Topeka Discount, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1970

181 N.L.R.B. 17 (N.L.R.B. 1970)

TOPEKA DISCOUNT, INC. 17
Topeka Discount , Inc. and Evelyn A. Steele. Case
17-CA-3949
February 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 15, 1969, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision, with a supporting brief. The Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only insofar as they are
consistent with this Decision and Order.
1. Evelyn Steele, the Charging Party, was
employed by Respondent since January 1967 as a
bookkeeper and general secretary. The Union
(Retail Stores Employees Union) began its
organizing efforts among the employees on February
25, 1969. Shortly thereafter, Steele and
Respondent's store manager, Dan Thibodeaux, had
a conversation regarding the Union. The Trial
Examiner found that, at the close of the
conversation, Thibodeaux told Steele not to repeat
her or his feelings about the Union to other
employees, and concluded that Thibodeaux's
remarks were not a proscription against Union or
concerted activity, in view of the nature of Steele's
job responsibilities and her relationship to
management. The record does not support the Trial
Examiner's version of Thibodeaux's statement. The
only discussion of this incident is found in Steele's
uncontradicted testimony that Thibodeaux told her
not to repeat her own feelings about the Union. The
record contains no mention of Thibodeaux's
cautioning Steele not to repeat his sentiments about
the Union to other employees. We therefore deem
irrelevant the allegedly special circumstances of
Steele's employment,' and find, contrary to the Trial
Examiner, that Thibodeaux instructed Steele to
refrain from discussing her sentiments concerning
the Union and thereby interfered with Steele's
Section 7 rights in violation of Section 8(a)(1).
2. In the evening of April 21, 1969, the Union
held a meeting which Steele attended. As a result of
that meeting, Steele prepared a petition for
circulation on the morning of April 22. On that
same morning, Thibodeaux asked Steele if she had
attended the union meeting and whether she had
volunteered to type the petition. Steele reported that
she had done so, and she was then told that she was
not to engage in union activity on store time. Earlier
on the morning of April 22, the Respondent's
assistant manager, Beethe , approached Marlow, the
employee circulating the petition, and stated that he
had information concerning the petition that had
been discussed at the union meeting; Beethe
instructed Marlow that the petition could not be
circulated on store time. We find, contrary to the
Trial Examiner, that the Respondent, by its
questions and comments concerning the petition,
created an impression of surveillance among the
employees in violation of Section 8(a)(1). We agree
with the Trial Examiner, however, that the
Respondent's prohibition of union activities during
working time was not excessively broad, and hence
was not in restraint of the employees' Section 7
rights.
3. In early May, Thibodeaux approached Marlow
and asked him "what the Union was doing" and if
he was still circulating the petition. When Marlow
responded that the petition was no longer being
circulated, Thibodeaux asked Marlow if he could
find and bring the petition to him. Thibodeaux
explained that he planned to hold a meeting of all
employees, and he wished to destroy the petition in
front of the employees at that meeting. We disagree
with the Trial Examiner's conclusion that the
Respondent did not thereby unlawfully interrogate
Marlow. We find that such questioning was in
violation of the employee's Section 7 rights and is
not rendered noncoercive merely because no attempt
was made by the employees to conceal the
organizational effort or because the circulation of
the petition was not done in a covert manner.
Furthermore, Thibodeaux's statement of his
intention to destroy the petition was equally coercive
and unlawful.
4. Thibodeaux conducted an employee meeting on
May 7, where he announced wage increases for
certain employees. In his earlier conversation with
Marlow, Thibodeaux had stated that he wanted the
petition because he did not wish to give raises and
then have circulation of the petition resumed. The
Trial Examiner found that Thibodeaux, at the May
7 meeting, said that now that the union activity had
come to a halt, he felt that management and
employees could work together. He further stated
'It is not contended , however , and it does not appear that she was in a
supervisory , managerial, or confidential position
181 NLRB No. 8
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that raises could now be given, something which he
had fully intended doing all along but which he had
not done due to oversight. The Trial Examiner
found that the grant of wage increases was not for
the purpose of interfering with the employees right
to exercise their Section 7 rights. We find, however,
that the Respondent led the employees to believe
that it gave the wage increases in the spirit of a
"reward" for their rejection of the Union. This
interfered with the rights guaranteed the employees
in violation of Section 8(a)(1).
5. From April 22 on, the relationship between
Steele and Thibodeaux cooled rapidly. Both agreed
that after that date they had little personal contact
and their business communication was often
nonverbal. On April 23, a "blind" ad appeared in
the Topeka newspaper for a new bookkeeper. Steele
was discharged on June 9, after a satisfactory
replacement had been selected and trained. The
Trial Examiner found her discharge not in violation
of Section 8(a)(3), concluding that although most of
the reasons Respondent offered for her discharge
were merely pretextual, the basis for discharge was
a personality conflict between Steele and
Thibodeaux. However, in reaching this conclusion,
the Trial Examiner noted that "the catalyst which
triggered Thibodeaux's action and which led to the
immediate placement of an ad for Steele's
replacement was Steele's attendance at the union
meeting and her preparation of the union petition."
It is well settled that a discharge which in fact is
caused by union activities is unlawful and
discriminatory within the meaning of Section 8(a)(3)
of the Act, notwithstanding the concurrent existence
of valid grounds for discharge.2 Under this rule, the
Trial Examiner's finding that Steele's union activity
was the catalyst for her discharge alone constitutes
the basis for the conclusion that Steele was
discharged in violation of her Section 7 rights. We
are not persuaded otherwise by the Respondent's
contention that as early as the week of February 6 it
reached a decision to replace her. For, assuming
that to be so, the delay between the decision to
discharge and the placement of the newspaper ad is
not satisfactorily explained, in our opinion, by
Thibodeaux's assertion that he "felt sorry" for
Steele, especially in view of the fact that the only
reason for her termination at that time appears to
be her espousal of the Union. Accordingly, we find
that Steele was discharged in violation of Section
8(a)(3) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices affecting commerce,
we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate
'E g , Idaho Frozen Foods, Division of Consolidated Foods Corporation,
173 NLRB No 201 (TXD); Continental Motors, Inc, 145 NLRB 1075,
1085
the policies of the Act.
Having found that Respondent discriminatorily
discharged Evelyn A. Steele on June 9, 1969, we
shall order the Respondent to offer her immediate
and full reinstatement to her former or to a
substantially equivalent position, without prejudice
to her seniority and other rights and privileges,
dismissing if necessary any person hired on or after
her discriminatory discharge. We shall order
Respondent to make Evelyn A. Steele whole for any
losses she may have suffered by reason of the
discrimination against her, by the payment to her of
a sum of money equal to that she would have
normally earned as wages from the date of her
discriminatory discharge to the date of her
reinstatement, less her net earning during such
period. The backpay provided herein shall be
compiled on a quarterly basis in the manner
prescribed in F. W. Woolworth Company, 90
NLRB 289. Interest at the rate of 6 percent per
annum shall be added to such net backpay and shall
be compiled in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the nature and extent of the unfair
labor practices engaged in by the Respondent, the
commission of other unfair labor practices may be
reasonably anticipated, and we shall, therefore,
order Respondent to cease and desist from in any
other manner infringing upon the rights of its
employees guaranteed by Section 7 of the Act, in
addition to those rights found to have been violated
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Topeka Discount, Inc., Topeka, Kansas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Instructing employees not to discuss their
union beliefs with other employees.
(b) Interrogating its employees concerning their
union membership, activities, or sympathies, in a
manner constituting a violation of Section 8(a)(1) of
the National Labor Relations Act, as amended.
(c) Creating the impression in the minds of its
employees that it was subjecting their union
activities to surveillance.
(d) Discouraging membership in any labor
organization of its employees, by discharging any of
its employees, or in any other manner discriminating
against them with respect to their hire or tenure of
employment or any term or condition of, their
employment.
(e) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the
Act.
TOPEKA DISCOUNT, INC.
2. Take the following affirmative action in order
to effectuate the policies of the Act.
(a) Offer Evelyn A. Steele immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and make
whole Evelyn A. Steele for any loss she may have
suffered as a result of the discrimination against her,
all in the manner provided in the section of this
Decision entitled "The Remedy".
(b) Notify Evelyn A. Steele if presently serving in
the Armed Forces of the United States of her right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records and other records
necessary to analyze the amount of backpay due
Evelyn A. Steele.
(d) Post at its plant in Topeka, Kansas, copies of
the attached notice marked "Appendix ."3 Copies of
said notice, on forms provided by the Regional
Director for Region 17, shall, after being duly
signed by the Company's representative, be posted
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the company to
ensure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
It is hereby further ordered that the complaint
herein be, and it hereby is, dismissed insofar as it
alleges violations of the Act not found herein.
'In the event this 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
WE WILL NOT instruct our employees not to discuss
their union beliefs with other employees.
WE WILL NOT interrogate our employees concerning
their union membership, activities, or sympathies, in a
manner constituting a violation of Section 8(a)(1) of the
National Labor Relations Act, as amended.
WE WILL NOT create the impression in the minds of
our employees that we were subjecting their union
activities to surveillance.
WE WILL NOT discourage membership in any labor
organization of our employees, by discharging any of
our employees, or in any other manner discriminating
19
against them with respect to their hire or tenure of
employment or term or condition of their employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
Since the Board found that we violated the law when
we fired Evelyn A. Steele WE WILL offer to Evelyn A.
Steele full reinstatement to her old job, and WE WILL pay
her for any loss that she suffered because we fired her.
WE WILL notify Evelyn Steele if presently serving in
the Armed Forces of the United States of her right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
All our employees are free to become or refrain from
becoming members of any labor organization.
TOPEKA DISCOUNT, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or complian:e
with its provisions may be directed to the Board 's Office,
600 Federal Building , 601 East 12th Street, Kansas City,
Missouri 64106, Telephone 816-374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was
heard at Topeka, Kansas, on August 27 and 28, 1969,
pursuant to a charge filed on June 11, 1969, by Evelyn A.
Steele.' On June 29, the Acting Regional Director of the
National Labor Relations Board for Region 17 issued a
complaint and notice of hearing alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, hereinafter called the Act. The General Counsel and
Respondent timely filed briefs with me.
Upon consideration of the briefs and upon the entire
record of this case, and my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Kansas corporation engaged in the
business of retail sale of groceries and related items at its
store in Topeka, Kansas.
In the course and conduct of its business operations
Respondent annually purchased goods from outside the
State of Kansas valued in excess of $50,000 and annually
sells in excess of $500,000 worth of groceries and related
items.
Upon these admitted facts I find that Respondent is,
and has been at all times material herein, an employer
'Unless specifically indicated otherwise , all dates herein refer to the
calendar year 1969
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Stores Employees Union, Local No. 782,
R.C.I.A., AFL-CIO, is admitted to be a labor
organization within the meaning of Section 2(5) of the
Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case are, (1) whether the termination
of Evelyn Steele which occurred on June 9 was
discriminatory within the meaning of Section 8(a)(3) of
the Act and, (2) whether Respondent engaged in conduct
which interfered with, restrained, and coerced employees
in the exercise of rights guaranteed them by Section 7 of
the Act.
B. Pertinent Facts
1. Background facts
a. The Respondent's operations
Respondent is a subsidiary of American Community
Stores and is one of approximately 25 discount stores
comprising the Super Markets Interstate Division of
American Community Stores. Like the other stores in the
division, Respondent operates the grocery department in a
larger mercantile enterprise. Respondent's discount
grocery operation in Topeka, Kansas, leases space from
and is situated in the same building as the discount
department store known as Wild Willie.
The home office of the parent company American
Community Stores is in Omaha, Nebraska.
Robert D. McGovern.is a comptroller in Supermarkets
Interstate Division while Lawrence Anderson and Howard
Heedum are, respectively, personnel supervisor and
district manager in said division. McGovern, Anderson
and Heedum are headquartered in Omaha, Nebraska, and
each has an area of oversight responsibility covering the
operations of Respondent's Topeka, Kansas store.
Respondent's operation is one of nine comprising the
district over which Heedum serves as district manager.
At all times material, Dan Thibodeaux has been
manager of Respondent and Larry Seethe has been
assistant manager. During relevant times until her
discharge on June 9, Evelyn Steele served as Respondent's
bookkeeper. She commenced her employment in this
capacity in January 1967, some 15 months prior to the
time when Thibodeaux became manager.'
discussion on the part of day-shift employees and Evelyn
Steele was given a copy of the union contract and a letter
pertaining to the Union which she placed on the desk of
Dan Thibodeaux.
In the weeks that followed, Steele and Thibodeaux had
frequent conversations concerning the Union and Steele
overheard Thibodeaux discuss aspects of the union matter
during the course of telephone conversations which he had
with personnel at the Omaha office.
On April 2 the Respondent received the Union's letter,
dated March 31, requesting recognition and bargaining.'
In the meantime, during the morning of Tuesday,
February 25, Evelyn Steele engaged in a "general
discussion" with Larry Seethe, assistant manager. As a
consequence of rumor and discussion concerning the scope
of the employee unit to be embraced by any
collective-bargaining contract, both Beethe and Steele, by
separate telephone calls, contacted representatives of the
Union to determine whether or not their jobs would be
covered. The union representative with whom Steele spoke
was not certain of her inclusion and stated he would have
to check with the Union's attorney.
2. The alleged unlawful conduct
a. Interference, restraint , and coercion
(I) Thibodeaux and Steele discuss the Union
At approximately 10:30 or 11 a.m. on February 25,
Thibodeaux, who was observing his usual Tuesday off
from work, came to the store and conversed with Steele in
the office. He stated his displeasure over the fact that the
union representatives had been permitted in the store. This
led to a conversation between Steele and Thibodeaux
wherein Steele stated that her past experiences with unions
had been favorable and wherein she stated her conviction
that a former place of employment had been made a more
desirable place to work as a result of unionization.
Thibodeaux answered that his experiences with unions had
been unsatisfactory and asserted that he had been a union
member and was not "prejudice." He stated however his
conviction that unions had a tendency to overreach and
admonished Steele that as long as she felt the way she did
about unions she should keep her "mouth closed" to other
employees and should not repeat his feelings concerning
the Union to them
(2) Seethe speaks with Marlow
On the same day employee Howard Marlow conversed
with Larry Seethe concerning the Union and Seethe
inquired what Marlow knew about the Union. Marlow
responded that he "didn't know anything except they had
been in."
b. Union organizational activities
Efforts of the Union to organize the employees of
Respondent's store commenced, so far as the instant
record reveals, on Monday evening, February 24 when
representatives of the Union visited the store during the
evening hours and left a copy of a union
collective-bargaining contract and other written material
with night personnel. The following morning, Tuesday,
February 25, this visit and material became a topic of
'Prior to becoming manager of Respondent , Dan Thibodeaux had
worked in another division of American Community Stores.
(3) Employee petition prepared
Some 2 months later, on the evening of April 21, 10
employees of Respondent, including Steele and Marlow,
attended a union meeting and during the meeting attention
was given to the preparation of a petition to be circulated
among the employees. Evelyn Steele was asked to prepare
'Thibodeaux characterizes this letter as the instrument which gave hun
the first direct knowledge of the Union 's efforts to organize the employees,
however, he concedes that he had earlier awareness of union organizational
effort on the part of his employees
TOPEKA DISCOUNT, INC. 21
the petition and she agreed to type it up. She did so on
the morning of April 22 at her home before reporting to
work .' At the meeting Marlow was designated to circulate
the petition.
(4) Thibodeaux and Steele discuss the petition
On the morning of Tuesday, April 22, upon arriving at
the store premises she gave the petition which she had
prepared to employee Howard Marlow. Later in the
morning, at approximately 10:30 a.m., Steele conversed at
the store with Thibodeaux who asked Steele if she had
attended the union meeting the night before. Steele
answered that she had and Thibodeaux asked if she had
volunteered to prepare a petition Steele answered that she
had not volunteered to do so but that she had agreed to
prepare it. Thibodeaux stated, in substance, that he would
not permit Steele to engage in union activity on company
time and that if she did so she would be terminated.'
(5) Beethe instructs Marlow
On the same morning, approximately 30 minutes after
he had reported to work, Marlow was approached by a
Larry Beethe , assistant manager , who stated, in substance,
that he had information concerning the petition that had
been discussed at the union meeting the night before.
Seethe stated that he had spoken with Thibodeaux on the
telephone and that Thibodeaux had instructed him to
inform Marlow that he was not to circulate the petition
on store time. Seethe informed Marlow that if he desired
he could place the petition on the bulletin board and that
Thibodeaux would not "hold any grudges" against any
employee who would sign it . However, Marlow proceeded
to circulate the petition among the employees.
(6) Thibodeaux learns of union meeting
She stated that she had not and asserted that she never
punched out on a coffeebreak. Seethe admonished her
that she should have done so.'
Evelyn Steele testified that she had never punched out
during a coffeebreak and that she recorded her absence on
the timecard only when she expected to be away from her
desk for a period in excess of 15 minutes. In this regard,
Beethe testified that the incident arose as a result of his
search for Steele on the afternoon of April 23 to obtain
her signature on a check to be dispersed for the payment
of beer that had been delivered. She was not in the office
when he originally sought her out and Seethe estimated
that she was absent for approximately 30 minutes. I credit
Seethe in this regard.' Thibodeaux conceded that with
respect to Evelyn Steele he had not been enforcing any
policy with respect to punching out for breaks.
(8) Thibodeaux and Marlow converse - early May
During the early part of May, Thibodeaux approached
employee Marlow and asked him "what the union was
doing" and if he was still circulating "the petition."
Marlow answered that he was not and that the employees
felt that they did not need the Union. Thibodeaux asked
Marlow if he still had the petition and Marlow said that
he did not. Thibodeaux encouraged Marlow to look for
the petition and if he found it to bring it to him.
Thibodeaux further stated that a store meeting could be
planned and consideration be given to raises for the
employees. Thibodeaux informed Marlow that he did not
wish to give raises and have circulation of the petition
resumed thereafter. He stated that he would hold no
grudges over-the petition and that he would tear it up in
front of the employees at the meeting. Marlow went to his
home for lunch and after returning to the store informed
Thibodeaux, incorrectly, that he could not find the
petition.
Thibodeaux testified that he frequently came to the
store on Tuesday, his day off. Thibodeaux further testified
that he was informed of the events that transpired at the
April 21 meeting by an employee who acted entirely of his
own volition and volunteered the details concerning the
meeting. Beethe testified that his conversation with
Marlow was the direct result of a telephone call which
Thibodeaux had placed to him at the store and that his
conversation with Marlow followed immediately the
telephone conversation with Thibodeaux.
(7) The timeclock incident - April 23
On April 23 , Evelyn Steele took her afternoon
coffeebreak with a friend who had come into the store.
When she returned she was approached by Larry Seethe
who inquired if she had punched out on the timeclock.
'The petition, which had space for signatures , read as follows.
We, the undersigned , employees', of the WILD WILLIES SOUTH
FOOD DEPARTMENT, hereby designate Retail Store Employees
Union, Local No. 782, R.C I.A, AFL-CIO, to be our bargaining
representative As a result of a meeting held at the Ramada Inn on
April 21, 1969, Topeka, Kansas, we wish to reaffirm our desires by the
signing of this petition.
'The foregoing is based upon a composite of the credited testimony of
Evelyn Steele and Dan Thibodeaux . While Thibodeaux testified that his
proscription against performing services on behalf of the Union on
company time was limited only to the preparation of the petition, the
testimony of Steele indicates that it had a broader connotation . I credit
Steele
(9) The store meeting of May 7
On May 7 Thibodeaux invited the employees to a
meeting to be held after store hours on store premises. He
compensated the employees for the time spent in attending
the meeting but did not make attendance mandatory. Dan
Thibodeaux presided at the meeting which was attended
by most of the employees.
Thibodeaux stated to the employees that he was happy
that the employees had decided not to have a union and
that now that the union activity had come to a halt he felt
that management and the employees could work together
and stop the friction that had developed among the
personnel. Thibodeaux stated that, while there may come
a time in the future when the employees would have a
union , at the present time he was certain that a union was
'The foregoing is based upon the testimony of Evelyn Steele and Larry
Beethe. Steele testified that Beethe informed her that it was "company
policy" to punch out . There is no showing that this was the policy or that,
if it was, the practice was one which was given effect with respect to
routine coffeebreaks . I am convinced , in light of evidence subsequently
considered , that Beethe 's reference was not to the per se practice of
punching out on routine coffeebreaks but related solely to instances
wherein an employee was absent from his post for an excessive period of
time
'Despite Steele 's denial, I am convinced that , perhaps unconsciously,
Steele extended her coffeebreak with her visiting friend on this occasion
beyond its normal duration and that the coffeebreak exceeded the
15-minute limitation which Steele herself specified as necessitating resort to
the timeclock.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not needed. Thibodeaux further stated that he and
management felt that he could now proceed to give the
employees raises which he had fully intended doing all
along but which he had not done due to oversight."
(10) The wage increases
In late May 1969, Respondent had in its employ in the
discount store, exclusive of the meat department, which
was under a separate union contract, approximately 25
employees with respect to whom Thibodeaux had
authority to make wage decisions. Ten employees were
granted wage increases. Some received their increases
effective May 24 and some effective May 31. Eight
employees received an increase of 10 cents per hour, one
employee received 15-cent increase and one a 20-cent
increase Six or seven employees who had been in
Respondent's employ for a significant period of time did
not receive an increase in pay and five employees who had
been newly hired, were similarly passed over. No other
wage adjustments were made between May 24 and June 9.
During the calendar year 1969, prior to May 24, two
employees had received wage increases of 10 cents per
hour. One was granted his increase on January 19 and on
March 31 an employee was given a raise of 10 cents per
hour
Dan Thibodeaux testified credibly that on or about
March 20 the employee who , received an increase on
March 31, as found above, approached him seeking a
wage adjustment and he granted the raise to him. Prior to
May 24 three other employees sought wage adjustments
from Thibodeaux and he informed them he had been
instructed by his superiors that while union activity was
"going on" he was not to give raises in that a grant of
wage increases might be misconstrued as an unfair labor
practice. Thibodeaux added, however, that employees who
were entitled to wage increases would receive raises when
he was given permission to grant wage increases.
Lawrence Anderson, personnel supervisor for
Supermarkets Interstate Division, testified credibly that in
early March he conversed with Thibodeaux concerning the
visit of union organizers to the store. During the course of
the conversation Thibodeaux related to Anderson his
feeling that some employees were entitled to wage
adjustments. Thibodeaux asserted that a review of their
wage status was indicated, but Anderson instructed him
that during the Union's organizational "attempt" it would
be an unfair labor practice to award any increases.
Anderson further explained that Thibodeaux should not
increase the wages of any employee until the union
activity had terminated "in one form or another."
Dan Thibodeaux and Lawrence Anderson credibly
testified, in substance, that over the period of the past 2 or
3 years the wage provisions of the Safeway contract had
been used as a guide in granting wage increases to
employees. Anderson credibly testified that in 1967 wage
increases in the amount of 5 cents per hour were granted
every 6 months to full-time employees and to part-time
employees, after they had completed 500 hours of
employment. The wage level of employees was reviewed in
1968 and the Safeway wage scale was again utilized as a
guide. In 1968, following his assumption of the
managership, Thibodeaux granted increases of 10 cents
per hour to four employees and an increase of 15 cents
'The foregoing is based principally upon the credited testimony of
Evelyn Steele as supplemented by the testimony of Howard Marlow and
Dan Thibodeaux
per hour to one employee. The latter increase occurred on
June 2 and the former increases were made effective on
May 31, June 9, and June 30 respectively.
(11) Thibodeaux instructs his assistants
Dan Thibodeaux testified credibly that after he first
learned of the Union's effort to organize the employees,
he was approached by his assistant managers concerning
certain questions relating to the Union. Consequently, he
sought instructions from his superiors in Omaha. He was
informed that it was the obligation of management to see
that business was maintained in its normal routine and
that the employees were not to be harassed by supervision
or to be disrupted in performance of their work tasks by
being permitted to conduct union meetings during their
working hours. Accordingly, Thibodeaux instructed his
supervision that there would be no discussion of union
activities in the selling areas of the floor on company
time. Additionally, he made it clear to supervision that
what employees did on their own time was of no concern
to supervision.
Thibodeaux further credibly testified that no solicitation
for charity is permitted in the work area of the store and
that none has been carried on during his tenure. He
testified, however, that the routine collection of funds for
flowers or gifts to be bestowed upon fellow employees has
been permitted.
b. The termination of Evelyn Steele
(1) Her duties
Evelyn Steele commenced her employment on January
27, 1967. She was initially employed by and worked under
the supervision of Jack Slaughter , store manager and
Jerry Jackson , assistant store manager . She was employed
as a bookkeeper and the duties incident to performing
that function occupied the principal portion of her time.
In addition , she answered the telephone and prepared the
limited amount of correspondence originating in the
office. These duties remained constant throughout the
period of her employment which ended on June 9, 1969,
with her termination which is a subject of the instant
litigation.
(2) Her office
The desk at which Steele performed her duties was
situated in an office which is elevated from the principal
working area of the store where are located the checkout
stands and cash registers utilized in the discount
operation. The office is enclosed by partitions which run
approximately halfway to the store ceiling. The area
enclosed by the partitions and which constitutes the office
space is small and accomodates two desks, two filing
cabinets, a counter top that stores supplies and
miscellaneous materials, and the office safe.
(3) Her hours of work
Evelyn Steele is the mother of four children all of
school age or younger. Steele credibly testified that when
she was initially employed she obtained permission from
the manager and assistant manager - Thibodeaux's
predecessors - to commence her workday at 9 a.m. to
assist her in getting her children off to school and
otherwise properly caring for them. Thereafter, in actual
TOPEKA DISCOUNT, INC. 23
practice, she reported to work between the hours of 8:30
and 9 a.m. She punched a timeclock.
When Dan Thibodeaux became manager in April 1968,
Steele continued this routine of reporting Thibodeaux
spoke to her about her hours during the summer of 1968
but did not approach the subject again directly until late
February 1969, when he discussed with Steele and Larry
Beethe, the assistant manager, the question of advancing
the 10 a.m. store opening hour to 9 a.m ' Thibodeaux
inquired if Steele would be able to come in at 8 a.m. if a
new opening time were observed. Steele answered that she
could do so explaining the necessity of arranging for the
necessary transportation and care of her children To
implement the new reporting time an arrangement was
made for Thibodeaux each morning to transport Steele
from her home to the store. Through failure to coordinate
their respective schedules this arrangement was
implemented on only a few occasions and for only a brief
time did Steele report at 8 a.m. Thereafter, she returned
to her former practice of reporting to work between 8:30
a.m. and 9 a.m
(4) The cash report
In connection with conversations which Thibodeaux had
with Steele concerning Steele's overtime work and the
preparation of the cash report Thibodeaux spoke obliquely
to Steele in an effort to have her observe an 8 a m.
reporting time. However, until the day of her termination
Thibodeaux never ordered Steele directly to amend her
routine of reporting between 8:30 and 9 a.m.
The cash report was a report which was prepared daily
and from which the daily deposit of receipts was
calculated. The credited testimony of Robert McGovern,
comptroller, considered in light of the testimony of
Thibodeaux and Steele, reveals that Steele's participation
in the preparation of this report was not as extensive as
Respondent's procedures contemplate and that, while she
routinely performed some of the bookkeeper duties
involved in the preparation of the report, it frequently and
recurringly became the task of Thibodeaux and his
assistant, or both, to complete other tasks which were
properly Steele's." Thibodeaux's testimony establishes
that the time required for him to do the tasks that were
properly Steele's was not great," but his testimony
establishes also that Steele's failure to do that work was
an irritant to him.
(5) The gross profit analysis
McGovern testified credibly that during the fall months
of 1968 he had had telephone conversations with
Thibodeaux concerning the fluctuating gross profit
problem in the meat department . The preparation of the
gross profit analysis and the reports allied to that analysis
'Consideration was being given to this modification in schedule because
of new competition in the area which was observing a 7 a m. opening
hour.
"I have considered the record testimony concerning the nature of the
report and the role of the bookkeeper and am convinced that Steele's
testimony as to the extent of her proper and required role in the
preparation of the report was cast to coincide with her practice , but the
testimony of McGovern and Thibodeaux more accurately discloses the
nature and extent of the duties that were properly hers.
"I interpret his testimony as establishing that less than 15 minutes per
day was involved In the early stage of Thibodeaux 's term as manager,
however , because of his lack of knowledge of the cash report procedures,
he spent as much as 2 hours per day on this task.
are the responsibility of the bookkeeper and McGovern
testified that a factor contributing to the fluctuation was
the failure of the bookkeeper to pay some invoices in the
current period. However, McGovern testified that during
the time span in question there had been certain
irregularities perpetrated in the meat department by the
manager of that department - totally unrelated to any
conduct or responsibility on the part of Evelyn Steele -
and that this contributed to the fluctuation in the profit
picture with respect to the meat department
However, McGovern testified that, without regard to
this factor, bills were not being regularly paid and that
fluctuations in the gross profits could be occasioned by
this irregularity of bill payment causing what he described
as a "peak and valley" situation. McGovern testified that
this "peak and valley" condition had existed throughout
the calendar year 1968, but that it had improved
somewhat during the middle of the year. He testified
further, however, that the picture eroded somewhat during
the last 3 months of the year.
McGovern testified that the "peak and valley" situation
had been extant at least since January 1967 and that he
had conversed with Steele in January 1967 concerning this
matter. While he did not attribute the cause of this
fluctuation to Steele, who had just commenced her
employment, he testified that he impressed upon Steele
the need for continuity and punctuality in the payment of
bills. McGovern further testified that, while he considered
Steele to be a "capable bookkeeper," this condition which
he found to exist in 1968 and 1969 would not have arisen
"with a regular routine method of keeping books "
Thibodeaux spoke to Steele concerning the timely
payment of accounts payable on only one occasion.
Evelyn Steele conceded that there were fluctuations in
the accounts payable totals and the evidence of record
reveals that there were significant ones from month to
month. However Steele testified that many factors
contribute to this, including the lag time between the
receipt of bills by departmental personnel from the
vendors and their submission to her for payment, the
variations in the amount of purchases of certain
merchandise for sale deriving from special purchase or
favorable pricing considerations, the desirability of paying
invoices as late in the discount period as possible, the
variation in the billing cycles of various vendors and the
apparent disorientation caused by the Respondent's
adherence to a 4-week accounting period.' 2 Steele denied
that random compensating factors would have the impact
over the period of an accounting year of minimizing
monthly fluctuations in the accounts payable figures and
affirmatively testified that under the practices and
procedures followed by Respondent that "peaks and
valleys" are normal and will continue.
(6) McGovern's February audit
As an integral aspect of his duties as comptroller of
Super Markets Interstate Division, Robert McGovern
makes frequent visits to the approximately 25 stores under
his jurisdiction. In February 1969 he made such a visit to
the Topeka store of Respondent. The purpose of that visit,
as with his other visits, was to determine if the reports
which are required to be completed by the bookkeeper
were completed and correctly prepared and to be of
"In this regard , Steele testified that many vendors bill on a monthly
basis and for most months of the year the end of the month billing cycle
does not coordinate with the close of Respondent's accounting period
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general assistance in solving problems that might exist in
the store. McGovern further testified that one of the
principal reasons for coming to the store in February was
to examine closely into the problem of substantially
fluctuating monthly gross profits and to determine
whether or not proper bookkeeping allocations were being
made as between the transactions of one month and those
of another.
As was his established routine, McGovern prepared a
written report covering his visit to the Respondent's store
The report was dated February 12 and contained the
following comments relating to the bookkeeping function:
Our audit procedure requires that an entire month be
examined . I picked December, 1968 because the year
had closed. I also examined parts of October and
November, because this store's gross profits had been
fluctuating. Examined all of the invoices paid during
December, 1968 and the accounts payable for each of
the above cited periods.
* * * * *
Bookkeeper has not regularly been doing the daily cash
report. Either manager, assistant or grocery manager.
came in early to do the report before opening.
Thibodeaux testified that he obtained clearance from
Omaha for the hire of Steele's replacement approximately
2-1/2 weeks prior to June 9 He testified that the
successful candidate desired to give her present employer 2
weeks' notice and that the commencement date of her
employment was set for June 9. June 9 was to be Steele's
last "payroll day" before commencing her vacation.
(8) The discharge incident
On June 9, Steele spoke with Beethe concerning
arrangements to be made for the preparation of the next
week's payroll in light of her impending vacation. Beethe
agreed to speak with Thibodeaux and did so. By use of
the intercom system, Thibodeaux, who was in an area of
the store off the selling area known as the backroom,
requested Steele to come to the backroom and speak with
him Seethe was present. When Steele entered the
backroom Thibodeaux informed Steele that he was going
to have to let her go. Steele inquired as to the reason and
Thibodeaux at first declined to state the reason. Steele
was insistent and in response Thibodeaux answered, "you
are not good for the company " Thibodeaux added
"Omaha" knew of the decision and Steele stated that she
was going to file charges with the Board."
Examination of the check register indicates an irregular
payment of invoices. It appears that peaks and valleys
are created which does not help our cash flow picture.
During his February visit to the Topeka store,
McGovern discussed with Thibodeaux the necessity of
timely paying accounts payable but did not speak with
Steele on this subject, for during McGovern's visit Steele
was able to spend only 1 day at the store, having suffered
injuries in an automobile accident. Consequently on this
day their attention was directed to other reports, some of
which Steele had not been able to complete because of her
accident.
(7) The decision to terminate
Dan Thibodeaux testified that he reached the decision
to terminate Evelyn Steele during the week of February 6
after consulting with Robert McGovern concerning the
matter during his audit visit to the store. Thibodeaux
specified the reasons for Steele's termination as follows:
For her attitude, her disregard for management, her
undermining of management, her inability to get to
work on time and show up at work on a number of
occasions when I felt that she was excessibly [sic]
absent.
As a consequence of his own consultation with
Thibodeaux, McGovern counseled Thibodeaux to effect
the termination and affirmatively recommend the action.
Pursuant to Thibodeaux's request, a packet of
bookkeeping examinations was sent to Thibodeaux by
McGovern and a draft of a newspaper ad for a
replacement bookkeeper was also dispatched to
Thibodeaux. These were received by Thibodeaux during
the month of March. A blind ad appeared in the
newspaper on April 23."
"Evelyn Steele replied to the ad by application dated May I She
testified that when she answered the ad she knew that the ad pertained to
her own present job.
(9) The aftermath
Following this incident, Steele sought refuge in the
restroom. After she had regained her composure she
returned to the office where Thibodeaux and Seethe were
present. Upon returning to the office she sought to
examine the records which revealed the amount in savings
which had been deducted from her weekly salary. As she
placed her hand on the records, Thibodeaux stated that
the records were "Company property" and that Steele no
longer was with the Company and had no business with
the records. Steele explained that she merely wanted to
ascertain the amount of her savings and Thibodeaux
answered that whatever she had coming in savings would
be given to her. Thibodeaux instructed Steele to collect
her personal belongings from the office and she proceeded
to do so. She left the office within approximately 5
minutes.
Within the 24-hour period that followed she conversed
by telephone with the president of the discount stores,
with the comptroller, Robert McGovern and with Larry
Anderson, the director of personnel administration. The
president had no knowledge of the personnel action taken
with respect to Steele but McGovern revealed his prior
knowledge of the action and, while he was conciliatory,
expressed his confidence in Thibodeaux's judgment, his
unwillingness to intervene in the matter and his disclaimer
that union activities was a factor in the discharge In
speaking with Steele concerning the matter, Anderson,
"I have considered the testimony of Dan Thibodeaux , Larry Beethe, and
Evelyn Steele concerning this incident and the findings above are based
upon a consideration of that testimony . I do not credit the testimony of
Evelyn Steele to the effect that in advancing the reason for her discharge
Thibodeaux stated that she was not "one hundred percent company"
While Steele may have mentally interpolated this as the meaning of
Thibodeaux ' s remarks, Thibodeaux and Beethe testified convincingly
concerning Thibodeaux 's comment to Steele and their testimony is
mutually corroborative The asserted variation between Thibodeaux's
testimony and that of his pretrial affidavit , adverted to be the General
Counsel, was not definitely established and the testimony of Beethe which
was consistent on this score with that of Thibodeaux was not in any
manner challenged.
TOPEKA DISCOUNT, INC. 25
who called at the request of the president, observed in
response to Steele's request for an explanation of the
reason for her discharge, that Thibodeaux had informed
him that Steele had had frequent absences and had been
"tardy quite a bit." Steele characterized this explanation
as "nonsense" and asserted, in substance, that the
timecard would reveal a contrary picture Anderson stated
his conviction that Thibodeaux had "just cause" for the
action and asserted that as manager Thibodeaux had the
"say so " Steele next raised the issue of her entitlement to
vacation pay and Anderson assured her that she would
obtain it She did so approximately 10 days after her
termination.
(10) Reprimands, compliments, and bonuses
In his report filed several days after the termination of
Evelyn Steele, Thibodeaux specified the reason for the
discharge as, "Failure to report to work on time. Absent
too much. Failure to perform her job successfully " In the
report, Thibodeaux characterized the quality and quantity
of her work as "marginal" and her attitude and
attendance as poor. At the hearing he testified that, "she
is capable of bookkeeping, but there is more to it than
keeping books."
Steele denied that she had ever been warned or
reprimanded by Thibodeaux or any other company official
concerning her punctuality in reporting for work, her
absence from work, the interference of personal problems
with the performance of her work or her appearance or
her attitude. Moreover, Steele testified that she had
received compliments from Howard Heedum, district
manager, concerning the quahLy of her work and in
February 1969, had been the recipient of a discretionary
bonus larger in amount than usual She testified that
Thibodeaux informed her that her bonus participation was
greater than normal because she had done a good job and
"deserved it." Further, Steele testified that she worked
frequently at home and in excess of the required 40 hours
per week and that she had many tunes expended small
amounts of her personal funds for supplies which assisted
her in the better performance of her work tasks and
improved her efficiency
The bonus which was distributed in February 1969, was
an incentive bonus which Thibodeaux, in his capacity as
store manager , had the discretion of distributing among
his departmental managers and bookkeepers. Six
individuals usually participated in the bonus and the bonus
of February 1969, was for the preceding quarter and was
augmented in total amount by funds which had not been
previously distributed by the former manager. While
Steele usually participated to the extent of approximately
10 percent of the total funds available for distribution
under the bonus plan, in the February 1969, bonus her
participation was to the extent of 25 percent of the total
bonus disbursement. Thibodeaux could not recall having
informed Steele that her increased participation was
related to the quality of her work performance.
There is no evidence of record revealing any reprimand
by Thibodeaux to Steele with respect to the quality of her
work performance or her punctuality or her work
attendance record. Thibodeaux testified, however,
affirmatively that Steele had missed a "considerable
amount of work" by reason of her own illness, the illness
of some family member or for some other personal
reason. He testified that he considered her attendance not
acceptable. While the testimony of Steele reveals that she
was absent from work in February 1969, by reason of an
automobile accident and had been absent in 1967 as a
consequence of her own illness and hospitalization, the
Respondent undertook no showing augmented by
company records or timecards to support the testimony of
Thibodeaux with respect to either absenteeism or tardiness
on the part of Steele."
(11) The "changed" attitude
By reason of the physical layout and size of the office
which Thibodeaux and Steele shared in performing their
daily work routines, Thibodeaux and Steele had frequent
occasions to converse with each other concerning their
work. Soon after becoming store manager in April 1968
Thibodeaux spoke with Steele concerning his responsibility
to make ultimate decisions without the participation of
other personnel. In February 1969, Thibodeaux was the
recipient of a complaint from his market manager to the
effect that this was the first store wherein he had been
"treated like a dog" when he wanted some information
from the office. This utterance had been in context of a
complaint from the market manager concerning his
dealings with Steele. Thibodeaux did not speak to Steele
concerning this matter.
Commencing with the days immediately following April
21, the personal relationship between Thibodeaux and
Steele became noticeably strained and they communicated
with each other verbally only to the extent essential to
carry out the routines and tasks which were theirs.
Thibodeaux frequently transmitted instructions to Steele
by written notes which he left on a spindle on Steele's
desk in the office. On April 23 Steele observed the ad
which Respondent placed in the local newspaper on that
date and on the following day Steele remarked to other
employees that her job had been advertised in the
newspaper the previous day.
Conclusions
1. Interference, restraint, and coercion
The record evidence establishes that a union meeting
was held on the evening of April 21 which was attended
by Evelyn Steele, Howard Marlow, and other employees
of Respondent. At the meeting Steele assumed the
responsibility for preparing a petition to be circulated
among the employees at the Topeka store by Marlow
This information became known to Dan Thibodeaux, store
manager, the following morning when an employee
gratuitously and without any initiative by Thibodeaux
volunteered it. Several weeks earlier, during store hours,
union representatives had entered the store and had
solicited employees and circulated material, infringing to
some degree at least upon worktime.
Learning of the renewal of the putative organizational
effort of April 21, as common prudence and minimal
"Steele testified in effect that during her initial training period at the
home office in Omaha she was informed of the existence of a personnel
practice whereby management personnel and bookkeepers were to be given
written reprimands and corrective interviews as a precondition to their
termination pursuant to a third offense The evidence is insufficient to
establish, as a fact, that this was a viable procedure recognized by the
Respondent and applicable to bookkeepers That , under prior store
management, Steele had observed some forms used in this asserted
procedure in the possession of the prior manager and that assertedly, the
procedure had been once before invoked with respect to a store assistant
manager, is insufficient to carry the burden which the General Counsel
appears to place upon this fragment of testimony
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concern would dictate, Thibodeaux, on his day off,
conferred with Larry Beethe, his assistant, by telephone,
instructing Beethe to preclude Marlow from circulating
the petition on worktime Beethe complied , giving Marlow
the option of posting the petition on the bulletin board
while assuring him against recrimination. By his
subsequent actions, Marlow declined the option and
disregarded the instructions of management. There was no
recrimination against him
Not out of keeping with his normal conduct on his days
off, Thibodeaux on this particular day off came personally
to the store, an action not irregular in light of the
apparent participation of his bookkeeper in the stirrings of
interest in the Union manifested by the meeting of the
night previous. To Steele, privy by virtue of her duties to
confidential wage and profit and loss data, and proximate
in her professional relationship to store management,
Thibodeaux made inquiries designed merely to establish
the accuracy of the information that had come to him
regarding Steele's attendance at the meeting and the
degree of her participation of the petition. These matters
established, Thibodeaux's response was limited to the
admonition that Steele was not to use worktime for union
activity.
In the factual context in which they occurred, I am
unable to find, as the General Counsel urges, that either
Beethe or Thibodeaux interfered with or in any manner
restrained or coerced Marlow and/or Steele in the
exercise of their Section 7 rights. That worktime is for
work and that an employer may preclude union activity
on company time is basic. That the proscriptions which
Beethe and Thibodeaux articulated had no connotation or
effect of precluding union activity on break or other
nonworktime is clear both from the utterances themselves
and the interferences to be drawn from the impunity with
which Marlow thereafter circulated the petition among
employees at the store with Thibodeaux's knowledge It
was not incumbent upon the Respondent to have
excluded nonworktime from the scope of its proscription.
It was enough that the proscription was articulated as
relating only to worktime. While, in the nature of things,
disclosure of management awareness of employee
involvement in union activity resulted , this was but an
unavoidable consequence of the legitimate purpose being
pursued by management , and management said no more
than was necessary to accomplish this purpose.
Moreover, considering the nature of Steele's job
responsibilities and her relationship to management,
Thibodeaux's statement to Steele in February that she
should "keep her mouth closed" about her union feelings
and his, hardly rises to the level of a proscription against
union or concerted activity, and carries no overtone of
threat or coercion. It was a statement made out of
recognition of the confidential nature of Steele's job, and
counseled only discretion. That Steele was not deterred in
her union activity is shown by her subsequent discussions
with Thibodeaux and by her attendance at the union
meeting and involvement in the preparation of the
petition
Further, I find no violation resulting from Beethe's
mere assertion that Steele should have recorded the extent
of her absence on April 23 by using the timeclock.
Beethe's statement had no prospective connotation and
was given no subsequent effect . It was consistent with
policy which Steele herself recognized, for the evidence
establishes that she was absent from her work for more
than 15 minutes and for a period of sufficient duration as
to have warranted corrective comment. Construed most
favorably to the General Counsel, the incident is but a
thread in the fabric of a developing changed attitude on
the part of management toward Steele, a matter of
relevance with respect to the purported discriminatory
design against her, but insufficient in itself to constitute
interference violative of Section 8(a)(1) of the Act.
Nor do I find that by Thibodeaux's approachment to
employee Marlow in May concerning the petition and
union progress, or by the grant of wage increases soon
thereafter did Respondent violate the Act. There is no
suggestion in this record that employees sought to conceal
their organizational effort or that the circulation of the
petition was a covert matter; in fact the thrust of the
record evidence is to the contrary and Marlow, as found,
had no compunction against circulating the petition at the
plant. I am convinced by the evidence that Thibodeaux
was conscientious in his desire to avoid the risk of possible
unfair labor practice charges by intruding wage raises into
the organizational campaign while it remained viable.
When Marlow disclosed the quietus of the campaign and
his own activities with respect to the petition, Thibodeaux
received the assurances he desired that matters had
evolved to the point where, under the directive of his
superiors, he was free to grant the wage increases that
were contemplated, and which had matured under the
informal 6-months' wage adjustment formula pursued by
Respondent. I am unable to attribute to the directive of
Omaha management the restrictive connotation accorded
it by the General Counsel - that wages were to be
increased only when employees abandoned the Union -
for the "union activities" to which the directive had
reference as limiting Thibodeaux's freedom to take wage
action, was clearly organizational activity, and that
activity could have ceased as well by successful
culmination as by abandonment. There is no evidence of
record that wage increases were to result only from the
latter eventuality and, in the inflationary environment of
today's economy, common business experience would
preclude a deferral of any significant duration in the event
that cessation had resulted from union success. In seeking
to gain possession of the petition for use as a prop to
dramatize to the employees at the meeting which was
planned the end of the organizational ferment and the
beginning of a new period of management/employee unity
- which I am convinced was his purpose - Thibodeaux
skirted the fringes of unlawful conduct. But, contrary to
the General Counsel, neither to Marlow or to the
employees at the meeting, did Thibodeaux condition the
wage action upon a termination of union activity nor did
he place upon the Union the onus for the withholding of
the wage increases he asserted were due. While at first
glance the wage adjustment takes on the hue of reward for
rejection of union representation, more careful scrutiny of
the record convinces me that Respondent was circumspect
in deferring the increases until organizational activity had
subsided and made adjustments affecting approximately
one-half of the employee contingent - exclusive of new
hires - in amounts wholly consistent with past
adjustments. The number of employees who were
beneficiaries, while greater than in the past, is explained
by the time that had elapsed since the last wage action;
and the General Counsel undertook no showing or
assertion that the selection process was one designed to
reward "loyal" employees or punish recalcitrants who had
favored the Union. In fact the General Counsel undertook
no showing of disparate pattern and if Respondent's
object had been merely to utilize wage action as a
deterrent to unionization the increases could, and would
TOPEKA DISCOUNT, INC. 27
likely have been, less selective and more general than they
were. In sum, I am unable to find that the grant of wage
increases was for the purpose of interfering with
employees' exercise of their rights under the Act to select
a representative of their own choosing.
2. The alleged discrimination
Finally, I conclude and t ►nd that the evidence does not
preponderate in favor of the General Counsel on the issue
of the termination of Evelyn Steele. Stated otherwise, the
evidence requires the finding, which I make, that her
termination was not discriminatory within the meaning of
Section 8(a)(3) of the Act.
The General Counsel contends that the decision to
terminate Steele had its genesis in her demonstrated
affinity to the Union and that the discriminatory motive is
revealed by the change in attitude on the part of
Thibodeaux toward Steele which occurred on the day
following her attendance of a union meeting and her
acceptance of the responsibility of preparing the prounion
petition; and which led immediately to the recruitment
efforts to secure a replacement for her. The General
Counsel further contends that Thibodeaux's indifferent, if
not hostile, attitude continued for the ensuing 6 weeks
until Steele was informed precipitiously of her termination
without warning.
On first analysis this case invites formula disposition
for there was present here, as the General Counsel
contends, the ingredients of union activity on the part of
the dischargee, company knowledge, a changed attitude on
the part of supervision and precipitous discharge without
warning or corrective efforts However, the actual
motivation for the termination of Steele is more subtle
than the General Counsel suggests and greater
discernment than that encouraged by the General Counsel
in argument and brief is required to reach a proper
resolution of the issue.
The Respondent contends and I find that Evelyn Steele
was terminated because of fundamental personality
conflict between her and Dan Thibodeaux. I am given no
pause in the determination of this issue by the rationalized
bases which the Respondent advances as embroidery for
the underlying reason for Steele's discharge Thus, I reject
as without foundation the assertions that tardiness per se
and absenteeism accorded valid grounds for the action and
I find no persuasive merit in the alleged contributory
impact of Steele's asserted deficiencies in timely satisfying
accounts payable
Initially, Steele was a capable, conscientious
bookkeeper whose alleged absenteeism was not established
by record or other objective evidence, and the purported
"peek and valley" condition persisting with respect to
accounts payable and to which Steele's deficient
methodology as a bookkeeper is avowed to have
contributed, had existed before Steele's hire and was not
shown to be caused or aggravated by her bookkeeping
practices. The more persuasive evidence, emanating from
the testimony of Steele, is that functional and operating
factors external to bookkeeping practices formed the bases
for the condition which admittedly existed.
The true basis for the termination of Steele is found, as
Respondent asserts, in the personality conflict between
Evelyn Steele and Dan Thibodeaux, of which the alleged
tardiness and cash report issue is symptomatic.
Immediately discernible to the trier of fact who had the
benefit of hearing the testimony and observing the
witnesses as they testified, is the contrast in the
personalities and natures of the two principles to the
conflict. Steele is an intelligent, confident, efficient and
capable woman whose capacities meld together to
manifest, in their professional context, a degree of
officiousness which were at once disquieting to
Thibodeaux whose progress through the ranks into
managerial hierarchy was due, I am convinced, more to
his constancy to duty and responsibility than to
personality dominance so frequently associated with
effective leadership. Mild, reticent and understated,
Thibodeaux found no complement to his own professional
traits in those of Steele who had worked under
Thibodeaux's predecessors and whose service at the
Topeka store had commenced 15 months before his own,
endowing her, presumably, with awareness and fixed
notion, or both, concerning operating details peculiar to
the Topeka store. As the evidence reveals, soon after
becoming manager - within a month - Thibodeaux
found it necessary to stake out, as it were, his own
independence; and define, in terms, for the benefit of
Steele, his own ultimate authority and to caution Steele
against overreaching into his managerial domain. And the
adverse potentiality of this incident and of their disparate
personalities was not ameliorated by the confining nature
of the small office which Thibodeaux and Steele shared
and in which they daily worked
The frustrations which I am convinced Thibodeaux
experienced from the outset of his work relationship with
Steele were heightened, I find, by Steele's tenacious
adherence to past practices of reporting later than
Thibodeaux desired and at such time as necessitated
Thibodeaux's frequent concern with and involvement in
the details of the daily cash report procedures. That
Thibodeaux took only oblique corrective action which was
ineffectual does not dispel the significance of Steele's
refusal to amend her practice, for the matter festered and,
I find, contributed to Thibodeaux's conviction that Steele
had less than full respect for his managerial authority and
that her continued presence was erosive of his capacity to
properly manage.
This chain of conditions and circumstances, I am
convinced, led Thibodeaux to seek Steele's replacement.
The record evidence warrants the conclusion that he
communicated his wishes to McGovern when McGovern
audited the store in February 1969, and stressed, out of
proportion to its actual significance, the cash report
problem in an effort to accord McGovern a basis for
rationalizing an alliance with him in recommending
discharge of Steele. It was of no assist to Steele that when
McGovern made his February audit certain bookkeeping
reports remained uncompleted and that there had been
some deterioration from the midyear 1968 level in the
regularity and promptness with which invoices were being
paid. This gave surface credence to the implicit contention
of Thibodeaux that Steele was not performing up to
capacity That McGovern consented to Thibodeaux's
termination is convincingly shown, but it was, I find,
consent given out of recognition of the right of
Thibodeaux to have in the position of bookkeeper an
individual with whom he was compatible and could work
in harmony. Steele's basic capabilities as a bookkeeper
were not an issue. That Thibodeaux's request for Steele's
termination and McGovern's acquiescence transpired
before the advent of the Union is similarly established by
testimony of Thibodeaux, McGovern and Heedum which I
have credited.
Because the initiative in the termination of Steele was
Thibodeaux's and was not one forced by higher
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management, Thibodeaux was free to continue to defer his
decision. He did so, I find, not only because of the
passivity of his nature but because he continued to ponder
the justifiability of his own impulses and desires when
measured against Steele's personal needs. Indeed, it was
out of recognition of Steele's need - as well as from a
recognition that she was capable - that Thibodeaux
granted Steele a bonus. But the amount of the bonus was
not large and the inclusion of the bookkeeper in the group
receiving the bonus was usual and perfunctory. That
Steele participated to a greater extent than had in the past
been the case is perhaps attributable to Thibodeaux's
conscious awareness that he was about to terminate Steele
and desired to assuage his feelings. In any event, the
bestowal of the bonus is not so significant an item of
evidence as to be declarative or indicative of Respondent's
intention, at the point in time that it was granted, of
continuing Steele's employment.
To be certain, the catalyst which triggered
Thibodeaux's action and which led to the immediate
placement of an ad for Steele's replacement was Steele's
attendance at the union meeting and her preparation of
the union petition. The process of replacing her was not, I
find, initiated to punish her for her involvement in the
union matter, or to discourage others from such action.
Rather it was set immediately in motion because
Thibodeaux was sufficiently perceptive to recognize that
his already formulated desire and decision to terminate
Steele for reasons quite independent of the Union would
become more difficult to accomplish with impunity if the
personnel action became enmeshed in a fully developed
organizational campaign. It is to be remembered that
when Thibodeaux placed the ad he had no way of
knowing what form, if any, the union campaign might
take which would render impracticable the replacement of
Steele.
Thus, while the timing gives rise to a suspicious
circumstance, the General Counsel's case is not
sufficiently bolstered thereby because the evidence does
not reveal, on the part of Respondent, any hostility
toward the Union, other than the normal preference for
management to manage free of the incursions of union
restrictions; and because it is not immediately discernible
what ends the termination of Steele would serve in
frustrating the employees' effort to organize. There is no
substantial evidence of managerial efforts to dissuade the
employees from the course of unionization and I have
found no unlawful conduct arising from the few instances
of employee-employer discourse concerning the Union.
Moreover, the evidence is insufficient to show deep
hostility toward or systematic effort on the part of
Respondent's parent organization to defeat unionization.
To the contrary, the meat department at Topeka is
organized and there is testimony that employees at other
discount stores in the division are unionized. But more
salient to the issues in the instant case is the fact that
Steele's union activity was not prominent and that her
inclusion in the unit was open to some substantial doubt.
It seems readily apparent that if Respondent's objective
had been to frustrate the progress of unionization by
effectuating a discharge from among its proponents the
objective would have been better served by selection of a
victim whose separation from employment would have
been a more significant symbol to the employees whom
the Respondent sought to influence.
Upon the foregoing considerations, I find that the
termination of Evelyn Steele was not discriminatory
within the meaning of Section 8(a)(3) of the Act and I
shall dismiss the allegation of the complaint relating
thereto.
RECOMMENDED ORDER
Upon the foregoing, I shall recommend that the
complaint be dismissed in its entirety.