W.R. Grace & Co.

National Labor Relations Board - Board Decisions

Feb 21, 1975

216 N.L.R.B. 673 (N.L.R.B. 1975)

HERMAN'S, DIV. OF W.R. GRACE & CO. 673
Herman's, Division of W.R. Grace & Co. and Retail
Clerks Union, Local 1371 chartered by Retail
Clerks International Association , AFL-CIO. Case
22-CA-5797
February 21, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 16, 1974, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings ,' and conclu-
sions 2 of the Administrative Law Judge and to adopt
his recommended Order , as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Herman's, Division
of W.R. Grace & Co., Langhorne, Pennsylvania, and
Trenton, New Jersey, its officers, agents , successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraphs 1(b)
and 1(c):
"(b) Discouraging membership and activities in
Retail Clerks Union or in any other labor organiza-
tion by discriminatorily laying off employees because
of their union activities or for giving testimony under
the Act.
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in their exercise of rights
guaranteed to them by Section 7 of the National
Labor Relations Act."
2. Substitute the following for paragraphs 2(a)
and (c):
"(a) Offer to Lorraine Newton reinstatement to her
former job or, if that job no longer exists, to a
substantially equivalent position , without prejudice
to her seniority or other rights and privileges, in the
ski department of the Trenton, New Jersey, store
during the 1974-1975 ski department season.
"(c) Offer to Steven Moyed reinstatement to his
former job or, if that job no longer exists, to a
216 NLRB No. 118
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, in the
Oxford Valley, Pennsylvania, store, as set forth in
this Decision under `The Remedy.' "
3. Substitute the attached notice for that of the
Administrative Law Judge.
i The Administrative Law Judge 's inadvertent reference to "January
1973" in the second sentence of par. 7 of sec . II of his Decision is hereby
corrected to state , "In January 1974, Kobensky again spoke to Miller."
2 The layoffs of employees Newton and Moyed on February 23, 1974,
coincided with their attendance as witnesses for the Union at an NLRB
hearing on February 19 and 22 . Having found that Respondent's asserted
economic reasons for the layoffs were pretextual , that Respondent exhibited
hostility toward Newton's and Moyed's organizational efforts, and that
Respondent discriminatorily laid them off because of their union activities,
we conclude that one motivation for the layoffs was the presence of Newton
and Moyed as witnesses at a Board hearing and that, as the Administrative
Law Judge found, the layoffs are thereby violative of Sec . 8(aX4) of the Act
as well as Sec. 8(aX3) and (1).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about
their union activities.
WE WILL NOT discourage membership or
activities }n the Retail Clerks Union by discrimi-
natorily laying off employees because of their
union activities or for giving testimony under the
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist the Union or any
other 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
such activities, except to the extent such right may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment.
WE WILL offer reinstatement to their former
jobs or, if those jobs no longer exist , to substan-
tially equivalent positions, to Lorraine Newton at
the Trenton, New Jersey, store, and to Steven
Moyed at the Oxford Valley, Pennsylvania, store,
in accordance with the Decision in the case where
the issue was litigated.
WE WILL pay to Lorraine Newton and Steven
Moyed any loss of wages and commissions they
may have suffered by reason of their layoffs on
February 23, 1974, in accordance with the
Decision in the case.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HERMAN'S DIVISION OF
W.R. GRACE & Co.
DECISION
RAMEY DONOVAN , Administrative Law Judge: The
charge in this case was filed by Retail Clerks Union, Local
1371, Retail Clerks International Association , AFL-CIO,
herein Retail Clerks Union, on February 25, 1974. The
Employer is Herman's Division of W.R. Grace & Co.,
herein the Company or Respondent . On April 16, 1974, a
complaint issued , alleging that Respondent interrogated
employees in violation of Section 8(axl) of the Act and
that Respondent illegally discharged and failed to reinstate
two named employees in violation of Section 8(aX3), (4),
and (1) of the Act. In substance , Respondent 's answer
denies the commission of the alleged unfair labor practices.
The case was heard before me at Newark, New Jersey, on
May 29 and 30, 1974.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is a Delaware corporation , with its principal
office in Pennsauken , New Jersey. Respondent has various
retail sporting goods stores in New Jersey and Pennsylva-
nia, including a store at Langhorne , Pennsylvania, referred
to as the Oxford Valley store, and a store at Trenton, New
Jersey, referred to as the Trenton store . The Oxford Valley
store and the Trenton store are the facilities involved in the
instant proceeding.
In the course and conduct of its business operations in a
representative 12-month period, Respondent received gross
revenue valued in excess of $500,000. During the same
period, Respondent received goods at both its Oxford
Valley and at its Trenton store valued in excess of $50,000
which were transported to its places of business in
interstate commerce directly from states of the United
States other than Pennsylvania and New Jersey.
At all times material, Respondent is, and has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Retail Clerks Union is, and has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In October 1973 , there was a conversation about
organizing a union among Miller, Newton, and one or two
others of Respondent's Trenton store employees. It was
decided that Newton should contact the Retail Clerks
Union. Newton arranged a meeting with Rocco , a Retail
Clerks representative, and the meeting was held in early
November . Thereafter, a series of three or four organiza-
tional meetings were held. During this period both Newton
and Miller passed out Retail Clerks authorization cards to
employees although Newton , according to Miller, was the
most active in the number of cards distributed. Newton
I
Shortly before Miller had been called to the office he had solicited
fellow employee Ernst to sign a Retail Clerks card.
headed an employee organizing committee for the Retail
Clerks.
Employee Moyed of Respondent's Oxford Valley store
met with Rocco and another Retail Clerks representative
around the end of December 1973 or early January 1974.
He received a supply of union cards and thereafter
distributed them among fellow employees and secured
signatures thereon. A series of Retail Clerks meetings for
employees was held at a highway diner, and, at one of
these meetings at which Moore , assistant manager of the
Oxford Valley store, was present, Moyed spoke in favor of
the Retail Clerks.
In January 1974, District 65, Distributive Workers
Union, herein District 65, commenced organizational
efforts among the Trenton store employees. District 65 was
also a factor at the Oxford Valley store since, at the
aforedescribed meeting at which Moyed spoke in favor of
the Retail Clerks, he also spoke in opposition to District 65.
The Retail Clerks organizational campaign had prog-
ressed to the point where that Union had filed two
petitions for certification with the Board. The Trenton
store petition was filed on January 14, 1974, and the
Oxford Valley store petition was filed on February 15,
1974.
From the latter part of 1973 Respondent's awareness and
disposition toward the Retail Clerks organizational cam-
paign became manifest. Around the end of November or
early December 1973, Kobensky, assistant manager of the
Trenton store, called employee Miller to store manager
Gualfetti's office. In the presence of Lords, Respondent's
assistant operations manager , Kobensky said to Miller,
"what's this we hear about you trying to bring in a union?"
Miller denied such a role. Kobensky said, "That's not what
we hear . We hear you been talking to Tom Ernst about a
union." 1 Miller , in substance , then admitted being in favor
of having a union . Kobensky remarked that, if the
Company's comptroller in the main office "found out
about this , he'd have our heads."
I find that the foregoing incident constitutes, in context,
illegal coercive interrogation in violation of Section 8(axl)
of the Act since the loss of collective heads because of such
activity was forecast.
Respondent's position toward the union activity, howev-
er, became more particularized . In January 1973, Koben-
sky again spoke to Miller . He said to Miller that he had
received "the okay from Brooksey" 2 and it was okay to
sign [cards ] with District 65.
Shortly prior to the Board hearing of February 19, 1974,
a leaflet was distributed by the Retail Clerks to the
employees of the Trenton and Oxford Valley stores. The
leaflet both announced a meeting and bore the names of
the employees' organizing committee headed by the name
of Newton.
Kaplan, Respondent's operations manager under Chief
Operations Officer Brooks, testified that in January 1974
he became aware of the Retail Clerks organizing activity at
2 Brooks, chief operations officer of Respondent's Herman Brooks
Division of the stores.
HERMAN'S, DIV . OF W.R . GRACE & CO. 675
the Trenton and Oxford Valley stores .3 Brooks admitted
that he was aware that Newton and Moyed were connected
with the Retail Clerks and that he was given this
information by Kaplan prior to the Board representation
case hearing on February 19. At the instant hearing Brooks
was also asked:
Q. Did you know of any other employees in your
stores at the time that were connected with the Retail
Clerks Union?
A. Other than the two individuals involved?
Q. Other than these two.
A. Not directly, no.
Q. Did you know of other employees?
A. No.
halted and business starts moving up again, you [the
manager] will be very pleased to call them back again."
Supporting data was also presented at the hearing by
Respondent to show sales decreases at the various stores
and failure to attain projected sales goals . None of these
sales figures were refuted as such. Not satisfactorily
explained in this picture of a business downturn is the fact
that at the Trenton store the payroll shows four new hires
in the week ending February 23, 1974. There were also new
hires in March although Brooks testified that sales
continued to be down in that period. There was a
substantial number of new hires at the Oxford Valley store
in March and April 1974.
The evidence leaves no room for doubt that Respondent The Layoff of Newton and Moyed
was opposed to having the Retail Clerks as the collective-
bargaining agent of the employees at the Trenton and
Oxford Valley stores . At the February hearing on the
Retail Clerks petition both the Respondent and District 65
took the position that a contract between District 65 and
the Company constituted a bar to the Retail Clerks
petitions and that the two stores constituted an accretion to
the contract unit and were covered by the existing District
65 contract with Respondent.4 As also revealed by the
Board's Regional Director's decision as a result of the
representation hearing, Respondent and District 65 took
the position at that hearing that Newton should be
excluded from the unit on the ground "that she is a casual
employee ." For reasons stated in that decision this
contention and others were specifically rejected. Separate
elections were therefore directed at the Trenton and
Oxford Valley stores .5 In the unit , inter alia, were all full-
time and regular part-time employees , and among those
excluded as supervisors were the store managers and
assistant store managers .6
The above-mentioned representation hearing was held
on February 19, 22, 25, and 26, 1974. Newton was present
at the hearing on February 19 and 22, having been
subpenaed as a Retail Clerks witness, a fact known to
Brooks and Kaplan . Moyed was also present under a
Retail Clerks subpena on February 19 and 22. He testified
on February 22. Newton testified on February 25.
On February 23, 1974, Newton was laid off at the
Trenton store and Moyed was laid off at the Oxford Valley
store.
Respondent has introduced evidence that by letter of
February 20, 1974, Brooks instructed all store managers to
reduce store operating expenses by laying off employees
because of a serious drop in sales volume . The managers
were told to inform those laid off that it was the result "of
the downturn in business and if and when the downturn is
s At the end of January or early February 1974, Oxford Valley Store
Manager Casantmi told Moyed that he knew that the latter was "fooling
around with those union guys" and he admonished Moyed not to let such
activity interfere with his work.
4 As we have seen, in January 1974 Kobensky told an employee that
Brooks had given him the word that it was "okay" to sign up with District
65. Around April 1974, Trenton Store Manager Gualfetti said to an
employee that, if District 65 did not get in (with the election at the store), he,
Gualfetti , would probably be on his way out. Brooks testified that in
, on February, 23
Newton had worked for Respondent and its predecessors
i in the Trenton store since 1969. In these years her job was
that of a part-time sales clerk of ski clothing in the ski
department and she had usually worked from September
or October of each year until the end of the ski season. The
duration of her employment each year depended on such
things as the weather and the state of the ski business,
which factors, in turn, determined the length of the ski
season and the period during which the ski department,
would function. In 1972, for instance, Newton had worked I
until about the middle of March. During past years, the'
last persons to be laid off in the soft ski department would
be Pinto, the department manager, and Newton. Junior,
'employees in the department would be the first to be laid)
off as the ski season drew to a close.
On February 23, 1974, Trenton Store Manager Gualfetti'
called Newton to his office. He there told her that the ski l
department would be closed in a few weeks and he was'
going to have to start laying off people , including Newton.
Gualfetti said, however, that because of Newton's "high
salary" she would have to be laid off "now," i.e. February
23.7 Newton asked why the other part -time employees in
the ski department were being retained . Gualfetti said that
these other employees could work hours that Newton
could not . Newton said that she could work any night that
the others could . Gualfetti reiterated that Newton would
have to go as of February 23 and she was laid off on that
day.
Initially, as we haye seen, Gualfetti told Newton on
February 23 that she was being laid off immediately
although the ski department would not close until some
weeks hence. The reason given for this action was
January and February 1974 it was company policy to keep outside
organizers of the Retail Clerks out of his stores but to allow District 65
organizers free access to the stores and that in the sari period police were
called to remove Retail Clerks organizers from the s r^^temises.
5 The Decision and Direction of Election was dated May 2, 1974.
8 In the instant Decision I have referred to Oxford Valley Assistant Store
Manager Moore and to Trenton Assistant store manager Kobensky in
connection with the Retail Clerks organizing activity among the employees.
7 Gualfetti did not testify.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newton's "high salary."s However, Brooks testified that
the individual salaries of employees, whether too much or
too little, had nothing to do with the selection of an
employee for layoff.9
Kaplan, who testified that he was the one who had given
final approval for Newton's layoff and for that of
employees in other departments, was asked why he
sanctioned Newton's layoff on February 23. He stated that
it was because "she was slated to leave usually after the ski
season." The fact is, however, that the entire ski depart-
ment began closing after the ski season and all the
employees therein were slated to leave. ' In prior years,
Pinto, department manager, and Newton were the last to
be laid off, with junior employees being the first to be laid
off.
In 1973 there were four employees in the soft ski (ski
clothing) department. They were Pinto, Newton, Colange-
lo, and Kolarik, all females. Colangelo and Kolarik are
both young, unmarried students, who were part-time
employees like Newton; although Newton was married
and had three children. Colangelo commenced working for
Respondent in October 1973 and Kolarik started in
December 1973. Newton, next to Pinto, the department
manager, was the senior employee in point of length of
service.
After Newton's layoff on February 23, Colangelo was
retained and continued to work in the department into the
week ending March 16, 1974; Kolarik continued to work in
the department into the week ending March 9 , 1974. Pinto
worked into the week ending April 12. In the 2-week
payroll periods ending February 8 and 15, preceding the
week in which Newton was laid off, the four employees in
the department worked a total of 193 hours, in round
numbers, or an average total of 48 hours each. In the
weekly payroll periods after Newton's layoff, the three
employees in the department worked a total of 160 hours
or an average total of 50 hours each . It is thus apparent
that if one or both of the junior employees had been laid
off on February 23 instead of Newton, in accordance with
past practice, there would have been several more weeks of
work for Newton.
Gualfetti, as we have seen, first told Newton that she was
being selected for immediate layoff because she made too
much money . Brooks repudiated this reason in his
testimony at the hearing. Then, when Newton asked
Gualfetti why the junior part-time workers were being
retained, he said that they could work hours that she could
not. Gualfetti did not reply to Newton 's response that she
could work any evening that the others could.
It is a fact that Newton , as a mother with three children,
had arranged to be home in the afternoon when the
children returned from school . She thus was not present in
the store at such time . This, however, was not something
s Newton's salary was $2.50 per hour , plus I-percent commission on her
sales . She and other part-time employees averaged about 16-20 hours per
week.
Y Brooks testified as follows:
Q. What did you mean by the statement that their individual
salaries had nothing to do with the layoffs?
A. On a personal basis had nothing to do with the layoffs... .
Q. You said their individual salaries had nothing to do with their
layofff
new and her testimony is not controverted that, in her 5
years of part-time work in the store's ski department, her
schedule had been arranged so that she worked according
to when she "was able to work." Since Respondent has
introduced evidence that in 1973, in the first quarter, sales
were way down because of the gasoline crisis and other
adverse factors, it is apparent that in years prior to 1973,
when business was good, Respondent found it unnecessary
to have Newton on duty around 3 p.m. but, in February
1973, when customers and business were greatly dimin-
ished, it invoked her work schedule as a reason for
retaining junior employees in preference to Newton and
contrary to past practice. Newton's undisputed testimony
was that the afternoon period in the store was always slow,
whereas evenings were the busy period.10 Thus, in 1972, a
busier and better year than 1973, Newton would leave the
store at 3 p.m. to be home for her children. She returned at
6 p.m. and worked until 9 or 10 p.m., "whatever was
required."
Although Kaplan testified that, unlike Newton, the other
part-time employees in the ski department were able to
work at any time "within reason," he also admitted that "a
number of times" Newton had been called to come to the
store out of schedule on an emergency basis and she did
report for work as required. When questioned about this
testimony that the two junior employees "could give us
hours that Newton could not," Kaplan was asked what
hours he was talking about. His answer revealed that he
had no specific hours or instance in mind. He suggested
that it might be 4 p.m., "I will put it to you that way... .
It is possible that those hours [of the junior employees] can
be from an hour Mrs. Newton could not have been
working. For instance, just for argument's sake, out of the
clear blue sky, 4 to 6 or something like that. Q. It is
possible but you don't really know, do you? A. No. I would
be a good man. I am not sure of the hours." Store Manager
Gualfetti who presumably would have been able to give
specific testimony as to when Newton had been needed for
hours for which she was unavailable, if such situation in
fact existed, did not testify.
Kaplan said that in retaining the two unmarried students
as part-time employees in preference to the married
Newton who had three children, he gave no consideration
to the married versus single factor or to the child factor.
And, of course, Newton's substantially greater seniority
was also ignored . However, in the case of Moyed, who was
also laid off on February 23, Kaplan said that a factor in
his selection of Moyed for a layoff, in preference to
another part-time employee in the same department, was
the fact that Moyed was 19 years old, a student, and single.
The other man, Mladjen was 25, married, and had one
child. Mladjen also had another full-time job.11
A. Not on a personal basis . Not because they were making too
much or too little individually....
10 Other part-time employees, concerning whose hours we have evidence
in the record , were Moyed, who worked nights and Saturdays ; and Miller,
who worked Saturdays and 2 nights a week, except in the summer months.
11 Mladjen as a holder of a full-time job with another employer and a
part-time job with Respondent would presumably have little if any
flexibility in the hours he could work for Respondent , a factor that
HERMAN'S, DIV. OF W.R. GRACE & CO. 677
Moyed was hired in the Oxford Valley store at the end of
August 1973. 12 He was a part-time employee and worked
principally in the shoe department as a sales clerk. On a
few occasions he also worked in other departments when
additional help was needed there. One of these depart-
ments was general sporting goods.13 In the period of his
employment by Respondent, Moyed had also been taught
to foam ski boots, string tennis rackets , and drill holes in
bowling balls. The indication is that Moyed's work
performance was satisfactory and his work was never
criticized by a supervisor. The store manager had compli-
mented him on how well he foamed ski boots.
In addition to Moyed there were two other employees in
the shoe department . Vanore was a full-time employee and
the department manager . Mladjen was a part-time employ-
ee like Moyed. Mladjen also had a full-time job with
another employer whereas Moyed was a college student
and part-time employee with Respondent. Moyed had
been hired August 30, 1973; Mladjen had been hired
September 11, 1973.
At an earlier point in this Decision, I have described
Moyed's organizational activity on behalf of the Retail
Clerks. Respondent was aware that Moyed as well as
Newton were identified with the Retail Clerks movement.
Most recently, Moyed and Newton were among those
subpenaed as witnesses by the Retail Clerks at the Board
representation hearing beginning February 19, 1974, a fact
known to Respondent. Moyed and Newton were present at
the hearing on February 19 and 22. Moyed testified on
February 22. He was laid off on February 23.
On February 23, Store Manager Casantini called Moyed
to his office. Casantini said that business was slow due to
the energy crisis and he had been instructed to eliminate all
unnecessary employees. He said that he was therefore
laying off Moyed. In the latter's presence, Casantini wrote
on a personnel sheet that the reason for the dismissal of
Moyed was the energy crisis, and, where the form stated,
"Would rehire?" Casantini wrote, "yes."
As previously described, Kaplan testified that in choos-
ing Moyed for layoff instead of Mladjen, the other part-
time worker in the department, he took into consideration
the fact that Mladjen was married and had a child, whereas
Moyed was a young, unmarried student. On its face, such a
consideration is not unreasonable but its pretextual nature
is revealed by the fact that in laying off Newton, who was
married with three children, in preference to two young,
unmarried students , Respondent gave no consideration to
the factors allegedly used in the Moyed-Mladjen situation.
Also, while Moyed's seniority over Mladjen was slight, it
nevertheless existed. At the time of the layoff Respondent
was contending before the Board that its contract with
District 65 covered the Oxford Valley and Trenton stores.
Despite the absence of a copy of the contract in the instant
record, it is reasonable to assume that it would be an
unusual labor contract if it did not accord some recogni-
tion to seniority in selection for layoff. In further asserted
adherence to the District 65 contract, Respondent hired
new employees during this period of layoffs at both the
Oxford Valley and Trenton stores through referral of such
employees from District 65.14
Although Store Manager Casantini did not testify,
Kaplan testified that Casantini had told him that on
several occasions Moyed had called in before he was
scheduled to report for work and had said that he could
not come in. Apparently the vice in this conduct, as
described by Kaplan, was that Moyed had not given
sufficient advance notice. Kaplan states that although no
written warning was given Moyed about this, he was
warned. Kaplan does not say who gave the warning but
presumably it would be Casantini since Kaplan, who had
other and broader responsibilities, was only at the Oxford
Valley store once a week.
Since Moyed denied having not given proper notice of
absences and denied having been reprimanded for such
conduct, I am not disposed to credit Kaplan's indirect and
general knowledge of such alleged conduct. If direct and
accurate information existed regarding Moyed's alleged
absences and his inadequate notification to the store of
such absences, such information would presumably be
found in store attendance records and in the knowledge of
the occurrences by Store Manager Casantini and Assistant
Manager Moore. No records were introduced on this
matter and neither Casantini nor Moore testified. Further,
the record is uncontroverted that at the time of the layoff
Casantini noted on a form that he would rehire Moyed,
presumably when work was available. Such an indication is
not consistent with the effort of Respondent at the hearing
to portray Moyed as an employee whose attendance record
had been unsatisfactory.
Among the substantial number of new hires made by
Respondent in the period subsequent to Moyed's layoff,
some were hired in jobs for which Moyed was not
adequately qualified as a salesman , e.g. hunting and fishing
department salesmen . However, there were a number of
jobs for which Moyed was qualified and in which
Respondent hired new people rather than calling back the
laid-off Moyed. A student named Alexander was hired on
April 11, 1974, in the Oxford store's general sporting goods
department as a part-time employee. Although Kaplan had
no personal contact with Alexander, he testified, in effect,
that through the store manager (who did not testify) that
Alexander "happens to excel in sports." At another point,
Kaplan stated that Alexander's "experience was billards."
How important billards and other sports experience was as
a prerequisite to working in the general sports department
is open to question. Moyed had worked in that department
on a number of occasions prior to his layoff and, at the
Trenton store, two new employees, Imbrie and Klein, were
hired in the general sporting goods department although
neither had any prior experience in this field and there is
12 The store was relatively new, and it opened for business in September camping, scuba diving , skiing, and so forth.
1973. 14 The matter of applicability of the District 65 contract to these two
13 In Respondent's stores, although almost all its products can be stores was still pending before the Board during this period, and on May 2,
described as sporting goods , a department such as general sporting goods 1974, the contract was held inapplicable to these stores but, until at least
does not include more specialized departments such as hunting and fishing , that time, Respondent purported to be acting pursuant to the contract
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no claim that they participated in or excelled in sports,
whether billards or otherwise.15 On April 11, 1974, a new
man, Dellatore, with no prior experience, was hired at the
Oxford' Valley store to work as a part-time salesman in the
stock department. In substance, the job was that of a stock
clerk. Dellatore was terminated on May I because he did
not show up for work. Neither before Dellatore was hired
nor after Dellatore was terminated was Moyed recalled to
work although there is no question that he was qualified to
work in the stock department. The same situation in the
case of Ficke, a new hire on April 11, 1974; no prior
experience; part-time worker in the stockroom; terminated
because he did not show up for work. This is also true with
respect to Singer, a new hire on April 12, 1974, in the
general sports department, with no prior experience, who
was terminated in May when he did not show up for work.
This matter of Respondent hiring new inexperienced
people for work for which Moyed was qualified bears not
only directly on Respondent' s failure to recall a laid-off
employee, whose store manager had said, in effect, at the
time of layoff that he would rehire when business picked
up and work was available, but it also bears on the
motivation for the original layoff since it indicates a
discriminatory motivation against Moyed and a motivation
other than business or economic considerations.
The evidence of Newton's and Moyed's leading active
roles in union organizational activity on behalf of the
Retail Clerks; Respondent 's awareness of such activity by
these employees; Respondent's opposition and hostility
toward the Retail Clerks organizational effort; the timing
of the layoffs of these two employees, coinciding with their
attendance as witnesses for the Retail Clerks at a Board
hearing; the contradictory and unconvincing reasons given
by Respondent for the selection of these employees for
layoff in preference to other employees in the same
departments; the failure to recall Moyed when work was
available,16 all persuade me that Newton and Moyed were
discriminatorily selected for layoff and were laid off
because of their union activities on behalf of the Retail
Clerks in violation of Section 8(a)(3), (4), and (1) of the
Act. I so find.
. CONCLUSIONS OF LAW
1. Respondent has violated Section 8(a)(I) of the Act
by the interrogation of an employee regarding union
activities.
2. Respondent has violated Section 8(a)(3), (4), and (1)
of the Act by discriminatorily selecting for layoff and by
laying off employees Lorraine Newton and Steven Moyed
because of their union activities and because of their
subpenaed presence as witnesses and because of their
foreseen and actual testimony at such hearing as union
witnesses.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that
Respondent, pursuant to an Order, cease and desist from
such practices and take prescribed affirmative action to
remedy the effects of its conduct.
Newton is to be made whole for wages and commissions
lost from the date of her layoff on February 23, 1974, to
the date when she would have been laid off absent her
discriminatory selection for layoff on February 23, 1974.
In arriving at the date when Newton would have been
laid off in the normal course of events, absent discrimina-
tion, past practice shall be taken into consideration, as well
as the period in 1974 when the soft ski department
provided work for employees other than Pinto, after
Newton's February 23, 1974, layoff. Any moneys that may
be due Newton under the above standard shall be less her
intermediate earnings , if any, and with interest at 6 percent
on any balance due. The computation is to be on a
quarterly basis.
In view of the discrimination against Newton, it is
appropriate that Respondent be ordered to offer her
reinstatement to her job at the commencement of the
stores' 1974-75 season for soft ski equipment, in accor-
dance with past practice and other relevant considerations,
and with her seniority and other rights and privileges
unimpaired by her premature and discriminatory layoff in
1974.
Moyed is to be offered reinstatement to his former job,
displacing, if necessary, any junior part-time employee in
the department or, in the event a job is not thus available
in the department, Moyed shall be offered a substantially
equivalent job for which he is reasonably qualified
elsewhere in the store , with his seniority and other rights
and privileges unimpaired. In the event no job is available,
Moyed shall be placed on a preferential hiring list for the
next job opening for which he is reasonably qualified.
Moyed is to be paid wages and commissions lost from
February 23, 1974, to the date of the offer of reinstatement
or placement on the preferential hiring list, as the case may
be, less intermediate earnings , if any, and with interest at 6
percent on the net sum due. The computation is to be on a
quarterly basis.
Upon the foregoing findings of fact, conclusions, and
conclusions of law, and upon the entire record and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER 17
Respondent , Herman's Division of W.R. Grace & Co.,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
activities.
15 At some subsequent date , unrevealed in the record , Kaplan testified
that lmbne and Klein were transferred to other stores . This fact is
immaterial on the matter of their initial hiring and their lack of prior
experience.
16 Since Newton's layoff in the ski department and the subsequent
seasonal phasing out of that department , there was , of course, no occasion
presented when the matter of Newton 's recall to that department could be
tested until the 1974-75 ski season.
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
HERMAN'S, DIV. OF W.R. GRACE & CO. 679
(b) Discouraging membership and activities in Retail
Clerks Union or in any other labor organization by
discriminatorily laying off employees because of their
union activities.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the National Labor
Relations Act.
2. Take the following action to effectuate the policies of
the Act.
(a) Offer to Lorraine Newton reinstatement to her former
job in the ski department of the Trenton, New Jersey, store
during the 1974-75 ski department season.
(b) Pay to Lorraine Newton the wages and commissions
she lost by reason of her layoff on February 23, 1974, as set
forth in the section of this Decision entitled "The
Remedy."
(c) Offer to Steven Moyed reinstatement to his former
job in the Oxford Valley, Pennsylvania , store , as set forth
in this Decision under "The Remedy."
(d) Pay to Steven Moyed the wages and commissions he
lost by reason of his layoff on February 23, 1974, to the
date of the offer of reinstatement, as set forth in this
Decision under "The Remedy."
(e) Post at its premises at Trenton, New Jersey, and
Oxford Valley, Pennsylvania, copies of the attached notice
marked "Appendix." 18 Copies of said notice, on forms
provided by the Regional Director for Region 22, after
being signed by Respondent's 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 Respondent to ensure that said notices are not
altered, defaced, or covered by other material.
(f) Notify the Regional Director , Region 22, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.
18 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."