F. W. Woolworth

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 396 (N.L.R.B. 1973)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. W. Woolworth and Retail Store Employees Union
Local No. 214, affiliated with Retail Clerks Interna-
tional Association , AFL-CIO and Mark C. Lippold.
Cases 30-CA-1713, 30-CA-1756, and 30-
CA-1811
June 22, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On September 25, 1972, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter Respondent filed exceptions, and
a brief and appendix in support thereof. The General
Counsel filed exceptions and supporting briefs. Re-
spondent and the General Counsel each filed answer-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,'
and has decided to affirm the rulings, findings,' and
'Respondent moved to dismiss the complaint on the ground that (I)
allegations of Section 8(aX3) violations as to four discnmmatees were barred
by Section 10(b) of the Act because their names were not included in the
unfair labor practice charges on which the complaint was based , and (2) the
General Counsel failed to comply with certain requirements of the Adminis-
trative Procedure Act (APA) in that Respondent was not given an "opportu-
nity for the submission and consideration of facts, arguments , offers of
settlement or proposals of adjustment when time , the nature of the proceed-
ing and the public interest permit . . [and a] t no time was counsel for the
Company accorded the opportunity to present its views with respect to the
discharge of these employees."
With respect to (1) we find it unnecessary to pass on Respondent's motion,
in view of our decision to reverse the Administrative Law Judge 's finding that
Respondent violated Section 8(a)(3) of the Act
With respect to (2), we find that Respondent was given adequate opportu-
nity to satisfy the APA In this respect Respondent received a copy of a letter
dated February 11, 1972, from the Regional Office of the Board before the
complaint was issued , fully apprising it of the fact that the complaint would
include the names of 12 employees as discriminatees The letter expressed the
hope that a settlement agreement could be reached and specified the type of
settlement and the nature of the remedy sought The letter also advised
Respondent that unless a settlement agreement was reached by February 17,
1972, a complaint would issue shortly thereafter setting the matter for hear-
ing In the absence of a settlement agreement , the complaint did issue on
February 18, 1972 At the hearing , which opened almost 3 months later, on
May 2, 1972, the record shows that the Administrative Law Judge indicated
to Respondent that he would "give [ Respondent ] any opportunity to rea-
sonably adjust these charges, at any time" but no offer to settle came forth,
and so the proceeding continued for 6 days "Nothing in the [Administrative
Procedure] Act . . requires the General Counsel to take the initiative in
broaching settlement , he need only be receptive to settlement overtures made
by parties respondent" As noted above, Respondent was given an opportu-
nity to state its views and to settle this matter both prior to issuance of
complaint and again at the trial. The motion is denied for lack of merit.
Dairylee, Inc, 149 NLRB 829, 830, In I Gimbel Brothers Inc., 100 NLRB
870, 871.
2 Respondent and the General Counsel have excepted to certain credibility
conclusions of the Administrative Law Judge, but
only to the extent consistent herewith.
Respondent, a national retail chain store operator,
opened a store in Escanaba, Michigan, in September
1970. In early February 1971,' Mark Lippold, an al-
leged discriminatee and a Charging Party herein, be-
gan to organize and was one of the most active
campaigners for the Union. Employees also formed
an "in store" committee whose primary function was
to solicit interest among other employees and to dis-
tribute printed prounion materials. Several meetings
were held at a local motel and at employees' homes.
Respondent replied with an antiunion campaign,
and Semrow, Respondent's store manager, Sabor, as-
sistant manager , and other store officials and supervi-
sors all took part. Noncoercive speeches were made at
least once or twice a week to employees by Semrow.
Respondent is alleged to have engaged in other con-
duct, however, in violation of Section 8(a)(1) and (3)
of the Act, as discussed below.
1. We agree with the Administrative Law Judge's
finding that Respondent engaged in unlawful interro-
gation of employees on April 15 and 16 and on an
unspecified date shortly prior to a Board election
threatened to impose poorer working conditions, all
in violation of Section 8(a)(1) of the Act.
2. We also agree with the Administrative Law
Judge, for the reasons stated in his Decision, that
Respondent did not violate Section 8(a)(3) and (1) of
the Act when it discharged Mary Ann Mathia and
Andrea LaRose Carlson, and refused to recall Bar-
bara Erickson and Sue Wunder.
3. We find merit in Respondent's exceptions to the
Administrative Law Judge's finding that Respondent
discriminated against Mark C. Lippold, Raymond
Brault , Jean Paulin, Zella Barcome, and Gerald Pyke
in violation of Section 8(a)(3) and (1) of the Act.
For the most part the Administrative Law Judge's
findings of violation, with respect to the above-men-
tioned employees, are based upon inferences drawn
from his analysis of the facts. For the reasons set forth
below, we disagree with the inferences he drew.
In assessing the merits of this portion of the case,
we note initially that a valid Board election had been
held on April 16, which the Union lost 42-28. Objec-
tions had been timely filed by the Union, but later
were withdrawn pursuant to an agreement with Re-
findings made by the Administrative Law Judge It is the Board's established
policy not to overrule an Administrative Law Judge 's resolutions with respect
to credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3). We have carefully examined
the record and find no basis fo reversing his findings
In the absence of exceptions thereto, we adopt, pro forma, the Administra-
tive Law Judge's dismissal of 8(a)(3) allegations concerning the discharge of
Corrine Cayer, Sandra LaFave (nee Phalen), and Francis Laundre
3 All events hereinafter occurred in 1971, unless otherwise noted.
204 NLRB No. 55
F. W. WOOLWORTH 397
spondent to reemploy Lippold, who had been dis-
charged in February. We also note that except for the
minor violations of Section 8(a)(1), as found above,
the charges of discrimination herein are based upon
conduct which allegedly occurred well after the April
election and not in any context of union activity.
In our opinion this background provides no con-
vincing or persuasive basis for inferring discriminato-
ry motives such as would establish a prima facie case.
Moreover, we are of the opinion that Respondent had
valid economic reasons for the action that it took in
each case. Thus, from the time of Lippold's reemploy-
ment until his quitting in July he was warned about
various incidents of misconduct which occurred dur-
ing working hours, and there is no evidence that he
was disparately selected for warnings for any discri-
minatory reason. Indeed, Lippold admitted he merit-
ed the warnings because he did not comply with the
posted rule against punching in or out early,4 which
notice also indicated that disciplinary action may fol-
low for noncompliance; he also engaged in miscon-
duct by eating and smoking on the loading ramp, and
by taking a break at a time other than the time he was
scheduled to do so. Neither Lippold's past activities
on behalf of the Union nor Respondent's attitude
toward the Union afforded him immunity from disci-
pline for this misconduct, or gave him privileges great-
er than those of other employees. The immediate
incident which allegedly caused him to resign was a
warning he received about his swearing and griping in
the stockroom, which warning was legitimate and not
at all connected with any union activity on his part.
In these circumstances, a finding that Respondent
constructively discharged Lippold for discriminatory
reasons is not justified. Accordingly, we shall dismiss
the allegation in the complaint that Respondent dis-
criminated against Lippold.s
We also find, contrary to the Administrative Law
Judge, that Respondent's reason for discharging
Brault was not discriminatory. The record shows that
on the day of his discharge Brault admitted that he
picked up a package of "cheezies" from a counter,
and could not produce a receipt or a slip from the
employee accommodations desk as proof of purchase,
which was an established policy in Respondent's
store. Semrow then discharged Brault.
4 Lippold received a written warning because he was a chronic offender
5 Coals & Clark Inc, 113 NLRB 237, 238, Winn-Dixie Stores Inc, 128
NLRB 574, 594. We also find that the record fails to support a finding that
Respondent 's work rules were discriminatorily applied only to Lippold, in
violation of Section 8 (a)(I) or (3 ). The evidence shows that he was given a
written warning because he was a chronic offender, and that other employees
received warnings for violating this rule Moreover, as noted, supra . the rule
was posted and would hardly go unnoticed as it was in large bold print and
contained a clear warning that violations thereof would be subject to disci-
pline Accordingly, we shall dismiss that portion of the complaint
The Administrative Law Judge found that
Respondent's defense was pretextual and that Brault
was discharged for his union activity. We are con-
strained to find on the basis of the whole record,
however,-particularly in view of the absence of di-
rect evidence to establish knowledge on the part of the
Respondent of Brault's union activities 6 -that Brault
was discharged for what Respondent believed from
outward appearances was theft. Thus, Brault could
not produce a receipt for the merchandise, and there
is no corroborative evidence to show, nor did the
Administrative Law Judge find, that Brault put the
money on the register. We also note that the General
Counsel's contention is based on the uncorroborated
testimony of the interested party, who stands to bene-
fit from an award of reinstatement and backpay, and
is contradicted as well, and such testimony may not
constitute substantial evidence? Thus, the General
Counsel has failed to prove that Brault acted in accor-
dance with an accepted practice, i.e. to put the money
on the register.' Moreover, the matter of employee
discipline is left to the discretion of management and
is not a proper concern of the Board. Accordingly, in
view of the lack of direct and convincing evidence
showing that the Respondent knew of Brault's mem-
bership in, or activity on behalf of, the Union, we shall
dismiss this portion of the complaint.
Pyke, a full-time employee, was laid off on May 3
to make room for Lippold's return to work in the
stockroom and was never recalled. The Administra-
tive Law Judge concluded that Respondent's failure
to recall Pyke on May 18, when it hired a part-time
employee, was prompted by discriminatory consider-
ations. This conclusion is based in part on the finding
that Respondent: (1) knew of Pyke's union activities;
and (2) Pyke was a good worker. The Administrative
Law Judge also relied on Personnel Director Kalm's
testimony that Respondent preferred to hire employ-
ees who had previously worked for the Company.
With respect to (1) and (2) above, mere knowledge
of an employee's union activities 9 and the fact that he
may have been a good worker are not enough to sup-
6 As already noted, Brault's discharge, as well as the others, occurred in
a context devoid of current union activity and in an atmosphere that at the
time was free of overt hostility towards the Union and its supporters In such
circumstances, we find the evidence insufficient to support the Administra-
tive Law Judge's conclusion that knowledge of Brault's union sympathies can
be inferred merely from the fact that he worked in the same department as
Lippold whose union activities were open and known
7 N L R B v Barberton Plastics Products, Inc, 354 F 2d 66, 69 (C A 6,
1965), see N L R B v Elias Brothers Big Boy Inc, 327 F 2d 421, 426 (C A
6, 1964)
8 J Weingarten Inc, 141 NLRB 22, 37
9 Assuming, arguendo, that such knowledge was established by the evi-
dence, the Administrative Law Judge inferred knowledge for the same rea-
sons he relied on with respect to finding that Respondent had knowledge of
Brault's union adherence In our view , the same infirmities that afflicted his
finding of knowledge as to Brautt are present in regard to his similar finding
as to Pyke
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port a finding of discrimination. As for the second
argument, we note that in another part of his Decision
(III C 9, dealing with his findings in regard to Barbara
Erickson), he specifically found that "the General
Counsel's evidence failed of proof that the Respon-
dent, as a matter of policy or practice, regularly
sought to secure laid-off personnel before it hired
other employees." We can perceive no sound distinc-
tion between Erickson's case and Pyke's. According-
ly, we find that the evidence is not sufficient to show
that Respondent discriminated against Pyke, and we
shall dismiss that portion of the complaint.
The Administrative Law Judge concluded, for rea-
sons more fully detailed in his Decision, that Paulin
was discharged for her union activities because: (1)
Respondent knew of her objection to working longer
than her regular schedule because of her babysitter
problems, and (2) other employees were willing to
work overtime. Respondent contends that Paulin was
discharged for refusing to work overtime.
It is undisputed that Paulin was asked to work an
hour of overtime on the evening of June 25,10 from
9:15 to 10:15 p.m. She admittedly refused to work,
asserting as a reason that her babysitter was sched-
uled to work only until 9:30 p.m. and it was impossi-
ble for her to stay after 9:15 p.m. Paulin left work
without further notice at 9:14 p.m. When Respondent
learned of her departure that evening it decided to
discharge her.
We find on the basis of the whole record that Re-
spondent had a legitimate business reason for asking
some of its employees to work overtime. Paulin's re-
fusal to work overtime as requested constituted an
attempt to work on terms prescribed solely by her-
self." The Board and the courts have held that such
a refusal to work provides an employer with valid
grounds for discharge.12 We find, contrary to the Ad-
ministrative Law Judge, that Paulin was discharged
for cause. Accordingly, we shall dismiss that portion
of the complaint.
Barcome began working in September 1970 and
quit May 14. She was employed as a saleslady in the
lamp department. She also helped with the ordering
of lamps, kitchen clocks, frames, mirrors, and similar
items. She also worked in other departments when the
need arose. She was active in the union campaign.
In January Barcome asked for help in the lamp
department because she couldn't keep up with all the
ordering that had to be done and keep the department
neat . Respondent supplied the necessary help. In
April, Barcome was assigned to work in other depart-
ments and to operating cash registers at the other end
of the store. Kalm later temporarily assigned her to
bus dishes in the cafeteria, and told her that she would
be on call by the kitchen manager and that her depart-
ment did not need a full-time girl, whereupon Bar-
come said that when she had previously asked Kalm
for a part-time girl to help, Kalm had said that the
department needed a full-time girl. Barcome later ad-
vised Kalm that she could not do all the work assigned
to her and that she intended to quit and she did so on
May 14.
The Administrative Law Judge concluded that
Respondent's knowledge of her union activities, its
change of attitude towards Barcome, the imposition
of more onerous duties, and conflicting announce-
ments respecting the degree of help reflected
Respondent's motivation in forcing her resignation.
He found that Respondent engaged in the above-de-
scribed conduct with a purpose of harassing Barcome
to the point where it became intolerable for her to
work, and that her resignation, therefore, constituted
a constructive discharge in violation of Section
8(a)(3).
We agree with Respondent's assertions that it has
a right to manage its business, which includes the right
to assign and distribute work,13 that Barcome quit out
of anger, that no one reprimanded her, criticized her,
or threatened to discharge her for her work, that there
is no clear discriminatory expression of dissatisfaction
to prompt the quit, that her replacement did all the
work she had been asked to do, and, as the Adminis-
trative Law Judge noted, that it was not uncommon
for employees to be assigned out of their department.
Accordingly, we find that the evidence is insuffi-
cient to support a finding that Respondent discrimi-
nated against Barcome and we shall dismiss that
portion of the complaint.
THE REMEDY 14
Having found that Respondent engaged in and is
engaging in certain unfair labor practices, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
10 Respondent changed its closing hours from 9 15 to 10 15 p in because
a competitor opened a store nearby which had a later closing time than
Respondent's
1 See C G Conn Lid v NLRB B. 108 F 2d 390, 397 (C A 7, 1939)
12
Emple Knitting Mills, 146 NLRB 106, 111-112, N L R B v Mt Clemens
Pottery Company, 147 F 2d 262, 267 (C A 6. 1945)
u N L R B v Kopman-H'oraeeA Shoe Manufacturing Company, 158 F 2d
103, 108 (C A 8 1946)
10 As we have found that Respondent did not violate Section 8(a)(3) of the
Act, we find it unnecessary to pass on the General Counsel's request for
extraordinary remedies We also find that a broad order is not warranted in
this case
F. W. WOOLWORTH 399
AMENDED CONCLUSIONS OF LAW
We amend the Administrative Law Judge's Conclu-
sions of Law in the following manner:
1. Delete the phrase "and by discriminatorily ap-
plying work rules" from Conclusion of Law 3.
2. Delete Conclusion of Law 4 in its entirety and
renumber the remaining paragraphs accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, F. W.
Woolworth Co., Escanaba, Michigan, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities.
(b) Threatening employees with reprisals should
they join or assist Retail Store Employees Union, Lo-
cal No. 214, affiliated with Retail Clerks International
Association, AFL-CIO, or select it as their collective-
bargaining representative.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist the above-named labor organization, or any
other labor organization, to bargain collectively
through representatives of their own choosing, to en-
gage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, ex-
cept to the extent that such right may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in
Section 8(a)(3) of the National Labor Relations Act,
as amended.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its Escanaba, Michigan, store copies of
the attached notice marked "Appendix." 15 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 30, after being duly signed by
Respondent's authorized representative, shall be post-
ed 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 insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 30, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
11 IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
MEMBER JENKINS , dissenting:
For the reasons set forth by the Administrative Law
Judge, I would affirm his decision.
15 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 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 the parties had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice telling our employ-
ees what we have been ordered to do and not to do
in the future.
The Board has ordered us to tell you that:
WE WILL NOT threaten you with poorer working
conditions if you join or assist Retail Store Em-
ployees Union, Local 214, affiliated with Retail
Clerks International Association, AFL-CIO, or
any other labor organization, or select it as your
collective-bargaining representative.
WE WILL NOT coercively question you concern-
ing your union membership or activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form labor organizations, to join or assist the
above-named Union, or any other labor organi-
zation, to bargain collectively through represen-
tatives of their own choosing, and to engage in
other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities.
All our employees have the right tojoin or assist, or
not to join or assist, Retail Store Employees Union,
Local 214, affiliated with Retail Clerks International
Association, AFL-CIO, or any other labor organiza-
tion , except to the extent that such right may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
400
Relations Act, as amended.
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. W. WOOLWORTH CO
(Employer)
(Representative ) (Title)
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 compli-
ance with its provisions may be directed to the
Board's Office, 744 North Fourth Street, Commerce
Building, Second Floor, Milwaukee, Wisconsin 532
03, Telephone 414-224-3861.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: On charges
filed respectively by the above-named Union on September
10, 1971, and October 29, 1971,' and by Mark C. Lippold,
an Individual, on January 4, 1972, a consolidated complaint
issued on February 18, 1972, which alleges that F. W.
Woolworth Co. (herein the Company or Respondent) en-
gaged in unfair labor practices within the meaning of Sec-
tions 8(a)(3) and (1) and 2(6) and (7) of the National Labor
Relations Act, as amended (herein the Act). In essence, the
complaint charges that the Respondent violated the Act by
discriminating against 12 named employees because they
engaged in activities assisting and supporting Retail Em-
ployees Union Local No. 214, affiliated with Retail Clerks
International Association, AFL-CIO (herein the Union),
and also that Respondent interfered with, restrained, and
coerced employees by engaging in certain other conduct
more fully described herein. The Respondent filed an an-
swer to the complaint which denies the substantive allega-
tions of the complaint and the commission of unfair
practices.
Pursuant to due notice, a hearing was held before me at
Escanaba, Michigan, on 6 hearing days commencing May
2, 1972, and terminating May 11, 1972. At the close of the
hearing, oral argument was waived. However, helpful, post-
hearing briefs were filed with me by counsel for the General
Counsel and by counsel for the Respondent, which have
been duly considered. Upon the entire re"ord, including my
observation of the demeanor of the witnesses and argu-
ments of counsel, I make the following:
' All dates hereinafter refer to the calendar year 1971, unless otherwise
specified
2 Respondent also affirmatively pled that the complaint should be dis-
missed because it was not issued pursuant to, and in conformity with, Section
554(c)(l) of the Administrative Procedure Act (Title V, U S Code) A motion
to that effect made by the Respondent at the commencement of the hearing
herein was denied by the Administrative Law Judge
FINDINGS OF FACT
1 COMMERCE
Respondent, a New York corporation, is engaged in the
operation of several retail stores located within the State of
Michigan, including one located in Escanaba, Michigan, in
the Delta Plaza Shopping Center, which is the only store
involved in the instant proceeding. During the calendar year
1971, a representative period, Respondent's gross receipts
exceeded $500,000. During the same period, Respondent
purchased and received goods valued in excess of $50,000
directly from points outside the State of Michigan for retail
sale at its Escanaba store.
Based on the foregoing, I find that the Respondent is, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
It is not disputed, and I find, that at all times material
herein the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent opened its Delta Plaza store in September
1970.3 Upon the instigation of Mark Lippold, an employee
and a Charging Party herein, the Union commenced an
organizational campaign among the Respondent's employ-
ees about the first of February. The record reflects that the
campaign carried on by the Charging Union was quite an
active one, at least with respect to some of the Respondent's
employees. Thus there was substantial talk among such em-
ployees in the stockroom where the union activity com-
menced. Since the duties of the stockroom personnel carried
them, from time to time, to other departments in the store,
conversation among the employees in these departments
included discussions about the campaign. The employees
formed an "in-store" committee whose primary job it was,
presumably, to solicit interest in the Union among the other
employees, and members of this committee disseminated
literature to the other employees containing prounion argu-
ments.4 Commencing on February 10, the union group also
began having meetings which were normally held at a
downtown motel although some were also held at employ-
ees' homes.
The foregoing activities of the employees soon came to
the attention of the Respondent's officials who then com-
menced a counter-campaign designed to disabuse the em-
ployees of the asserted advantages of unionization. Thus,
Store Manager Semrow testified that commencing in the
early part of February until April 16, the date of an NLRB-
conducted election, he gave speeches at least once or twice
i The Delta Plaza store is characterized by counsel for the Respondent as
a "general merchandise store" as opposed to a "five and dime" store which
Respondent had previously maintained in downtown Escanaba
4 See, e g , G C Exh 2
F. W. WOOLWORTH 401
a week to employees in which the major theme was that the
Union would make a lot of promises which it might not be
able to keep but the promises which the Company made
would be kept. Several employee witnesses testified that, on
the day of the election, Assistant Store Manager Sabor
sought to persuade an employee to vote against the Union,
and on another occasion, as discussed more fully below, an
official from Respondent's district office threatened an em-
ployee that working conditions would become worse if the
employees voted the Union in.
It is in the context of the foregoing state of events that this
trier of the fact must assess the evidence proffered in sup-
port of the allegations in the complaint that the Employer
discriminated against some 12 employees because of their
union activities and also engaged in some other unlawful
conduct, such as imposing more onerous working condi-
tions on the leaders of the union movement. Respondent
denies any such motive, claiming good and sufficient busi-
ness justification for each of the allegations and, in some
cases, denied that it even knew that the affected employees
were active on behalf of the Union.
In assessing the merits of the charges, both sides recog-
nized that the determination of the credibility of the witness
is a significant factor. Resolving credibility of witnesses is
almost always a difficult and delicate task and is certainly
not less so in the instant case. I would only state that in
making such findings I have given consideration to many
factors including, of course, as above-stated, the demeanor
of the witnesses [see N.L.R.B. v. Dimon Coil Company, 201
F.2d 484, 487 (C.A. 2)], their interest in the outcome of the
proceedings, and any conflict in testimony, "along with the
consistency and inherent probability of testimony." 5 In this
regard, it should be noted that any failure to completely
detail all conflicts in the evidence does not mean that such
conflicting evidence was not considered.'
B. The Alleged Independent Violations
of Section 8(a)(I)
1. Interrogation
On the evening of April 15, the night before the NLRB
election, Jerry Hannemann, manager of the Respondent's
sporting goods department,' attended a union meeting at
the Teamsters hall. However, he was asked to leave the
meeting by the president of the Union assertedly because
the president did not want any "antiunion personnel there."
Hannemann then proceeded to a local lounge (the Jolly
Roger) for a drink. There, he met, by chance, three assistant
store managers of the Respondent, Messrs. Sweet, Jocob-
son, and Harvey.8 When Hannemann advised the three men
where he had been, the latter proceeded to question him
concerning what had transpired. Thus, it was admitted that
one of the three asked Hannemann if there were many
5 Universal Camera Corporation v N L R B. 340 U S 474, 496 (1951)
6 Bishop and Malco, Inc, d/h/a Walter's, 159 NLRB 1159, 1161
r Although Hannemann was a manager and had some directional control
over the employees who worked in the department, it is undisputed that he
was not a supervisor as defined in the Act.
8 It is undisputed that the assistant store managers, sometimes referred to
as division managers, are supervisors within the meaning of the Act
people at the meeting, and he replied no, that there were just
a few. Hannemann testified that one of the men asked him
who was at the meeting and mentioned the names of Mary
Ann Mathia, Zella Barcome, and Jane Paulin. Hannemann
answered by a yes or no, and they asked who else was there.
He responded by stating that he did not know because he
was in the back of the room and only looking at the persons'
backs-not their faces.
I find that by interrogating Hannemann as to the events
of the union meeting, as above described, Respondent inter-
fered with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act, in violation
of Section 8(a)(1)
A second incident of interrogation occurred on the day
of the election, April 16. Approximately an hour before the
polls opened, Daniel Sabor, an assistant store manager,
came into the department where Zella Barcome worked and
asked her not to vote for the Union. She replied that he
knew her views on it, but, according to Barcome's undenied
testimony, he persisted in wanting to know why she. was
voting for it. She disclaimed recollection of the reasons she
gave him and merely stated that she understood his position
but, "being an ex-school teacher, he should look at it a little
bit differently."
I consider and find that Sabor's interrogation of Barcome
on this occasion was coercive and violative of Section
8(a)(1) of the Act.
2. The alleged threat of poorer
working conditions
Gary Rogers was an employee of Respondent in its music
department. He became moderately active on behalf of the
Union, at least to the extent of attending a union meeting
around April 1. He testified that, a few days following that
meeting, he was approached while at work by C. N. Dale,
Respondent's personnel director from its midwestern re-
gional office in Minneapolis, Minnesota. With Dale at the
time, according to Rogers' testimony, was Store Manager
Semrow. Dale asked Rogers how the job was going and had
any promises been made to him when he was hired that had
not been kept by the Company. Rogers replied that he had
not been able to obtain various types of merchandise in his
department that he had wanted. Dale then made the com-
ment that, "If the union gets into this store, people will think
it's going to get a lot better. I'll tell you one thing, it won't
get better, it will get worse."
Dale acknowledged being in the store for the week prior
to the election on April 16, testifying that he arrived with
Company Attorney Hoey, but stated that he had no conver-
sation with Rogers whatsoever. He further testified, incredi-
bly in my view, that he was with Attorney Hoey "every hour
we were in the store." This implausible testimony plus the
fact that Semrow was not interrogated concerning this inci-
9 Although this latter aspect of the conversation is denied by the assistants,
I am inclined to credit Hannemann who impressed me as an honest and
forthright witness who attempted to be very particular and meticulous as to
his testimony with respect to the details of the meeting according to his best
recollection The fact that all parties presumably imbibed to some extent
alcoholic beverages does not convince me that Hannemann partially fabri-
cated the contents of the conversation or that "the incident was trivial at best
to all participants" (Resp br at p 3)
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, and the favorable impression that Rogers made upon
me as a witness, lead me to find that the conversation took
place substantially as he testified. This threat of poorer
working conditions should employees vote in the Union
clearly constitutes interference, restraint, and coercion with-
in the meaning of Section 8(a)(l) of the Act. I so find. 10
3. The alleged imposition of more
onerous working conditions
The complaint alleges that the Respondent, commencing
on or about May 14, violated Section 8(a)(l) of the Act by
assigning employees Zella Barcome, Mary Ann Mathia, and
Andrea LaRose Carlson to more onerous duties and less
desirable working conditions. The record disclosed that the
"onerous conditions" referred to the cleaning of tables and
bussing of dishes in the Respondent's cafeteria for an hour
or so each day commencing about the above date.
It appears that Respondent did, presumably because of
a May sale, experience more consumer demands in its cafe-
teria than were normal or expected. Being precluded from
hiring additional cafeteria personnel, Respondent assigned
sales personnel from other departments of the store to the
cafeteria for a short period of time each day to assist the
regular cafeteria workers in their duties. However, the re-
cord further discloses that Respondent assigned to the cafe-
teria, in addition to known union protagonists Barcome and
Mathia, known antiunion protagonists Holmberg and Nel-
son, among others. In the brief of counsel for the General
Counsel, it is argued that the latter were assigned only "after
the first week in June, on an irregular basis ." 11 However,
the fact that the employees were not assigned to work in the
cafeteria simultaneously would not seem to substantially
diminish the evidence that nonunion employees were, in
fact, ordered to perform these duties.
Under all the circumstances, I am not persuaded that the
evidence preponderates in favor of General Counsel's con-
tention that Respondent singled out prounion activists to
perform these onerous duties to the exclusion of antiunion
employees. I shall therefore recommend that this allegation
of the complaint be dismissed.
4. Alleged discriminatory application
of certain working rules relating to
clocking in and out of work
The complaint alleges that commencing on or about
April 16 and again on May 15 and thereafter "until on or
about July 1972 [sic] Respondent discriminatorily applied
certain working rules relating to clocking in and out of
10 I find no substantial evidence to sustain the allegation in the complaint
that Dale engaged in conduct which created an impression that the union
activities of the employees were under surveillance . I shall therefore recom-
mend that this allegation in the complaint be dismissedii See G C br at p 11
12 In a previous paragraph, the complaint alleges as unlawful Respondent's
subjection of employee Zella Baroome to intermittent transfers between de-
partments. However, this was not briefed as a separate violation of Section
8(a)(1) in the brief of counsel for the General Counsel. Since the complaint
also alleges that Zella Barcome was constructively discharged in violation of
Section 8 (a)(1) and (3) of the Act, the evidence in support of this allegation
will be assessed in a subsequent section of this Decision.
work, to certain of its employees because of their activities
on behalf of the Union."
In its brief, counsel for the General Counsel made clear
that this allegation is concerned solely with alleged discrimi-
natory conduct of Respondent as applied to Mark Lippold,
one of the Charging Parties and an alleged discriminatee
herein. Such being the case, the evidence in support of this
allegation will be considered and assessed in the section in
this Decision relating to the alleged discrimination in regard
to this employee.
C. The Alleged Violations of Section 8(a)(3)
1. The alleged constructive discharge of
Mark C. Lippold
Lippold commenced working for the Company shortly
before the store opened in September 1970 as a general
stockboy. He was later also assigned to checking in freight
and unloading trucks. His job in the stockroom required his
presence from time to time in all other departments of the
store, delivering merchandise.
Around the end of January, Lippold commenced talking
with some of the other employees about starting a union
campaign in the store and about February 1 contacted the
union representative by telephone. Shortly thereafter,
Union Representative Schael met with Lippold at the
latter's house and gave him some union cards. Lippold
showed them to some of the stockroom employees the fol-
lowing day and thereafter talked about the union to other
employees in the store. A union meeting was planned for the
evening of February 10 at a local motel.
There appears to be no question but that Lippold's activi-
ties soon came to the attention of Respondent's officials, for
on the afternoon of February 10 he was called into Store
Manager Semrow's office and given a written warning as
follows:
This is to warn you that you are to stay on the job and
to do the work assigned you. You are not permitted to
bother the girls about meetings or other matters not
pertaining to your work and if this continues you will
be discharged immediately.
Lippold was discharged the following day, apparently for
soliciting union memberships on company time, such termi-
nation being the subject of an unfair labor practice charge
filed on Lippold's behalf. However, pursuant to an agree-
ment between the Union and Respondent's attorney, to
which the NLRB was not a party, Lippold was reinstated
to his former job on May 3 with seniority rights, but no
backpay. i3
Upon his return to work, Lippold was placed on a differ-
ent schedule which required his working some evenings and
Saturdays. In addition to his stockroom duties, he was also
required to do such chores as sweeping, cleaning, scrubbing,
emptying wastebaskets, and small repair jobs. He explained
that, although he had performed these duties on a sporadic
basis prior to his original discharge, such assignments upon
his return were much more frequent. Upon Lippold's com-
13 Gerald Pyke, an employee in the stockroom, was laid off by Respondent
to make room for Lippold . He is an alleged discnmmatee in this proceeding,
and his case will be considered, infra
F. W. WOOLWORTH
plaint respecting the change in his scheduled work hours,
Respondent, several seeks thereafter, returned Lippold to
his former schedule.
The record reflects that upon his return to work Lippold
commenced receiving several written warnings respecting
his activities in the store. Thus, 2 days later, on May 5,
Personnel Director Kalm issued Lippold a written warning
as follows:
Warning to Mark Lippold-visiting with people as
they come into the stockroom. Complaining about his
work hours. 14
Kalm testified that she observed Lippold talking to other
employees as they came into the stockroom. Although she
did not recall what the subject matter of such conversations
was, she nevertheless testified that she didn't know "if he
would stop working, but he would be talking to them [em-
ployees] about subjects other than work." However, the
record does not reflect that Respondent had any rule which
prohibited employees from talking with one another during
working hours.
On May 15, Lippold received another written warning
which was signed by Store Manager Semrow, assertedly
because Lippold punched out 12 minutes early without per-
mission 15 and did not complete his assignment of emptying
garbage cans and sweeping out the "checkouts." Lippold
acknowledged that he had made a mistake in punching in
and out early, claiming that , at the time , he worked two
schedules which varied from week to week byl5 minutes
and he mistakenly thought he was on a different schedule.
The next written warning Lippold received was dated
June 2 and signed by Personnel Director Kalm. The cause
of this warning was stated on the document: " Eating ice
cream bar and smoking cigarettes on job." 16 Lippold was
called into Semrow's office concerning this alleged infrac-
tion, and he admitted to Semrow that he had been eating
and smoking while unloading a truck on the outside ramp.
However, Assistant Store Manager Jacobson claimed that
Lippold was sitting on a box in the stockroom, that there
was a truck backed up to the store and a truckdriver stand-
ing in the truck, and that Lippold was smoking a cigarette
and eating an ice cream bar. Apparently, Jacobson did not
say anything to Lippold or anyone else in the stockroom but
immediately reported the incident to Semrow who instruct-
ed him to write a warning to Lippold.
The last written warning issued to Lippold was on July 11.
It was for "taking break at wrong time-one hour late."
Lippold acknowledged that it was correct but sought to
explain his conduct by stating that it was commonplace for
the stockroom employees to take their breaks whenever they
could "fit them in" and on that particular occasion he took
his break an hour later than scheduled because he had
"come in off dinner later," and to take his break at the
scheduled time would have been "awful early." Lippold also
claimed that he notified the stockroom supervisor, Cleo
Layman, before he departed from the work schedule.l"
14 Resp. Exh 2
15 At all times material, Respondent had a posted rule which stated.
Employees are required to punch in within 5 minutes of their scheduled
starting or quitting time for work and meal periods [G C Exh. 51
16 G. C. Exh. 3-B
403
Lippold returned to the stockroom quite angry at the turn
of events and commenced complaining and swearing about
the treatment which had been accorded him. He was there-
after called into Kalm's office where Jacobson, Sweet,
Kalm, Paradis, and Semrow were present. The latter asked
Lippold if he had been swearing in the stockroom and Lip-
pold admitted that he had. Semrow said that he "wanted it
stopped" and directed Lippold to return to work. Lippold
returned to the stockroom but was still mad because, as he
testified, he "thought it was pretty unjust." He requested to
speak to Semrow again but Semrow refused to talk with
him. Whereupon, Lippold stated that if Semrow would not
talk with him Lippold intended to quit. Semrow stated that
he would accept Lippold's resignation and directed him out
of the store.
Analysis and Concluding Findings as to Lippold
In assessing the merits of this aspect of the case, it is
necessary to recall the context in which the circumstances
arose . Thus, as detailed above, Lippold was known to be the
leading instigator of the union campaign in the store, to
which the Respondent was unalterably opposed. He had
been discharged previously for engaging in union activities
on company time, which discharge resulted in the filing of
an unfair labor practice charge. However, no complaint was
issued on that charge because of an informal agreement
which was worked out between the Union and the
Company's attorney and which resulted in the reinstate-
ment of Lippold, without backpay, in return for the Union's
withdrawal of its objections to the election. During the next
2 months of his employment, Lippold was subjected to the
imposition of altered and more onerous working conditions,
as well as being disciplined for alleged violations of work
rules which either did not exist or were so trivial in nature
as to legitimately result in his feeling belligerent and im-
posed upon. While any of these incidents standing alone
could not be said to constitute an unjust harassment of an
employee, it appears, in my judgment, that a pattern of
harassment emerged on which a reasonable inference
could be drawn that Respondent sought the result of its
conduct, i.e., Lippold's quitting his employment.
Thus, as outlined above, on his return to work on May
3, Lippold was faced with a new schedule of hours and
additional and more onerous duties, along with disciplinary
oral and written warnings concerning conduct which was
either honored more in the breach than in observance or
trivial misconduct at best. For example, even were I to
credit Jacobson rather than Lippold as to where the latter
was smoking on June 2, I believe that, were another motive
not present in Jacobson's mind, he would have simply di-
rected Lippold to step outside on the ramp if he wished to
smoke , warned Lippold himself, or directed Department
Head Layman to speak with Lippold concerning this dere-
liction , rather than quickly report the incident to Store
Manager Semrow and create a cause celebre about it. This
particularly in the face of Layman's testimony that she had
never seen Lippold smoke in the backroom.
17 it appears that the work schedules are made up and posted by the
personnel manager 2 weeks ahead of time These work schedules refer to
starting time , quitting time , lunchtime , and breaktime
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the latter two written warnings issued to Lip-
pold during this period were written out and signed by
Kalm prior to Lippold's being confronted with the alleged
dereliction, which procedure was in direct contravention to
Kalm's testimony concerning the manner in which she han-
dles written warnings. Thus she testified that her normal
procedure after she hears a complaint about an employee is
to call the affected person into her office and listen to his
side of the story before she determines what to do. She then
testified as follows:
Q. And, if you determine, at that point, to issue a
written warning, is a written warning issued after you
speak to them?
A. The written warning is issued after I have spoken
to them, yes.
Q. After you get their side of the story.
A. Yes.
Such decisions to impose disciplinary action on an em-
ployee without giving him the opportunity to explain his
side of the story, particularly where such conduct conflicts
with announced policy, has been held to be evidence of
discriminatory intent. See Rockingham Sleepwear, Inc, 188
NLRB 698, enfd. 80 LRRM 3180 (C.A. 4, 1972); see also
United States Rubber Company v. N. L. R. B , 384 F.2d 660,
662-663 (C.A. 5, 1967).18
For the foregoing reasons, I find that substantial evidence
on the record supports the contention of counsel for the
General Counsel that Mark C. Lippold was constructively
discharged by the Respondent on July 11, in violation of
Section 8(a)(3) and (1) of the Act.
2. The discharge of Mary Ann Mathia
This employee commenced work for the Company in
September 1970, in the men and boys' department, where
she worked until her discharge in September 1971. The
Company contends that it discharged Mathia for cause; i.e.,
because she left her employment during the last 2 weeks in
August without permission.
It is undisputed that Mathia was one of the most active
protagonists for the Union during the campaign in the
spring and that this was known to the Company. Thus, she
was a member of the "in-store committee," held meetings
at her house, signed the committee letter to all other em-
ployees exhorting them to vote for the Union, and was an
observer for the Union in the election.
On or about August 5, Mathia asked Personnel Director
Kalm if she could have 2 weeks' personal leave in order to
take her husband to a hospital in Detroit for tests. Accord-
ing to Mathia's testimony, Kalm answered affirmatively but
requested Mathia to remind her a week or two before Mat-
hia left.
On or about August 11, Mathia was called into the per-
18 I have also considered as evidence bearing on discriminatory intent the
fact that the record reflects that no employee other than Lippold received a
written warning for violating the rule relating to early or late punching of the
timeclock I note that the timecards of Gerald Pyke (Resp Exhs 8-17) reflect
derelictions in this regard yet no written warnings were issued to him I
therefore find, in accordance with the contention of counsel for the General
Counsel, that the Respondent discriminatorily applied this rule in violation
of Section 8(a)(3) and (I) of the Act
sonnel office in the presence of Personnel Director Kalm,
Associate Store Manager Parades, and Assistant Store Man-
ager Harvey. She was there accused of "pulling too many
wrong warehouse tickets" and having a wrong attitude for
the job, coupled with an inferiority complex. Mathia ac-
cused the management officials of "trying to get rid of [her],
but [she] didn't think they would stoop that low." She re-
ceived a written warning on that occasion. The following
day, August 12, Mathia was putting some shirts away at the
direction of Department Manager Ingram when Assistant
Store Manager Jacobson asked her to vacuum a rug right
away. She told Jacobson she would get the rug vacuumed
as soon as she finished putting the shirts away. The follow-
ing day she was called into Kalm's office respecting the tone
of answering Jacobson and about being out of her depart-
ment on company time. Mathia explained that she was on
her break at the time. When Kalm wanted to know why she
was taking her break at that time, she explained that she had
the permission of Ingram. Whereupon, Kalm told her that
Ingram was not her boss-that she should see Kalm about
changing a breaktime. Apparently, no written warning was
issued to Mathia on this occasion.
On August 18 Mathia advised Kalm that she (Mathia)
would be leaving on August 22 and was reminding Kalm of
that fact as the latter had requested. Kalm stated that Mat-
hia would have to have permission "okayed" by either Par-
adis or Semrow. Parades was walking out of the office at that
time, and Mathia approached him about it. He stated that
he did not see how the Company could let her go because
it was back-to-school time and stated, "Well, why don't you
wait until Friday when Mr. Semrow comes back, and talk
to him." She spoke with Semrow the following Friday and
he denied her request stating that, "I don't see how we could
let you go." However, Mathia stated that she intended to go
and that she would be back around September 3 or 4. Mat-
hia, in fact, did take leave from August 21 until September
4. When she returned Semrow advised her that she no lon-
ger had a job with the Company.
Analysis and Concluding
Findings as to Mary Ann Mathia
Counsel for the General Counsel argue that following the
election Respondent planned the same course of action
against Mathia-a known union reader-that it did against
Lippold. Pointing to the onerous duties imposed on her, i.e.,
bussing dishes, cleaning out the stockroom in her depart-
ment, etc., plus harassment concerning her alleged nonper-
formance of duties assigned to her and/or displaying a
"wrong attitude," General Counsel argues that Respondent
sought to make life so unbearable at the store that Mathia
would quit. However, the fact is that Mathia did not quit but
chose to continue working for Respondent, albeit with more
unpalatable working conditions being imposed on her. The
fact is that she took off for 2 weeks without permission and
that Respondent had a good reason for not granting such
permission; i.e., it was certainly one of the busiest times of
the year in her particular department. It is true, as General
Counsel argues, that Respondent perhaps could have as-
signed another employee from another department which
was not so busy to fill in for Mathia. But this Board was not
F. W. WOOLWORTH
established to second guess an employer's business judg-
ment on such matters , and I cannot find a factual basis for
holding that it was incumbent on Respondent to do so on
this occasion although there is evidence that employees
were transferred for short periods-perhaps an hour or
two-between departments. Further, the fact that Kalm
and Jacobson took their vacation during the week of August
23 to 29 does not, in my view, diminish the cogency of
Respondent's defense since they were supervisory personnel
with no sales duties which Respondent required. For similar
reasons, I reject the contention that Respondent could have
spared the services of Mathia because it granted Loretta
Delveaux and Dorothy Wall a vacation during this week.
Delveaux was head of the cosmetics department and the
record does not disclose placement of Wall; I agree with
Respondent's contention that there is little similarity "in the
business needs for a cosmetician as opposed to an experi-
enced sales clerk in men and boys' at back-to-school
time." 19
For the foregoing reasons, I find that General Counsel
did not sustain his burden of proving that Mathia's dis-
charge was discriminatorily motivated in violation of the
Act. I shall therefore recommend that this allegation of the
complaint be dismissed.
3. Andrea LaRose Carlson
Carlson was employed by the Company at the end of
August 1970 and worked continuously until January when
she was laid off for 3 weeks for lack of work. She was
subsequently recalled around February 1 and assigned to
the men and boys' department. Subsequently she was trans-
ferred to the candy department where she worked until she
was laid off or discharged on October 8. Respondent con-
tends that she was terminated because she made errors in
the cash register she was operating.
Carlson's union activities consisted of signing a union
card, attending several union meetings, and talking with
other employees about the Union. On election day she ad-
vised Assistant Store Manager Sweet, in response to his
urgings, that she did not intend to vote against the Union.20
As previously indicated, Carlson was discharged on Octo-
ber 8 assertedly for cash register errors. According to the
testimony of Assistant Store Manager Jacobson, the store
had a "moonlight madness" sale on or about October 6.
During that time, Carlson operated cash registers on which
she did not normally work. Shortages of approximately $40
each showed up on these registers. This also occurred at a
time when, according to Jacobson's testimony, Carlson was
engaged to be married and she advised Jacobson that she
had tried to borrow $500 but had been turned down.
Jacobson, along with Assistant Store Manager Harvey,
determined to "set up" Carlson on a cash register for a short
period of time for the purpose of determining her accura-
cy.21 Carlson operated the machine for a short period of
19 Resp br at p 32
20 Testimony of Carlson Sweet acknowledged , on cross-examination, that
"Andrea did indicate she was for the Union "
21
A setup merely means that prior to a test the money in a cash register
is counted and the tape is marked, the operator is allowed to operate the
405
time and excused herself to go to the ladies' room. At that
time the register was read by Jacobson and, according to his
testimony, was found to be $1.80 short. She returned and
operated the register for a second time after which Jacobson
and Harvey reread the machine and it was found to be $6
short over a period of approximately 30 minutes. Mrs. C irl-
son was returned to her job in the candy department while
Harvey and Jacobson reported the incident to Semrow. It
was then determined that Carlson would be discharged that
day and she was in fact terminated by Personnel Director
Kalm at the end of the workday. Carlson was not accused
of dishonesty but was, as previously indicated, discharged
for cash register error.
Several days later, in the course of checking cash register
receipts on a weekly basis, head bookkeeper Audrey La-
Chance noticed that the cash register on which Mrs. Carlson
worked had balanced out through the week and had actual-
ly shown about $2 ahead.22 LaChance reported this to Sem-
row, but the latter took no action. Mrs. LaChance
acknowledged that it was possible that Mrs. Carlson made
the error attributable to her even though the register bal-
anced over the week because of offsetting errors.
Analysis and Concluding Findings as to
Andrea LaRose Carlson
As I understand the theory of the General Counsel on this
aspect of the case, the reason advanced by Respondent for
the termination of Mrs. Carlson is pretextual because of
lack of sufficient evidence that she either (1) made an error
in the cash register, or (2) even if she did, she would have
been terminated had it not been for her union activities. I
cannot agree . Thus, even though there is some ambiguity in
evidence with respect to the exact amount which was short
in the register which Mrs. Carlson operated during the "set-
up," I am not prepared to find that the records were falsified
in order to find an excuse for Respondent to rid itself of this
employee. It is to be recalled that, in the first instance, the
union activities of Mrs. Carlson were moderate and that
there is no direct evidence that even those activities came
to the attention of Respondent until the day of the election
when, as indicated, she advised Sweet that she would not
vote against the Union. Thereafter, for a period of approxi-
mately 6 months, she was not-unlike the cases of Lippold
and Mathia-subjected to any type of harassment such as
imposition of more onerous duties or issuance of written
warning slips for innocuous derelictions of duty. Thus, there
is a paucity of evidence in this record on which I might base
a finding that Respondent harbored ill will against this par-
ticular employee for such a length of time before " setting
her up" for discharge.23 It is true that suspicions are aroused
when one considers the record evidence that cash register
register in a normal procedure for a period of time after which the register
is reread and balanced with the cash If the tally and the cash are not in
balance following the test, the errors are naturally attributable to the operator
(unless there is something wrong with the cash register itself.)
22 She noticed this particular register because she had heard that Mrs
Carlson had been fired around October 8 because her register had been short,
and she was interested in the matter since Mrs Carlson was a friend of Mrs
LaChance's daughter
23 See, e g, G & S Metal Products Company, Inc, 198 NLRB No 65
(Hornyak)
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shortages are not infrequent occurences at Respondent's
store and that Respondent made no effort to investigate and
thereafter discipline employees who made the errors in the
cash register on which Carlson worked which had the effect
of "balancing" her errors by the end of the week. But the
burden of proof is, of course, on the General Counsel-not
the Respondent. An employer may discharge an employee
for any reason or no reason so long as the motivating one
is not union activities. I find that the General Counsel did
not sustain his burden of proof on this aspect of the case and
will therefore recommend that the complaint, to that extent,
be dismissed.
4. The discharge of Raymond Brault
Brault worked for the Respondent from June 1969 until
he was discharged on May 12. Thus, he was employed at the
Respondent's "old store" in downtown Escanaba from the
inception of his employment until the Delta Plaza store
opened in September 1970. He worked as a stockboy in the
stockroom during his term of employment and was in fact
in charge of that department for a period of time prior to
Cleo Layman's assuming control in November 1970.
Brault became involved in the union campaign shortly
after Lippold (a fellow stockroom employee) instigated it.
Thus Brault testified that he and Lippold, and some of the
other employees in the stockroom, would decide who
among the employees would likely be for the Union and
who would be against. Thereafter, he contacted many sales
personnel concerning the matter (since, as above-noted, the
job of a stockboy required his presence all over the store)
and attended several union meetings where he signed a
union card.
On May 12, the day of his discharge, Brault was working
in the stockroom in the afternoon when he became hungry.
He went over to the candy counter and picked up a package
of "corn curls" or "cheezies." He testified that there was no
one at the cash register at the time so, having the right
change in his pocket, set the change on the cash register and
returned to the stockroom. 4 Thereafter, he ate some of the
"cheezies," but was subsequently called out to the sales
floor. Accordingly, he put the package underneath his jack-
et in the stockroom (so that other employees would not eat
from the package) and left. When he finished his work and
returned to the stockroom to pick up his jacket, Store Man-
ager Semrow and Assistant Store Manager Jacobson were
standing there. Semrow asked Brault what he was doing
with the package of "cheezies." Brault replied that he had
bought them. Semrow inquired if Brault had a receipt for
them to which Brault responded in the negative, explaining
that the girl was not at the cash register at the time and that
he had put the money on the cash register. Semrow asked
if Brault was not aware that all employee purchases were
supposed to take place at the accommodations desk and
Brault responded that he did not feel that the value of the
merchandise was worth the discount25 Semrow responded
24 The cost of the article was 29 cents
25 It appears that it was a policy of Respondent that all employee purchases
should ordinarily be made at a place called the "accommodations desk,"
where the employee would receive a discount However, the record estab-
that that was no excuse-that he should have a receipt for
all purchases. Semrow further advised that Brault should
collect his pay and not report to work the next day.26
Analysis and Concluding Findings as to the
Discharge of Ray Brault
In support of its position that Brault was discharged sole-
ly for the reason of his theft of the 29-cent "cheezies,"
Respondent points to several omissions of proof in the Gen-
eral Counsel's case which it asserts are critical and determi-
native. However, I find neither of these points persuasive,
and therefore, for the reasons hereafter stated, I find and
conclude that Respondent's defense is pretextual and that
the real and motivating reason for the discharge was
Brault's union activity which Respondent strongly opposed.
Respondent first asserts that it had no knowledge of
Brault's union activities. It is true that there is no direct
evidence of such knowledge, but the Board has disagreed
with a trial examiner's findings that "direct knowledge of an
employee's concerted or union activities is a sine qua non for
finding that he has been discharged because of such activi-
ties. On the contrary, there is well established Board and
court precedent that such knowledge may be inferred from
the record as a whole [citing cases]." 2 Thus, the record
reflects that the union campaign had its inception in the
Respondent's stockroom and both Brault and Lippold testi-
fied as to their direct involvement in it, which included
speaking with other employees both in the stockroom and
out on the sales floor where their work, at times, required
them to be. As the evidence shows that the assistant division
manager is consistently present in his respective area, I find
it to be a reasonable inference that such organizational
activities soon came to Respondent's officials' attention.
Indeed, as previously disclosed, Respondent's knowledge
was initially shown as to Lippold who was originally dis-
charged for engaging in such activities. Accordingly, I find
and conclude that by the time of his discharge, Respondent
was aware of Brault's activities on behalf of the Union.
Respondent seeks to minimize the record evidence that it
was not an infrequent occurrence for employees as well as
supervisors to pick up a piece or two of candy or other such
snack from time to time and pay for it by cash rather than
the employee-discount method above described and, if a
cash register was not manned at the particular time, to leave
change on top of the till. Respondent's management offi-
cials not only were aware of such practice but participated
in it . Accordingly, I find that the Respondent seized upon
this incident to justify its riddance of an active union adher-
ent2s
But Respondent, citing N.L.R.B. v. Ogle Protection Ser-
lishes that on small items, where such discount would be practically meaning-
less, it was common practice for employees to pay the regular price for
merchandise at a cash register
26 The conversation took place at approximately 9 15 p in, the end of the
working day
27 Wiese Plow Welding Co, Inc, 123 NLRB 616, 618, See also F W
Woolworth Co v NLRB, 121 F 2d 658, 660 (C A 2, 1941)
28 1 am particular unpersuaded by Respondent' s argument in its brief (p
37) wherein it seeks to distinguish between an innocuous purloining of a
5-cent candy bar or small piece of bulk candy with a "large package of
'cheeses' which had a purchase price of 29 cents "
F. W. WOOLWORTH 407
vice, 375 F.2d 497 (C.A. 6, 1967), asserts that the Board
cannot substitute its judgment for that of the employer as
to what constitutes reasonable grounds for discharge. That
is true, as I have previously found above with respect to the
case of Mary Ann Mathia. However, as the Court of Ap-
peals for the Tenth Circuit has stated (citing a Trial
Examiner's Decision):
... in determining whether the Company really dis-
charged [the employee] for that statement, it is fair to
weigh all the facts, including not only the anti-union
animus of the Company, but the seriousness of the
offense, for if the offense be minor, it is reasonable to
infer that the severity of the penalty had its source in
some conduct beyond the offense. 2
Finally, Respondent argues that, if it wanted to seize
upon something to rid itself of Brault, it could have dis-
charged him as a result of an alleged incident of insubordi-
nation which occurred during the height of the union
campaign in early April. That incident resulted from an
accusation by Division Manager Jacobson that Brault left
unguarded some merchandise on the stockroom ramp.
Brault asserted that he knew nothing about it, and an argu-
ment ensued which resulted in Jacobson's ordering Brault
to go home. However, the next day, Associate Store Manag-
er Paradis, after investigating the incident, persuaded Brault
to return to work, the reasonable inference being that Par-
adis believed that Brault's conduct did not warrant a written
reprimand. Under the circumstances, it would seem that
such incident would indeed provide a slender reed on which
Respondent might sustain a discharge of an active union
member.
Based on all of the foregoing, I find and conclude that the
discharge of Ray Brault by the Respondent, on May 12,
constituted a violation of Section 8(a)(3) and (1) of the Act,
and I will recommend an appropriate remedy.
5. Gerald Pyke
Gerald Pyke worked for the Company in the stockroom
from the end of August 1970 until he was laid off on May
3. His layoff was occasioned by the return to work of Mark
Lippold, as described above, Pyke being the lowest man on
the seniority totem pole. When Store Manager Semrow laid
off Pyke, the latter asked for any kind of work- full-time
or part- time .30 However, Semrow told him that there were
no openings and there were not likely to be any in the near
future.
Nevertheless, Pyke returned to the store in the late sum-
mer and spoke with the stockroom manager , Cleo Layman,
who advised him that she thought the Company needed
29 Belts Baking Co, Inc v. NL.R B, 380 F 2d 199, 205 (C.A. 10, 1967).
Sabine Vending Co. Inc., 147 NLRB 1010, 1015, also cited by Respondent,
is distinguishable upon its facts Indeed, in that case it appeared that the
discharge had occurred only after the company had given the alleged discri-
minatee "another chance" following a first incident of alleged theft. Here the
Respondent summarily discharged an employee of relatively long-standing
service with the Company, who had for a time been in charge of the stock-
room , and whose record was unblemished with respect to any such similar
conduct in the past . Accordingly, I find singularly unconvincing Semrow's
testimony in,lustification of Brault's discharge that "I've been in this business
25iears, and I have a pretty good jump on who is stealing and who isn't "
Credited testimony of Pyke
help. However, when he later talked to Personnel Director
Kalm, the latter refused to hire Pyke, testifying that she did
not do so "because Semrow told her not to." She further
testified that there was no opening at the time because it was
shortly after the Company hired a new employee-Doc
Swagart.
Pyke returned to the Company in November seeking em-
ployment and talked to Personnel Director Kalm who re-
ferred him to Store Manager Semrow. The latter stated that
he would let Pyke know something in a few days, but noth-
ing transpired from that interview.31
The record reflects (G.C. Exh. 14) that on May 18 the
Company hired as a part-time stockroom employee one
Ron Oberg and that on July 29 Respondent hired two part-
time stockroom employees, Greg Gardner and Eugene Lay-
man.
Analysis and Concluding Findings
as to Gerald Pyke
Although Pyke's union activities could not be character-
ized as outstanding, the record reflects that he did attend
approximately three-quarters of the union meetings, includ-
ing the first one on February 10. For the reasons heretofore
expressed with respect to the case of Ray Brault, I find that
the Respondent thereafter became aware of Pyke's activities
in this regard, and was certainly cognizant on May 3. While
I find unsustainable the contention of the General Counsel
that Pyke's layoff was discriminatorily motivated (being
induced as it was by the return of union leader Lippold), I
find, contrary to Respondent's contention, that Respondent
was prompted by discriminatory motivations in failing and
refusing to recall or rehire Pyke thereafter. Thus, Stockroom
Manager Cleo Layman, whom I have found to be a credible
witness, testified that Pyke was a good worker during his
time of employment with the Company. Although Semrow
testified to the contrary, I find his testimony incredible in
view of the fact that Pyke had worked for the Company
since August 1970 without any record of oral or written
warnings concerning his alleged poor work.32 Moreover,
Personnel Director Kalm testified that the Company pre-
ferred to hire employees who previously worked for the
Company rather than new employees and has made efforts
to contact them if there is an opening.
Accordingly, for the reasons expressed, I find that
Respondent's refusal to rehire or recall Gerald Pyke from
on or about May 18 (when it hired Ron Oberg) was because
of Pyke's union activities and in violation of Section 8(a)(3)
and (1) of the Act.
6. Jane Paulin
This employee commenced working for the Company in
September 1970 as a saleslady in the candle shop and artifi-
31 On November 23 the Company ran an advertisement in the local news-
paOer for maintenance help
2 1 also consider significant as bearing on the issue of discrimination the
testimony of Kalm that she offered Pyke part-time employment at the time
of his layoff, which he refused because "he was out of school, and had to have
full time employment" This appears inconsistent with Semrow's position
that Pyke was not recalled because he was "big and slow and . not . .
a good worker "
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cial flowers. She also made signs for the entire store. She was
discharged on June 25 assertedly for not working an extra
hour on that Friday night 33
In May or early June, a competitor of the Company
opened a store in the Delta Plaza Shopping Center. This
competitor maintained store hours which exceeded those of
the Respondent; accordingly, Respondent made plans to
extend its store hours from the regular closing time of 9:15
p.m. to 10:15 p.m. When this was announced to the
Respondent's employees around the middle of June, there
was "a general uproar" from the regular (as opposed to the
part-time) employees. As a result, Respondent sought to
secure the complement of employees to work the extra hour
first from the part-time employees, second from the regular
workers who were second employees in their department,
and third from the department heads.
On June 18, the first night that Respondent worked ex-
tended hours, Paulin was not requested to work. However,
the following Friday night, February 25, she was. Her regu-
lar schedule of hours that day was from 12:15 p.m. until
9:15 p.m. However, about 6:30 p.m. she was advised by
Assistant Store Manager Sweet that her name was on a list
of employees who were scheduled to work the extra hour
that night. Paulin protested that she thought it was settled
that the school girls were the ones who were going to work.
Sweet advised that she would have to talk to Associate Store
Manager Paradis about that since her name was on the
liSt.34
At approximately 7 p.m., Paradis spoke with Paulin con-
cerning the matter and, according to his testimony, ex-
plained the situation to her: to wit, that she was the second
girl in the department and "that [they] had tried to do our
best in this. And, that this was the way the schedule was set
up now, and [he] would appreciate it if Paulin would work
until 10 o'clock this evening." Paradis testified that Paulin's
attitude was belligerent and that she absolutely refused to
work either that night or the following Saturday night, but
that he continued to attempt to explain to her that the
Company did not have enough part-time people and that it
was necessary for her to work that evening. He denied that
Paulin gave any explanation at all for her refusal to work.
On the other hand, Paulin claimed that she told Paradis
that the reason that she could not work was because her
babysitter was scheduled to work only until 9:30 p.m. and
that it was therefore impossible for her to stay later than
that. I credit Paulin on this issue since , in addition to demea-
nor considerations, I deem it highly implausible that, after
Paradis went to great lengths to explain the Respondent's
position, she would adamantly fail or refuse to state her
reason. The record reflects that several months before, Pau-
33 There is no issue of Paulin's preeminence in the Union's organizational
campaign or Respondent's knowledge of it She was one of the four employ-
ees who signed the letter in February addressed to fellow employees urging
them to support the Union (G C Exh 2)
34 It appears from the testimony of Sweet that Paradis was the official of
Respondent who selected the list Thus, Sweet testified that at about 4 p m
that day it was discovered that there were not enough employees scheduled
to work the extra hours, that he drew up a list of employees who were
scheduled to work until 9 p m and took the list to Paradis who chose 10 of
the approximately 20 people on Sweet's list who would be required to work
the extra hour
lin had advised Personnel Director Kalm of her babysitting
problems, so that Respondent was not entirely unaware of
the situation.
Paulin left work without further notice at 9:14 p.m. Par-
adis learned of her departure that evening and decided to
discharge her. When Paulin came in to work the next day
she found her timecard missing and had a conversation with
Paradis, who called in Supervisor Harvey as a witness. At
that time Paradis advised Paulin that she no longer had a
job with the Company. Both Paradis and Harvey testified
that Paulin, in the exit interview, made the claim for the first
time that she had babysitting problems. I do not credit their
testimony for the reason set forth above.
Analysis and Concluding Findings
as to the Discharge of Jane Paulin
It is the theory of counsel for the General Counsel on this
aspect of the case that Respondent, being aware of Paulin's
preeminence in the union campaign to which it was unalter-
ably opposed, and knowing of Paulin's babysitting problem,
assigned Paulin to the extra hour of work fully aware of the
difficulty she would have in complying therewith and hop-
ing that she would quit her employment. When she did not
do so, but instead left after her regular hours after having
earlier put Respondent on notice that she could not work
longer, she was discharged. Respondent, of course, takes the
position that it was fully justified in discharging an employ-
ee who left the store without specific notice and without
assertedly proffering a reason therefor until after the fact.
I am inclined to believe that the evidence supports the con-
tentioii of the General Counsel.
Thus, irrespective of which side one chooses to credit,
there is no dispute that at least as of approximately 7 p.m.
that evening Respondent's officials were definitely apprised
of Paulin's strong objection to working longer than her
regular schedule of hours It is clear that other employees
were available and willing to work the extra hour had Re-
spondent sought to avail itself of their services. Thus, as
pointed out above, Sweet presented Paradis a list of approx-
imately 20 employees who were present and presumably
available to work, of which Paradis chose 10. He made no
effort, following Paulin's objection, to ascertain whether
any of the other employees were willing to work. Moreover,
the evidence discloses that on this particular day, Corrine
Cayer left work at approximately 7:19 p.m., explaining to
Paradis that she and her husband were in the process of
refinancing their home and that this was the only time her
husband was in town, and requesting permission to leave
the store. Paradis granted the permission, but received a
telephone call later in the evening at approximately 8:45 in
which Cayer asked whether Paradis needed her and he re-
sponded, "No, we don't need you this evening." Paradis
testified that he further told Cayer that by the time it would
take her to get back to the store there would be only a few
minutes left. However, he later admitted that he was un-
aware where Cayer had placed the telephone call and that
it could have been placed by her in downtown Escanaba
which was only 10 minutes away from the Delta Plaza store.
Furthermore, the record reflects that Paradis had as-
signed Paulin to work in the music department (which was
F. W. WOOLWORTH
not her regular department ) for the extended period. Yet,
Virginia Reubens , who had at one time worked in the music
department and was working that night until 9 : 15 p.m., was
not requested to work the extra hour even though Paradis
admitted that at one time she complained about not work-
ing that hour . Finally, the evidence reflects that Paradis
allowed one employee (Dahlquist) to leave early although
he was previously requested to work the extended period.
Under all of the foregoing circumstances , it would seem
reasonable to infer , and I find , that had Respondent ear-
nestly been seeking an employee to work in the music de-
partment rather than harboring the motive ascribed to it by
the General Counsel , at least some effort in the directions
pointed out would have been made . This seems to be con-
firmed by the admission of Paradis that he made the deci-
sion to discharge Paulin prior to giving her an opportunity
to explain her actions , 35 or considering a lesser penalty as-
suming that he received her explanation after the fact.36
Accordingly, for all of the reasons hereinabove set forth,
I find and conclude that by discharging Jane Paulin on June
25 Respondent violated Section 8(a)(3) and (1) of the Act,
and I will recommend an appropriate remedy.
7. Zella Barcome
Barcome commenced work at the Company on Septem-
ber 4, 1970, and quit on May 14. She first worked as a
saleslady in the rug department and in January was trans-
ferred to the lamp department . In addition to her sales
duties , she was required to help with ordering items which
included lamps , kitchen clocks , frames, mirrors, etc. As was
company policy, whe also was required , from time to time,
to help out in other departments as the need arose.
There is no dispute that Barcome was one of the more
active participants in the union campaign and that the Com-
pany soon became aware of it . Thus, she was one of the
signers of the letter disseminated to all employees urging
them to vote for the Union.
It appears that several weeks after her transfer into the
lamp department , Barcome became dissatisfied because she
was unable to keep up with all of her work . That is to say,
as she expressed it, the department "was pretty much of a
mess . . . there had been too many transfers and too many
employees working there that hadn ' t set it up right. And, I
didn't know anything about ordering for that department.
I didn't like being responsible for something I didn't know
what I was doing . And, so I asked for help , or said I was
going to quit ." Thereafter , as she testified, "Mr. Semrow
and Mr. Paradis and Mr. Sabor started helping me to do
some of the ordering ." As a result she became "a little more
confident of myself, at this time." However , in April, Re-
spondent commenced assigning her to more work in other
departments , such as in fabrics and in music , and to operat-
ing cash registers on the other end of the store. She was thus
being sent out of her department more than she was in it.
Accordingly, as might be expected , the appearance as well
as the work required in her department suffered . She com-
35 See Rockingham Steepwear. Inc. 188 N LRB No 110. United States
Rubber Company v N L R B, supra
36 Betts Baking Co, Inc v N L R B. supra
409
plained again to Mary Stemick , the head of her department,
and to Kalm and Sabor. The latter were sympathetic, but
did not at this time offer to or procure any help. On the
contrary, Barcome proceeded to receive additional assign-
ments, this time bussing dishes in the cafeteria.
On the night before she quit, she received a telephone call
at home from Department Head Mary Stemick who advised
her that Store Manager Semrow had remarked that the
towels in the department were "messy." Semrow had appar-
ently told Stemtck that it was strange that the towels were
in that condition because he had only told Barcome the
night before to straighten the department before she left.
Barcome had done that but, since there was no one there in
the morning , the towels apparently became messed at that
time. In any event , it was in this context that Kalm advised
Barcome that she had been selected to help bus dishes and
clear them in the restaurant . Barcome advised her of the
towel incident and rejoined that she was not "spending
enough time in my department , and [she] did not see how
she could cover the kitchen, too, or be on call there." How-
ever, Kalm advised that she would be on call by the manag-
er of the kitchen and, further, that she did not consider that
Barcome's department needed a full-time girl; whereupon,
Barcome reminded her that only a short time before-when
Barcome had asked for part-time work-Kalm had refused,
stating that the department needed a full-time girl.
Barcome returned to her department and was quite upset
and angry. She concluded that she could not do all the work
assigned and, accordingly, about 4 p.m. she advised Kalm
that she intended to quit. Kalm stated that she hoped Bar-
come would change her mind because the bussing duty
would only be a temporary thing.
Analysis and Concluding
Findings as to Barcome
In the light of Respondent's antipathy toward the union
campaign, and its "treatment " of other union activists, some
of which has been set forth above, I can only conclude that
its change of attitude towards Barcome following her parti-
cipation in the campaign and in the election, plus the impo-
sition upon her of more onerous duties, coupled with the
conflicting pronouncements respecting the degree of em-
ployee help required in her department, reflected
Respondent's motivation in forcing her resignation. Thus,
as set forth above, it appears that in January, prior to the
advent of the Union, when Barcome was transferred to a
new department and sought assistance from management
because of new and unaccustomed duties, she was given
sympathy and assistance by no less than three management
officials. However, several months later when her union
sympathies and activities became evident, only sympathy
was accorded her. That is not to say, of course, that an
employee is entitled to supervisory assistance upon every
request. But it also does not accord with usual or prudent
business practices for Respondent continually to send an
employee out of her department at the same time when the
employee is legitimately concerned with keeping the depart-
ment up to par.37
37 There is no issue as to Barcome's proficiency as an employee
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barcome impressed me, as she must have impressed the
Respondent , as being a conscientious and rather meticulous
person , who would be determined to carry out her duties in
a forthright manner . It must have been a frustrating experi-
ence (as I am confident Respondent 's officials recognized)
for her to have been deprived of completing the necessary
work in her own department because of receiving constant
assignments elsewhere . To be sure , it was not uncommon
for employees to be assigned out of their department on a
temporary basis . But the constant and repetitious sending
of Barcome to other departments when she was the only one
in hers , and when Respondent knew that she was behind in
her work , seems designed with another purpose in mind.
This became abundantly clear when , in addition to all other
assignments , Kalm directed her to assist in the cafeteria
work . Although I have previously found that the assignment
of union adherents to perform this work was not a violation
of Section 8(a)(l) because Respondent also assigned nonun-
ion employees , I also note, as General Counsel urges, that
the nonunion employees were assigned subsequently and
there appears to be no good reason why , were not another
motive involved , Respondent could not have altered the
schedules when it became evident that Barcome could not
perform all of the work required in her department as well
as the bussing duties. In other words, it would seem that,
had Respondent not harbored a discriminatory motivation
towards Barcome, her bussing assignment could have been
deferred until she had at least been accorded time to catch
up with the work in her department.
In light of all of the foregoing, I am convinced, and there-
fore find , that Respondent purposefully engaged in the con-
duct described above with a purpose of harassing Barcome,
because of her union activities , to the point where it became
intolerable for her to work for the Respondent . Her resigna-
tion, therefore , constitutes a constructive discharge within
the meaning of Section 8(a)(3) of the Act.
8. The alleged constructive
discharge of Corrine Cayer
This employee worked for the Company in the sporting
goods department from September 1970 until she quit on or
about July 22. Cayer was primarily a saleslady , but she also
had clerical duties which included checking in merchandise,
writing out orders , and performing the thermofaxing for her
department . Over her in the supervisory hierarchy of the
department were Gerald Hannemann, the department
head , and Ward Miller , an assistant trainee.
Shortly after the first of the year , Cayer's hours were cut.
However , she did not complain at that time because, as
previously noted , the Respondent was experiencing eco-
nomic difficulties and several employees were laid off while
others had their hours of work reduced . Several months
later, however , Cayer requested of Personnel Director Kalm
a restoration of her hours along with a wage increase. She
received no satisfaction.
In June , Cayer was temporarily assigned to the wig de-
partment after employee Carol Bertoluzza (a wig depart-
ment employee ) quit on June 9. Apparently Cayer liked that
work , and Personnel Director Kalm complimented her on
it. However , when Cayer requested a transfer to that depart-
ment, Kalm refused because Cayer was needed in the sport-
ing goods department . Apparently, one of the principal rea-
sons she was needed was because Ward Miller , the assistant
trainee , was transferred to another of Respondent 's stores
and was replaced by one Paul Corcoran . Cayer assisted
Hannemann in the training of Corcoran in his job. Cayer
again spoke with Kalm about a raise and securing a restora-
tion in hours to 40 per week . Kalm again refused.
On June 30 , Cayer's husband was involved in automobile
accident , and for a period of time thereafter Cayer was
required to drive him back and forth to the hospital for
therapy. She requested of Kalm if she (Cayer) could ad-
vance her vacation and take a leave of absence for that
purpose . This was granted . Upon her return to work on July
21, she found that the paper work had accumulated to the
extent that it was "about 9 inches high" on her counter. This
made Cayer angry and she told Hannemann that she did
not intend to do all the paper work anymore-that she felt
that it was his responsibility. Hannemann responded that
she was required to do it . Cayer, still angry, then proceeded
to raise the matter with Associate Store Manager Paradis
who directed her to do whatever Hannemann directed.
Whereupon , Cayer quit.
With respect to Cayer's union activities , the record shows
that she attended a union meeting on February 11 and
another one in March or April; that she discussed the Union
with Hannemann and Miller frequently ; and that she also
discussed that subject matter with Mary Ann Mathia, Zella
Barcome , and Francis Laundre at the store , either on break
or lunch hour . She also rode regularly to work with Jane
Paulin , a known union leader, knowledge of which was
conceded by Associate Store Manager Paradis. Based on all
of the foregoing, I find and conclude that , at least by the
time of the NLRB election, Respondent was aware of
Cayer's union proclivities.
Analysis and Concluding Findings
as to Corrine Cayer
Counsel for the General Counsel urges that the refusal of
Respondent to grant Cayer 's request to transfer to the wig
department , and its further refusal to grant Cayer "a war-
ranted pay raise had of course one object -to force Cayer
into quitting , in violation of Section 8(a)(1) and (3) of the
Act." 38 I cannot agree that there is substantial evidence to
sustain this contention.
In the first place , Cayer admitted in her prehearing affi-
davit that "there wasn't no harassing of me by the Company
after the election, or significant changes in my job duties,
nor was there any change in employee benefits that I know
of." There is little doubt in my mind that Cayer felt she was
entitled to a promotion or raise in wage rate , particularly
after Miller left and she helped to train Corcoran. She
doubtless felt that she was entitled to second place in the
department under Hannemann . However , Cayer was not
qualified in this respect because she admittedly was not
amenable to transfer , which was presumably a requisite of
Respondent with respect to a trainee's position. It may very
78GCbratp49
F. W. WOOLWORTH 411
well be that, as counsel for the General Counsel strongly
urges, Cayer was entitled to a wage increase because of the
nature of the work she performed relative to the salesgirls
in other departments, and the failure of Respondent to
grant such increase might legitimately be considered as evi-
dence of harassment or discrimination because of her union
activities. However, there is a decided lack of evidence in
this record that other employees, not known to have partici-
pated in the union campaign, received wage increases.
Secondly, there was a very good and legitimate reason for
Respondent's refusing Cayer's request to transfer to the wig
department. She was plainly and concededly a valued em-
ployee in the sporting goods department, who would be
difficult to replace. Finally, had Respondent been predomi-
nantly prompted by a motive of harassing Cayer to the
point of quitting, it would seem that it would have denied
the request of advancing her vacation so that she could
provide transportation for her husband.
Accordingly, while I do not doubt that Respondent was
less than remorseful upon the resignation of a prounion
employee, I find a lack of substantial evidence to prove that
the Respondent purposefully imposed onerous working
conditions on and harassed Cayer to the point that her
quitting her employment constituted a constructive dis-
charge. I shall therefore recommend that this paragraph of
the complaint be dismissed.
9. The alleged discriminatory refusal to
recall or rehire Barbara Erickson
Erickson commenced working for the Company in Sep-
tember 1970 in the candy department. She apparently was
a competent and proficient employee since the record dis-
closes that she later became its department head. However,
in December 1970, Personnel Director Kalm advised Erick-
son that the Company had an opening in the wig depart-
ment and asked if she was interested. The latter responded
that she had no way of knowing for sure, but that the
Company needed a department head there, and she "didn't
see any reason why we would have to lay anybody off in
that area." Nevertheless, on January 26, Kalm advised her
that she would have to be laid off because sales did not
warrant keeping a department head in wigs and notions.
Kalm further advised that she did not know any date for her
recall that could be given, but she "didn't see any reason
why she [Erickson] wouldn't be [recalled] eventually." 39
Erickson, in the company of Sue Wunder (also an alleged
discriminatee, infra), returned to Respondent's store several
times during March and April and talked to Kalm about
reemployment. However, on each occasion, Kalm would
tell them that the Company did not have any openings at
that time.
On or about June 15, the Company advertised in the local
newspaper for sales personnel in the wig department. On the
following day Erickson proceeded to the Respondent's store
in response thereto. However, she did not locate Personnel
Director Kalm, nor did she talk with any other management
official concerning a job.40 As far as the record shows, Er-
ickson did not return to the store thereafter.
With respect to her union activities, Erickson testified
that she attended two union meetings after her layoff and
signed a union card. She also brought a union card into the
store on one occasion for the purpose of asking Corrine
Cayer to sign it and solicited two employees in their homes.
Analysis and Concluding Findings
as to Barbara Erickson
Although it would seem less than economically prudent
for Respondent not to recall an employee who was compe-
tent and proficient while in its employ, I find that the Gen-
eral Counsel did not sustain his burden of proving by
substantial evidence on the record considered as a whole
that the Respondent failed and refused to recall Erickson in
violation of the Act. In the first place, her union activities
were not exceptional and there is, of course, no direct testi-
mony that the Respondent was aware of them. However,
even assuming that I find through reliance on circumstan-
tial evidence that Respondent knew of her prounion lean-
ings and conduct, the fact remains that, at the time she
made applications for reemployment, Respondent had no
openings for employees with her skills and experience and
did not, in fact, hire an employee in the wig department
until June 16. Although Erickson testified that she went into
the Respondent's store in response to the June 15 advertise-
ment, it seems somewhat incredulous that, not finding Per-
sonnel Director Kalm in the store at that time, Erickson did
not speak to some other management official or return to
the store at a later date. In addition, the General Counsel's
evidence failed of proof that the Respondent, as a matter of
policy or practice, regularly sought to secure laid-off per-
sonnel before it hired other employees to fill sales positions,
and the fact remains that Erickson had not applied for recall
for several months prior to June 15 41
Under all the foregoing circumstances, I find and con-
clude that Respondent did not discriminatorily fail or refuse
to rehire or recall Barbara Erickson because of her union
activities, and I will therefore recommend that this allega-
tion of the complaint be dismissed.
10. The alleged discriminatory refusal
to recall Sue Wunder
79 Testimony of Kalm, which does not vary substantially from that of
Erickson except that the latter testified that at the exit interview Kalm prom-
ised that "she would call me back in about 3 weeks, when business started
picking up . In a month, she said. She didn't know exactly what the time
would be , but she would call me back."
I do not understand counsel for the General Counsel to contend that the
lay off of Erickson was unlawful (although it could be so construed by a
reading of the complaint ). Any such finding would be barred by the statute
of limitations contained in Section 10(b) of the Act In any event, as previous-
ly pointed out, several employees were laid off or had their hours cut during
this period because of economic conditions at the store.
The case of alleged discrimination with respect to this
employee is similar to that of Barbara Erickson, above.
Wunder commenced working for the Company in Septem-
40 The record shows that the Respondent hired one Kathleen Mileski on
June 16 in the wig department
41 Erickson's case is thus, to this extent, distinguishable from that of Gerald
Pyke who was laid off only a couple of weeks before Respondent hired a new
employee in the stockroom
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 1970, in the housewares department. She was laid off on
January 26, assertedly for economic reasons , but returned
to the store on several occasions thereafter and talked to
Personnel Director Kalm about reemployment. Kalm said
on these occasions that business had not picked up, but to
check back with her in a few weeks. During the last inter-
view, which apparently took place shortly before the elec-
tion in April, Wunder asked Kalm if there was an opening
in the sewing department. When Kalm answered in the
affirmative, Wunder advised Kalm that she (Wunder) had
12 or 13 years' experience in sewing and that she had taught
the subject to a 4-H group. However, according to Wunder's
testimony, Kalm then stated that " . .. we're not looking
specifically for somebody in the sewing department. We
need somebody that knows something about knitting and
crafts, too." 42 When Wunder advised that she was "pretty
handy" with crafts, Kalm stated that she would look over
Wunder's application along with several others and advise
as to whether she could get the Job. However, Wunder never
received a call.
Wunder testified that she first became aware of union
activity at the store in January and that she talked about it
with other employees-some known by Respondent to be
leaders of the union movement-while on the sales floor
and in the stockroom. Following her layoff, she attended
several union meetings.
Analysis and Concluding Findings as
to Sue Wunder
Here, as in the case of Barbara Erickson, I am unable to
find that the General Counsel sustained his burden of prov-
ing that the Respondent refused to recall Wunder because
of her union activities. As in Erickson's case, the union
activities of Wunder were not exceptional and knowledge
thereof could only be proven by circumstantial evidence.
While I am aware, as previously pointed out, that the ulti-
mate conclusion may be based on such evidence, the fact
remains that, even assuming the Company's knowledge of
such activities, there is no substantial evidence to show that
the Company had an opening and hired an employee other
than Wunder to fill it within a reasonable time following her
application. Thus, although Kalm testified that she had an
opening in knitting and crafts, company records failed to
disclose that any employee was, in fact, hired during the
first 7 months of 1971 in that department.43 Nor was there
any oral evidence to that effect. Accordingly, I find and
conclude that there is a lack of substantial evidence in the
record considered as a whole that the Respondent discrimi-
nated against Sue Wunder because of her union activities.
11. The alleged constructive discharge
of Sandra LaFave, nee Phalen
The complaint alleges that on or about May 5, Respon-
dent constructively discharged employee Sandra LaFave
nee Phalen by reducing her hours of employment to 33
42 Kalm admitted that the Respondent had an opening in the spring of
1971 for someone in the crafts and knitting department
41 G C Exh 14
hours per week, causing her to quit her employment " .. .
all because of her membership in . . . the Union."
Phalen commenced working for the Respondent in Sep-
tember 1970 in the pet department. She was switched to the
candy department in January at which time her hours of
work were cut to the point that she was working only ap-
proximately 4 hours per day. 4 In March, Phalen had a
conversation with Personnel Director Kalm concerning a
raise (which was apparently promised when Phalen was
transferred to the candy department) and for more hours of
work (because her fiance did not think that she should drive
a distance of 18 miles to work a mere 4 hours). Kalm replied
that she was unable to comply with either request because
of the pending "union problem" in the store.
The extent of Phalen's union activities consisted of her
having discussions concerning the Union while in the store
with fellow employees Barbara Erickson, Patty Holmberg,
Francis Laundre, and Zella Barcome.
Near the end of April or the beginning of May, Phalen
received a warning slip for "missing some days off work,
and a few other things." When Phalen tried to explain her
side of the story, Store Manager Semrow said, "I'm not
interested. Sign the slip or you're fired." Phalen signed the
slip 45
A few days later, Phalen requested a half day off in order
to accompany her husband on a legal matter. This request
was made of Assistant Store Manager Jacobson, who at first
denied the request because, as he stated, she had had
enough time off. However, Jacobson discussed the matter
with Personnel Director Kalm and later advised Phalen that
she could have the day off. Phalen, being angered, told him
"keep the job" and walked away. However, Phalen did not
quit at that time, but a few days later had a conversation
with Personnel Director Kalm in her office, in the presence
of Jacobson. Phalen advised them that she would have to
have more hours because her husband would not let her
work the limited number of hours because "he felt it wasn't
worth going in for 4 hours." When Kalm said that it would
not be possible, Jacobson said if that cannot be arranged
Phalen might as well quit her job. Phalen then asked if she
could switch departments. Kalm responded that that was
also impossible. Phalen then said that she would have to
quit, but Kalm suggested that she "take a couple of days off
and think about it." Phalen did just that and in a few days
brought in her locker keys and notified the Company that
she quit.
Analysis and Concluding Findings as to Phalen
Here, again, I find that although the circumstances are
suspicious, the General Counsel has failed in his burden of
proving that Respondent discriminated against Phalen in
violation of the Act. In the first place, Phalen's union activi-
ties were minimal. The record only shows that she discussed
these matters while on the sales floor with other known
union leaders (such as Barcome and Laundre), as well as
44 It will be recalled, as above pointed out, that some other employees'
hours were cut and some were laid off for economic reasons about this time
45 Credited testimony of Phalen. The warning slip was not introduced into
evidence but the record shows that Phalen was on sick leave for 4 hours on
April 6 and 4 hours on April 27
F. W. WOOLWORTH 413
employees who were known to be antiunion such as Patty
Holmberg. However, the latter was not alleged nor proven
to be an agent of Respondent, nor was there substantial
evidence that any of these conversations were overheard by
a management representative. There is also evidence in the
record that Phalen signed a union card on February 13 but,
again, there is no proof that this fact was known to the
Respondent prior to the date of her quitting. Accordingly,
unless one resorts to some legal fiction such as the "small-
plant doctrine" there is less than substantial evidence that
Respondent was aware of Phalen's union "activities."
But even if this hurdle be cleared, the evidence is less than
convincing that Respondent was set on a campaign to har-
ass Phalen to the point of causing her to quit her employ-
ment. It is true that a written warning was issued without
giving her an opportunity to explain her side of the story,
but the fact remains that she was absent on two occasions
in April. With respect to Respondent's failure to restore her
hours, there is no proof that other employees not known to
have been union activists had their hours restored or had
their departments changed if they were not satisfied. Gener-
al Counsel argues in his brief that Respondent could have
accorded Phalen more hours rather than hiring four part-
time employees about this time.46 However, aside from the
fact that this type of contention appears to encroach upon
a management prerogative, the record does not show that
the hours these part-time emplees worked would have
geared in with those of Phalen .47
Under all circumstances, I find and conclude that there
is a lack of substantial evidence in the record considered as
a whole to sustain the allegation of the complaint with re-
spect to Sandra Phalen; accordingly, I will recommend that
the complaint be dismissed as to her.
12. The alleged discriminatory discharge
of Francis Laundre
Laundre commenced working for the Respondent as a
salesman in the appliance department in September 1970
and worked continuously for approximately a year until his
discharge on September 30. Respondent asserts that he was
fired because he failed to report for work on September 29
after having been specifically so directed. There is no issue
as to Laundre's competency as a salesman . Also, it was
known by Respondent throughout Laundre's employment
that he, in partnership with his brother, engaged in a sepa-
rate business of selling camping trailers, and there is no
evidence that Respondent objected to this activity.
There is likewise no issue that Laundre was one of the
chief union activists in the organizational campaign and
that Respondent was aware of this fact. Thus, Laundre was
a member of the "in-store committee" and, on election day,
solicited employees on their way to the polls to vote for the
Union. There is some evidence in the record that following
46 These employees are Christine Johnson, Kristine Ostlund , Patricia Jan-
kovich, and Shelby Mattson. All were rehired to operate cash registers except
Jankovich who was employed at the services desk.
47 The same can be said with respect to General Counsel's contention that
Respondent could have granted Barcome's request for shorter hours while
at the same time granted Phalen's request for more hours.
the election Laundre was required by the Respondent to
perform some additional work in the stockroom. However,
the extent of such additional duties is not clear in the record
and there is no evidence that Laundre protested.
On August 14, Laundre had a conversation with Associ-
ate Store Manager Paradis in the latter's office wherein
Laundre showed him a brochure of a wheel camper conven-
tion to take place in Grand Rapids, Michigan, on Septem-
ber 28, 29, and 30. Laundre apparently had planned and
had had approved a day off for the 28th, but advised Parad-
is that he needed an additional day or two. The latter,
according to Laundre's testimony, stated, "It would be
okay, but we did have an anniversary sale coming up, and
that he would speak to Jim Lavalle [the department manag-
er] on it." Laundre further testified that he did not hear
anything further about it until August 20, when, in a discus-
sion with Lavalle, the latter stated that he and Paradis had
discussed the matter but he did not see how Laundre could
have off. When Laundre told Lavalle that he would take off
anyway, Lavalle stated that Laundre "might as well quit
then."
On or about September 15, Laundre had another conver-
sation with Lavalle in which the two men agreed to switch
days off so that Laundre could attend the convention. How-
ever, after Lavalle advised Store Manager Semrow of this
arrangement, the latter vetoed it stating that he wanted both
men there on September 29 since that was the first day of
the store's first anniversary sale, which was an extraordinar-
ily big event. On or about September 25, Laundre took up
the matter with Store Manager Semrow in the latter's office.
He advised Semrow why he wanted the time off, to which
the latter responded, according to Laundre's testimony, "He
did not like to see me go because we were going to have the
anniversary sale then. But, he said to me, send your mother,
your father, your brother, but he would like to see me stay.
He did not say that I could not go, or that I would be fired
if I did go." Laundre, in fact, took off on September 29 and
reported to work on September 30, when he was fired by
Semrow.
Analysis and Concluding Findings
as to Laundre
Here, as in the case of Mary Ann Mathia, supra, counsel
for the General Counsel argue that the Respondent's refusal
to allow Laundre to take off on September 29 is specious for
essentially similar reasons that were set forth in her case. I
disagree and find that the General Counsel did not sustain
his burden of proving that the discharge of Laundre was
discriminatory within the meaning of Section 8(a)(3) of the
Act. Thus, the fact remains that Laundre took off from his
employment on one of Respondent's busiest days after hav-
ing been directed specifically that his services were needed
on that day. Indeed, as previously set forth, Laundre con-
ceded that his department manager, Lavalle, advised that if
Laundre took off in defiance of the store manager's direc-
tions, "He might as well quit then." The facts thus appear
quite similar to those in the case of Aluminum Screen and
Window Company, Inc., d/b/a Sam The Window Man,48
41 136 NLRB 663
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wherein the trial examiner (whose findings were adopted by
the Board) stated as follows (at p. 678):
Although the record clearly establishes the
Respondent's hostility toward employees who were
union adherents , the record also establishes that the
Respondent refused to give [the employee ] time off to
go hunting, that [the supervisor] warned [the employee]
that [the employee ] might lose his job if he should go,
that [the employee] nevertheless did go, and that he was
promptly discharged. I find that [the employee's] dis-
charge was not in violation of the Act.
See also Gary Steel Products Corporation, 144 NLRB
1160, 1161.
Counsel for the General Counsel argue that discrimina-
tion is shown here because Respondent allowed antiunion
adherent Hannemann , manager of the sporting goods de-
partment , to take off for a half day on September 30. How-
ever , this situation is distinguishable because Hannemann
was off to entertain a business representative and not for his
own pleasure or business . Moreover , the fact that there were
several representatives of appliance companies at the store
does not , in my view , negate the necessity for Laundre's
being present , or, in any event , it is not within the province
of the Board to second guess the Respondent's judgment on
this issue . Under the circumstances , I conclude that the
General Counsel has failed to establish by a preponderance
of the evidence that Laundre 's discharge was discriminato-
rily motivated.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above , to the extent found to have been invalid , occurring
in connection with its operations 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 obstruct-
ing commerce and the free flow thereof.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
As I have found that Respondent discriminated with re-
spect to the hire or tenure of employment of Mark C. Lip-
pold, Raymond Brault , Jane Paulin , Zella Barcome, and
Gerald Pyke , I shall recommend that it be ordered to offer
them immediate and full reinstatement to their formerjobs
or, if those fobs no longer exist , to substantially equivalent
positions , without prejudice to their seniority or other rights
and privileges, and to make them whole for any loss of
earnings they may have suffered by reason of the discrimi-
nation by payment to them of a sum of money equal to that
which they would have normally earned as wages, from the
date of their discharge (or, in the case of Pyke, refusal to
rehire) to the date of the offer of reinstatement or rehire, less
net earnings, to which shall be added interest at the rate of
6 percent per annum in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co, 138 NLRB 716.
As the unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act, I shall recommend that Respondent be placed un-
der a broad order to cease and desist from in any manner
infringing on the rights of employees guaranteed in Section
7 of the Act. N.L.R.B v. Entwistle Manufacturing Company,
120 F.2d 532, 536 (C.A. 4, 1941).49
Upon the basis of the foregoing findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By coercively interrogating employees concerning
their union activities, by threatening employees with repri-
sals should they join or assist the Union or select it as their
collective -bargaining representative , and by discriminatori-
ly applying work rules, Respondent has interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
4. By discriminating with respect to the hire or tenure of
employment of Mark C. Lippold, Raymond Brault, Jane
Paulin, Zella Barcome, and Gerald Pyke, in order to dis-
courage membership in the Union, Respondent has en-
gaged in , and is engaging in, unfair labor practices within
the meaning of Section 8(a)(3) and ( 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have
been specifically found, as set forth above, the General
Counsel has failed to establish by a preponderance of the
evidence the remaining allegations of the complaint herein
and it will be recommended that said complaint be, to that
extent , dismissed.
[Recommended Order omitted from publication.]
49 On August 4, 1972, which was subsequent to the due date for the receipt
of posthearing briefs in this matter , Respondent filed a "Motion for Leave
to File a Supplemental Memorandum ," which was apparently a response to
the General Counsel's request for "additional extraordinary remedies against
the Company" Counsel for the General Counsel filed an opposition to the
Respondent ' s motion The motion is hereby denied since there is no provi-
sion in the Board's Rules and Regulations for the filing of reply briefs to
Administrative Law Judges In any event , the facts in this case do not warrant
the imposition of any extraordinary remedies