Weston's Shoppers City, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 234 (N.L.R.B. 1971)

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weston's Shoppers City, Inc. and Retail Store Employ-
ees Union Local 345, AFL -CIO,. Case 3-CA-4053
March 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On October 26, 1970, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that these allegations be dismissed.
Thereafter, Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings 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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner, except as modified herein.
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) of the Act by
engaging in surveillance of a union meeting, coercive-
ly interrogating employees, threatening reprisals, and
promising and granting economic benefits. The
General Counsel excepts to the Trial Examiner's
finding that Respondent did not violate Section
8(a)(3) and (1) of the Act by discharging Edward
Laprade and Thomas Tallant. We adopt the Trial
Examiner's conclusion as to the discharge of Laprade.
However, we find, contrary to the Trial Examiner,
that Tallant was discriminatorily discharged in
violation of Section 8(a)(3) and (1) of the Act.
It is undisputed that Tallant was a good employee
and that Respondent had no complaints about the
quality of his work; in fact, he was known in the store
t The General Counsel has excepted to certain credibility determina-
tions of the Trial Examiner After a careful review of the record, we
conclude that the Trial Examiner's credibility findings are not contrary to
the clear preponderance of all the relevant evidence Accordingly , we find
no basis for disturbing those findings Standard Dry Wall Products, Inc, 91
as "Tom Terrific." On March 14, 1970, early in the
Union's organizational campaign, Tallant's supervi-
sor, Kiellman, asked him whether Laprade was trying
to get him to go to a union meeting and told him that
if he went to a union meeting, he would only be
causing himself trouble. On March 18, Tallant
accompanied Laprade, who had been discharged the
preceding day, to the store, where they distributed
authorization cards. Respondent's security guard,
Drews, a supervisor, who had been instructed to keep
an eye on Laprade and to report any union activities
to Respondent, observed Laprade and Tallant and
reported their presence to management.
Upon being informed of the union activity, Respon-
dent's general manager, Barclay, interrupted his
Florida vacation to come to the store and talk to the
employees about the Union. On March 20, he held a
meeting with all the employees at which he made an
antiunion speech and immediately thereafter had
individual talks with several employees, during which
he unlawfully announced and promised new benefits.
He then looked at the application of Tallant, who had
been hired 5 months earlier, and noticed that Tallant
had given his probation officer as a reference. Barclay
called Respondent's New York office to check the
bonding form filled out by Tallant when he applied
for work, and was informed that it contained nothing
detrimental. Barclay thereupon summoned Watson,
Respondent's general director of security, to come
from Indiana, Pennsylvania, a distance of several
hundred miles, to the Watertown store to check some
applications.
The next morning, March 21, after Watson's arrival,
he and Barclay called Tallant into the office, where
Watson told Tallant that his bonding form was
incomplete and asked him whether he had ever been
arrested. Tallant was also asked whether he was
happy working at the store, whether he had signed a
union card, and how many employees had signed
union cards. When Tallant admitted that he had been
arrested, he was told that, unless he resigned, charges
would be pressed on the bonding form. When he
refused to resign, he was told that he would have a
hard time getting a job and was discharged, purport-
edly for falsifying the bonding form.
While Tallant had admittedly been convicted of
several offenses, he had never received a prison
sentence. Barclay testified that Respondent had a
hard and fast policy of not hiring employees with
criminal records because they were not bondable.
However, he admitted that he had never been told
NLRB 544, enfd 188 F 2d 362 (C A 3)
2 In the absence of exceptions thereto, we adopt pro forma the Tnal
Examiner's findings that Respondent 's promising and granting a wage
increase and Barclay 's speech of March 20 were not violative of Section
8(a)(1) of the Act
189 NLRB No. 30
WESTON'S SHOPPERS CITY, INC.
that the bonding company would not bond anyone
with a past record, and that when he was informed by
Respondent's New York office that the bonding
company wanted someone terminated, he was not
always told why. In the instant case, there is no
indication that Tallant was in any position of special
trust or sensitivity, and the bonding company had not
requested his discharge. However, neither Barclay nor
Watson contacted the bonding company to find out
whether Tallant was bondable, nor did they contact
Tallant's probation officer, although Barclay admit-
ted that the normal procedure would have been to do
so if time permitted.
The Trial Examiner concluded that "any employee
in the position of Tallant would have been similarly
used by Respondent." However, there is no evidence
that it was Respondent's practice, whenever an
employee's capability of being bonded was in doubt,
to discharge him without attempting to find out
whether he was bondable. In the absence of such an
effort, Respondent could not know whether Tallant's
falsification of an application to a bonding company
for a bond was material to his fitness for employment.
Respondent suggested no reason why time did not
permit it to check with the probation officer, in
accordance with its normal practice, or to consult the
bonding company before discharging an admittedly
good employee. In view of Respondent's opposition
to unionism, the interrogation of Tallant and threats
against him, his excellent record as an employee, and
the haste with which his discharge was prepared and
carried out, the conclusion is inescapable that it was
Tallant's union activity, rather than any legitimate
reason, which made it so urgent for Respondent to
terminate him that time did not permit further
inquiry. Accordingly, we find that Tallant was
discriminatorily discharged in violation of Section
8(a)(3) and (1).
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3)
and (1) 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. Having
found that Thomas Tallant was discriminatorily
discharged, we shall order Respondent to offer him
immediate and full reinstatement to his former or a
substantially equivalent position and to make him
whole for any loss of pay from the date of his
discharge to the date of the offer of reinstatement less
his net earnings during that period. Loss of pay shall
be computed and paid in accordance with the formula
235
adopted by the Board in F. W. Woolworth Co., 90
NLRB 289, and with interest thereon at the rate of 6
percent per annum as prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716.
Because the discriminatory discharge goes to the
very heart of the Act,' and in view of Respondent's
other unfair labor practices, we shall issue a broad
cease-and-desist order which , in the circumstances of
this case, we deem necessary and appropriate to
protect employee rights and to effectuate the purposes
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Weston 's Shoppers City, Inc., Watertown , New York,
its officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Store
Employees Union, Local 345, AFL-CIO, or any other
labor organization , by discharging employees or
otherwise discriminating against them in regard to
their hire or tenure of employment or any term or
condition of employment.
(b) Engaging in surveillance of the union activities
of its employees.
(c) Promising or granting improved benefits to its
employees in order to interfere with their choice of
bargaining representative or as an inducement to
reject or refrain from activities in support of the
Union.
(d) Coercively interrogating its employees with
regard to their or other employees' union activities.
(e) Threatening that the store would be shut down in
the event employees chose to be represented by the
Retail Store Employees Union Local 345, AFL-CIO,
or any other labor organization.
(f) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form , join , or assist the Union
or any other labor organization, to bargain collective-
ly through representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion or to refrain therefrom.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Thomas Tallant immediate and full
reinstatement to his former job or, if this job no longer
exists , to a substantially equivalent position without
prejudice to his seniority or other rights and privileges,
3 N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4), enfg as
modified 23 NLRB 1058
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make him whole for loss of pay in the manner set
forth in the section entitled "The Remedy."
(b) 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.
(c) Notify immediately the above-named individual,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(d) Post at its store in Watertown, New York, copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's authorized representative, shall be
posted by it 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 notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to
these rights.
WE WILL NOT engage in surveillance of the
union activities of our employees.
WE WILL NOT promise or grant improved
benefits to our employees in order to interfere with
their choice of bargaining representative or as an
inducement to reject, or refrain from activities in
support of, the Union.
WE WILL NOT coercively interrogate our em-
ployees with regard to their or other employees'
union activities.
WE WILL NOT threaten that the store would be
shut down in the event employees chose to be
represented by the Retail Store Employees Union
Local 345, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for joining or support-
ing Retail Store Employees Union Local 345,
AFL-CIO, or any other labor organization.
The Board found that we fired Thomas Tallant
because he was for the Union and that this violated
the law.
Accordingly, WE WILL offer Thomas Tallant his
old job back and make him whole for any loss of
pay he suffered because we fired him, with 6
percent interest.
All our employees are free to join, or not to join,
Retail Store Employees Union Local 345, AFL-CIO,
or any other labor organization.
WESTON'S SHOPPERS
CITY, INC.,
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
WESTON'S SHOPPERS CITY, INC.
with its provisions may be directed to the Board's
Office, Fourth Floor, The 120 Building, 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
716-842-3100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On March 23, 1970,
Retail Store Employees Union Local 345, AFL-CIO,
hereinafter called the Union, filed a charge with the
Regional Director for Region 3 of the National Labor
Relations Board (Buffalo, New York) alleging that
Weston's Shoppers City, Inc., hereinafter called Respon-
dent, engaged in certain unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act. On June 9, 1970, the
Regional Director for Region 3 of the National Labor
Relations Board on behalf of the General Counsel issued a
complaint alleging that Respondent by various acts
interfered with, restrained, and coerced employees and
terminated two employees, Edward Laprade and Thomas
Tallant, because of their union activities and in order to
discourage the activities of its employees on behalf of the
Union. Respondent by its duly filed answer admitted the
jurisdictional facts and that the Union was a labor
organization but denied the various allegations of the
complaint, except that it admitted the discharge of Thomas
Tallant but denied the allegation of discrimination.
Respondent alleged that Laprade voluntarily resigned and
as an affirmative defense alleges a failure of due process
under the Fifth Amendment of the Constitution of the
United States of America in that the Regional Director
issued a complaint going into issues beyond those alleged in
the charge.
On the issues thus joined I heard the matter in
Watertown, New York, on July 21, 22, and 23, 1970. All
parties were represented and had an opportunity to adduce
evidence and call witnesses, to argue on the record and to
submit briefs. A brief was received from the Respondent.
On the record herein and in consideration of the brief I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation operating retail
stores in various cities in the States of New York and
Pennsylvania including one in the city of Watertown, New
York, the subject of the charge herein. Respondent
annually sells and distributes at retail products valued in
excess of $500,000 and annually receives goods valued in
excess of $50,000 at its Watertown store shipped from
points in States other than the State of New York. At all
times material herein Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
237
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent operates seven retail discount department
stores in small cities in New York and Pennsylvania. Top
management for the chain of stores is located in New York
City. The general manager, Earl Barclay, has general
supervision over all of the stores in the chain. The
Watertown, New York, store has as its manager Robert
Stickel and an assistant manager, Method Pipan. It has a
small security force of four persons headed by Donald
Drews who apparently reports directly to Terry Watson,
chief of security for all Respondent's stores. Under Pipan in
the chain of command is John Kiellman, who at the time of
the occurrences involved herein wore three hats, those of
personnel manager, operations manager, and stock control
manager. Each of the above persons was alleged to be a
supervisor and each appears to have the normal supervisory
attributes of managerial persons in the retail industry. No
evidence to the contrary was forthcoming at the hearing.
Accordingly I find that each of them is a supervisor as
defined in the Act.
The Watertown store of Respondent is divided into many
departments. Nine of its approximately 80 employees are
denominated department heads but it appears that all of
the 9 do not occupy the same position with regard to their
supervisory aspect. The only point at which the matter
becomes relevant is in the consideration of the alleged
discharge of Laprade who was one of the department
heads, in charge of the garden shop and toy department.
His status will be discussed below.
Prior to March 1970 Respondent's employees were
represented by no union. On or about March 10 Edward
Laprade, apparently responsive to sentiments expressed by
employees of Respondent, contacted a representative of the
Union, Mr. Giannoni, with a view to organizing the
employees. On the following day Laprade secured union
authorization cards and commenced distributing them. A
union meeting was planned for the evening of March 14 but
was called off on that day apparently because of a lack of
interest among the employees. On Monday, March 16,
according to Laprade's testimony, Laprade entered the
store with two union agents and talked to some of the
employees about signing union cards. On March 17
Laprade was terminated after interviews with the personnel
manager, Kiellman, and Store Manager Stickel. Whether
his termination was a quit or a discharge is in issue herein.
The following day Laprade, together with another employ-
ee, Tallant, visited the store again with the union agents. On
this occasion they were followed around the store by Drews
who told them that he had been instructed to follow
Laprade by Manager Stickel. On March 20 General
Manager Barclay came to the store and held a meeting of
employees, the first of two that dealt with the Employer's
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign. The next day, March 21, Tallant was discharged,
allegedly for falsifying an application for a bond.' On
March 23 the Union held another meeting at a local motel;
Drews and Watson were present at the bar outside the
meeting room under circumstances that will be explicated
below.
On or about April 1 Respondent held another group of
meetings of its employees at which it furnished them
booklets explaining various benefits offered by Respondent
and, according to the testimony of some of the witnesses,
announcing additional benefits concurrently granted the
employees.
Additionally the General Counsel adduced evidence of
conversations taking place during the month of March
between various representatives of management and
supervisory employees and store employees which he
alleges are violative of Section 8(a)(1) of the Act.
The Allegation Regarding Edward Laprade
Laprade was the most active organizer for the Union
among the employees. Laprade was himself the department
manager of the garden shop and toy departments and while
it does not appear in the pleadings his supervisory status is
very much in issue in this proceeding.2 However, at the
hearing Respondent adduced considerable evidence re-
garding Laprade's status as a department manager.
Laprade was hired as the manager of the hardware
department. At a later time he was "promoted" to the
position of manager of toys, garden shop, hobbies, and
outdoor equipment. He was paid a weekly salary of $120 and
required to work 48 hours a week. The employees who
worked under him were paid on an hourly basis ranging
from $1.60 to $1.85 an hour and worked from 35 to 40 hours a
week apparently with a 40-hour limitation. He testified that
one of his duties was to recommend discipline and rewards
for the employees under him. He testified also that his
recommendations were never followed; however, the
record reveals that he occasionally issued reprimands to the
employees and that he recommended the rehire or retention
of two of his employees after the Christmas rush and in
march when business started to pick up after a slow period
following Christmas the two were recalled to Respondent's
employ. He also recommended that an employee be given a
raise and, as discussed below, the employee was proposed
by Manager Stickel for a raise in February. Further, he
assigned the employees' duties, he established the period of
time during which they took their breaks or had their meal
breaks and on occasion if other departments needed
additional help he would send his employees to help them.3
Laprade shared an office set aside for department
managers in which he did his bookwork having to do with
ordering and planning the work of his departments.
Laprade also had a responsibility of training the employees
working under him and directing them in their work.
There is no evidence that Laprade had the authority to
i It appears that all Respondent's employees are required to be bonded
2 Respondent's failure to raise the issue in the pleadings may be
attributed to the fact that in its answer it denied the supervisory status of
Assistant Store Manager Pipan , Personnel Manager Kiellman , Security
Department Head Drews, and Director of Security Terry Watson
3 On cross-examination Laprade denied that he assigned employees to
hire or discharge employees. The record is ambiguous
whether he had the authority to or did schedule employees
for work. Pipan and Kiellman testified that he had this
authority and exercised it but it appears from their
testimony that at best he was furnished with a predeter-
mined budget of employee hours and that the employees'
work schedule was made out by Manager Stickel, Assistant
Manager Pipan, and Personnel Manager Kiellman and
posted in Stickel's office. The only function remaining to
Laprade is apparently the determination of which hours
were to be worked by which employees, and the record does
not suffice to enable me to determine the extent to which
his recommendations were followed in that regard. There is
also testimony that he had authority to recommend and
increase the number of hours in his department if a need
could be shown therefor but whether this authority was ever
exercised is not disclosed.
I conclude that Laprade was a supervisor within the
meaning of the Act. It appears that he had the authority in
the interest of the Employer to transfer, assign, reward, and
discipline other employees, to responsibly direct them, to
adjust their grievances or effectively to recommend such
action. Such authority was not of a merely routine or
clerical nature but required the use of his independent
judgment. It further appears that he himself recognized that
he was a "member of management." In his own testimony
he gave an account of a conversation with Pipan which he
placed on March 14 in which he stated that Pipan told him
that he was being stupid to throw away a good career with
the firm by organizing employees. He quotes Pipan as
saying "this isn't for managerial people to get involved in,"
and his answer to Pipan according to his testimony is "what
I do is my own business." Further, in a conversation on
March 17 with Kiellman he testified that he told Kiellman
that he knew he had thrown away any kind of future with
Weston's because of his union activities and Kiellman
agreed that he had done so.
The Alleged Discharge
On March 17 according to the testimony of Laprade he
went to Kiellman and spoke to him "off the record." He
testified that he mentioned that Robert Aldeman, who had
preceded him in his job, had given 2 weeks' notice and had
been discharged the same day. He asked Kiellman whether
the same thing would happen to him if he found a decent
job and gave 2 weeks' notice. According to him Kiellman
said that such a thing would not happen to him. Later that
day, according to Laprade's testimony, he was called into
Stickel's office. Stickel told him that he understood he was
not happy with the Company and was dissatisfied. Laprade
said that this was true, that was why he was engaging in
union activities. Stickel cut him off, said he was not
interested in hearing about that and discharged him, stating
that the owner of the Company had called him from New
York and advised Stickel to get rid of Laprade. Laprade
work in other departments other than on occasion when he was directed to
do so by Assistant Manager Pipan His affidavit is to the contrary
Confronted with the affidavit, he testified that his testimony before me was
true I discredit him and credit the testimony of Pipan that he had and
exercised that authority
WESTON'S SHOPPERS CITY, INC.
was paid for the rest of that week although he was not
required to work during that period of time.
The testimony of Stickel and Kiellman concerning the
two conversations is completely different. According to
Kiellman, in the original conversation Laprade led off with
a statement that he was giving 2 weeks' notice effective
immediately . Kiellman merely said "thank you," wished
him 11¢k and went to the store manager and told him. Then,
according to Kiellman, Stickel advised him to get the
moneys necessary to pay Laprade in full for the previous
week and the present week and told him the amount of
money to get. Stickel then called Laprade into his office
and told him that he did not desire 2 weeks' notice and was
terminating Laprade forthwith. Laprade indicated that he
was not satisfied with that notification and that "you will be
hearing from me."
Ethel Ryder, one of the employees called by the General
Counsel to establish certain matters with which I will deal
below, testified on cross-examination that she was present
in the garden shop working at the time of Laprade's
conversation with Kiellman and that she heard Laprade
commence the conversation stating "Mr. Kiellman I have
decided to give my two weeks notice." I credit Mrs. Ryder
and accordingly I credit Kiellman whose testimony is
corroborated by her to the extent that he testified that
Laprade gave 2 weeks' notice of his intention to resign in
this conversation.
The only question that appears to remain is whether
Respondent's refusal to let him work the additional 2 weeks
was discriminatory within the meaning of Section 8(a)(3) as
alleged. I have found above that Laprade was a supervisor,
accordingly he does not share the protection of Section
8(a)(3) of the Act. There is no contention or evidence that
Laprade was discharged for failure to engage in antiunion
unfair labor practices at the Employer's request. If any
discrimination took place at all, it resulted from Laprade's
engagement in union activities in derrogation of his
supervisory loyalty to the Employer. Further, there is no
showing that it is not Respondent's rule or custom not to
permit an employee or supervisor to continue in his
employment after giving notice. On the contrary the
General Counsel attempted to establish that Laprade's
predecessor was handled the same way when he gave notice
and there is no contention that Laprade's predecessor had
ever engaged in any union activity. Accordingly I find that
the discharge of Laprade, anticipating the period of notice
before his resignation was to become effective, does not
violate Section 8(a)(3) or (1) of the Act.
The Discharge of Tallant
Thomas Tallant was a stock receiver for Respondent. He
was apparently a diligent employee; there is no criticism of
his work habits at any point in the record. When Laprade
commenced his union organization Tallant joined with him
in it and when Laprade was discharged Tallant headed the
organization among the employees. On March 21 Tallant
was called into the office of Manager Stickel and was
confronted with Stickel, General Manager Barclay, and
239
Security Head Terry Watson. Watson questioned him
about the form that he had filled out for purposes of
bonding, and asked him if he had filled it out correctly. He
testified that he had done so to the best of his knowledge.
Watson then asked him how he had answered a question
whether the applicant had ever been convicted of any crime
other than a traffic offense . Tallant stated that he did not
recall, whereupon Watson called the New York office and
ascertained that Tallant had put a negative answer in the
block on the form. Watson asked Tallant if this were true
and Tallant admitted that he had been convicted of a
number of crimes whereupon Watson discharged him
because he was not "bondable." 4
The General Counsel contends that Tallant's overt union
activities, and there is no question that they were overt,
caused his discharge.
Tallant had a rather long criminal record which he had
not revealed pursuant to the question on the bonding form.
Barclay testified that it was his custom on visiting the
various stores to go over the applications of the employees
who had been hired in the period since he had last visited
each store. In going over Tallant's application he noted that
one of the persons that Tallant listed as a personal reference
was Peter Grieco, probation officer. This led him to call for
Watson to come to the store . Watson investigated through
the police department and learned of Tallant's criminal
record and the discharge ensued . There is no evidence that
Respondent had ever condoned the falsification of a
bonding or employment application. There is no evidence
contradicting Respondent's assertion that all employees
were required to be bonded and it appears on each occasion
that the matter was raised in the hearing that the employee
concerned was bonded. The question to Respondent was
not whether Tallant was a good or honest employee, there
appears to have been no doubt that he was a good employee
and no question of his honesty. The only question relates to
his capability of being bonded. The General Counsel did
not adduce evidence regarding the procedures under which
bonds were issued or whether in fact a bond had been
issued for Tallant based on the falsified application. The
General Counsel contends that the lapse of time between
Tallant's employment and filling out the application and
his discharge reveals a discriminatory motive. While I have
no doubt that Respondent was glad to get rid of a leading
union adherent there is no showing on the record that the
discharge of Tallant was in any way discriminatory within
the meaning of the Act. From the record I can conclude
only that any employee in the position of Tallant would
have been similarly used by Respondent. Accordingly I
find that the General Counsel has failed to substantiate the
allegation with regard to Tallant's discharge by a prepon-
derance of the evidence and I shall recommend that the
complaint be dismissed insofar as it alleges that Tallant's
discharge violated Section 8(a)(3) or (1) of the Act.
Independent 8(a)(1) Allegations
General Counsel contends that Respondent violated
8(a)(1) of the Act by engaging in surveillance of a union
4 It Is clear that Watson had the authority to discharge employees
pursuant to his investigation of their applications
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting at the Holiday Inn in Watertown, New York, on
March 23, 1970, by implying to employees that it was
keeping union activities under surveillance on three
separate occasions, by threatening employees with dis-
charge or other reprisals if they become members of the
Union, and by promising and granting economic benefits
to employees in order to induce them to refrain from
becoming or remaining union members.
With regard to the allegation of surveillance, the record
reveals that a union meeting was held at the Holiday Inn
the evening of March 23. At that time Terry Watson, the
head of Respondent's security department for all of its
stores, was present at a public bar outside the door of the
meeting room. Watson admitted that he came to the
Holiday Inn from the plant in the company of one of the
department heads who attended the meeting.5 During the
entire course of the meeting Watson sat or stood at the bar
and apparently was there after the meeting was over.
During the course of the meeting he greeted various
employees or returned greetings from various employees
and bought a drink for one or more of them. Late in the
evening he was joined by Donald Drews, the head of
security at the Watertown store.
Watson testified that he was staying at another motel
located across the street from Respondent's Watertown
store and that he commonly went in the evening to the
Holiday Inn to dunk at the bar because he knew the
bartender there and because the bar at the Holiday Inn was
not frequented by company employees. He stated that he
normally left word where he could be located in the event
that the management wanted to find him during the
evening and that on this occasion he had done so. He
testified that he had no knowledge at the time he went to
the Holiday Inn of the umon meeting.
I discredit Watson's testimony that he had no knowledge
of the union meeting since it appears that he came in the
company of a department manager who attended the
meeting. I also find it hard to understand why, if Watson's
custom was to do his dunking at the Holiday Inn in order
to avoid contact with Respondent's employees, he chose to
remain this evening throughout the evening although he
was aware throughout the time he was there that the
employees were having a union meeting. There was
considerable testimony by the employees of Watson's
activities at the bar; none of them indicated that they had
seen him in conversation with the bartender, whose
presence there was allegedly a part of the reason for
Watson's presence. He was seen talking on the telephone,
talking to Drews, and talking to other employees. Under all
the circumstances of this case I conclude and find that
Watson was present at the time and place of the union
meeting either for the purposes of engaging in surveillance
to ascertain the number of employees present and perhaps
the identity of those employees or to demonstrate to the
employees Respondent's concern with their union activi-
ties. I find that by his presence Respondent violated Section
8(a)(l) of the Act.
Henry Lennox testified that around March 13 Personnel
5 There is evidence that the employees present questioned the
attendance of department managers at the meeting After ascertaining they
had no authority to hire or fire they were permitted to remain
Manager Kiellman asked him if Lennox had been
approached by any union organizers , and Lennox denied
that he had. Kiellman said that the Employer would find
out and get rid of any employees that were interested in the
Union that they would not keep them. Thereafter,
according to Lennox the day after the union meeting at the
Holiday Inn, i.e., March 24, Kiellman asked him if he had
been at the meeting, Lennox acknowledged that he had,
Kiellman asked how he liked it and Lennox told him he
should have gone.
Margaret Lester testified that after the first union
meeting Security Supervisor Drews asked her if she had
attended the meeting and how many people were there.
When she declined to tell him he answered, "As long as I
don't ask for names what harm can there be." Lester
testified that on March 20 General Manager Barclay came
up to her in her department and told her that her
department looked nice and pointed out that he could do
more for her than the Union could, that he could work with
her as a person instead of through a union official and
could do more for her but that if he had to work through
someone he could not help her personally. During the
conversation she told him she had gone to the union
meeting with her husband and she felt that the Union had
already had a good effect because it made him (Barclay)
realize that she worked there. Barclay said that if the
employees did not bring the Union in that year and the
Employer failed to keep its promises and they were
dissatisfied, the employees could bring the Union in the
following year but suggested that the employees should
promises and they were dissatisfied, the employees could
bring the Union in the following year but suggested that the
employees should give the Employer a change to keep its
promises before calling a union.
Jannet Dwyer testified that on the morning of March 17
Kiellman met her in an aisle of the store and asked her if
anyone had attended the meeting which was scheduled to
have been held the preceding Saturday night. Mrs. Dwyer
answered him that she did not know, that she did not go to
the meeting.6 Mrs. Dwyer also testified that on March 20
she was called into Stickel's office by Barclay who asked
her if anyone from the Union had come to see her at her
home and whether she had signed a umon card. She told
him she had signed one and he asked why she went to
strangers when she could have come to him. She recalled
nothing more of the conversation except that she quoted
Barclay as saying that he could offer more than the Union
could. About a week later she had another conversation
with Barclay during which he again asked her if she had
seen anyone from the Union and she acknowledged that
she had done so. Mrs. Dwyer testified that she was in the
employee lounge with Mrs. Bombard and Mrs. Smith when
Drews came into the lounge and handed them a company
handbill, antiunion in nature. A discussion ensued about
unions during which Drews stated he had belonged to a
union and that unions are no good; he stated that if the
time came to negotiate Weston's would close its doors.
Kiellman denied that sometime between March 11 and
6 This meeting was canceled according to Laprade because none of the
girls would attend it.
WESTON'S SHOPPERS CITY, INC. 241
March 13 he spoke to Lennox and asked him if he had been
approached by union leaders. Kiellman also denied telling
Lennox that if the Company found out they would get rid
of him but admitted that on March 14 he asked Henry
Lennox if he had gone to a union meeting and asked him
how he liked it and that Lennox answered "You should
have gone." He did not deny having a conversation on the
earlier occasion with Lennox and he did not deny the
precise statements attributed to him by Lennox. I was not
particularly impressed with Mr. Kiellman's candor on the
witness stand; it appeared to me at times that he was
obfuscating the record. I credit Lennox's version of the
conversation in the absence of a dispositive denial by
Kiellman.
Tallant testified that on March 14 Kiellman asked him if
Laprade was trying to get him to go to a union meeting and
told him that if he went to a union meeting he would only
cause himself trouble. This is not denied by Kiellman and I
credit Tallant. Tallant also testified that at his termination
interview Barclay or Watson asked him if he had signed a
union card and how many had been signed. Tallant
testified that he answered that he did not know. Barclay did
not specifically deny this incident but generally denied that
he had asked any employee at any time whether he or she
had signed a union card and in addition specifically denied
questioning Mrs. Dwyer, Mrs. Bombard, or Mrs. Lester as
to whether they had signed a card for the Union. I credit
the testimony of Mrs. Lester. In my opinion she testified
with candor to the best of her recollection. I believe that
Mr. Barclay in his private meetings with various employees
after the speech on March 20 took the occasion of
informing them of the wage raise which they were getting
and attempted to ascertain the extent to which the union
organization was successful. I credit the three women that
Barclay made the statements attributed to him. The
General Counsel finds in the statements of Kiellman and in
Barclay's speech in the garden shop an implication that
Respondent was engaging in surveillance of the employees'
union activities. I find no such implication in the reported
statements although I find in the statements of Pipan and
Drews, recited above, the implication of a threat of reprisal
if the employees selected a union. Such interrogation and
threats as I have found violate Section 8(a)(1) of the Act
and I shall recommend an order based thereon.
General Counsel alleges that Respondent granted
employees wage increases and other benefits in order to
induce them to refrain from becoming or remaining
members of the Union. The General Counsel relies on two
different circumstances: first a wage increase announced to
many of the employees by Barclay during his visit on
March 20 and thereafter; and second the granting of
additional benefits including an extra day holiday each
year to the employees, a change in the vacation schedule, a
changed hospitilization plan, and a process of holding
meetings with employees to discuss Respondent's advertis-
ing and giving prizes to the employees if they could answer
certain questions about each of the advertisements of
Respondent appearing in the local papers.
With regard to the wage increases , Respondent produced
evidence that it had first been recommended by Respon-
dent's management on February 20. The evidence was in
the form of a carbon copy of a memorandum allegedly sent
to the New York office by Manager Stickel bearing the
names of a large number of employees. The original
memorandum, according to Respondent's evidence, was
destroyed and the carbon copy retained as part of the local
store's records. A suspicious circumstance appears in that
no other carbon copies of other wage raise recommenda-
tions were kept and it does not appear that the keeping of
such records is a normal process of Respondent. The
General Counsel contends that the record is inadequate to
substantiate the testimony of Stickel, Kiellman, and Pipan
that the recommendations were made in February. If this
were all the evidence in the record to this point I would
have trouble with the General Counsel's argument.
However it is not. Several of the employees who testified
admitted that they knew that a lapse, frequently of months,
always existed between their being informed that they were
being proposed for a raise and the granting of the raise and
attributed such lapse to the fact that the wage increase had
to be approved by the New York office and the paper work
in connection therewith done in the New York office.
Thereafter it appears from the testimony of General
Manager Barclay it was his custom to go to the individual
store and interview the employee to inform him or her of
the raise and of the fact that it was granted. Additionally
the timing, i.e., the fact that the raise was first proposed in
February before the inception of union activity, is to be
found in the evidence of Mrs. Bombard who testified that
she was told in February that her raise had been proposed
by the store management . Her name is one of those that
appears on the carbon copy which is in evidence. Inasmuch
as there is no evidence in the record to contradict the
Respondent's defense in this regard other than the timing in
that the employees were informed of the raises a week after
the inception of union organization, I find that Respon-
dent's defense is satisfactorily established and that no
violation inheres in the promise of or granting of the wage
increases.
As to the other benefits Respondent contends that this
was no announcement of new benefits but was no more
than a reminder to the employees of the benefits that they
already had. In support of its position in this regard the
Respondent relies upon a punted brochure that was
distributed to all of the employees in March and which
Respondent contends was distributed to employees long
before that time . There is nothing in the brochure to
indicate when it was distributed originally or when it was
prepared. The employees who testified uniformly testified
that they had never seen it before the inception of union
organization. Furthermore the contents of the brochure do
not substantiate Respondent' s contention that no addition-
al benefits were granted. In the section applicable to
holidays no mention is made of the fact that the employees
were granted an additional holiday of their own choice
which could be their birthday or any other day meaningful
to them that met with the approval of the store manager.
With regard to sick leave the brochure provides for a
maximum of 3 days' sick leave, not cumulative, whereas
during Barclay's speeches the employees were informed
that they would receive a maximum of 6 days' sick leave
annually.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to vacations the brochure provides that
regular full-time employees continuously employed for 1
year or more on August 15 will be entitled to a week's paid
vacation. The testimony of Mrs. Bombard was especially
enlightening in this regard . Mrs. Bombard had commenced
her employment after August 19, and would not have
earned a vacation this year but the vacation plan was
changed so that any employee would earn a vacation after 1
year's employment without regard to starting date, and
accordingly Mrs. Bombard was at the time of the hearing
looking forward to her vacation. In addition it appears that
Respondent announced a new hospitalization insurance
plan which, according to the testimony of several of the
employees, especially that of Mrs. Ryder, was changed
from that previously had by employees and was an
improvement thereon. Barclay further announced that a
pension and insurance plan was proposed as to which they
would hear more later. Near the end of April another
meeting was held where an insurance agent spoke to the
employees about a new pension plan proposed for them.
I find and conclude that by the granting of additional
benefits, including an additional day's holiday, a change in
the vacation benefits, a change in the hospitalization plan,
and the promise of additional benefits in the form of
pension and insurance coverage, Respondent violated
Section 8(a)(l) by the grant of benefits to employees in
order to induce them to refrain from becoming or
remaining members of the Union. I find that this grant of
benefits was specifically tied in by Barclay with the union
campaign in his speech of March 20 and in his subsequent
individual talks with employees at which he pointed out
that the Employer could do more for them than the Union
could, and in the case of Mrs. Lester, asked that the
Employer be given a chance to keep its promises before the
employees decided that they wanted a union. All this is in
violation of Section 8(a)(1) of the Act; I so find and I shall
recommend an order that deals with it.
Finally General Counsel alleges that Barclay by his
speeches to the employees violated Section 8(a)(1) of the
Act in that he promised benefits and made various threats
and promises. In the meeting of the 20th, the only one in
which Barclay mentioned the Union, the evidence reveals
that Barclay stated that he could not understand why the
employees should go to strangers instead of coming to him
and stated that he considered it a mistake for the employees
to sign union cards because they were signing away their
right to deal directly with the Employer as well as signing a
blank check for the Union's benefit. He stated that the
employees who were informed that the union cards would
be kept secret should know that the Union often sent cards
to the employer to prove that they had a majority and
stated that employees seldom had a chance to vote on the
issue whether a union would come in or not. Without
regard to the accuracy of any statement made by Barclay I
find nothing in his speech, as reported by the employees
and most of which was admitted by him, that has a
tendency to interfere with , restrain , or coerce employees.
Accordingly I recommend that insofar as it is alleged that
by his March 20 speech to the employees in violation of
Section 8(a)(1) of the Act the complaint should be
dismissed and I so recommend.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions 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
thereof.,
Upon the foregoing findings of fact and upon the entire
record I make the following:
CONCLUSIONS OF LAW
1. At all times material herein Respondent has engaged
in commerce as an employer within the meaning of Section
2(6) and (7) of the Act.
2. At all times material herein Retail Store Employees
Union Local 345, AFL-CIO, has been a labor organization
within the meaning of Section 2(5) of the Act.
3. By various acts and conduct spelled out above
including surveillance of the union activities of its
employees, granting economic benefits, coercively interro-
gating employees, threatening employees that the plant
would be shut down in the event they joined the Union, and
promising additional benefits to employees in the event
they refrain from joining the Union Respondent has
interfered with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(l) of the Act I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act I issue the following:
[Recommended Order omitted from publication.]