Vincent et Vincent of Allentown Mall, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1981

259 N.L.R.B. 1025 (N.L.R.B. 1981)

VINCENT ET VINCENT OF ALLENTOWN MALL, INC. 1025
Vincent et Vincent of Allentown Mall, Inc. and Bar- membership in mid-January 1980, 4 and called a
bers and Cosmetologists Division, United Food meeting on February 9 at which Supervisor Freide
and Commercial Workers' Union, Local 400, told approximately 15 employees of Respondent's
AFL-CIO Case 5-CA-12004 opposition to the Union. As set forth below,
January 12, 1981 Freide's remarks included a number of statements
violative of Section 8(a)(1) of the Act.
DECISION AND ORDER The Administrative Law Judge concluded, and
BY MEMBERS FANNING, JENKINS, AND we agree, that Respondent violated Section 8(a)(3)
ZIMMERMAN on February 20 by discharging Akers because of
On April 16, 1981, Administrative Law Judge her protected union activities. 5 We also agree with
Morton Needelman issued the attached Decision in the Administrative Law Judge that Respondent
this proceeding. Thereafter, the Respondent filed violated Section 8(a)(1) by virtue of Freide's state-
exceptions and a supporting brief, and the General ments during the February 9 meeting that he
Counsel filed cross-exceptions, a supporting brief, would never engage in collective bargaining with a
and an answering brief. union. Such a statement constitutes an anticipatory
Pursuant to the provisions of Section 3(b) of the refusal to bargain, as fully detailed in the Adminis-
National Labor Relations Act, as amended, the Na- trative Law Judge's Decision. We also find, con-
tional Labor Relations Board has delegated its au- trary to the Administrative Law Judge, that
thority in this proceeding to a three-member panel. Freide's statements at the February 9 meeting
The Board has considered the record and the at- threatening to discharge or replace employees if
tached Decision in light of the exceptions and they went on strike, and that if they objected to his
briefs and has decided to affirm the rulings, find- views about unions they could leave, as well as his
ings,' and conclusions 2 of the Administrative Law earlier solicitation and interrogation of Karen
Judge only to the extent consistent herewith, to Davis, were all violations of Section 8(a)(1) of the
modify the remedy,3 and to adopt his recommend- Act.
ed Order, as modified herein and set forth in full During Freide's conversation with employee
below. Karen Davis in January, he asked Davis if she had
The facts, more fully set out in the Decision of heard about the Union. He also remarked to Davis
the Administrative Law Judge, indicate that in late that since she had been in the business a long time
1979 and early 1980 the Union attempted to orga- and knew that a union could not help the employ-
nize several of Respondent's beauty salons includ- ees she should discourage the "young girls" from
ing one in Camp Springs, Maryland. From the joining the Union. We do not agree with the Ad-
outset Camp Springs employee Barbara Akers sup- ministrative Law Judge that the conversation was
ported the Union. She passed messages from the so brief and conducted in such a casual manner as
organizers to her coworkers, distributed union lit- to preclude an inference of improper interference
erature, and solicited authorization cards. The evi- or a tendency to be coercive. 6 The solicitation of
dence shows her efforts on behalf of the Union Karen Davis to reject the Union is, in itself, an
were known to Camp Springs Manager Dale Ter- 8(a)(1) violation regardless of the alleged noncoer-
williger. In response to the organizational effort, cive tenor of the supervisor's actual remarks during
Respondent distributed literature adverse to union such conversation. 7 By soliciting help from Davis
individually, Freide was actually soliciting her to
' Respondent has excepted to certain credibility findings made by the influence other employees to support Respondent
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con- ' Hereinafter all dates are 1980 unless otherwise specified.
vinces us that the resolutions are incorrect. Standard Dry Wall Producrts Member Jenkins does not rely on Wright Line, a Division of Wright
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have Line. Inc., 251 NLRB 1083 (1980), cited by the Administrative Law
carefully examined the record and find no basis for reversing his findings. Judge. That decision concerns identifying the cause of a discharge where
2
In accordance with his dissent in Olympic Medical Corporation, 250 a genuine lawful and a genuine unlawful reason exist. Where, as here, the
NLRB 146 (1980), Member Jenkins would award interest on the backpay asserted lawful reason is found to be a pretext, only one genuine reason
due based on the formula set forth therein. remains-the unlawful one. To attempt to apply Wright Line in such a
In the absence of exceptions we adopt pro forma the Administrative situation is futile, confusing, and misleading.
Law Judge's finding that there was no evidence that Terwilliger engaged I The Administrative Law Judge's reliance on Delco-Remy, Div. of
in illegal interrogations of employees concerning an employees' meeting General Motors v. N.LR.B., 596 F.2d 1295 (5th Cir. 1979), in which the
which took place sometime in February. In reaching this conclusion, we court denied enforcement of a Board Order is, with all due respect to
note that the General Counsel's exceptions refer only to alleged unlawful that court, inconsistent with current Board law. It is well settled that the
interrogation by Freide. We likewise adopt pro forma his failure to find duty of an administrative law judge is "to apply established Board prece-
unlawful certain restrictions placed on employee discussions of the dent which the Supreme Court has not reversed." Iowa BeefPackers Inc.,
Union. 144 NLRB 615, 616 (1965).
' See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for rationale
7
Electrical Fittings Corporation. a Subsidiary of I-T-E Imperial Corpora-
on interest payments. tion, 216 NLRB 1076 (1975).
259 NLRB No. 113
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1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against union representation. 8 It is equally well set- that he did not want a union, that in his opinion a
tied that interrogation of employees with respect to union brought trouble, and that if the employees
their union attitudes and sympathies without a le- did not like it they could leave. Although the Ad-
gitimate purpose and adequate assurances against ministrative Law Judge acknowledged that this
reprisal, which is the situation disclosed by this statement could be interpreted as a threat of repris-
record, is inherently coercive, and hence violates al, he found that, since it was capable of a lawful
Section 8(a)(l). 9 interpretation, it was protected by Section 8(c) of
We turn next to Freide's threat on February 9 to the Act. This analysis is inconsistent with estab-
discharge or replace the employees if they went on lished Board law. In accord with precedent, we
strike. The record reveals that the three employee find that such remarks constitute a veiled threat de-
witnesses gave somewhat different versions of signed to convey the impression that management
Freide's remarks at the February 9 meeting with considers continued employment incompatible with
respect to the possibility of being replaced or fired. engaging in union activities. Markle Manufacturing
According to Akers, Freide said that, if the em- Company of San Antonio, 239 NLRB 1353 (1979)."
ployees went on strike, he would replace them. Accordingly, we conclude that Respondent's state-
Kyle testified that Freide said, if the employees ment comes within that interference and coercion
went on strike, they would either lose their jobs or proscribed by Section 8(a)(l).
be replaced. Davis testified that Freide said "that if
we went union, he would fire us all." ORDER
Although the Administrative Law Judge made
Although the Administrative Law Judge made Pursuant to Section 10(c) of the National Laborno credibility determinations with respect to the Relations Act, as amended, the National Labor
differences in these witnesses' testimony, we find it
unnecessary to resolve any inconsistency in these tions Board hereby orders that te Respondent,
accounts. The threat to fire strikers is clearly il- Vincent et Vincent of Allentown Mall, Inc., Cam
legal. Additionally, the threat to replace strikers in Spr s, Maryland, its officers, agents, successors,
the context presented here is likewise unlawful. An and assign shall
analysis of Respondent's entire antiunion campaignease and desst from:
reveals an implicit warning that in dealing with the (a) Telling employees that Respondent would
Union Respondent would so conduct the negotia- not bargain with Barbers and Cosmetologists Divi-
tions that a strike would result. Thus, there was but sion, United Food and Commercial Workers'
one theme: the inevitability of a strike if the em- Union, Local 400, AFL-CIO, or any other labor
ployees selected the Union as their bargaining rep- organization.
resentative, and the dire consequences of such a (b) Discouraging membership in Barbers and
strike, namely, the loss of jobs by the strikers. As Cosmetologists Division, United Food and Com-
the Administrative Law Judge here held, "Such an mercial Workers' Union, Local 400, AFL-CIO, or
anticipatory refusal to bargain interferes with em- any other labor organization, by discharging em-
ployees' free choice since it tends to create an at- ployees or by discriminating in any other manner
mosphere of futility, and of the inevitability of fail- against employees in regard to hire or tenure of
ure and concomitant employer-employee strife employment or any term or condition of employ-
which, in turn, may lead to strikes and loss of ment.
jobs." We conclude that such appeals to the em- (c) Telling employees that continued employ-
ployees created an atmosphere rendering the exer- ment is incompatible with union activity.
cise of free choice impossible and tended to inter- (d) Threatening employees that if they go on
fere with, restrain, and coerce its employees in the strike they will be discharged, fired, or replaced.
exercise of their rights guaranteed by Section 7. (e) Soliciting employees for the purpose of dis-
Accordingly, the Respondent's threats of discharge couraging other employees from joining the Union.
or replacement were violative of Section 8(a)(l).' 0 (f) Interrogating employees about the Union.
Also, as found by the Administrative Law Judge, (g) In any other manner interfering with, re-
the accounts of witnesses Akers and Kyle indicate straining, or coercing employees in the exercise of
that at this February 9 meeting Freide said in effect the rights guaranteed them by Section 7 of the Act.
'See Amber Delivery Service, Inc., 250 NLRB 63 (1980). 2. Take the following affirmative action:
'See Aeo Corporation, 233 NLRB 401 (1977). (a) Offer Barbara Akers immediate and full rein-
"° Moreover, the Board has held that an employer violates the Act statement to her former job or, if that job no
when he avers that strikers, whether for economic or unfair labor prac-
tice reasons, will be permanently replaced immediately upon striking,
without limiting his statements to a lawful pronouncement that he is le- " In addition, we find the threat to continued employment by Freide
gaily entitled to replace economic strikers only. See Huck Manufacturing in a context of the antiunion remarks set forth above was in fact designed
Company, 254 NLRB 739 (1981). to have a coercive effect on the employees.
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l t ir j r r scri e by Section 8(a)(l).
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VINCENT ET VINCENT OF ALLENTOWN MALL, INC. 1027
longer exists to a substantially equivalent job, with- have violated the National Labor Relations Act, as
out prejudice to her seniority or other rights and amended, and has ordered us to post this notice.
privileges previously enjoyed, and make her whole The Act gives employees the following rights
for any loss of pay she may have suffered by
reason of the discrimination against her by payment To engage in self-organization
to her of a sum of money equal to the amount she To form, join, or assist any union
normally would have earned as wages, plus inter- To bargain collectively through repre-
est, in the manner set forth in the section of the sentatives of their own choice
Administrative Law Judge's Decision entitled "The To engage in activities together for the
Remedy." purpose of collective bargaining or other
(b) Expunge from its files any reference to the mutual aid or protection
discharge of Barbara Akers on on February 20, To refrain from the exercise of any or all
1980, and notify her in writing that this has been such activities.
done and that evidence of this unlawful action will discourage membership inWE WILL NOT discourage membership in
not be used as a basis for future discipline against Barbers and Cosmetologists Division, United
nher. _., .Food and Commercial Workers' Union, Local
(c) Preserve and, upon request, make available to 400 AFL-CIO, or any other labor organiza-
the Board or its agents, for examination and copy- tion, by discharging employees or by discrimi-
ing, all payroll records, social security payment re- nating in any other manner against employees
cords, timecards, personnel records and reports, in regards to hire or tenure of employment or
and all other records necessary to analyze theany term or condition of employment.
amount of backpay due under the terms of this o employe
~~~~~~~~Order. ~WE WILL NOT inform our employees that
we will never engage in collective bargaining
(d) Post at its premises in Allentown Mall, Camp with a Union.
Springs, Maryland, copies of the attached notice
marked "Appendix."' 2 Copies of said notice, on WE WILL NOT employees that continued em-
forms provided by the Regional Director for ployment is mcompaible with union activity.
Region 5, after being duly signed by Respondent's WE WILL NOT unlawfully threaten our em-
representative, shall be posted by Respondent im- ployees that if they go on strike they will be
mediately upon receipt thereof, and be maintaineddischarged, fired, or replaced.
by it for 60 consecutive days thereafter, in con- WE WILL NOT solicit our employees for the
spicuous places, including all places where notices purpose of discouraging other employees from
to employees are customarily posted. Reasonable joining the Union.
steps shall be taken by Respondent to insure that WE WILL NOT interrogate our employees
said notices are not altered, defaced, or covered by about the Union.
any other material. WE WILL NOT in any other manner interfere
(e) Notify the Regional Director for Region 5, in with, restrain, or coerce you in the exercise of
writing, within 20 days from the date of this Order, the rights guaranteed by the National Labor
what steps the Respondent has taken to comply Relations Act.
herewith. WE WILL offer Barbara Akers immediate
and full reinstatement to her old job or, if that
" In the event that this Order is enforced by a Judgment of a United job no longer exists, to a substantially similar
States Court of Appeals, the words in the notice reading "Posted by job without prejudice to her seniority or other
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an rights and privileges previously enjoyed, and
Order of the National Labor Relations Board." WE WILL pay Barbara Akers any wages she
lost because we fired her, plus interest.
APPENDIX WE WILL expunge from our files any refer-
ences to the discharge of Barbara Akers, and
NOTICE To EMPLOYEES WE WILL notify her in writing that this has
POSTED BY ORDER OF THE been done and that evidence of this unlawful
NATIONAL LABOR RELATIONS BOARD action will not be used as a basis for future dis-
An Agency of the United States Government cipline against her.
All our employees are free, without any objec-After a hearing at which all sides had an opportu- All our employees are free, without any objec-
nity to present evidence and state their positions, or remaining members of Barbers and Cosmetolo
the National Labor Relations Board found that we or Division, United Food and Commercialgists Division, United Food and Commercial
ri ile r i l j , r l i l :
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NOTICE To EPLOYEES t t i r f r r r ,
NOTICE To EMPLOYEES E ILL notify her in riti t t t is

After a hearing at whichiall sides had an opportu- ll l r fr , it t j
ft r a hearing at hich all sides had an opportu- tion from us, to become or refrain from becoming
i t i t t t ir siti s, or re aining e bers of Barbers and Cosmetolo-
l f t t o Divining membed of and r i lmeca
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. all
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers' Union, Local 400, AFL-CIO, or any FINDINGS OF FACT AND CONCLUSIONS OF LAW
other union.
A. Respondent's Business, the Union's Labor
VINCENT ET VINCENT OF ALLENOrganization Status; Commerce; The Role of WilliamVINCENT ET VINCENT OF ALLEN-
TOWN MALL, INC.
The jurisdictional facts are not in dispute. Respondent,
DECISION Vincent et Vincent of Allentown Mall, Inc., a Maryland
corporation, operates a beauty salon in the Allentown
STATEMENT OF THE CASE Mall in Camp Springs, Maryland. Respondent corpora-
MORTON NEEDLEMAN, Administrative Law Judge: tion is part of a related chain of 16 corporations which
This case was heard in Washington, D.C., on January 27, operate 16 beauty salons under the trade name "Hair
1981. The charges were originally filed by the Barbers Pair" in the Washington, D.C., area.2
and Cosmetologists Division, United Food and Commer- Respondent and all other corporations in the chain are
cial Workers' Union, Local 400, AFL-CIO, and later owned and controlled by Vincent Gesumaria, president,
amended on May 15, 1980.' The complaint was issued on Walter W. Stern, vice president, William Freide, treasur-
July 17, 1980. It alleges that Vincent et Vincent of Al- er, and Meyer Samuels, secretary. By virtue of the con-
lentown Mall, Inc. (hereinafter Respondent), acting trol exercise by these officers over the business oper-
through its treasurer, William Freide, violated Section ations and labor relations policies of the entire chain, the
8(a)(1) and (3) of the National Labor Relations Act, as 16 corporations are properly considered as a single em-
amended (hereinafter Act), in January and February ployer.
1980 by interfering with, restraining, and coercing em- During the 12-month period prior to the issuance of
ployees at its Camp Springs, Maryland, location in the the complaint, a representative period, the gross volume
exercise of their rights guaranteed under Section 7 of the of business from the operations of the various beauty
Act by engaging in the following practices: threatening salons in Respondent's chain exceeded $500,000. During
employees with discharge for supporting the Union; in- the same period, Respondent purchased and recieved
terrogating employees regarding their own and their products valued in excess of $50,000 directly from points
fellow employees' union activities; soliciting employees located outside the State of Maryland.3
to discourage their fellow employees from supporting the Thus, it is undisputed that Respondent is, and has
Union; telling employees that Respondent would close been, an "employer" as defined in Section 2(2) of the
down before it would bargain with the Union; saying to Act; that Respondent is, and has been, engaged in "corn-
employees that Respondent would not have a union at merce" and in operations "affecting commerce" as de-
the Camp Springs, Maryland, shop, and if the employees fined in Section 2(6) and (7) of the Act, respectively; that
did not like that prospect, they could leave. The com- the Union is, and has been, a labor organization within
plaint further alleges that Respondent discriminated the meaning of Section 2(5) of the Act; and that William
against Barbara E. Akers by terminating her employment Freide is, and has been, an agent of Respondent and a
because of her membership in, assistance to, and activi- supervisor within the meaning of Section 2(11) of the
ties on behalf of the Union. Act.
Respondent's answer denied the substantive allegations
of the complaint, but at the hearing Respondent admitted B. Background; Union Activity; Alleged 8(a)(l)
all jurisdictional facts as well as allegations relating to Violations
status of the Union as a labor organization and the super- This matter involves a labor-relations conflict which
visory status of William Freide and Dale Terwilliger, arose between January and February 20, 1980, at Re-
manager of Respondent's Allentown Mall salon. As a spondent's beauty salon in the Allentown Shopping Mall
result of these admissions, the issues at the hearing were in Camp Springs, Maryland. The Camp Springs salon
limited to (1) whether William Freide engaged in threats, employs 18 workers who are variously classified as re-
solicitation, and interrogation which interfered with and ceptionists, hairdressers (or haircutters or operators), and
coerced employees in the exercise of their rights under shampoo girls. From the time the Camp Springs salon
Section 7; and (2) whether Respondent discriminated opened 7 years ago, its has been managed by Dale Ter-
against Barbara Akers by firing her because of her union williger. Respondent's treasurer, William Freide, regular-
acitivties. ly calls at the Camp Springs salon as part of his chain-
All parties were given full opportunity to participate wide supervisory responsibilities.
in the hearings by introducing evidence, examining and In the background of the Camp Springs labor dispute
cross-examining witnesses, and presenting oral argument. was an attempt by the Union to organize several of Re-
Briefs were filed by the General Counsel and Respond- spondent's shops including the salon on Seminary Road
ent on March 25, 1981. Upon the entire record, including in Virginia, where the Union had planted one of its paid
my observation of the witnesses and their demeanor, I
make the following: 2 The complaint refers to seven corporations. Freide testified that two
of the salons listed in the complaint are not Hair Pair shops. In all, there
'After the complaint issued, the Barbers, Beauticians and Allied Indus- are 16 corporations under the same management, including Vincent et
tries International Association merged into the United Food and Com- Vincent of Allentown Mall, which operate 16 "Hair Pair" salons in the
mercial Workers' Union (hereinafter Union). The name in the case has Washington, D.C., area.
been changed to reflect this merger. See stipulation of February 24, 1981.
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VINCENT ET VINCENT OF ALLENTOWN MALL, INC. 1029
organizers, Lisa O'Leary-Young, to work as a shampoo had heard about the Union. He also remarked to Davis
girl. In mid-December 1979, Freide learned that a union that since she had been in the business a long time and
campaign was underway at Seminary Road. His reaction knew that a union could not help the employees, she
to the campaign was described as follows by O'Leary- should discourage the "young girls" from joining the
Young: Union. Freide then took a union flyer away from Davis,
and told her that she need not read this material. Re-
He told the employees that he was very upset about spondent's attitude toward the Union was also demon-
the union, that he did not want a a union in the strated by the rule imposed by Manager Terwilliger for-
shop, he would not have a union in his shop, he bidding employees to discuss the Union in the shop, al-
wouldn't have anybody that belonged to a union though similar restrictions were not imposed on other
working in his shop, they could just leave if they private conversations.
didn't like it, told them he was very distressed that In response to management's opposition to the organi-
there was a paid union organizer working at his zational effort, several employees asked Freide to attend
shop. He told the employees that if they wanted to a meeting at the Camp Springs salon on ebruary 9,
walk in the cold out on the picket line for however 1980. Present at the meeting were Freide and some 15
long they wanted to do it, that was fine with him, employees. In Freide's version of what was said at this
he didn't care. ~he didn't~ care.~ meeting, he was so scrupulous in avoiding any mention
He told all the employees that if they joined the of the Union that he even refrained from bringing up his
union or tried to join the union, that they would be opposition to the signing of organizational cards, al-
black listed and that they would not get a job any- though he claims to have given some general advice
where else and no one would want to hire them, warning the employees against the ill-advised singing of
and then he also made references to look what any papers.
unions had done to the United Auto Workers and Freide's account of what he said at the February 9
some stuff about Jimmy Hoffa and other matters meeting taxes credulity. For even he concedes that the
like that. 4 meeting was called to discuss employee grievances in the
The testimony of O'Leary-Young concerning Freide's context of the Union's organizational campaign which
attitude toward union activity at Seminary Road was of- management opposed. It is implausible that in such a set-
fered (and received without objection) as evidence of ting the Union and its organizational effort were not
union animus on the part of Respondent, and not as mentioned by both the employees and Freide. In a word,
proof of a substantive 8(a)(1) violation. Freide's remarks Freide's version of what was not discussed, "I do not re-
during the Seminary Road campaign led eventually to member discussing unions," is so incredible, that I do not
the filing by the Union of unfair labor practice charges accept his version of what was said.
against Respondent, but these charges were not pursued On the other hand, the testimony of three operators
after the Union was defeated in a representation election. who attended the February 9 meeting (Akers and two
While the instant complaint makes no mention of the other employees, Kyle and Davis) contains nothing
Seminary Road campaign, Respondent was put on notice which is innately unbelievable, and in giving testimony
even before this proceeding began that the Seminary they seemed to be straight forwarded and sincere. This is
Road remarks, which contain a patently unlawful threat not to say, however, that I have assigned equal probative
of retaliation if the Union is supported, would be offered weight to all facets of their testimony: corroborated
to show Respondent's general hostility to the Union's recall was given great weight, while a single witness' un-
campaign. Since nothing in O'Leary-Young's account of corronorated version of what was said (in circumstances
Freide's remarks on Seminary Road was contradicted by where corroboration was readily available) was given
Respondent, her testimony should at least be considered none. But it should be emphasized that differences in the
as evidence of Freide's general attitude toward the ability of these three witnesses to recall uniformly all
Union which may be weighed against other evidence in- that was said at the meeting, which goes to the weight to
dicative of a possible change in his attitude. As shown in be assigned a particular version of what happened, is in
the evidence reviewed below, there is no evidence what- sharp contrast to the inherently incredible statement by
ever of such a change in attitude. Freide that the Union was never discussed at all.
Soon after the Camp Springs organizational campaign According to the three witnesses, at the February 9
began on January 14, 1980, Freide handed Barbara Akers meeting the employees (through Becky Kyle, a haircut-
and Becky Kyle, haircutters, a Chamber of Commerce ter and spokesperson for the employees) cited their
pamphlet outlining the case against union membership. grievances respecting pay, health benefits, and working
Akers, the alleged 8(aX3) discriminatee, testified that conditions as their reasons for wanting the Union. All
Freide said, "Lisa [Lisa O'Leary-Young] thinks I can't three witnesses testified that Freide responded by saying
fire you, I'll show you that I can." This testimony, how- that he did not want a union, that in his opinion a union
ever, was uncorroborated since it was not recalled by brought trouble, and that if the employees objected to
Kyle. Later, Freide asked haircutter Karen Davis if she his views about unions they could leave.
With respect to the possibility of being replaced or
'At the time of the hearing herein, O'Leary-Young was a full-time em- fired the three employees gave omewhat different ver-
ployee of the union. O'Leary-Young has never worked at Respondent's .
Camp Springs shop. She voluntarily left the Seminary Road shop in Feb- sions of Freide's remarks. According to Akers, Freide
ruary 1980. said that, if the employees went on strike, he would re-
t ri l
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r i
l
l i i tri
i i , t l j t leave if they private conversations.
i 't li it, t l t r i tr t t I r t t' iti t i
i i r r l
. t l t l t t if t t t ti t t i l F ,
l i t l t t i t li f r r t i
lngi they wanted to do it, that w a s fine with him, e ployees. In Freide's version f hat s said t t i
he didn't care. ,

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------- ~~~~~~~~~~~~With f i
ri i ' s a f ll-li e - i the res e ployees gave Somewhat different ver-
r fr , t the e1 r-
. t ril i r r . i i
re t ti r
'
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place them. Kyle testified that Freide said, if the employ- anonymous telephone threat that his arms would be
ees went on strike, they would either lose their jobs or broken if he opposed the Union. There is no evidence
be replaced. Davis testified that Freide said "that if we linking this phone call with any of the employees or the
went union, he would fire us all." Union, but the call explains why Terwilliger asked the
Finally, Akers and Kyle testified that at the February employees what was discussed at a meeting held prior to
9 meeting Freide said he would never engage in collec- the telephone call.
tive bargaining with a union, and that if the employees Finally, the evidence is weak that Freide said that con-
went on strike they would lose their jobs.5 This state- tinued employment is incompatible with union activity as
ment, which significantly was not part of casual conver- alleged in paragraph 5(e) of the complaint. In the ac-
sation with a single worker, but instead was announced count given by two witnesses (Akers and Kyle), what
before practically all the employees who had gathered to Freide said, in effect, was that he did not want a union,
hear management's response to the Union's organization- that in his opinion a union brought trouble, and that if
al campaign, is an unfair labor practice under Section the employees objected to his views they could leave.
8(a)(1) of the the Act as alleged in complaint paragraph While these remarks could conceivably be interpreted by
5(d). Such an anticipatory refusal to bargain interferes employeess as an implied threat of reprisal if union activ-
with employees' free choice since it tends to create an ity continues, it is equally plausible that the remarks
atomosphere of futility, and of the inevitability of failure were preceived by employees as simply a confirmation
and concomitant employer-employee strife which, in that Freide does not like unions, an opinion which he
turn, may lead to strikes and loss of jobs. Moreover, had the right to express under Section 8(c) of the Act,
Freide's statement that, in effect, he would never come and which could hardly have come as a suprise to the
to the bargaining table with an open mind (scarcely an employees.
accurate prediction if the statutory obligation to bargain In sum, what the record shows is that Freide was
in good faith is to be met) was calculated to have a coer- more cautious and circumspect in his conduct during the
cive effect on employees who, "no more than the gener- Camp Springs campaign than he had been at Seminary
ality of mankind, are inclined to indulge in futile acts." Road, but his hostility to the Union remained firm as
The Trane Company (Clarksville Manufacturing Division), shown when he overstepped the line of permissible an-
137 NLRB 1506, 1510 (1962). tiunion argument and engaged in unlawful interference
Apart from Freide's remarks about his prospective re- by saying he would not bargain collectively. As for the
fusal to bargain, the proof of other alleged 8(a)(l) viola- other alleged 8(a)(l) violations cited in complaint para-
tions has gaping holes. Thus, the evidence of alleged graphs 5(a), (b), (c), and (e), the evidence is either too
threats of reprisals by Freide for union activity, i.e., his meager to support an order, or there was a total failure
alleged statement that "Lisa thinks I can't fire you, I'll of proof
show you that I can," and a threat purportedly made at
the February 9 meeting, is murky. The "Lisa" statement C. The Discharge of Barbara Akers: The Alleged
could be recalled by only one of the two persons to 8(a)(3) Violation
whom it was directed, and two of the three witnesses
who were present at the February 9 meeting did not From the outset of the Camp Springs campaign in Jan-
even claim that there were any threats made of firing be- uary 1980, Barbara Akers was identified to union orga-
cause of union activity. nizers as an employee who was actively seeking a union,
Equally unimpressive is the evidence introduced to and was willing to help organize one. Thereafter, begin-
show that Freide solicited Karen Davis to discourage the ning on January 14, 1980, Akers became one of the inter-
"young girls" from joining the Union and improperly in- mediaries between the union organizers, John Brown and
terrogated Davis about the Union. As far as the record Lisa O'Leary-Young, and the employees of the salon.
will allow, this conversation, involving Freide, Davis, Akers passed messages from the organizers to her co-
and one other employee (in contrast to the February 9 workers, distributed union literature, and solicited au-
meeting when nearly all the employees were gathered to thorization cards. Her efforts on behalf of the Union
hear management's views), was so brief and conducted in must have been known to Dale Terwilliger since he was
such a casual manner as to preclude an inference of im- seen by Terwilliger in conversation with organizer
proper interference or a tendency to be coercive. See Brown, who wears a windbreaker with the words
Delco-Remy Division of General Motors Corp. v. N.L.R.B., "Local 400" emblazoned on the back. It is also reason-
596 F.2d 1295 (5th Cir. 1979). In addition, there is no re- able to infer that Terwilliger passed on his knowledge of
liable evidence that Dale Terwilliger engaged in illegal Aker's union activity to Freide, given the fact that
interrogations of employees. The record shows that Ter- Freide was so vehemently opposed to any union attempt
williger asked several employees about what was dis- to organize his shops.6
cussed at an employees' meeting held sometime in Febru- The chain of events which led to the firing of Barbara
ary (but not the February 9 meeting). Terwilliger's inter- Akers on February 20, 1980, began innocently enough
est, however, is understandable since he had received an when Akers interrupted a conversation between the re-
ceptionsist, Denise Edwards, and Patricia Hunt, an oper-
Akers: "He said if we went on strike, he would replace us, and he
said he would not bargain in any collective bargaining table"; Kyle: "He 6 Freide's testimony that he never discussed union activity with Ter-
told us that if we went on strikes .... that we'd all lose our jobs, we williger is unbelievable and, in fact, was contradicted by Freide's own
would be replaced. And, he said, even if we were to get in the union and statement that "Dale [Terwilliger] had told me that there were rumors
he was to be at a bargaining table, that he didn't have to bargain at all." because these people had come in passing out pamphlets ....

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li ti t r i I s , at the record sho s is that Freide as
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VINCENT ET VINCENT OF ALLENTOWN MALL, INC. 1031
ator, by remarking that Edwards should not believe ev- union membership, she was reprimanded in a loud voice
erything she heard. 7 This caused Edwards to ask Terwil- by Dale Terwilliger and told not to discuss the Union.
liger to reprimand Akers about interrupting her conver- On still another occasion during the summer 1980, opera-
sations. At this point, Freide happened to enter the salon tor Karen Davis was reprimanded by Terwilliger, who
on one of his periodic visits. Terwilliger conveyed to used a loud and vociferous tone in the presence of cus-
Freide Edwards' request to reprimand Akers. Akers was tomers.
then asked by Friede to step outside the salon and into These incidents indicate that management of Respond-
the public area of the mall. Akers refused to step outside, ent is extremely reluctant to fire capable employees.
insisting that her job or "business" be discussed on the Moreover, there is evidence that even if just cause arises,
jobsite. Freide then spoke to her in the reception area of the employee will usually be given a second or even a
the salon. He accused Akers of harassing other employ- third chance to mend her ways. Moreover, should an
ees and spreading rumors and threats. Akers became agi- employee be discharged, there is precedent for her to be
tated, and she asked him in a loud voice to identify spe- reinstated. Against this background, it is simply not plau-
cific employees whom she had threatened. Freide told sible that Freide would allow such a trivial incident-
her to lower her voice. She refused. Freide told her to Barbara Akers' interruption of a conversation (signifi-
leave. Akers asked whether she was fired. At first, cantly, not work but apparently a private conversation)
Freide replied that she was not fired, and that Akers between Denise Edwards and Patricia Hunt and Akers'
should "go back and read [her] book." Akers replied, subsequent heated, but brief, exchange with Freide-to
"What, my law book," an obvious reference to her legal assume such serious proportions that it would lead to the
right to engage in union activity. As Akers was walking discharge of such a capable worker, unless there was an
to her station, she was recalled by Freide who said that overriding other reason. As it happens, there is positive
she was fired for being rude. Akers was not given an op- evidence that Respondent was actively searching for a
portunity to obtain further elaboration from Freide about pretext to fire Akers because of union activity. On Feb-
the charge that she was spreading rumors or making ruary 20, the very day she was fired, Dale Terwilliger
threats. was overheard to say that if Akers was just 5 minutes
The firing of Barbara Akers was an unusual occur- late "she's gone." Besides, it is noteworthy that the con-
rence. She was a competent haircutter, and as Freide tes- versation between Freide and Akers on February 20 did
tified, "you don't let good hair dresses go." Apparently, not center on whether it was proper or improper, polite
Akers was so proficient that she was hired on two occa- or impolite, to interrupt Denise Edwards; the conversa-
sions. She worked for Respondent between 1976 and tion became heated when Freide brought up the real sub-
1978, left briefly to work for another salon, and then was ject which was bothering management-Akers' efforts
rehired in the fall of 1978. That her services were highly on behalf of the Union, which he characterized as
regarded is also shown by the fact that Freide interceded spreading rumors and threats.
on her behalf to ease tensions which had arisen among nder the Board's decision in Wright Line, a Division
Akers, a shampoo girl, and an assistant manager.A lers, a shampono girl, and an assistant manager. of Wright Line, Inc., 251 NLRB 1083 (1980), first, the
While Respondent's employees often leave on their General Counsel must make a prima facie showing that
own, discharges are so rare that in Respondent's entire protected conduct was a "motivating factor" in the em-
chain there have been less than 6 discharges in 20 years,
and prior to the Akers discharge, Freide had not been ployer's decision to discharge an employee. Once this isand prior to the Akers discharge, Freide had not been established, the burden shifts to the employer to demon-personally involved in a single firing. All discharges, ac- strate tha the same ai n would have tak en plce even
cording to Freide, represent "less than 1 to 5 percent strate that te same acon woud have take
o.. a minute amount."in the absence of the protected activity.a inute a ount."
As Freide would have it, this rare event-the firing of The General Counsel has clearly met its burden by
Barabra Akers on February 20, 1980-was justified be- showing the following: Barbara Akers was one of the
cause "she was rude, abusive and impossible." But the most agressive supporters of the Union; her activity on
record shows that management of Respondent ordinarily behalf of the Union was known to Respondent; Respond-
does not react as severely as Freide did on February 20 ent demonstrated a union animus in Freide's remarks
to other brief flurries of indecorous or even embarassing during the Seminary Road campaign and his statement
behavior. There have been several instances when voices that he would never bargain with a union; and on Febru-
have been raised in the presence of customers, and no ary 20, 1980, Akers was fired notwithstanding her repu-
one was fired. Thus, in early 1980, while operator Becky tation as a competent hairdresser.
Kyle was discussing with a customer the benefits of Since the General Counsel has met his responsibility
for establishing a prima facie 8(a)(3) violation, the burden
'I have considered all accounts of the February 20, 1980, incident- then shifts to Respondent to show that Akers would
General Counsel's witnesses Akers, Kyle, Davis and Responent's wit- have been fired anyway even if she had not engaged in
nesses Freide, Terwilliger, Edwards (present employees of Respondent), union activity Not only was there a total failure of proof
and Hunt (former employee of Respondent)-and except for discrepan- b t p o t ei-
cies about the tone and voice level of the participants, there were no on Respondent part, but the preponderance of the evi-
major differences. The testimony of Becky Kyle that the incident ended dence indicates outright pretext. Terwilliger's statement
with Terwilliger's remark, "there goes your union," was not corroborat- that if "she [Akers] is five miniutes late she is gone" sug-
ed by other testimony. Terwilliger testified that he said, "Good riddance" gests that Respondent was just looking for an excuse to
which in itself is an odd reaction of a manager to the departure of a cornm-t n rie
petent employee, and suggests that management was happy to see a union fire Akers. Also, the argument between Freide and
"trouble-maker" leave. Akers began over a matter of the utmost triviality-
I
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it
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1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Akers' interruptions of Denise Edwards' conversations- CONCLUSIONS OF LAW
and it became heated only when Freide brought upand it became heated only when Freide brought up 1. Respondent is an employer within the meaning of
Akers' alleged spreading of rumors and threats (clearly a
reference to Akers' union activity), again indicating that Section 2(2) of the Act, and is engaged in commerce
what was really bothering Freide was Akers' union ac- with the meaning of Section 2(6) and (7) of the Act.
tivity and not a petty squabble with a coworker. More- 2. The Union is a labor organization within the mean-
over, even accepting Freide's statement that Akers was ing of Seciton 2(5) of the Act.
loud and rude during the January 20 argument, it is 3. By telling employees that Respondent would never
doubtful that a display of bad manners would have re- bargain with the Union, Respondent has engaged in, and
suited in her firing if she had not been engaged in union is engaging in, an unfair labor practice within the mean-
activity. Good hairdressers are simply too hard to re- ing of Section 8(a)(l) of the Act.
place; comparable "scenes" in Respondent's shop have 4. By discharging Barbara Akers and thereby discour-
not been grounds for dismissal in the past; and it is rea- aging membership in the Union, Respondent has engaged
sonable to infer that but for Akers' union acitivity at in, and is engaging in, unfair labor practices within the
most she would have been warned not to raise her voice meaning of Section 8(a)(l) and (3) of the Act.
again in the shop, and to step outside when asked to do 5. The unfair labor practies engaged in by Respondent,
so. as set forth in Conclusions of Law 3 and 4, above, affect
Respondent's reliance on Sullair P.T.O., Inc. v. commerce within the meaning of Section 2(6) and (7) of
N.L.R.B., 641 F.2d 500 (7th Cir. 1981), as justifying the the Act.
dismissal of Akers is misplaced. There, an employee was 6. Respondent has not engaged in any unfair labor
warned against publicly directing profanities toward his practice not specifically found herein.
employers. In response to this admonition during a com-
panywide meeting, he proceeded to characterize manage- THE REMEDY
ment generally as "rotten m- f-g c-s," and the com- Having found that Respondent engaged in unfair labor
pany controller as a "f-g poor manager." Moreover, the practices within the meaning of Section 8(a)(l) and (3) of
record showed that the employee had a history of such the Act, my Order will require Respondent to cease and
outbursts, that his use of especially ripe profanity even desist from these practices, and to take such affirmative
exceeded the "shop talk" standard of the plant, that his action as is consistent with the policies of the Act.
outburst disrupted a management-employee meeting, and Therefore, my Order will require Respondent to offer
that the employee acknowledged that he had been fired full and immediate reinstatement to Barbara Akers and to
for insubordination. Similarly, Badische Corporation, 254 make her whole for any losses she may have suffered by
NLRB 1195 (1980), involved direct employee defiance of reason of the discrimination practiced against her. Any
a specific order and a willingness to incur the risk of dis- backpay found to be due to Akers shall be computed in
cipline, which had been clearly articulated in advance. In accordance with the formula set forth in F. W Wool-
contrast, the brief flareup between Freide and Akers in- worth Company, 90 NLRB 289 (1950), and shall include
volved no more than perhaps an unseemly raising of interest in the manner prescribed in Florida Steel Corpo-
voices which clearly had been tolerated on other occa- ration 231 NLRB 651 (1977).
sions. [Recommended Order omitted from publication.]
rsations-
, r , *i ^ beame l ou
' ll r i r r t r t ( l rl Seto22)fthAcadiengdinom re
t ' i ti it , i i i ti t t wihntemango Section 2(6)ad() of th Act. egge cmec
t as really bothering rei e as ers' union ac- 2.TeUinsalboornztonwhnteman
T h e U m o n l s
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t t i f ll i i t r i st t t t ar ara ers and to

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t i t ri i - f t e t ers s all be co puted in
i . I r it t f r l set f rt in . . ool-
,
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t l t t r - r ti , 231 651 (1977).
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li ti .
2 .