W. T. Grant Co.

National Labor Relations Board - Board Decisions

Mar 7, 1962

136 N.L.R.B. 152 (N.L.R.B. 1962)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. T. Grant Company and Retail Clerks Union Local 588, Retail
Clerks International Association , AFL-CIO. Case No. P20-CA-
2071. March 7, 1962
DECISION AND ORDER
On November 7, 1961, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
We agree with the Trial Examiner, for the reasons more fully ex-
plicated in his Intermediate Report, that Hazel Martin's discharge
was not the result of a valid application of a no-solicitation rule.
Rather, as he concluded, Martin was discharged because she sought
to counter the effects of an antiunion petition being circulated in the
store by another employee without hindrance or objection by Raleigh
or Boardrow, the manager and assistant manager of the store, though
they had knowledge of such circulation. That her discharge in such
circumstances discouraged union affiliation admits of no doubt. That
it was discriminatory is equally clear, if one but views it in the con-
text in which it occurred.
Thus, as found by the Trial Examiner, on .Tune 14, Raleigh called
Martin into his office and told her that he had reports that she had
been soliciting membership in the Union during working hours; that
he would not tolerate this; and that she would be discharged if she
continued soliciting on behalf of the Union during working hours.
Martin was the only employee given such warning. On June 15 and
16, Raleigh received reports from two employees that Martin had
talked to Them about an antiunion petition being circulated by Cora
Davis, and asked them to hold firm with the Union. The reports to
Raleigh thus brought to his attention not only Martin's alleged viola-
tion of his no-solicitation warning but also the fact of Cora Davis'
antiunion petition. Raleigh called Martin into the office; told her of
the reports; and, upon her admission of the activity, discharged her.
136 NLRB No. 12.
W. T. GRANT COMPANY 153
In response to Martin's complaint about Cora Davis' antiunion ac-
tivity, Raleigh told her he did not know that it occurred during the
working hours of Davis or of other employees, and it would be up to
Martin to prove that it did. He made no investigation of Davis' activ-
ities at that time.
Raleigh in fact had authoritative knowledge of Davis' activities
on June 15, when Boardrow reported to him that Cora Davis was
circulating an antiunion petition. Boardrow, however, had delayed
making his report until 6 hours after he first learned of such activities.
Raleigh did nothing about it until June 17,1 when he called Davis in
and told her that, though he might be sympathetic with her, she could
not solicit for or against the Union during working hours.
In view of the foregoing, we cannot agree with Member Rodgers
that Martin's discharge resulted from the application of a valid no-
solicitation rule, and was, therefore, protected. Whether Raleigh's
oral warning to Martin is viewed as the promulgation of a
no-solicitation rule of general application, or merely a rule restrain-
ing only Martin's activities in this regard, the record demonstrates it
to have been unfairly and discriminatorily applied.2 If it be construed
as a rule of general application, then Davis had violated it and Raleigh
had knowledge of such violation at the time of Martin's discharge.
Yet Raleigh did not discharge Davis. On the other hand, if the warn-
ing to Martin constituted merely a restraint upon Martin's prounion
activities, but not upon the antiunion activities of Davis or of other
employees, its very imposition constituted an outright discrimination
against Martin and an unreasonable impediment to the Union's
organizational efforts, and the rule was therefore invalid.
In these circumstances it was entirely proper and necessary for
the Trial Examiner to consider whether Respondent's discharge of
Martin was motivated by her prounion activities. He found that it
was, and there is ample evidence in the record to support that finding.
Accordingly, we affirm it.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, W. T. Grant
Company, New York City, New York, its officers, agents, successors,
and assigns, shall, at its Sacramento, California, store :
1 Raleigh's explanation of the delay on the grounds that he learned of Davis ' activities
after 0 o'clock on June 15, and Davis was off on June 16, is entitled to no weight. The
record shows that Davis did work the evening of June 15. Further , in view of the fact
that both Raleigh and Boardrow were on the selling floor 90 percent of their time, it is
exceedingly unlikely that Raleigh was not aware of Davis' activities even before Boardrow
reported them
2 N L R B. v Avondale Mills , 242 F 2d 669 , 671 (C.A 5 ), affd 357 U S. 357.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks Union Local 588,
Retail Clerks International Association, AFL-CIO, or in any other
labor organization of its employees, by discharging its employees or
by discriminating in any other manner in regard to their hire or ten-
ure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Offer Hazel Martin immediate and full reinstatement to the
position she held at the time she was discharged, or an equivalent
position, without prejudice to her seniority and other rights and
privileges, and make her whole for any loss of pay she may have
suffered as a result of the discrimination against her in the manner
set forth above in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity 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.
(c) Post at its Folsum Boulevard store in Sacramento, California,
copies of the notice attached hereto marked "Appendix." 3 Copies of
said notice, to be furnished by the Regional Director for the Twen-
tieth Region, shall, after being duly signed by a representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to complyherewith.
D In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
W. T. GRANT COMPANY 155
MEMBER RODGERS dissenting :
My colleagues are here adopting the finding of the Trial Examiner
that employee Martin was unlawfully discharged by Respondent for
engaging in union activities . I would find that Martin was lawfully
discharged for engaging in union soliciation during working hours in
Respondent 's retail department store in violation of a specific lawful
instruction not to continue doing so.
The facts relating to Martin 's discharge are essentially undisputed.
Martin had been engaged in soliciting fellow employees on behalf of
the Union during working hours, and employees so reported to Re-
spondent 's manager, Raleigh. On June 14 , Raleigh told Martin of
the reports , and instructed Martin not to continue such solicitation
during working hours, warning her that otherwise she would be dis-
charged. On the morning of June 15 during working hours , Martin
notified employee Cervantes of a union meeting, urged him to attend,
and queried him as to whether he had seen an antiunion petition. On
the evening of June 15, during employee Plummer 's worktime,
Martin also queried Plummer as to whether Plummer had seen an
antiunion petition , and urged Plummer to remain among the union
adherents.
Raleigh learned of Martin 's conversation with Plummer the same
evening. The next morning Cervantes complained to Raleigh of hav-
ing been solicited by Martin . When Raleigh consulted Martin, she
admitted the above conversations had occurred after the prior instruc-
tion not to solicit for the Union on worktime. Martin was then dis-
charged for having violated this instruction.
This was a lawful discharge of an employee for violation of a valid
instruction to refrain from union solicitation during working time.
The Trial Examiner's holding that the Employer may not rely on
this instruction to Martin as a valid basis for the discharge , because
the instruction was not generally announced to other employees, is
erroneous as a matter of law. Star-Brite Industries , Inc., 127 NLRB
1008,1011.
The Trial Examiner imputed to the Employer a discriminatory
motive for Martin's discharge on the basis of his findings that the
Respondent permitted an antiunion petition to be circulated by em-
ployee Davis among all employees without hindrance , and afforded
employee Davis more favorable treatment than was afforded Martin.
The record shows that upon hearing a report that Davis had asked
one employee to sign an antiunion petition , Manager Raleigh ques-
tioned Davis, who insisted she had spoken to the other employee in
the lounge during nonworking time of both . Raleigh gave Davis
instructions against solicitation identical to those he had given to
Martin . Unlike Martin , Davis observed these instructions . There is
no evidence that Davis on any other occasion solicited any employee
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any purpose on the premises, either before or after Raleigh's
warning.
I therefore would find the Trial Examiner's findings and conclu-
sions to be without legal or factual support. I would dismiss the
complaint in its entirety.
CHAIRMAN MCCILLOCH and MEMBER LEEDOM took no part in the
consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage affiliation with Retail Clerks Union
Local 588, Retail Clerks International Association, AFL-CIO,
or any other labor organization, by discharging our employees,
or by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of employment.
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 labor organizations, to join or assist the
above-named Union, or any other labor organization , to bargain
collectively through representatives of their own choosing, and
to engage in collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized by the National
Labor Relations Act.
WE WILL offer Hazel Martin immediate and full reinstatement
to the position she formerly held, or its equivalent, without prej-
udice to seniority or other rights and privileges, and make her
whole for any loss of pay she may have suffered as a result of the
discrimination against her.
W. T. GRANT COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (703 Market Building, 830 Market Street, San Francisco 2,
California; Telephone Number, Yukon 6-3500, Extension 3191) if they
have any question concerning this notice or compliance with its
provisions.
W. T. GRANT COMPANY 157
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Retail Clerks Union Local 588, Retail Clerks Inter-
national Association, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, herein called the Board, alleges in substance
that W. T. Grant Company, herein called the Respondent or the Company, violated
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein
called the Act, by discharging its employee, Hazel Martin, because of her union and
concerted activities. The Respondent's defense, in substance, is that it discharged
Martin solely because of her violation of a valid no-solicitation rule.
All parties participated at the hearing conducted by William E. Spencer, the duly
designated Trial Examiner, at Sacramento, California, on September 13, 1961, and
each of the parties has filed a brief.
Upon the entire record in the case, and upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, with its principal office and place of business in New York City,
New York, operates retail stores, offices, and warehouses in California and various
other States, and is engaged in the business of retail sales. Its store, located at
5606 Folsum Boulevard, Sacramento, California, is its only facility involved in this
proceeding.
During the past year the Respondent in the conduct of its business has sold and
distributed products of a gross value in excess of $500,000, and has received goods
valued in excess of $50,000 transported to its place of business directly from States
other than California.
On the basis of the aforesaid admitted facts it is found that the Respondent is en-
gaged in commerce within the meaning of the Act and meets the Board's standards
for asserting jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Martin's warning and discharge
In addition to its Folsum Boulevard store, the only operation directly involved
in this proceeding, Respondent owns and operates what is known as the downtown
store, but unless otherwise specifically noted references are to the Folsum Boulevard
store Its store manager is Calvin C. Raleigh, and under him is his assistant manager,
Dwain Boardrow. These two constitute its supervisory personnel. Walter McBride,
manager of the sports goods department, and Cora Davis, manager of four depart-
ments, each is assigned a helper and exercises some supervisory functions, but not
to a degree to constitute them supervisors within the statutory definition.
On April 13, 1961, while Raleigh was on vacation, the Union filed a representa-
tion petition. Apparently it filed for both the Folsum and downtown stores. On
April 15, Boardrow at a meeting of employees which was held before opening hours
each Saturday, informed the employees that there was too much visiting and it had
to stop. He riext said he had something unpleasant to bring up and that was the
Union. He said it was a "sad affair" and he would not say anything about it, but
would let Mr. Sullivan of the New York office "take care of that."
A few days later, Hazel Martin, who had signed with the Union, who had solicited
for the Union, and at whose house a union meeting had been held, on being informed
that an employee, Dolores Capps, had been saying that the store would never go
union and that anybody who voted for it would be fired, reminded Boardrow of his
statement that there would be no more visiting on the sales floor, and reported on
Capps' visiting the several departments. He replied that he had sent Capps to these
departments to work, and Martin said "She isn't working," but did not characterize
Capps' activities as being related to the Union.'
IMartin admitted that she had had a little "confugality" (') with Capps about cus-
tomers wearing shoes they had purchased out of the store
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 1, Raleigh returned from his vacation. While on vacation he had been
informed of the filing of the Union 's petition . About a week after his return, an
employee, Kay Lyon, informed him that she had attended a meeting of the Union
at Martin 's house. He testified that he had strong reason to suspect that union
activity was occurring during store hours, inasmuch as employees engaged in con-
versation would "scatter" at his approach . He testified that he received his first
specific information on such activity about June 12, when McBride , previously identi-
fied as a department manager , informed him that Martin was passing notes inviting
employees to submit any grievances they had to her and she would "take care of
them." 2 About the same time, Judy Philo, an office girl, told him that Martin had
approached her and asked her to sign a union card "or something." On June 14,
Martin , who had been on vacation , returned to work and was immediately called to
Raleigh's office. Present, in addition to Martin and Raleigh, were Boardrow and
Louise Scheuffele, office manager. Raleigh told Martin that it had been reported
to him that she was soliciting for the Union during working hours; that he would
not tolerate this and if she did not stop she would be discharged .3
On the morning after she had received Raleigh's warning, as she came to work,
Martin told Fred Cervantes, a part-time stock boy, "Fred, there is an important union
meeting tonight; try and be there." While at work on June 15, she was told of the
circulation in the store of an antiunion petition by Cora Davis, previously identified
as manager of four departments. After receiving this information she asked Cer-
vantes if Davis had solicited him to sign the petition and, when he answered in the
negative, advised him that if asked to say that he preferred to remain neutral. On
June 14, as Marjorie Plummer, a fellow employee , came on the job, Martin greeted
her with, "Are you still with us, kid?" and, on the following day, when they were
both in the stockroom, Martin asked Plummer if she had signed the Davis petition,
exhorted her, "Well, don't leave us now," and made some reference to Davis' pay
of $1.80 an hour while "we are working for nothing." This conversation occurred
during Plummer's working time but after Martin 's closing time . Also on June 15,
Martin asked another employee, Mary Reynolds, if she had signed the Davis pe-
tition. Apparently, this last incident was not reported to Raleigh, but the Cervantes
and Plummer conversations were. The evidence does not show, nor tend to show,
that the remarks made by Martin to Plummer and Cervantes caused any interrup-
tion in their work or in hers.
On June 16, as he came on the job, Cervantes told Raleigh of the two occasions
on which Martin had spoken to him about the Union while he was on duty. and it
further appears, from Raleigh's testimony, that Cervantes spoke of other incidents
of being approached while on duty and of being asked to sign the antiunion petition
being circulated by Davis. On the previous evening, about 6 or 7 o'clock, Boardrow
2 According to the undisputed and credited testimony of Jean Kranjack, employed briefly
by the Respondent and apparently as a helper to McBride-she testified that she con-
sidered him her supervisor-McBride asked her if she had paid money to loin the Union,
and when she made no answer said, "If you did, you had helter get it back or you are
going to get fired" She asked him if he could fire the whole stoie and he said, "Why
not?" She did not report on this incident to Raleigh and presumably, neither did McBride
3 Raleigh testified that he outlined the Company's policy that working time was for
work ; showed Martin the Company's manual which had reference to such a rule and in-
cluded the broad term "union activities" as well as "solicitations" in his warning I am
convinced on Martin's testimony that lie did not show her the company manual, but the
point Is not a material one since the manual merely states the store manager's authority
to make a rule and does not itself constitute a rule No contention is made that he
showed the manual to any employee except Martin I am also of the opinion, in accord
with Martin's testimony. that he warned her against further solicitations and note pass-
Ing, these being the matters it'had been reported to him that she had engaged in, and did not
use the broad term "union activities " The statement Raleigh himself drew up on what
was said during his interview with Martin, witnessed by Ills as.,istant manager and
offic" manager, is self-serving, but bears conipaiision with the statement of a later interview
with Cora Davis, an employee also reported to him as hai ing engaged in solicitations
while on duty In this latter statement he used only the term "solicitations " Finally,
as illustrating the sort of conduct he would not tolerate, Raleigh in his interview with
Martin referred to cosmetic salesmen and how lie would not permit them to solicit the
purchase of their products from girls while the latter were on duty, or, in Martin's
version of his remarks, he referred to union organizers and how he would bounce them
out of the store if they attempted to solicit for the Union during working hours
W. T. GRANT COMPANY 159
had reported to Raleigh that union activities were occurring during work hours and
that Plummer was involved in them. Raleigh thereupon straightway approached
Plummer who was on duty that evening and asked her, "Has anyone been bothering
you?" She reported on the greeting by Martin on June 14, and Martin's remarks
on the Davis petition made that day. She told him that she had signed the Davis
petition. She had. Raleigh had both the Cervantes and Plummer statements re-
duced to writing and Cervantes and Plummer signed their respective statements.
On June 16, following his conversation with Cervantes and as soon as Martin
reported for work, Raleigh had her brought to his office where in the presence of
witnesses he confronted her with the statements Cervantes and Plummer had signed.
According to Raleigh, he told Martin that he thought he had made his position
clear that no union activity would be permitted during working hours, and Martin
replied she had not engaged in any since. He then read her the Cervantes and Plum-
mer statements and she admitted that she had made the statements attributed to her
by them whereupon he told that she had been warned and that he had no alternative
but to discharge her. Martin testified that she had been warned only against solici-
tations, and that she told Raleigh that she did not regard the statements made by
her to Plummer and Cervantes as solicitations or a violation of his warning. She
also testified that she asked Raleigh "how come Cora was going around with the
petition over the store," and he replied that he did not know anything about it, and
whatever Davis did on her own time was her own business? After having discharged
Martin, Raleigh offered her an envelope containing her termination pay which
he had had prepared before bringing her to his office. She refused it and it was later
mailed to her.5
B. Davis' warning
On June 16, subsequent to Martin's discharge, acting on information given him
by Boardrow, Raleigh questioned employee Imogene Prater about the Davis anti-
union petition and was informed by Prater that she had been approached by Davis in
the matter. Raleigh placed his conversation with Prater as occurring before noon.
Boardrow testified that he had been informed of the Prater-Davis matter some 6
hours before he reported it to Raleigh. June 16 was Davis' day off. On the following
day, a Saturday, about store opening time, Raleigh had Davis brought to his office and
in the presence of witnesses told her, as Raleigh testified, "Although we might be
sympathetic with her, we would in no way deviate from company policy in this
matter." He further testified:
I outlined the policy to her, as I stated before, that work time was for work.
I told her that I had discharged one employee for not heeding the warning, and
if she continued it and it happened during store hours, that I would discharge
her. What she did on her own time was her business; it was of no concern to us,
but while she was working, or the other employees were working, that was a
different matter. We wouldn't allow solicitations for or against during working
hours.6
In the statement of his interview with Martin which Raleigh had reduced to writing
and witnessed, this appears:
I again restated our position on employees activities during working hours and
she or any of the Union officials would be asked to leave if they attempted to do
solicitation during work hours That our policy had not changed in the least.
She [Martin] then brought up the matter of the petition Cora Davis was carrying
I told her the first I knew of this was Thursday, June 15. She accused Cora of
passing this during working hours, and I told her I would not allow that either but
as far as I knew, it was not done during her or the other employees work hours and
it would be up to her to prove it
I told her I also knew of other employees taking an active part in the Union
Drive during hours and that I was going to warn these girls on this matter. . . .
Respondent's manual provides for termination pay for dismissed employees except "in
cases of serious infraction of Company regulations, for which no payment is to be made "
6 His limiting his warning to "solicitations" in his interview with Davis is consistent
with Martin's testimony that he employed this term, and not "union activities" in the
warning he issued to her. While Raleigh testified that his warning to Martin was couched
in broader terms, to credit his testimony on the point would be tantamount to finding
that his warning to Martin was more restrictive than his warning to Davis. See foot-
note 3, supra.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Raleigh, when he questioned her about the Prater incident, Davis
said it had occurred in the lounge on her own, and she assumed Prater's own time.
Questioned, "Did you question her with regards to any other incidents of her activi-
ties?" Raleigh testified, "No, I think this was the only report I had, and that is all
I asked her about." 7 He admitted that aside from questioning Prater, he made no
investigation of Davis' activities.
Raleigh admitted that Boardrow informed him of Davis' activities on the evening
of June 15. "Mr. Boardrow gave me this information after Cora went home," he
testified. "She goes home at six o'clock." He admitted that on receiving Board-
row's report he did not investigate to determine if Davis was still on the job, and
made no attempt to establish contact with her with respect to her circulation of the
petition prior to the time he discharged Martin. As a matter of fact it was estab-
lished through the testimony of both Martin and Plummer that Davis worked on
the evening of June 15. Davis was not called to testify.
C. Concluding findings
There is no showing that Martin's postwarning conduct interfered with her own
or the work of others or amounted to or incited a breach of plant discipline. She
was, in short, discharged because of her activities in two or three isolated instances
in attempting to counter the effect of an antiunion petition which was at that time
being circulated in Respondent's store. There can be no doubt that the reasonable
and reasonably foreseeable effect of her discharge was the discouragement of
union affiliation. Her right to engage in such activities as she did engage in, and
for which she was discharged, was a right guaranteed her in Section 7 of the Act.
Her discharge was in derogation of that right. It has long been recognized that
the exercise of such rights is not absolute. Rules prohibiting union activities on
company time are, absent unusual circumstances, valid, and their validity does not
rest on a showing that their infraction has resulted in a breach of plant discipline
or a loss in working time, but the decisions in which the validity of such rules has
been tested and established have referred to rules which have been defined in reason-
ably clear language and published to the employees generally, and here there was
no such rule. The manual for the guidance of store managers does not of itself
constitute a no-solicitation rule and, in any event, the manual was kept in Raleigh's
desk and was not shown to the employees.
It is clear that prior to June 14, when Raleigh issued his warning to Martin, there
had been union activity in the store and it was not limited to Martin, and that it had
occurred without hindrance from management further than Boardrow's admonition
after the filing of the Union's petition that there was too much visiting on the sales
floor and it had to stop. If Boardrow considered that his admonition had been
ignored he did nothing about it, shrugging off Martin's report that Capps was visiting
the several departments and she "wasn't working." Raleigh, who according to his
own testimony had reason to believe that union activity was occurring in the store,
up to the time he issued his warning to Martin, did nothing about it. According
to his own statement of his final interview with Martin he told her that he knew there
were others engaging in union activities, but still, with respect to them, he
did nothing about it. At any time after May 1, when he returned from his
vacation, he might have announced a rule prohibiting union activities during
working hours, thus giving notice to all employees what was required of them
in this respect, and the enforcement of such a rule, absent discriminatory application,
would not now be open to question. Instead of this, on receiving reports that Martin
was soliciting for the Union and passing notes asking for the submission of griev-
ances, he called her into his office individually and in the presence of witnesses
informed her that she was violating a company rule and that if she continued solicit-
ing for the Union during working time she would be discharged. I am well aware
that the term "solicitation" considered out of context may embrace such activities
as Martin subsequently engaged in, but as used in the context of his interview with
7 This was not , of course, the only report he had received on Davis' antiunion activities,
unless he considered that reports from employees of less than supervisory rank were not
entitled to consideration, and that could hardly be the case inasmuch as it was McBride
and an office clerk whose reports on Martin caused him to summon her to his office and
warn her against further solicitation On the previous day, before he had talked to
Prater, Cervantes and Plummer had both referred to the Davis petition, and in her dis-
charge interview Martin had made pointed reference to it.
W. T. GRANT COMPANY 161
Martin, she reasonably understood that Raleigh meant she could no longer solicit
union memberships. The day after she received the warning, she was informed
of the circulation in the store of an antiunion petition, and spoke to three employees
urging them not to sign it. Two of these conversations were reported to Raleigh
and on the basis of them he discharged her. There was therefore a period when one
employee was forbidden, on pain of discharge, to engage in any kind of union
activity on company time, even though it amounted to no more than a passing com-
ment, and all other employees were free of the restraint and would remain so unless
a report of their activities were carried to Raleigh or he elected to take independent
notice of them.8 McBride, whose report that Martin was soliciting the filing of
grievances was one of two on which Raleigh's warning of discharge was based, him-
self warned his assistant that if she had paid money for union dues she had better
return it or face discharge. And it was to counter the activities of Davis who, with-
out hindrance, was circulating an antiunion petition, that Martin engaged in the
conduct which Raleigh construed as a violation of his warning and for which he
discharged her. This does not in my opinion represent a valid application of a no-
solicitation rule.
A permissive derogation of employee rights under Section 7 of the Act is based on
a reasonable balancing of employer prerogatives and employee rights. It is not too
much, I think, to require of an employer who would restrict the enjoyment of those
rights to nonworking time, that he enunciate his restrictions in reasonably plain
language and publish them to all affected employees. This the Respondent has not
done and for that reason, regardless of motivation, I would find that its discharge of
Martin was in violation of Section 8(a)(3) of the Act.
Coming to the matter of motivation, there are several factors which place Raleigh's
discharge action in question. That he knew or surmised that Martin was a leading
union adherent is clear. About a week after he returned from his vacation, an
employee informed him that she had attended a union meeting at Martin's house.
Her union activity was such that at Respondent's downtown store, where a petition
for a representation election was also pending, the floor supervisor asked one of the
employees whether Martin had "contacted" her about the Union. Boardroom referred
to the Union's petition as something "unpleasant" and a "sad affair." Raleigh, in
his warning administered to Davis, inferentially expressed his sympathy with her
position in circulating an antiunion petition
His caution in having two witnesses present in his interview with Martin is perhaps
understandable, but his action in having his two "witnesses" against Martin sign
statements is questionable inasmuch as both referred to the Davis antiunion petition,
and it does not appear that he took statements from them with respect to that matter,
as it seems he would have had he been equally interested in that apparent violation
of his working-time-is-for-work formula. But it was his strict interpretation and
application of the terms of his warning which raise the most serious doubts in my
mind. Martin had been regularly employed by the Respondent for some 7 years
and if there was any question of her competency as an employee, it is not to be
found in the testimony of the witnesses. Had Raleigh not been influenced by the
prounion character of her activities, I deem it highly unlikely that he would have
regarded the fairly innocuous conduct in which she engaged subsequent to the
warning as constituting a sufficient violation of his warning edict to cause her
discharge
I also found unsatisfactory his, and Boardrow's, testimony with respect to Davis
and her circulation of the antiunion petition. Leaving aside the improbability that
Davis, who was in charge of four departments, could have circulated the petition
without Raleigh or Boardrow or both of them being aware of her activity, Boardrow
failed to offer any explanation of why he would wait some 6 hours after he admit-
tedly had been informed of the Petition's circulation, before reporting on it to
Raleigh. This delay obviously afforded Davis an opportunity to canvass the some
30 store employees and after that a warning against a discontinuance of such activi-
ties would have little effect. Raleigh, who was informed in the matter by Boardrow
about closing time, according to his testimony delayed in confronting Davis because
it was past the time she usually left and he assumed she had gone home. He obvi-
ously did not inquire into the matter. As a matter of fact she had not gone home but
on the contrary was on duty that evening, and Raleigh could have sought her out if
8Inasmuch as Raleigh testified he spent about 90 percent of his time on the sales
floor, and Boardrow must have spent as much or more of his time there, it is difficult to
understand how union activity of a widespread character, such as the passing of an anti-
union petition, could have escaped their notice
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had wanted to. Instead , the following day being her day off , he waited until
after he had discharged Martin before calling her in and administering his warning.
I think all of this is just a little too fortuitous for acceptance . He was prompt enough
in approaching Plummer, who was also on duty, on the evening of June 15, and
in getting from her a statement on Martin's activity, and in response to Martin's
complaint during the discharge interview that Davis was circulating an antiunion
petition without hindrance, he informed her that his informaton was that Davis'
activities occurred outside working hours and it was up to her, Martin, to prove
the contrary. This despite the fact that at that time he had been informed through
the statements he obtained from Cervantes and Plummer as well as the report he had
had from his own assistant manager, of Davis' antiunion activity.
Knowing what he did know of the Davis petition at the time he discharged Martin,
and considering the nature and scope of union activities engaged in by Martin subse-
quent to the warning and their relation to the Davis petition, I think it is self-evident
that had Raleigh not been decisively influenced by Martin's prominent prounion ad-
vocacy and the prounion character of her activities, he would not have discharged her
in such a precipitant manner, before he had even taken the trouble to investigate the
reports he had received on Davis' antiunion activities . By later-after Martin was
discharged and the threat of her prounion advocacy removed from the store-
calling Davis in and warning her against solicitations on company time , he no doubt
intended to create a parallel which would hide or obscure his discriminatory motiva-
tion, but the plausibility of that parallel crumbles under a searching scrutiny of all
the surrounding facts.
It is found that the Respondent discharged Hazel Martin because of her union
and concerted activities, in violation of Section 8(a)(3) of the Act, and thereby
interfered with, restrained , and coerced its employees in violation of Section 8(a) (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent discharged Hazel Martin because of
her union and concerted activities, it will be recommended that the Respondent offer
her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority and other rights and privileges, and make
her whole for any loss of pay suffered because of the discrimination against her, by
payment to her of a sum of money equal to that which she normally would have
been paid in Respondent's employ from the date of the discharge to the date of
Respondent's offer of reinstatement, less her net earnings , if any, during said period.
Loss of pay shall be computed upon a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289.
The discharge, and the circumstances under which it was made, require an order
that is coextensive with the threat of future violations, and I shall therefore recom-
mend a broad cease-and -desist order.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of its
employee, Hazel Martin, thereby discouraging membership in the Union, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
3. By the aforesaid discharge the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed them in Section 7 of the
Act, and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)'(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]