W. Bell & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1977

232 N.L.R.B. 256 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. Bell & Co., Inc. and Retail Store Employees
Union, Local 400, affiliated with Retail Clerks
International Association, AFL-CIO. Case 5-CA-
8308-2
September 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 4, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and a motion to reopen the
record, and the General Counsel filed an answering
brief and an opposition to the motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) and (3) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It has been found that Respondent discharged
Frederick Diven and Jeffrey Wagner in violation of
Section 8(a)(3) of the Act. We shall therefore order
that Respondent offer Diven and Wagner immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges and make
them whole for any loss of pay which they may have
suffered as a result of the discrimination practiced
against them. The backpay provided herein shall be
computed in accordance with the Board's formula set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
232 NLRB No. 51
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, W. Bell & Co., Inc., Lanham, Maryland, shall
take the action set forth in the said recommended
Order, as herein modified:
I. Substitute the following for paragraph 2(b):
"(b) Make whole Diven and Wagner for any loss of
pay or benefits they may have suffered by reason of
the Respondent's discrimination against them by
payment to them of a sum of money equal to the
amount they normally would have earned as wages
from the date of their termination to the date of the
Respondent's offer of reinstatement, with interest, in
the manner set forth in the section herein entitled
'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). we have
carefully examined the record and find no basis for reversing his findings.
Respondent has also excepted to the Administrative Law Judge's finding
that out of approximately 100 people on Respondent's payroll all except 3
continued to work until December 23. 1976. While the record reveals that
Respondent's work force contained approximately 100 employees, it does
not indicate how many employees were terminated during this period. We
find, however, that this misstatement of the record does not affect our
findings herein.
2 Respondent's motion to reopen the record is hereby denied as it does
not allege that the evidence it now seeks to introduce was unavailable at the
time of the original hearing and, in any event, such evidence is not material
to the issues in this proceeding.
3 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found
after a hearing that we violated the Federal law by
discharging employees because they engaged in
union activities, and by committing other illegal
coercive acts, has ordered us to post this notice. We
intend to abide by the following:
WE WILL NOT discourage membership in Retail
Store Employers Union, Local 400, affiliated with
Retail Clerks International Association, AFL-
CIO, or in any other labor organization of our
employees, by discharging any of our employees
because of their membership in, support of, or
256
W. BELL & CO., INC.
activities in favor of the above-named or any
other labor organization.
WE WILL NOT question our employees concern-
ing their union activities.
WE WILL NOT create the impression of surveil-
lance.
WE WILL NOT threaten to discharge or replace
our employees in retaliation for their union
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form,
join, or assist Retail Store Employees Union,
Local 400, affiliated with Retail Clerks Interna-
tional Association, AFL-CIO, or any other labor
organization, or to engage in any other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL offer Frederick Diven and Jeffrey
Wagner immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions.
WE WILL pay Frederick Diven and Jeffrey
Wagner for any loss of pay or benefits they may
have suffered as a result of our discrimination
against them, plus interest at 7 percent per
annum.
W. BELL & Co., INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. RicCl, Administrative Law Judge: A hearing
in this proceeding was held at Washington, D.C., on March
8, 1977, on complaint of the General Counsel against W.
Bell & Co., Inc., here called the Respondent or the
Company. The complaint issued on February 11, 1977, on
a charge filed on December 27, 1976, by Retail Store
Employees Union, Local 400, affiliated with Retail Clerks
International Association, AFL-CIO, here called Local
400 or the Union. The issue presented is whether the
Respondent discharged two employees in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended. Briefs were filed by the General Counsel and the
Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following: I
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
W. Bell & Co., Inc., a District of Columbia corpora-
tion, is engaged in the operation of discount catalogue
A posthearing motion by the General Counsel, unopposed, to correct
typographical errors in the transcript is hereby granted.
department stores throughout the United States. Its only
location involved in this case is at Lanham, Maryland.
During the past 12 months, a representative period, its
gross revenues exceeded $500,000. During the same period,
Respondent purchased and received in interstate com-
merce products and supplies valued in excess of $50,000. I
find that the Respondent is engaged in commerce within
the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Brief Picture
This one store of the Respondent started hiring employ-
ees on September 21, 1976, and opened for business on
October 18. By November 30 there were about 100 people
on the payroll, and they all - except for 3 - continued to
work until the last business day before Christmas, Decem-
ber 23. Included were receiving and stock clerks in the
warehouse, and salespersons of all kinds. The big sales
business rush was expected for the period Thanksgiving
Day to Christmas, when this company, at all of its many
locations, does about 30 percent of its total annual volume
of business.
On November 30 three employees - Frederick Diven.
Jeffry Wagner, and Janet Webb - started a union
movement, openly soliciting employee signatures inside the
warehouse to a petition in favor of Local 400, the Charging
Party herein. That same afternoon William Petzold, the
assistant manager of the entire operation, after learning of
the union activities of the three, discharged Webb and
threatened Diven with discharge if his work were not
"perfect." Within the week, on December 7, James Hurd,
the manager, fired Diven and Wagner. The complaint
alleges Diven and Wagner were discharged because of their
union activities in violation of the statute. Webb's name
does not appear either in the charge or in the complaint,
and the reason for its absence is unexplained. For this
reason there can be, and there is, no finding here that the
Company violated the statute when it discharged her. But
what facts are proved by the record evidence remain the
facts.
Denying illegal motive, the Respondent advances an
affirmative defense of discharge for cause as to Diven and
Wagner. There are questions of credibility, pitting primari-
ly Diven's testimony against that of Petzold and Hurd.
The Testimony; Findings
It has been said that sometimes in Board proceedings the
oral testimony of important witnesses carries its own death
wound, which deprives it of all credibility. This is such a
case. If this record contained nothing more than the
testimony of Petzold and Hurd, assertedly supported by
that of Jeff Sanders, in charge of the employees in the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse, it would prove quite convincingly that both
Diven and Wagner were dismissed in retaliation for their
prounion actions.
Shortly before noon on November 30 a number of
employees in the warehouse, including Diven, Wagner, and
Webb, talked generally about joining a union, decided it
should be Local 400, and had Webb telephone the union
office from the warehouse desk. As advised, they prepared
a written petition in favor of joining Local 400, and started
talking to one employee after another soliciting signatures.
A driver from another of the Respondent's locations
arrived - Leonard (Lenny) Patrick - and they asked him
to sign. He refused. Sanders stood 5 feet away while the
solicitation took place. The employees also asked Jerry
Schaeffer if he would join. Schaeffer who is above Sanders
in the managerial line said he wanted no part of it. Within
minutes Diven was called to Petzold's office, where,
according to Diven's testimony, the assistant manager
asked him "how things were in the warehouse . . . and
then he asked me what it was he heard about me asking the
truckdriver about a union." When Diven pretended to
know nothing, Petzold told him, still according to the
employees, "if there were any problems in the warehouse to
either see Jerry Schaeffer or himself."
Shortly thereafter Petzold discharged Webb. A little later
Faye Eckerman, the manager's secretary, approached
Diven and Wagner and said "she heard we were trying to
start a Union." Diven then told her the employees had
dropped the idea because Webb had been fired, but that
"they shouldn't have fired Janet Webb for being involved
with the Union." At 5 o'clock Petzold called Diven into his
office again; this time he brought in Bernie Smith, the
showroom floor manager, to be a witness to what was
about to happen. He then told Diven his work was not up
to par, "wasn't perfect," and that "if it wasn't perfect I
would be replaced."
Petzold, as the first witness for the defense, denied ever
mentioning the Union in his talks with Diven that day. He
also insisted Sanders, who told him what was going on in
the warehouse that morning, did not tell him there was any
talk about a union. He quoted Sanders as telling him "he
wasn't sure what they were doing."
Affirmatively, Petzold's testimony is as follows: He
noticed, at 1 I or 11:30 a.m., that customer orders were slow
coming out of the warehouse; where it should require only
2 or 3 minutes, it was taking 10 to 15 minutes. He called for
Sanders to come out and to explain. Sanders came and told
him "there was something not right back in the warehouse
... that employees were congregating .... They were
not stocking, not pulling orders, no nothing . . . he said
about four people . . . they were back there talking about
something. He didn't know what." Petzold thereupon
asked Sanders to send Diven and Webb out to him one at a
time.
Petzold's testimony about his talk with Diven was:
Within a few minutes Fred Diven came out and we
went back in the office. We did close the door. I asked
him if there was any problem in the warehouse. And he
said no. But I got a real gut feeling from the guy, he
said hey, things are fine. But I didn't believe him. He
just looked uneasy like something was bothering him
back there so I said come on, Fred, tell me what the
problem is back there.
And he says, well, there's an awful lot of stock back
there. There's not enough places to put it. We have to
put it in excess areas, in other words, if you have 50
pieces of an item on a particular stock sequence
location, you can accommodate 15 pieces, then you
have 35 you have to put in a separate location.
We had locations set aside, and as the excess stock
would accumulate we would store this in the given
location and note that fact.
And it disturbed him that so much merchandise was
coming in. And I explained to him that that was to be
expected, at the Christmas season. It wasn't a year
round occurrence, something we expected, we had
planned for. We had control and within a couple of
weeks time the excess stock would be selling down back
to a normal sized stock inventory.
* * *
He seemed satisfied with that answer. Then he made
another comment that - he said something else about,
that he didn't feel the fellows back there were
contributing as much as possible. He didn't feel his
fellow employees were doing their share of the work.
And I said, okay. I'll discuss that, see if it's true.
Anything else.
And he said, no, and I said we're all back to normal.
And he said fine.
And that was the sum total of the discussion.
These paragraphs from Petzold's testimony are of critical
importance in evaluating his total story, as will appear
below. For the moment, there is the fact he denied ever
knowing, during this first talk with Diven, anything about
any union activity. It is also important to note that, despite
his professed concern with a slowup in the warehouse, he
said nothing to Diven about neglecting his duties.
We come to the testimony of Sanders, called by the
Respondent to corroborate that of the manager. He said
that what he first saw was Diven, Wagner, and Webb "in a
corner having a meeting," and that he went to Petzold and
told him "that a meeting was going on among those three
[emphasis supplied] in the warehouse." This was Sanders'
first talk about this matter with the manager that day.
Petzold's reaction, still according to Sanders, was: "He
instructed me to go back to the warehouse, go about my
business, to supervise, and to just observe what was going
on." Sanders did as he was told. What did he see now?
"They [the three] started pulling one full-time employee at
a time back to where they were discussing something with
them one at a time. They pulled each full-time employee.
At that time I went to Mr. Petzold, informed him of what
was going on, again." "Q. What was his response? A. He
said to send them back to him one at a time, to the office. I
went back to the warehouse, I sent Mr. Diven first."
Sanders also said that while "observing" the three as
instructed, "I guess fifteen minutes or so as the employees
came over," he also saw Diven talking to the driver, Lenny
(Leonard Patrick), and that while the three talked to one
258
W. BELL & CO., INC.
employee after another "there was a piece of paper that
they were showing them."
This is not conflicting testimony between opposing
witnesses; this is the supervisor, a Respondent witness,
making a liar out of his own superior. For which of its
witnesses does the Respondent vouch? Petzold said he
spoke to Sanders only once before confronting Diven, and
that all he knew, or cared about, was the slowdown in
customer deliveries. But he did not tell the supervisor to do
anything about that; in fact instead he ordered him to keep
watching and to report back the nature of the activity.
Moreover, Sanders said he reported twice, not once, before
sending Diven to the office, and that Petzold's expressed
interest was to have the employees "observed" to find out
exactly what they were up to. It follows not only that
Petzold cannot be credited, but also that Sanders did as he
was told, observed and listened, and learned it was a union
that was in the air, and even that he reported it to Petzold.
Without question, Diven must be credited against Petzold.
I find that the manager did ask him, during his first
conversation with the man that day, what was all this about
a union. And it was immediately following this illegal, and
necessarily coercive, interrogation of the first revealed
union activist that Janet Webb was sent to the office by
Sanders and fired on the spot.
There is more to this matter of firing Webb. Petzold
admitted that, upon reporting the results of his observa-
tions, Sanders also told him the three had talked to Lenny,
the driver. In the brief period between his first talk with
Diven and when Webb came to the office, Petzold went
into the warehouse to question Lenny. His testimony is he
asked Lenny had the employees talked to him, and what
about, and that the driver answered they had asked him if
he "wanted to join a union." I find more credible Lenny's
version that Petzold asked him "if Fred [Diven ] had asked
me to sign anything." It was immediately after this that
Petzold discharged Webb.
At or about 5 o'clock that evening, Petzold called Diven
to his office again. His testimony about that interview is as
much repetitive argument, generalization, justification, and
conclusionary contentions as it is his version of what was
said. In fact it is not understandable whether he meant to
admit or deny having told Diven he was going to be
replaced. From what I can gather, his story is he simply
called the man to tell him how terrible and absolutely
unsatisfactory his work performance had been for weeks
and weeks. Nothing was shown to have happened between
his almost solicitous noon talk with Diven and the 5
o'clock tirade Petzold said he loosed at the man. There is
not even a pretense excuse advanced for having called the
man in for this purported purpose at that time. And why
the manager should have called another supervisor in to
witness the whole thing, which Petzold admitted he did,
casts the greatest doubt of all upon his entire veracity. I
never heard of a top manager needing the protection of a
friendly witness when telling an employee as awful as
Petzold described Diven that the man had to do better at
work.
His performance had deteriorated greatly over the
previous 4 weeks .... He had just never worked out
.... the stock area was a mess. You couldn't walk
down the aisles in the stock area to pull a customer's
order. .... It got to be a daily problem. .... He never
really was able to keep that area clean and keep the
stock moving. He'd leave at night, and you couldn't
even walk back there. The desk, receiving table,
everything was just trash, empty boxes, everything...
from what I saw it was just a lack of will power on his
part. He just didn't want to keep it clean ....
This is but a sampling of Petzold's rambling testimony.
He was describing Diven's deficiencies in ajob as receiving
clerk which the man had left on November 26.
The more terrible Petzold painted the picture of Diven's
past performance, the more witnesses he called to agree
with him about the man's longstanding absolute incompe-
tence, the more revealing becomes the contrast between his
asserted diatribe at 5 o'clock and his amicable, understand.-
ing, and most tolerant explanation to the man at noon of
why the problems in the warehouse were not Diven's fault
at all. In the middle of the day he tells the employee
everything will be fine, the rush season is only temporary,
"we're all back to normal." In the evening the man is
worthless, and always was. What caused the change of
opinion? In the interval Petzold had himself checked with
Lenny, the driver, and the office secretary had checked
with both Diven and Wagner as to what the men were
doing. I do not believe any of Petzold's testimony where it
conflicts with that of Diven. And I do not believe his
characterization of Diven's work performance as unsatis-
factory and unacceptable. After several weeks of initial
work building shelves and as a stock clerk, he promoted
Diven to the better job of receiving clerk. After a month
Diven requested to be relieved of that job and was made
stock clerk regularly. Petzold obliged him. This under-
standing cooperation only 10 days earlier stands in
contrast to the story at the hearing of the man's utter
uselessness while a receiving clerk. I credit instead Diven's
testimony that he was told a number of times, by both
Petzold and Manager Hurd, that his work was good and
quite satisfactory.
The Company's peak season was starting at exactly that
time and it needed all the employees it had. Diven was
doing much overtime work even then. At noon the
manager, having heard three employees - including Diven
- were starting a union movement, decided some coercive
questioning in the privacy of his office would serve to
inhibit Diven. Diven is much more articulate than Wagner,
and therefore was likely to be a more successful union
protagonist. Petzold therefore just questioned him, and let
it go at that. Webb he did not need for such a seasonable
rush of heavy work; he fired her. Thinking it over during
the afternoon, and learning, as he said, more about the
solicitation being carried on in the warehouse, he decided
more was necessary to really put a stop to it. He therefore
told Diven he was in danger of being replaced. Were Diven
really as bad as the company witnesses would have it later
at the hearing, why did Petzold not get rid of him then and
there? Because he needed the man and because his work
was to the Company's advantage. Whatever his technique,
it worked, for all union activities ceased that day and have
never been resumed.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that by questioning Diven about his union
activities, by showing clearly his union activities were being
watched, and by telling him he would be replaced, Petzold,
for the Respondent, violated Section 8(aXI) of the Act.
At noon on December 7, Webb telephoned in to the
warehouse and spoke to Diven. She asked would he make
an effort to obtain statements from the employees saying
they believed she had been discharged because of her
union activities, and he said he would. Diven then
circulated among a number of employees, asking them, and
,all agreed to do it. At or about I o'clock he went to speak
lo Manager Hurd, who had been away from the store
(luring the November 30 events. He told Hurd that Webb
wanted her job back and asked if Hurd knew what had
happened "with the Union and Webb." Hurd said he knew
only what Petzold had told him. Diven then said "there
was a movement in the warehouse to get Janet back
because people in the warehouse felt that she was fired
because she had engaged in "union activities." To this
Hurd made no comment.
At 5 o'clock that evening Hurd called both Diven and
Wagner to his office and discharged them, because, as
Diven recalled it, "we took an unauthorized break in the
morning . . . at lunchtime we took ten minutes on the
clock."
I-urd testified that on "December 4th, 5th," when he
returned to the store, Petzold told him what had happened.
"Just the fact that on the date that Janet Webb was
terminated there was a serious problem of a group of
people in the warehouse, numbering four or five, not doing
their work, and drifting off to a far corner and having
private conversations and what have you and the end
results of that was that the van driver, Lenny, said that they
asked him if he wanted to join the Union."
Before coming to his version of the discharge conversa-
tion, as the last witness for the Respondent, Hurd, like
Petzold before him, spoke at length about both Diven's and
Wagner's utter undesirability as employees. He started by
saying that on December 6 the two men complained to him
about their work being too onerous because the other
employees in the warehouse were not doing their share, did
not even like them. Hurd continued that he told them to
just do the job that was assigned them and he would look
into the matter. He then spoke to four or five of the other
employees and they said Diven and Wagner were "a
disruptive force," "not working," "doing whatever they
could to prevent them from doing their job." Hurd added
he had received similar complaints from other workmen
concerning this problem "on numerous occasions."
Coming to December 7, Hurd testified that at or about I
p.m. he noticed Diven and Wagner idling in the lobby,
although they had punched in after lunch. He said he told
them they should not idle after punching in, but he also
added, without explanation, that he told them to take their
timecards to the supervisor, Schaeffer, and to "have him
correct it and initial it and return it." In a matter of
minutes, still according to Hurd, Mace - apparently a
supervisor also - told him that early that morning the two
men had been loitering in the lobby after punching in and
had to be told to go to work. And finally, Hurd went on to
say that -- still at about that time - he called Schaeffer
and "had a discussion with him" about Diven and Wagner.
Schaeffer told him "he was sick and tired of catching heat
from those two not doing their jobs, and not staying in
their work areas. And he could not control them or keep
them in their work areas . . . his recommendation at that
time was that he could do a better job and the warehouse
could function better without the two of them."
Other than generalizing about the continuing incompe-
tence of Diven and Wagner, Schaeffer, who testified
immediately before Hurd, said nothing about any com-
plaints to him, or about discharge recommendations, on
December 7.
In any event, Hurd added he decided with finality,
immediately after talking to Schaeffer, to discharge Diven
and Wagner at the end of the day.
Be that as it may, it was after this, according to Hurd,
that Diven came to tell him about the petition being
circulated to obtain Webb's job on the ground she had
been dismissed "because of her union activity." At 6
o'clock that night he fired the two men. As to his reason,
his testimony, too, is not clear on whether he was talking
about what he then told the men, or about how he felt, or
what his mental operation may have been. At the hearing
he spoke of "violation of company policy, one reason being
on the time clock and not reporting to work, the other
reason being ignoring instructions from the supervisors,
and being a disruptive force in the warehouse."
On this total record, I find Hurd's contention that he
discharged these men for the reasons he stated unconvinc-
ing. Hurd knew, the day before at least, that Diven and
Wagner were the principal activists in the union movement
only a week earlier. If the men really were as undesirable as
he portrayed them, he long ago knew that also, for Petzold
is his first assistant and the boss would surely know of such
terrible conditions in the warehouse as Petzold described.
The timing of the discharge, coming only 2 or 3 hours after
he learned that Diven was once again furthering the cause
of the Union by participating in the effort to reinstate
Webb, carries a strong inference of illegal motivation.
Hurd avoided this damaging implication by saying he
made his final decision before Diven came to him in the
afternoon.
We come once again to unacceptable inconsistencies in
testimony. In the effort to disparage the man more and
more, Hurd said that after having talked to Diven, but still
during the afternoon, he was in the warehouse "anywhere
from five to ten times . . . on a constant basis. Jeff and
Fred were together and in different locations of the
warehouse trying to, intentionally evading anyone else
back there." Would any employer, having already decided
to get rid of incompetents, and then seeing them repeatedly
continuing their insufferable offenses, just let them sit and
idle while he continued to pay them? But what is most
revealing of all is the further fact that that afternoon, still
after his talk with the manager, Diven asked several times
for permission to leave early because he had some personal
matters to look after. He was each time refused permission.
Asked why, if he had already decided to send Diven away
for good, he refused permission - and Hurd admitted
Supervisor Schaeffer came to ask could Diven go home -
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W. BELL & CO., INC.
all Hurd could say was the man did not have "a valid
reason." I do not credit this man.
As to the lunch hour incident, Diven and Wagner did
hang around 5 or 10 minutes after punching in before
starting to work. They said they did this because they had
been told that under Maryland law lunch had to be 30
minutes long, that they would be docked so much anyway,
and that they had inadvertently been gone only 20 and had
so marked their timecards. Hurd denied any talk of
Maryland law, but he did tell them to have the cards
corrected. It follows he understood why they were there
and knew there was nothing seriously amiss in their
conduct. The coffeebreak early in the morning was a
common and accepted practice. There is uncontradicted
testimony that many, many times, after punching in but
before the store opened to the public, the men got donuts
next door and sat eating them with some coffee with their
supervisors, including Hurd and Petzold themselves.
Repeatedly the management witnesses referred to Diven's
practice often of arriving late in the morning and taking as
much as 2 hours for lunch. The men were paid strictly by
the clock. There was no fixed work schedule enforced by
the Company. The men decided themselves, according to
the work needs of the moment, how much overtime work
to do. Diven often did over 80 hours a week, sometimes
working as much as 18 hours in a single day. His testimony
stands uncontradicted: "they just kind of expected it
[overtime] out of you." "I never worked within my
schedule." "Q. How do you explain this taking two hours
for lunch? . . . A. I would, you know, work hard, I was a
hard worker. I worked almost 18 hours a day."
I have no doubt that what really happened here is that
after realizing Diven and Wagner, despite the warnings of a
week earlier. and despite the promise of imminent
replacement, were determined to continue their union
activities in one form or another, Hurd thought it over and
decided, after, not before Diven's office call, to put a stop to
the union movement for good and therefore discharged
both men. I find that by discharging Diven and Wagner the
Respondent violated Section 8(a)(3) of the Act.
IV. TIHE EFFFCT OF THE UNFAIR LABOR PRACTICES
UPON (OMMERCE
The activities of the Respondent set out in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By discharging Frederick Diven and Jeffrey Wagner
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
" In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. he adopted by the Board and become
2. By the foregoing conduct, by interrogating employ-
ees concerning their union activities, by creating the
impression of surveillance over them, and by threatening to
discharge employees for such activities, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 2
The Respondent, W. Bell & Co., Inc., Lanham, Mary-
land, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Store Employees
Union, Local 400, affiliated with Retail Clerks Internation-
al Association, AFL-CIO, or any other labor organization
of its employees, by discharging employees or otherwise
discriminating against them in their employment condi-
tions because of their membership in or activities on behalf
of the above-named Union or any other labor organiza-
tion.
(b) Interrogating employees concerning their union
activities, creating the impression of surveillance over
them, or threatening to discharge employees because of
such activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Frederick Diven and Jeffrey Wagner immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges.
(b) Make Diven and Wagner whole for any loss of pay or
any benefits they may have suffered by reason of the
Respondent's discrimination against them.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its place of business in Lanham, Maryland,
copies of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by its representatives,
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
( ontinued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be posted by the Respondent 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 it to insure that said
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."
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
262