F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1111 (N.L.R.B. 1980)

F 'W WOOL.'OR FI C) IIH1
F. W. Woolworth Co. and Eric Withers. Case 4-
CA 10270
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND M-MIBERS
JENKINS ANI) TRUESI)AI.E
On May 6, 1980, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
also filed a brief.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' Respondent excepts to the Administrative l.aw Judge's conduct of
the hearing and his failure to rule upon its motion for a hearing de novw;
it also renews its motion for a hearing de novo. Respondent primarily al-
leges that the Administrative Law Judge committed prejudicial error by
the following actions: 11) prejudging the issues; (2) assuming the role of
advocate through improper examination of witnesses (31) questioning the
manner in which Respondent presented its defense; and (4) discounting
the testimony of Respondent's witnesses on the basis of perceived irregu-
larities in the sequestration of witnesses and the presence of Respondent's
general manager at the hearing. After a careful consideration of the
entire record, we are satisfied that Respondent's allegations are wholly
without merit In our view there is nothing in the record to suggest that
the Administrative aw Judge prejudged the case or prejudiced Re-
spondent by participating in the examination of witnesses. Indeed, it is
the duty of the Administrative Law Judge under the Board's Rules and
Regulations (Sec 102.35) to inquire into the facts by examining and
cross-examining witnesses. It is also the Administrative Law Judge's re-
sponsibility to limit or exclude irrelevant and repetitious evidence, which
accounts for his remarks concerning Respondent's continued presentation
of cumulative and conclusionary opinion testimony. As for the sequestra-
tion issue, the Administrative Law Judge merely observed that "appear-
ances of irregularity'" were raised b the fact that Respondent General
Manager Mede, who was a central figure in the alleged unfair labor prac-
tices and was present during the entire hearing, as escorting Respond-
ent's sequestered witnesses to and from the hearing room. The Adminis-
tralive I.aw Judge asked Mede if he had spoken to witnesses and, satis-
fied with Mede's reply, did not find any violation of the sequestration
order. We find that the Administrative Law Judge handled this matter
properly and that there is no evidence that his resolutions of credibility
or the inferences he drew were tainted by this incident. Furthermore, it is
the Board's established policy not to overrule an administrative law
judge's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resoulutions are
incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd.
188 F.2d 362 (3d Cir 19511 We have carefully examined the record and
find no basis for reversing his findings We also for the foregoing reasons
deny Respondent's motion for a hearing de novo.
2 The Administrative Law Judge inadvertently failed to conform the
notice with his recommended Order We shall correct the notice accord-
ingly
251 NLRB No. 152
lations Board adopts as its Order the recomlnended
Order of the Administrative Law Judge and
hereby orders that the Respondent, F. W. Wool-
worth Co., Denver, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED) BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT suspend, discharge, or in any
other manner discriminate against you because
you have exercised employee rights protected
by the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights set forth above.
WE WILL offer Eric Withers immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights and privileges previously en-
joyed, and make him whole for any loss of
earnings he may have suffered due to the dis-
crimination practiced against him by paying
him a sum equal to what he would have
earned, less any net interim earnings, plus in-
terest.
F. W. WOOI.WORTH Co.
F. W. Woolworth Co. and Eric Withers. Case 4-
F W WOOLVS()RTII CC) 1111
l l l l
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STAIEMENI OF THE CASE
JOEl A. HARMATZ, Administrative Law Judge: This
proceeding was heard by me in Lancaster, Pennsylvania,
on January 29 and 30, 1980, upon an original unfair labor
practice charge filed on June 14, 1979, and a complaint
issued on July 23, 1979, alleging that Respondent inde-
pendently violated Section 8(a)(l) by coercively interro-
gating an employee regarding union activity, and by dis-
charging on May 24, 1979, Eric Withers, for reasons pro-
scribed by the Act. In its duly filed answer, Respondent
denied that any unfair labor practices were committed.
After the close of the hearing, briefs were filed on behalf
of the General Counsel and Respondent.'
Upon the entire record in this proceeding, and after
consideration of the post-hearing briefs, and with the op-
portunity to observe directly the demeanor of the wit-
nesses while testifying, it is hereby found as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation engaged in the
general sale of merchandise with a facility in Denver,
Pennsylvania. In the course of said operations, Respond-
ent, during the calendar year preceding issuance of the
complaint, a representative period, derived gross rev-
enues exceeding $500,000, and sold and shipped prod-
ucts, goods, and materials, valued in excess of $50,000
from its Denver facility directly to points outside the
Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find,
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Teamsters Local Union No. 771 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers ot America, herein called the Union, is now,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
This proceeding involves alleged unfair labor practices
attributed to Respondent during the course of a union
campaign with respect to a single employee, Eric With-
ers. Withers was alleged to have been the subject of un-
lawful interrogation a few days prior to his discharge.
I Attached to Respondent's brief was a document entitled "Respond-
ent's Motion for a Hearing De Novo." The error assigned therein relates
to statements made by me concerning the sequestration order placed in
effect at the hearing's outset. Respondent avers that "his motion is not
lightly made . ' and goes on to charge me of having committed
"substantial, prejudicial and reversible error." The motion expressly
denies that the "character and integrity of the Administrative Law
Judge" are placed in issue. In this posture, it strikes as peculiar that a
request for such relief would be addressed directly to me, rather than the
appropriate reviewing authority.
Both are alleged to have violated Section 8(a)(l) of the
Act.
Involved is Respondent's mid-Atlantic distribution
center, an extensive facility of approximately 715,000
square feet. Operations commenced at that location in
1975, and at present the center is manned by a blue
collar work force of some 200. There is no history of
union representation, but since 1975, these employees
have been the subject of at least two, and possibly three,
separate campaigns by two different unions. The instant
effort was waged by Local 771, Teamsters, and began in
the spring of 1979, culminating in an election conducted
on May 25, 1979, in which employees opted against
union representation.
During the recent campaign, Respondent actively op-
posed the Union, and to further its view conducted three
meetings, during working time, with attendance by its
production employees compulsory. These meetings were
held on May 11, 21, and 24, 1979.2 John L. Mede, the
general manager at the Denver facility, presided and de-
livered prepared antiunion speeches at each. All parties
agree that in the course of the meeting held on May 24,
the day before the election and prior to the 24-hour insu-
lated period, Mede was interrupted twice by Withers,
who pressed for the right to ask questions. There also is
no dispute that it was this, and conduct related thereto
on the part of Withers, that provided the sole basis for
his termination. Accordingly, the discharge issue turns
upon the standards laid down by the Board in such cases
as Hicks Ponder Co., 168 NLRB 806, 815-817 (1967), and
Prescott Industrial Products Company, 205 NLRB 51
(1973), enforcement denied 500 F.2d 6 (8th Cir. 1974).
Withers was a dockworker in the shipping department.
As to his involvement in the union campaign, the record
is devoid of proof that Withers had declared his senti-
ment either for or against organization. At the same time,
however, it appears that Withers labored under the frus-
tration of management's failure to resolve what he re-
garded as a primary grievance. Thus, Respondent's pro-
duction work force consisted of both male and female
employees, all occupying a single employment classifica-
tion at a single rate of pay. Two female employees were
assigned to the shipping department. As Withers saw it,
this was not enough, for in his view the work in the
shipping department was more taxing physically than
that in other areas and the assignment of insufficient fe-
males to that department was viewed by him as favorit-
ism. Withers addressed his views in this regard to Mede
on two occasions prior to the May 24 captive meeting.
It was Respondent's practice during the campaign to
preclude employees from asking questions in the course
of its captive-audience speeches. This policy was com-
municated to employees and I am convinced that With-
ers, prior to May 24, knew of its existence. 3 Under the
2 Unless otherwise indicated all dates refer to 1979.
3 To the extent that Withers' testimony is inconsistent with this find-
ing, it is discredited. See Resp. Exh. 9(h) which I find to be the text of
the speech delivered by Mede on May II, and Resp. Exh. 6, which is an
item of prounion propaganda, dated May 22, which refers to Respond-
ent's policy of denying employees the opportunity to have questions an-
swered during the captive meetings. See also the testimony of Gary
Grube, a witness for the General Counsel
F. W. WOOLWORTH CO. 1113
policy, Mede and Assistant General Manager Tufano, in-
stead of entertaining questions at the meetings, made
themselves available in work areas allowing employees
under those circumstances to raise questions. From my
understanding of Tufano's testimony, the preference of
management was to conduct these exchanges at an indi-
vidual level, and any congregating of groups on those
occasions was discouraged.
The allegation of interrogation arises from Withers'
own resort to this procedure. Thus, following the cap-
tive meeting on May II he approached Mede and ob-
served that in the latter's speech the issue of favoritism
had been mentioned. Withers opined that he felt that
there was favoritism on the job towards women in that
"the women were being paid the same as the men, but
not working as hard as the men." When Mede pointed
out that there were women assigned to the shipping de-
partment, Withers responded that those in shipping were
"only tokens."
A second confrontation on this issue followed the
speech delivered by Mede on May 21, after Withers in-
formed his supervisor that he had a question he wished
to address to the former. This was relayed to Mede, and
he, together with Tufano, approached Withers while the
latter was working in a trailer. Mede addressed Withers,
stating that he understood that Withers had a question
for him. Withers, who claimed to be startled by the
sudden expression from his rear, "turned," waving his
arm as he did so, loudly exclaiming "when the hell are
you going to do something about getting women into the
department?" Mede pointed out that the manning of de-
partments is a management prerogative and such assign-
ments are made on the basis of business need. Mede then
pointed out that the complaint about sex discrimination
had been a longstanding one in the shipping department,
dating back to "day one" and asked Withers "who put
you up to this . . . did the boys put you up to this?" 4
The above reference by Mede to "the boys" is alleged
to constitute interrogation proscribed by Section 8(a)(l).
The credited testimony does not substantiate this allega-
tion. Taking account of the total facts and circumstances
involved, including the background against which the in-
quiry was made, I am convinced that the focal point of
this allegation related to a rhetorical question, posed in
an argumentative vein, and one not likely to be con-
strued as in quest of information relative to union or
other forms of protected activity.
Concerning the discharge, as heretofore noted, on
May 24, the day before the election, Mede conducted a
so-called 24-hour meeting to further advance the Compa-
' Withers testified that when confronted by Mede he simply renewed
the charge that men in the shipping department felt that they were being
discriminated against because there were not many women in that depart-
ment. He further testified that the inquiry in the course of this dialogue
with Mede was as follows: "Who put you up to this? Was the Teamsters
that did this?" I prefer the testimony of Tufano and Mede which seemed
the more probable Mede enjoyed an experienced hand with respect to
labor-management matters, and as counsel for Respondent observed,
Mede was not likely to associate the devisive sex discrimination issue
with those raised by the Union during the campaign Although I did not
believe all the testimony of Mede and Tufano, and viewed Tufano. par-
ticularly, as tending to exaggerate in furtherance of Respondent's cause.
Withers was far from impressive, and in this instance, the testimony of
the former impressed me as the more reliable
ny's views concerning union organization. Mede spoke
with the aid of a microphone and amplifier and as on
earlier occasions read from a prepared speech, the lawful
content of which is not challenged. Consistent with Re-
spondent's policy, no employee had ever before attempt-
ed to ask a question in the course of these meetings.
However, at the May 24 meeting, Withers insisted on
being given the opportunity to ask questions, interrupting
Mede twice for that purpose.5 In any event, it appears
that first interruption was rather mild and aborted. Thus,
Withers rose to his feet, raised his hand, and stated,
"Excuse me, can I ask a question?" Mede told Withers to
please sit down indicating that if Withers would give
him a moment, Mede would inform as to how questions
would be handled. Withers obliged and Mede continued
with the speech. Shortly thereafter, Withers again rose,
stating in a loud voice that he would like to ask a ques-
tion. He was told by Mede to sit down. Withers this time
refused. He was told by Mede that he was out of order,
but Withers persisted in his quest of recognition. A
debate ensued accompanied by escalating temperament
on the part of both. Finally, Withers was told by Mede
that he was free to leave if he did not wish to remain.
When this proved unavailing, Mede called for security
guards to remove Withers. At this point Assistant Man-
ager Ballard approached Withers and eventually con-
vinced him to be seated. Mede then proceeded with the
speech to its conclusion. Although Withers was permit-
ted to remain, after receding to his seat, he continued to
mumble under his breath, making a loud comment at the
conclusion of the speech.
After that meeting, Withers returned to his work sta-
tion. Later that day he was summoned to Tufano's office
where he was informed that he was suspended pending
an investigation, with the probability that he would be
discharged. The next day, Withers was informed of his
termination.
Under the precedent, Respondent's attempt to further
its antiunion campaign by conducting a captive-audience
meeting and by declaring that no questions would be an-
swered in the course thereof, did not amount to an unfair
labor practice.6 And Withers' insistence on asking a
question was an act disobedient both to established prac-
tice and specific instructions of Mede, the highest rank-
ing management representative headquartered in the dis-
tribution center. In this context, to quarrel with Re-
spondent's description of Withers' conduct as a brazen
act of insubordination, a phrase which aptly covers any
refusal to yield to authority, is to deny what occurred.
However, reconciliation of this issue does not turn on se-
mantics. Section 7 of the Act places no gloss upon an
employer's absolute right to set the rules of the place of
work and to enforce work obligations on worktime with
discipline. However, an employer attempt to impose his
will as to how a debate over unionization will be waged,
5 Withers testified that he first thought to raise a question, after Mede
had proceeded into the substance of his speech. To this extent his testi-
mony conflicts with that of Assistant Manager Ballard, Mede, and
Tufano, all of whom testified that the interruption occurred during or
just after Mede's completion of his opening remarks. The conflict is im-
material and need not be resolved
6 See, e.g., Livingsion Shirt Corp.. 107 NLRB 400 (1953)
F W. WOOLWORTH CO. 1 13
1114 DECISIONS OF NATIONAL. LABOR RELATIONS 13()ARD
though within its rights, may not necessarily be enforced
in the same absolute fashion as the former.
The turbulence inherent in union activity arises from
rivalry and division likely to provoke even the docile to
petulant behavior. For that reason-whether in the con-
text of an economic strike,7 grievance presentation or
organizational activity--emotional excess manifested by
employees in resisting management is not committed
under this law to the absolute judgment of employers.
Indeed, congressional guarantees embodied in Section 7
of the Act would be jeopardized if every act of disre-
spect or insubordination emerging from a protected dis-
pute which divides management from its workforce, ren-
ders the employee involved as fair game for discipline.
The misconduct in issue here arose in a context,
which, under established Board policy, constituted activ-
ity protected by Section 7 of the Act.' ° Accordingly,
the conduct of Withers and the discipline imposed in-
volves a conflict between the employer's right to main-
tain discipline and respect on the one hand, and the em-
ployee's right to implement statutory rights on the other.
The accommodation was spelled out by the Seventh Cir-
cuit Court of Appeals in the Thor Power Tool case, supra,
351 F.2d at 587:
The employees right to engage in concerted actit-
vity may permit some lee way for impulsive behav-
ior, which must be balanced against the employer's
right to maintain order and respect. Initially the re-
sponsibility to draw the line between these conflict-
ing rights rest with the Board, and its determina-
tions unless illogical or arbitrary ought not be dis-
turbed.
In factual circumstances somewhat similar to that in-
volved here the Board has taken cognizance of the fore-
going, and "held consistently that discipline for having
the temerity to ask questions during such meetings vio-
lates the Act."" However, that view is not without ex-
ception, and, under the precedent, the balance tips in
favor of employer interests where the disruption caused
by the employee involves "violent conduct, improper
motive, or bad faith." 12 The discipline will also be
upheld where such conduct is part of a "planned course
of conduct to disrupt the captive audience speeches in an
attempt to turn the meetings into a union forum."' 3 The
final circumstance in which discipline is to be upheld as
7 See Ohio Power Company, 216 NLRB 348, 354 (1975), and cases cited
at fn. 7 thereof See also NL.R.B. v. Thayer Co., 213 F.2d 748 (Ist Cir
1954), for the principles governing unfair labor practice strikers.
a N.L.R.B. v. Thor Power Tool Company, 351 F.2d 584, 587 (7th Cir.
1965).
9 Liberry Nursing Home. Inc.. 245 NLRB No. 153 (1979) See also
N.L.R.B. v. Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946).
to Howell Metal Company, 243 NLRB No. 178 (1979); Prescott Industri-
al Products. supra.
" Howell Metal Company, 243 NLRB No. 178 (1979).
'2 See J. P Stevens d Company, Inc., 219 NLRB 850 (1975).
'3 See J. P. Stevens Company. Inc., supra, 850; and Hicks Ponder
Company. supra. Cf Howell Metal Company. supra. This limitation on em-
ployee misconduct operates to preserve "an employer's free speech right
to communicate his view . . [whichl . . . is firmly established and
which cannot be infringed upon by a union or the Board." NL.R.B. s
Gissel Packing Co.. Inc., 395 U.S. 575, 617 (1965).
lawful focuses upon the degree of misconduct on the
part of the employee, an evaluation controlled by the fol-
lowing:
A line exists beyond which an employee may not
with impunity go, but that line must be drawn be-
tween cases where employees engaged in concerted
activities exceed the bounds of lawful conduct in "a
moment of animal exuberance" . . . or in a manner
not activated by improper motives, and those fla-
grant cases in which the misconduct is so violent or
of such serious character as to render the employee
unfit for further service. 14
With these considerations in mind, it is first noted that
the evidence does not support a conclusion that Withers'
disruption of the meeting was pursuant to conspiritorial
or independent predesign to prevent Mede from deliver-
ing the entirety of his message. s It does not appear that
a single employee supported Withers effort that led to
his dicharge. Instead, the reaction of fellow employees
was negative, marked by "cat calls" and even profanity,
in their urging him to sit down and shut up.
The appropriate inference arising on this record is to
the effect that Withers, dissatisfied with responses from
Mede during private interviews-the only forum through
which management was willing to respond to employee
inquiries-wished an airing in the presence of fellow em-
ployees. All temperament manifested by Withers was in-
cidental to his somewhat continuous and unsuccessful
effort to ask a question. Undoubtedly he was the provo-
cateur and Mede was impelled by his conduct to join in
an emotional exchange of the type to be expected of two
determined individuals, each seeking what the other
would not give. Undoubtedly anger escalated on the part
of both until the deadlock was broken.' 6 Yet, not a
'' The Bettchcr Manufacturing Corporation, 76 NLRB 526 (1948) See
Prescott Industrial Product C, 215 NI RB 51, 52 (1974), enforcement
denied 500 F 2d 6 (8th Cir.). See, however. Masoneian International, Inc..
223 NLRB 966 (1966), including fn. 3
" James E. Michener, an employee called by Respondent, denied that
Withers had told him that he wsas going to ask questions at the meeting
Resp. Exh 7 is an unsworn statement of Michener by Respondent's coun-
sel which recites the contrary However, Respondent's attempts to obtain
affirmation of the truth thereof fell short of subjecting the content thereof
to the oath. As such, its status remains unssorn. ar.d the declarations
therein do not constitute competent proof
's Considerable effort was made on behalf of Respondent to elicit
opinion testimony as to the relative demeanor of Withers and Mede
during their confrontation. Withers was described as cross, rather loud,
disrespectful, out of control, angry, upset, rumbling, mumbling, grum-
bling, surly, ugly. very determined, arrogant, rude, nasty, and flushed
The descriptive testimony applied to Mede. however, was hardly a
model of consistency. For Mede was variously depicted as showing a de-
meanor ranging from "controlled anger" and an authoritative posture itl
"polite" and "calm" throughout. Confessedly. I hold a basic mistrust for
opinion evidence from lay persons in such a context While that involved
here was in minor instances plainly biased (see for example, the testimi(ny
of Helen Harding) the characterizations assigned would depend on per-
spectives, and one's ouwn definition of the terms related Many f the wit-
nesses who offered such testimony were rank-and-file employees, called
to the stand in the presence of their boss, Mede, to offer testimony in a
proceeding in which he was named as the sole perpetrator of unfair labor
practices. While the bulk of the characterizations were perhaps honestly
maintained, the danger is great that they were distorted by the authorita-
tive status in which Mede would necessarily be held, coupled with the
declarant's own idea as io what should be expected of Withers as all rn1-
Coninued
F. W. WOO[_1ORTH CO. 1115
shred of evidence was offered to suggest that Withers re-
sorted to profanity, or threats, nor was he shown to have
used language of an inciteful nature.1 7 Despite Withers'
mutterings after he sat down, Mede was able to continue
the speech t and to conclude it within the time frame
permitted by the Board's Peerless Plyvwood rule. 9
On balance, I am convinced that Withers' conduct,
though having provoked a confrontation with Respond-
ent's chief management functionary at the Denver facili-
ty, was confined to expressions of temperament not
atypical of what might be expected when employee con-
fronts manager in the heat of a union campaign. Withers,
within limits, had the right to openly protest the gag im-
posed on employee participation during the propaganda
sessions, and the credible evidence on this record fails to
substantiate that he, though perhaps carried away, was
guilty of the degree of misconduct sufficient to remove
the protective mantle of Section 7 on those present.
Withers' conduct rendered him no more fair game for
discharge under this Act than would have been the case
had he been instructed to forego any other Section 7
right and refused but without impeding management
from carrying forth its legitimate objectives. I find that
by suspending and then discharging Withers because of
his conduct at the captive-audience speech, Respondent
violated Section 8(a)(l) of the Act.
CONCUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
suspending, discharging, and refusing to reinstate Eric
Withers on and after May 24, 1979, because he engaged
in activity protected by Section 7 of the Act.
ployee Nonetheless, with the exception of such subjective characteriza-
tions as disrespectful. arrogant. surly, ugly, rude, and nasty, the evalua-
tions offered through these witnesses probably represented an acceptable
analysis of what they had perceived.
'7 Some 10 witnesses were called by Respondent to afford their ac-
counting as to what ranspired at the May 24 captive meeting This testi-
mony ranged from the believable to the obviously biased, and consisted
in the main of opinionated testimony. None of this group impressed me as
having a clear recollection of statements made by Withers in the course
of the confrontation with Mede. The only name calling attributed to
Withers. however. emerges from the testimony of certain of these wit-
nesses to the effect that Mede was called a "dictator." Given the limited
capacity for recollection of these witnesses, it is entirely possible that this
did not ocxcur, but that confusion resulted from a statement in the pre-
pared speech delivered by Mede, as follows: "In the past few days I have
been called smooth talking, a little dictator " See Resp Exh. 9 (c) Al-
though I reject this testimony and find no credible evidence that Withers
deferred to nlame-calling, I am inclined to believe that Withers did argue
that Mede preferred to "spoon feed" the employees, charged that this
would he another ession in which Mede would do all the talking and the
employees would do all the listening, and referred to the meeting as a
"one-sided affair'"
if After Withers sat down, he continued to mutter under his breathe
but at a level which did not prevent Mede from completing his speech
The testimony of Tufano that these mutterings were in the nature of "cat
calls" is discredited, since apparentl y at odds with testimony of other of
Respondent's witnesses to the effect that Withers continued to mumble
under his breath and really lo.
19 107 NLRB 427 (1953)
4. The aforesaid unfair labor practice is an unfair labor
practice having an effect upon commerce within the
meaning of Section 2(6) and (7) of the Act.
THFI REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent violated Section 8(a)(1)
by suspending and thereafter discharging Eric Withers, I
shall recommend that Respondent offer him immediate
and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges previously enjoyed, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum
of money equal to that which he normally would have
earned from May 24, 1979, to the date of a bona fide
offer of reinstatement, less net interim earnings during
such a period. Backpay shall be computed on a quarterly
basis as prescribed in F. W: Woolworth Company, 90
NLRB 289 (1950). Interest thereon shall be computed in
accordance with Florida Steel Corporation, 231 NLRB
651 (1977).2 °
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER2 1
The Respondent, F. W. Woolworth Company,
Denver, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending, or otherwise discriminat-
ing against employees in regard to their hire, tenure of
employment, or other terms and conditions of their em-
ployment in order to discourage them from engaging in
activity protected by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Eric Withers immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority and other rights and privileges previously
enjoyed, and make him whole for any loss of earnings he
may have suffered by reason of the unlawful discrimina-
20 See., generally, lus, Plumnbing & Healing Co.. 138 NLRH 71t (192)
21 In the event no exceptions are filed as provided h Sec 1246 of
the Rules and Regulations of the National Labor Relations Hoard. the
findings, conclusions, and recommended Order herein shall. as provided
in Sec 102 48 of the Rules and Regulatirrns, he adopted by the Board and
become its findings. conclusion,, and Order, and all objections heret,,
shall he deemed aived for all purposes
F. W WOOLWORTH CO
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion against him in the manner set forth in the section of
the Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under terms of this recommended Order.
(c) Post at its place of business in Denver, Pennsylva-
nia, copies of the attached notice marked "Appendix." 22
22 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Copies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by Re-
spondent's representative, shall be posted immediately
upon receipt thereof and be maintained by it for 60 days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that, except as herein specifi-
cally found, the allegations of the complaint are hereby
dismissed.