffey's testimony that he "periodically" "throughout the period"
March 1972-September 1974 received reports of "problems of sorts" with
Zaffle is vague , unsubstantiated, and inconsistent with Fuote's testimony,
and I am unable to give weight to it.
17 One of these (the September 24 episode) has been described.
THE MAY COMPANY 1099
"rather boisterous," called Fuote and Moisio "liars," and,
referring to Moisio's physical condition (i.e. Parkinson's
disease, supra, fn. 8), said to Moisio, "look at the shape that
you are in." 1s
Fuote also mentioned a protest on the next day (Septem-
ber 10) by Zaffle and employee Musarra (the second stew-
ard) about a written warning ("write-up") to an employee
for excessive absenteeism . He testified that later that day
Zaffle told him that he (Fuote) "was having a lot of prob-
lems" with employee Dusty, but that when Dusty, in the
presence of Fuote and Zaffle, confirmed Fuote's denial
that he had had any such problems, Zaffle (according to
Fuote) "got into sort of a hassle" with Dusty.
Fuote testified that on September 11, Zaffle protested
Fuote's changing the starting hours of warehouse employ-
ees, claiming that if he started a man an hour earlier than
usual he had to allow the man to work until his normal
quitting time and thus to earn 1 hour's overtime. Later that
day Zaffle and the second steward (Musarra) informed
Fuote that they had been to union headquarters and that
the Union agreed with their interpretation. Fuote answered
that they misunderstood "what they were told." The next
morning (September 12), Zaffle told Fuote that he was un-
able to reach anyone at the union hall, but he was going to
try again later to get Fuote "straightened out."
Also, according to Fuote, on the same day (September
12) Zaffle disputed his vacation scheduling policy ("sche-
dul[ing] people according to work loads"), asserting that
since he had seniority over most people he could "bump"
others to take the vacation time he wanted. Fuote demur-
red, saying "There was no bumping." 19 Later on the same
day, Fuote informed Zaffle that an employee had gone on
vacation and that his (Zaffle 's) starting time "in the next
couple of weeks or so" would be one hour earlier. Zaffle
said he "would not do it unless he was paid overtime," but
Fuote answered that "no overtime [was] involved." The
next day (September 13), Zaffle told Fuote, "I am going to
do it, but I am still going to get you straightened out by the
union."
Fuote further testified that on Monday, September 16,
Zaffle asked him who had worked in the warehouse on the
preceding Saturday. Fuote answered no employees other
than the transfer people. Apparently dissatisfied with this
answer , Zaffle approached the warehouse employees to
find out who had worked. Later in the day, Zaffle told
Fuote that he was going to the union hall to get the situa-
tion "straight." Fuote admitted that Saturday (as to which
Zaffle inquired) was an overtime day. The collective agree-
ment (art. III, sec. 4) provides for equalization of over-
time-with the first overtime to go to employees "with
greater seniority."
According to Fuote, on the next day (September 17), he
telephoned Local 507 Business Agent Rusnak and com-
plained that Zaffle "was acting contrary to what he agreed
Is Zaffle admitted that he "may have" called Fuote and Moisio "liar." He
could not recall whether he made any reference to Moisio's physical condi-
tion; I find that he did.
i9 Under art. V, sec. 6 , of the collective agreement "Preference as to selec-
tion of vacation periods shall be in accordance with department or job
classification seniority."
to do" previously (September 9) when Rusnak and two
other business agents conferred in Fuote's office about
Zaffle's work assignments. Fuote mentioned that Personnel
Director Coffey had recommended Zaffle's dismissal be-
cause of his "behavior." 20 The next day (September 18)
two other business agents visited Fuote. In response to
their inquiry "what the problems were," Fuote (with
Moisio's -approval) handed them copies of the notes he
kept on Zaffle. When Rusnak (accompanied by a union
official) again visited Fuote later that day and Fuote asked
Rusnak's opinion on sending Zaffle "a final, final, final
warning," Rusnak replied that he could not stop him from
writing warnings. There is no evidence of any "final" no-
tice having been sent to Zaffle.
Fuote further testified that on September 20, Zaffle told
Fuote that he was ill; Fuote said that Zaffle could go home
and he left. Later (apparently the same day after returning
to the warehouse), Zaffle again said that he must leave for
illness . Fuote said "all right, punch out," but Zaffle failed
to punch out-whereupon Fuote noted the time he left on
Zaffle's timecard. Fuote telephoned Business Agent Rus-
nak 3 days later (September 23), and complained that Zaf-
fle "is still out of line and . . . would like to know if any-
thing was being done so far as his behavior" is concerned.
The final pre-September 24 incidents as to which Fuote
testified include a complaint lodged by Zaffle with
Moisio's secretary on September 23 about his department
number being changed; a statement by Zaffle to Fuote that
he was "going around to make sure all the people have
their I.D. badges on"; and a complaint by Zaffle to Fuote
about Fuote's turning in written reports on him "to the
people downtown" and Zaffle's remark that Fuote was a
"liar" when the latter said to Zaffle, "You are mistaken." 21
B. Conclusions
The key issue here is one of motivation: Did Respondent
discharge Zaffle, a union steward, on September 25 be-
cause (as General Counsel contends) of his protected con-
certed activities? There is no question that Respondent
could lawfully have dismissed Zaffle, if, as it claims, he was
abusive and otherwise misconducted himself. Just as pro-
tected concerted and union activity may not serve as the
basis for a discharge, so may not such activity serve as an
insurance -policy against discharge. Spotlight Company, Inc.
v. N.L.R.B., 192 NLRB 491, 500 (1971). However, the cir-
cumstance relied on by Respondent that it had ample busi-
ness reasons for the discharge is not in itself sufficient.
"[T]he rule is well established that although ample valid
grounds may exist for the discharge of an employee, that
discharge will violate Section 8(aX3) [and 8(a)(1)] if it was
in fact motivated, even partially, by the employee's union
activity [citing cases]. Thus, where there are legitimate rea-
20 Referring to a discussion with Fuote in early September concerning
disciplinary action against Zaffle, Coffey testified that he told Fuote that "it
was Fuote's responsibility to see that work was being . . . carried out at the
warehouse"-without mentioning that he had recommended disciplinary
action against Zaffle. Coffey also testified that only he (not Fuote or Moi-
sio) had authority to terminate employees (like Zaffle) more than 5 years in
the Company's service (supra, fn. 11).
21 As noted, Fuote on September 17 did give copies of his notes on Zaffle
to two business agents.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons for the discharge of an employee , the question is
whether those were in fact the only grounds for the dis-
missal, or whether they were 'put forth as a mere pretext to
justify an impermissible discharge ."' N.L.R.B. v. The Pem-
beck Oil Corporation, 404 F.2d 105, 109-110 (C.A. 2, 1968).
See also Wonder State Manufacturing Company v. N.L.R.B.,
331 F.2d 737, 738 (C.A. 6, 1964); N.L.R.B. v. Murray Ohio
Manufacturing Co., 326 F.2d 509, 517 (C.A. 6, 1964).
Based on the entire record , including the considerations
set forth below , I find that General Counsel has met the
burden of establishing that the discharge of Zaffle was mo-
tivated at least in substantial part by Respondent 's opposi-
tion to Zaffle's protected concerted and union activities.
1. Zaffle was a longtime employee , having over 33 years
of service with Respondent . As Respondent 's own evidence
shows, he was an outspoken steward , pressing adherence to
the collective agreement . That Respondent resented such
zeal is evident from Assistant Warehouse Manager Fuote's
alleged note-taking on Zaffle in which Fuote equates pro-
tected concerted activity with unacceptable actions, if not
misconduct . Among such resented activities were Zaffle's
September 12 questioning of Fuote 's vacation scheduling
policy without regard to seniority although the governing
collective agreement provided for "preference as to selec-
tion of vacation periods ... in accordance with depart-
ment or job classification seniority"; and Zaffle's Septem-
ber 16 , 1974, questioning of Fuote and warehouse
employees as to who had worked on the previous Satur-
day-an overtime workday-in order to determine compa-
ny compliance with the contractual provision concerning
scheduling of overtime . These were clearly well within the
spectrum not only of lawful activity under the Act, but
were central to the performance of Zaffle 's obligations as
union steward . The very incident sparking Zaffle 's suspen-
sion and discharge-his September 24 attempt to require
Respondent to adhere to its collective agreement limiting
elevator operation to Local 507 members-betrays
Respondent's simmering resentment toward Zaffle's pro-
tected activity.22 Thus, Warehouse Superintendent Moisio
(Fuote's superior to whom Fuote referred the "problem at
the elevator") flatly told Zaffle, "John, I'm sick and tired of
your interference . . . I want you to leave . I am going to
pull your time card and I want you to leave." This then is
one of those "rare" cases where there is "direct evidence of
a purpose to violate the statute ." Hartsell Mills Company v.
N.L.R.B., 111 F.2d 291, 293 (C.A. 4, 1940); Corrie Corpora-
tion of Charleston v. N.L.R.B., 375 F.2d 149, 152-53 (C.A.
4, 1967).
2. Also relevant is the manner in which Respondent ef-
fected the discharge . Fuote , Zaffle 's immediate superior,
kept a "record" on Zaffle's alleged misdeeds . * Even so,
there were only sporadic entries in 1970, none in 1971, and
about only three in 1972 ; and again none in 1973, nor in
1974, until shortly before Zaffle's discharge after 33 years.
u It is undisputed that Zaffle 's complaint about the operation of elevator
No. 3 by a Local 392 member was a protected concerted activity , even if
predicated upon an erroneous interpretation of the collective agreement,
since the "wisdom or unwisdom of the men [engaging in concerted activity],
their justification or lack of it" are immaterial to determination of their
rights under the Act . N.L.R.B. v. Washington Aluminum Company, Inc, 370
U.S. 9, 16 , fn. 16 (1962).
And this alleged "record" was secret-never disclosed to
Zaffle. Why not, if "improvement" was desired? Nor is
there evidence of any warning by Fuote or anyone else to
Zaffle that his alleged conduct was regarded seriously
enough to possibly eventuate in his discharge after 33
years. Furthermore, Personnel Director Coffey (Fuote's su-
perior), who reviewed the alleged adverse information on
Zaffle, never even offered Zaffle a chance to explain or
give his version of the alleged incidents (including the Sep-
tember 24 incident) before he pronounced his decision to
discharge-even though he met with Zaffle in the af-
ternoon of September 24 on another matter (Zaffle's
charge that Fuote and Moisio were security risks). "This
and other evidence supports the . . . conclusion that [Res-
pondent] was looking for any infraction by [Zaffle] that
might ostensibly justify discharging" him. United States
Rubber Company v. N .L.R.B., 384 F.2d 660, 663 (C.A. 5,
1967). Respondent's failure to warn an employee who
spent a lifetime (over 33 years) in its service that he risked
discharge for past behavior is highly significant. Cf. E.
Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27
(C.A.D.C, 1947).
3. Another relevant consideration is the nature and ade-
quacy of the reasons advanced for the discharge. Respon-
dent states that Zaffle's conduct on September 24 "was
merely the last in a series of incidents and conduct on his
part, all of which lead to his discharge." It relies on inci-
dents dating back as far as 1970.23 Some of these, however,
appear to be too trivial and inconsequential 24 and others
constitute protected concerted activity and hence forbid-
den as grounds for discharge.25 It is well settled that where
an employer has mixed motives-one legal and one ille-
gal-for effecting the discharge, the legal effect of its con-
duct is the same as though the illegal reason for its action
were the only operative one. Cf. N.L.R.B., v. Whitin Ma-
chine Works, 204 F.2d 883, 885 (C.A. 1, 1953); N. L. R. B. v.
Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2, 1954).
4. There is, of course, in this case, as in others of this
type, countervailing evidence tending to negate discrimina-
tion. To begin with, as company counsel ably stresses, Re-
spondent has had long contractual relations with Local 507
and grievances are still being processed. However, there is
no evidence that the steward or stewards other than Zaffle
have handled complaints with the vigor and zeal that Zaf-
fle displayed26 Moreover, there is evidence that Zaffle, an
23 The Board and courts have looked with suspicion on attempts "to re-
vive . . . ancient (and apparently forgotten) complaint[s], and make [them]
serve as the proffered excuse or reason for [the) discharge ." Peoples Motor
Exj,ress, Inc. v. N.L.R.B., 165 F.2d 903, 906 (C.A. 4, 1948).
E.g., the 1970 incident in which Zaffle complained about others doing
his work; Zaffle's September 1970 second request for sick leave (supra, fn
14); his September 20, 1974, failure to punch out after obtaining permission
to leave for i llness ; and his September 24, 1974, complaint about his depart-
ment number being changed.
25 E.g., Zaffle's March 1972 "soliciting problems" from among fellow em-
ployees to seek relief in upcoming contract negotiations ; his March 11,
1974, insistence that employees required to come in an hour earlier be per-
mitted to work until normal quitting time so that they might cam one hour's
overtime ; his September 12, 1974, questioning of Fuote 's vacation schedul-
ing practices ; and his September 16, 1974, attempt to ascertain who had
been working on the preceding Saturday-an overtime day for which the
collective agreement requires assignment priority.
26 On the contrary, the record shows that Zaffle looked upon the second
steward in the warehouse as a company man. In any event, the fact that
THE MAY COMPANY 1101
intemperate individual , on occasion employed offensive
epithets towards supervisors . However, insofar as the inci-
dent leading to his discharge is concerned (i.e., the Septem-
ber 24 incident in which he made an offensive reference to
Moisio's Parkinson's disease), it is clear that the offensive
language was provoked by Moisio 's illegal discharge of
Zaffle-an understandable reaction though one not to be
condoned . Cf. Louisiana Manufacturing Company, 152
NLRB 1301, 1303-1305 (1965). Moreover , the language
was uttered in the context of an attempted resolution of a
grievance and, therefore , may well have reflected only "a
moment of animal exuberance" (N.L.R.B. v. Illinois Tool
Works, 153 F.2d 811 , 815-816 (C.A. 7) ).27 Additionally,
the record shows that the abusive language Respondent
relies on ("liar," "dishonest ," and the offensive reference to
Moisio's physical condition ) was used by Zaffle in the past
(even in 1972), without drawing criticism and admoni-
tion ,28 and "apparently [was] accepted by management as
in the nature of the man" (N.L.R.B. v. The Princeton Inn
Company, 424 F .2d 264, 266 (C.A. 3, 1970). It would seem
that Zaffle's behavior "apparently became intolerable
only" when the need for a plausible defense appeared
(N.L.R.B . v. Electric City Dyeing Co., 178 F.2d 980, 983
(C.A. 3, 1950). Cf. Magnolia Petroleum Company v.
N. L. R. B., 200 F .2d 148 , 149-150 (C.A. 5, 1952).
For all of the foregoing reasons, I find and conclude that
the reasons advanced by Respondent for Zaffle 's Septem-
ber 24 suspension and subsequent (September 25) dis-
charge are pretextuous . I conclude that Respondent's con-
duct was, at least in substantial part , motivated by its
opposition to Zaffle 's zealous protected concerted and
union activities , in violation of Section 8(a)(1) and (3) of
the Act.
CONCLUSIONS OF LAW
1. By suspending John Zaffle on September 24 and dis-
charging him on September 25, 1974, because he engaged
in protected concerted and union activities , as described in
"II" supra, and by thereafter failing or refusing to reinstate
him, Respondent has violated Section 8 (a)(1) and (3) of the
Act.
2. Said unfair labor practices affect commerce within
Respondent retained other stewards does not exculpate it from the charge of
discrimination as to the one discharged . Respondent may well have attained
its objective (as well as cowing all other stewards ) by making "an example"
of only one zealous steward . Cf N L R.B. v Shedd-Brown Mfg Co, 213
F.2d 163, 174-175 (C.A. 7); N.L.R B v. W. C Nabors, 196 F 2d 272, 276
(C.A. 5, 1952).
27 As stated in Crown Central Petroleum Corporation v. N.L.R B, 430 F 2d
724, 731 (C.A. 5, 1970), " It has been repeatedly observed that passions run
high in labor disputes and that epithets and accusations are commonplace.
Grievance meetings arising out of disputes between employer and employee
are not calculated to create an aura of total peace and tranquility where
compliments are lavishly exchanged ... [A] grievance proceeding is not
an audience , conditionally granted by a master to his servants , but a meet-
ing of equals-advocates of their respective positions ." See also Bob Henry
Dodge, Inc., 203 NLRB 78 (1973).
2$ Although Fuote noted the remarks in his dossier on Zaffle, there is no
evidence that he admonished him for it . And Coffey testified that he regard-
ed Zaffle 's latest (September 24, 1974) characterization of Moisio and Fuote
as "dishonest" and as security risks to be "sincere information" rather than
a malicious accusation.
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Since Respondent has engaged in certain unfair labor
practices, it should be ordered to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act. The affirmative relief
should include the customary provision that Respondent
offer to the unlawfully suspended and discharged employ-
ee (John Zaffle) immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason thereof, by
payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of
such unlawful suspension and discharge to the date of
Respondent's offer to reinstate him, together with interest
thereon, less net earnings (if any) during such period, back-
pay and interest to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER29
The May Department Stores Company, d/b/a The May
Company, Cleveland, Ohio, its officers, agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees
by suspending, discharging, or refusing to reinstate them
for engaging in lawful concerted activities for the purpose
of mutual aid or protection.
(b) Discouraging membership and activities in Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 507, or any other
labor organization, by discriminating in regard to the hire
and tenure of employment of Respondent's employees or
by discriminating in any other manner in regard to any
term or condition of their employment, in order to discour-
age or interfere with membership or activities therein.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer John Zaffle immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
mority or other rights and privileges, and make him whole
for any loss of pay he may have suffered as a result of his
suspension and discharge, in the manner set forth in the
"Remedy" portion of this Decision.
(b) Preserve and, upon request, make available to the
29 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 , recommendations, and recommended Order which follows
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.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its place of business in Cleveland , Ohio, cop-
ies of the attached notice marked "Appendix." 30 Copies of
said notice, to be provided by the Regional Director for
Region 8 , after being duly signed by Respondent 's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
30 In the event that the Board 's Order is enforced by a Judgment of the
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence, it has been decided that we have violated the
National Labor Relations Act, and we have been ordered
to post this notice.
The National Labor Relations Act gives you, as em-
ployees, certain rights, including the right to self-orga-
nization ; to form , join , or help unions ; and to engage
in other concerted activities for the purpose of mutual
aid or protection. Accordingly, we give you these as-
surances:
WE WILL NOT interfere with, restrain, or coerce em-
ployees by suspending, discharging, or refusing to re-
instate them for engaging in lawful concerted activities
for the purpose of mutual aid or protection.
WE WILL NOT discourage membership and activities
in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
No. 507, or any other labor organization , by discrimi-
nating in regard to the hire and tenure of employment
of employees , in order to discourage activities therein.
WE WILL offer John Zaffle immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, with full se-
niority and all other rights and privileges, since he was
found to have been suspended and discharged in vio-
lation of the National Labor Relations Act.
WE WILL also make up all pay lost by the above-
named employee with interest.
THE MAY DEPARTMENT STORES COMPANY, d/b/a
THE MAY COMPANY