General Nutrition Center, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 850 (N.L.R.B. 1975)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Nutrition Center, Inc. and Patricia Roach.
Case 6-CA-7843
FINDINGS OF FACT
I. JURISDICTION
November 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING, JENKINS, AND PENELLO
On March 26, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in answer thereto.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent General Nutrition
Center, Inc., Pittsburgh, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
I Although the record herein refers to the existence of a "North Side"
store operated by Respondent , the parties agree that no such store exists.
Accordingly, we hereby delete reference to the North Side store from par.
2(c) of the Administrative Law Judge's recommended Order.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard at Pittsburgh, Pennsylvania, on
January 14, 1975, pursuant to a charge filed on October 21,
1974,1 an amended charge filed on November 13, a second
amended charge filed on December 9, and a complaint
issued on December 17. The question presented is whether
Respondent violated Section 8(a)(1) and (4) of the
National Labor Relations Act, as amended (the Act), by
discharging and allegedly refusing to reinstate four
employees and one supervisor in connection with their visit
to a Board Regional Office during which the initial charge
herein was filed.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondent and by counsel for the General Counsel
(herein called the General Counsel), I make the following:
I All dates are 1974 unless otherwise noted.
2 Employees were also required to wear name plates, staple a receipt to
221 NLRB No. 130
Respondent, a Pennsylvania corporation with its princi-
pal offices located in Pittsburgh, Pennsylvania, is engaged
in the retail sale of health foods. Respondent operates retail
stores in several States, including the Commonwealth of
Pennsylvania. During the 12-month period preceding the
issuance of the complaint, Respondent sold and distributed
products whose gross value exceeded $500,000 and
received goods and materials valued in excess of $50,000 at
its Pennsylvania facilities directly from points outside
Pennsylvania. I find that, as Respondent concedes, it is
engaged in commerce within the meaning of the Act, and
that assertion of jurisdiction over its operations will
effectuate the policies of the Act.
II. THE ALLEGED UNFAIR ' LABOR PRACTICES
A. Background
The store involved in this case, the Jenkins Arcade store,
is one of 15 locations supervised by District Sales Manager
Timothy Bentley, who is conceded to be a supervisor
within the meaning of the Act. Among Bentley's duties was
the enforcement of Respondent's "six-way sales rule,"
which, inter alia, required the store to pass out free samples
to customers (a practice referred to in the record as
"sampling") and required sales personnel to approach each
customer in the store and attempt to sell him vitamins C
and E.2 Respondent's counsel characterized its sales
policies as "aggressive ." About mid-September, Respon-
dent modified its rule by requiring sales personnel to
initiate their approach to each customer with an inquiry
about whether he used these vitamins. The sales personnel
had formerly approached each customer with the inquiry,
"May I help you, please?" and they found it difficult to
adjust to the new approach. At no time relevant here were
the Jenkins Arcade employees represented by any labor
organization.
The Jenkins Arcade store is one of about 20 stores
located off an enclosed but unheated pedestrian arcade,
about 15-feet wide and 130-feet long, which extends
through the ground level of an office building bounded by
two parallel city streets. A double set of doors open on to
the street at each end, but they are constantly being opened
as pedestrians leave the arcade, or enter it to shop, to get
an elevator to the offices above the arcade level, or to take
a short cut. Respondent' s store is about equidistant from
the ends of the arcade. The store is near the elevators; and
during the period here in question, the elevator starters-
who wore jackets under their uniform jackets but did not
wear gloves-periodically dropped into Respondent' s store
to warm up.
The sales personnel in the Jenkins Arcade Store were
required to perform "sampling" in the arcade area
immediately outside the door to the store, as well as in the
store itself. In mid-October and prior to October 18,
employees Patricia Roach, Rita Zagerson , and other
each bag, enclose a "bag stuffer" in the bag , and ask the customer to sign up
on the mailing list.
GENERAL NUTRITION CENTER
employees complained to Bentley that it was too cold to
engage in "sampling" in the arcade.3 He told Zagerson and
other employees,,perhaps including Roach, that they could
wear coats it they wished.
At a time not clear in the record, Bentley received from
Respondent's shopping service a bad shopping report
which stated that the Jenkins Arcade store employees were
not abiding by the "six-way sales rule." 4 On Friday,
October 18, he had a private conference with Jenkins
Arcade Store Manager Kelly. Kelly's duties included those
performed by rank-and-file sales personnel, but she was
admittedly a supervisor within the meaning of Section
2(11) of the Act.5 Bentley told Kelly that Respondent
wanted sales to go up to a specified amount. When Kelly
replied that this was "pretty hard," Bentley said, " .. .
well, then you push.",Bentley -told Kelly that she was not
"pushing [the,employees ] enough, was not motivating , ..
training your people, they're not doing the right thing."
Kelly replied that the-employees were "trying" and that she
kept after them. He said that if she could not "produce,"
her job was at stake. Bentley said that Respondent wanted
the employees "to really pressure [the customers ] more."
He also told Kelly to see to it that the "six-way sales rule"
was adhered to. In addition, the two discussed the relative
capabilities and industry of the individual sales clerks.
Kelly said that she would put pressure on certain "vagrant"
employees. Bentley told Kelly that all the employees were
to receive wage increases retroactive to October 14.6
Kelly also brought up the employees' complaints that
they were too cold when they performed "sampling" in the
arcade . Bentley replied that the employees should be
alternated at half-hour intervals,7 that they should be kept
close to the door so they could benefit from the air
curtain,8 and that the employees- could wear sweaters or
coats .9
B. The Decision To Visit the NLRB Regional
Office
1. Preliminary discussions among the women
Kelly did not come to the store on October 19, which
was Saturday and her day off. When employee Florence
Krulick came in that morning, she told employee Roach,
whose day off was Friday, that on the previous day Bentley
3 This finding is based on Roach's testimony and on credited portions of
Bentley's testimony Bentley initially testified that' "several" of the "newer
girls" (Store Manager Noima Kelly had worked for Respondent for 15
years, and Roach for about as long as Bentley) had said in late September
that "it's a little chilly out here." After Bentley testified about a complaint
from Zagerson , the General Counsel, asked him whether in mid-October
"employees" had begun to tell him it was cold in the arcade. Bentley replied
that Kelly "was informed" that the employees could take turns and wear
coats . The General Counsel pointed out that this was nonresponsive„ and
repeated the question, whereupon Bentley replied, "Just the one woman."
Bentley adhered to this,testimony after the General Counsel drew Bentley's
attention to his preheating affidavit that "employees" had made such
complaints, with Bentley tendering as an explanation that he immediately
relayed Zagerson 's complaint to Store Manager Kelly and told her that
coats and half-hour rotations would be permissible. Bentley's tendered
explanation seems to me illogical , and his demeanor when he 'gave it was
unconvincing Further, I am persuaded that he 'regarded the matter as
material to Respondent 's cause and, therefore, that his lack of veracity in
this connection reflects on his credibility generally
4 The record suggests that Bentley also received adverse reports from his
851
had told Kelly that the employees "weren't doing their
jobs; [they] weren't pushing enough." Krulick said that she
"was very upset about it and [Kelly] was upset. Everybody
was just upset over him being there' Friday and he had
[Kelly] upstairs such a long time." Krulick also reported
Kelly's statement, based on Bentley's conversation with
her, that the sales personnel were all getting raises.
Later on in the day, employees Rita Schnyder and Mary
Jane Swick told Roach that they were quitting at the end of
the day because the low temperature in the arcade hall was
causing Schnyder to suffer, from her arthritis and had
required Swick to get a shot from her doctor for bursitis of
the shoulder. Roach then telephoned Kelly that these
employees were quitting because of the cold hall. Later
that afternoon, when Bentley came to the store, Roach told
him that Schnyder and Swick were quitting because of the
cold hall. Bentley replied "well, that's just too bad about
them." Roach said "well, Tim; it is cold out there." Bentley
said "if the girls don't want to do it I'll get somebody that
will." He then left the store. Later that, afternoon, Roach
(in accordance with her usual. Saturday practice) tele-
phoned Kelly to give her the week's sales figures. Roach
reported- that when she told Bentley about the resignations,
Bentley "had a very poor attitude about it, he said, he don't
care, if they don't want to stand outside, he'll get
somebody that will do it." At Kelly's request, Roach
telephoned her again that evening. Kelly then said that
something had to be done, Kelly had "got no satisfaction
whatever" from her Friday conversation with Bentley,
employees were quitting and new ones were hard to, find,
"everybody is getting disgusted, we have all this pressure,"
and "`the .girls just can't work under these conditions."
Kelly suggested that they "go up to the Labor Board and
take our grievances up to the Labor Board."
The next day, Roach telephoned Kelly again and asked
what she thought they should do. Roach said "if you want
to go to the Labor Board I'm willing to go too, but . . . I
think all the girls should go together, we should stick
together" Roach and Kelly then agreed between them-
selves about which employees they should each call. Kelly
called employee Phyllis, Pugliese, who said "it was
agreeable with her because she only had been employed
two weeks but . . . had never worked-at a place like that."
Roach called employee Marion Walker and told her about
the resignations and "we're thinking about , the Labor
relatives
5 Kelly had the power to hire and fire, but was a first -line supervisor.
6 My findings in this paragraph are based on a composite of Kelly's and
Bentley's testimony
' Because sampling was carried on when three or more persons were on
duty in the store, Bentley's system meant that an employee who worked
from 9 : 30 a.m. to noon could expect to spend , about 2 half-hour periods
sampling. Thereafter , five persons were normally present in the store.
B Roach testified that the air curtain was right over the store itself and
did not reach the arcade hall. I credit her testimony in this respect , because
she was an honest witness in a position to know the facts . Furthermore, if
the air curtain in fact reached the arcade hall, the employees would likely be
remaining within the curtain already.
9 My finding in this sentence is based on Bentley's testimony , indirectly
corroborated by Roach's credible testimony that she was told by Bentley or
Kelly that she could wear a coat. In view of Bentley's credible , testimony
that he suggested these methods of easing the employees ' discomfort, I do
not credit Kelly's testimony, denied by Bentley, that he obscenely expressed
total indifference to the employees' complaints about the cold.
852 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
Board .". Walker said "well, that seemed a pretty good idea,
maybe that way we could get some help because, nobody
would listen to us down there, Tim would not hear about
the cold, hall." Both Roach and Kelly called employee
Krulick. Krulick' told Roach that Krulick "hated to 'do
that"; Roach replied,-"'well, we°all really hate to go through
this but we have to have help, someone has to help us. We
dust could, not take .. -. that cold and the pressure,"
including being- "shopped" by Bentley's relatives.10 After
some hesitation; -'because, Krulick "really did value [her]
job," she agreed to participate in the Labor Board visit.
The five women `agreed to visit the Labor Board the
following day, Monday, because they knew that Bentley
planned to visit the store that day and they wanted the
store to be manned while they were absent.
2. The' women's announcement that they planned
to' visit the NLRB Regional Office
,On Monday,'October 21, Roach opened up the store at 8
a.m.; Krulick reported to work at her scheduled time, 9:30
a.m.; and Pugliese ` reported at her scheduled time, 10 a.m.
Krulick did some "sampling" in the arcade while wearing a
sweater. Her hands got cold, but gloves would have
interfered with her using a spoon to give out samples. The
three,-employees discussed the planned visit to the NLRB.
Krulick and. Pugliese were "a little excited, upset ...,they
didn't know what was going to happen." Roach said; `well,
we might as well do it, we have to have the help." Shortly
before noon, Kelly entered the store. Roach told her that
Bentley had telephoned that he was coming down to the
store ; Kelly replied, "good." Kelly- then went to put some
store records on her' desk' upstairs in the office area, where
Roach joined her.
As Kelly :and Roach came down -the stairs'shortly,before
noon, they saw 'Bentley come into the store. He told Kelly
that the previous Saturday he had brought some "goodies"
in the way of merchandise. She said, "I hope there's
something good:•that we need." Kelly further stated that
she was leaving the store for a while, that she did not start
until 12:30 and would be back. Bentley replied, "Okay."
Kelly thereupon left the store to do some shopping.
'At this time, Pugliese was "sampling" inside they store.
Bentley told her to pass out the samples outside the store.
Pughese said ' that it was 'cold out there and asked if she
could stand by the doorway because it was warmer.ii
Bentley told her that she could put on her coat and
alternate with,another employee on half-hour intervals, but
that she would have to distribute samples in the arcade
because "that's where the money was, there's where the
people were." Pugliese obeyed. A few minutes later, about
12:05 p.m.,' employee Marion Walker came into the store,
where she, was scheduled to begin work at 12:30' p.m.'
10 Roach credibly testified that the employees did not mind being
"shopped" by Respondent's regular shopping service
ii At the hearing , Respondent 's counsel stated on the record that the
Weather Bureau had advised him that the noon temperature that day was
44 degrees.'
12 Roach testified that Kelly did not add at this point that the employees
were going to, the Labor'Board . Roach impressed me as a more reliable
witness than Kelly, and I do not credit Kelly's testimony that she then made
such a reference
13 The store also employed a 'stockboy, who was not scheduled to begin
About 12:15, Kelly returned to the store. Bentley had his
coat off and, was working on the floor. Kelly said, "can you
man the store [?] ..` . the girls and I'are going up to the
Labor Board with our grievances." Bentley said,--"what are
you talking about?" Kelly looked at him and said, "you
must be kidding." Bentley said, "let's you and I go upstairs
and talk this over." Kelly said, "can one of my employees
go up with me?" Bentley said, "forget it ... if you all go
. you're all done." Bentley then walked toward the
telephone with the remark, "you'll come out on .the short
end." Kelly said "come on, girls, let's go then," and told
them to get their coats.12 These five women constituted all
of the 'sales force who regularly worked at the Jenkins
Arcade store.13
Bentley thereupon telephoned someone whose identity is
not disclosed in the record and said, within earshot of
Krulick and Walker, "well, there's been a walkout here
. ; . well, break in a meeting, this is an emergency, .' .
they are all walking out . . . so they are all automatically
fired, right?" He then paused and said "right." ' Upon
overhearing this conversation, Walker, who was still
carrying her coat but had put her purse in the customary
place finder the counter, retrieved her purse and laid her
store keys on, the shelf 'behind the counter near the
telephone. While still'on or after hanging up the telephone,
Bentley told the customers in the store, "my girls are
leaving so I'm closing the store."
In the meanwhile, Roach went upstairs, signed out, and
brought down Krulick's coat for" her. Roach told Krulick
and Walker to corn along. However, after taking her purse
from a shelf under the counter, Krulick went back upstairs
to 'fetch her umbrella. While Krulick was on this errand,
the other women left the'store. On the way out, Kelly told
Pugliese, who was apparently still "sampling" in the arcade
with her coat on, "we [are] leaving, we [are] going up to the
Labor Board." Pugliese then joined the group. While
waiting for Krulick, the other four women stood in front of
a shoe store next to Respondent's store. They were not
laughing and joking, but both the customers who had left
the store when Bentley closed the doors and employees
from other shops in the arcade crowded around to find out
what had happened.
When Krulick came down the steps inside the store,
carrying her umbrella, Bentley had one glass door closed
and was ready to close the other one. Bentley said, " I mean
it, Flo, . . . you're going to be fired if you leave this store."
Krulick replied, "well, Mr. Bentley, you were going to fire
me, anyway." 74 Bentley then opened the door and, let her
out. As soon as -Krulick joined them, no more than 5
minutes after the other women had left the store, all five of
them started to walk to the NLRB's Regional Office, about
a block away. En ,route, they saw James Hartman, who was
then the, manager of Respondent's Smithfield store,
work until 10 minutes later , and an employee who came in twice a week to
write up the order for the week Neither was then present in the store.
i4' When asked to explain this remark ,' Krulick credibly testified, "Well,
with the' pressure that was going on in the store and the working conditions
it just seemed like you felt like you were going to get fired, you felt like
you weren't doing your job because you knew that you were going to get
fired somehow if you didn't do this or that he was going to catch you at
doing something You dust felt like the working conditions were so bad that
he may just come in and say, well, you're going to be fired "
GENERAL NUTRITION CENTER
walking toward the Jenkins Arcade store. He looked at
them, smiled, shook his head, and shook his finger at them.
At the time that Kelly, Roach, Walker, and Pugliese had
left the store and Krulick had gone upstairs for her
umbrella, no more than seven customers were in the store.
While Krulick was still upstairs, Bentley telephoned Barry
Smoker, who at that time was manager of the Wood Street
store,15 and asked him to call then Smithfield Store
Manager Hartman, "that the girls walked out on me at the
Jenkins Arcade, to come down, I would need help."
Bentley then called the "home office" and "informed them
that it would be covered and informed them of the
incident." After that, Bentley let Krulick out of the store.
Bentley was then the only member of Respondent's staff
who was in the store, although stockboy Melvin Lowe was
scheduled to start work about 10 minutes later. After
letting out Krulick, Bentley closed the doors and checked
out the remaining customers. He then shut the store down
completely for between 5 and 15 minutes, until Smoker
and Hartman arrived. On prior occasions, Kelly had
operated the store by herself at this time of day when,
under "very unusual circumstances," she "didn't have the
employees." In addition, "a few times" when other store
personnel had called in sick she had operated the store by
herself until about 12:30 p.m.is
C. The Women's Visit to the NLRB Office
When the five women reached the Board's Regional
Office, the four employees remained in the receptionist's
office while supervisor Kelly went into the office of Board
Agent Burns; She told him that "all the girls were
involved," whereupon he called the four employees in as
well. The five women told him their "grievances." He told
them that he did not know what the agency could do about
their grievances but it was against the law to fire them for
coming to the Labor Board.17 A Board secretary then
typed up the original charge which underlies the instant
proceeding. This charge described all five women as
"employees," and alleged that Respondent had violated
Section 8(a)(1), (3), and (4) of the Act in that it had
"terminated [their] employment,"' and "has refused, and
does now refuse, to employ' them," because "they engaged
in concerted activities with other employees of said
employer for the purpose of collective bargaining and
other mutual aid and protection and in order to discourage
said concerted activities," and because "they filed charges
or gave testimony under the Act." Burns said it was
unnecessary for all five women to sign the charge, and at
his suggestion Roach signed it. Bums told them to go back
10 At the time of the hearing, he was manager of the Jenkins Arcade
store.
is My findings in this sec It , B, 2, are based on the five women's
testimony, which for the most part is mutually corroborative, and on
portions of Bentley's testimony which the women did not contradict. For
the reasons stated infra, sec II , E, I regard the women's testimony as more
credible than his.
17 My finding in this sentence is based on Roach's testimony, which
seems more probable to me than the somewhat different versions of Kelly
and Krulick
18 This is the hour testified to by Bentley, the only witness who testified
about the hour of their return His preheanng affidavit states that they
returned about 1:30 or 2
19 As previously noted, Walker had already left her keys in the store.
853
to the store and make sure that they were really fired; and,
if they were fired, apply for unemployment compensation.
D. The Women's Return to the Store
Thereafter, all five women went back to the store, where
they arrived at or about 2:30 p.m.18 Respondent's
truckdriver, identified in the record as "Jack," was
unloading Respondent's delivery truck with the assistance
of stockboy Lowe, who had been scheduled to begin work
at the Jenkins Arcade store at 12:30 p.m., about 10 minutes
after the women left the store. Jack said, "you girls might
as well dust keep on walking." They replied, "no, we're
going back to work."
Inside the store, Smoker and Hartfield were behind the
counter, the stockboy from Respondent's Wood Street
operation was in the store, and Charles Bower, the
manager or assistant manager of Respondent's Allegheny
Center store, was standing at the sample table. So far as the
record shows, no "sampling" activities' were being conduct-
ed in the arcade. The three women who still had keys to the
store - Kelly, Roach, and Krulick - entered the store.19
Because customers were in the store, Walker and Pugliese
stood in the doorway, 9 to 11 feet from Bentley, who
admittedly saw them there. As Kelly, Roach, and Krulick
came in, Bower told Kelly, "I hope you girls are coming
back to work because I don't feel good and I want to go
home." Kelly went behind the counter to Bentley and said,
"are we fired?" He replied, "Yes." Kelly said, "well, here's
our keys," and the three each laid her keys down. Bentley
asked, "is this all the keys?" They said yes, and left the
store. As they went out the door, Walker asked, "are we
fired?" Kelly replied yes.20
Subsequently, Roach told a nonsupervisory sales clerk at
Respondent's North Hills store that the women, including
Kelly, had been fired for going to the Labor Board because
of the "pressure," and that "everything was in the hands of
the Labor Board." Roach gave a similar report to stockboy
Lowe, who works in the Jenkins Arcade store. Similarly,
Walker told an employee in Respondent's North Side store
that the women, including Kelly, had been fired for going
to the Labor Board and the matter was in "their hands."
Likewise, Krulick told an employee at and the then
manager of the North Hills store that Kelly and "the rest of
the girls" had been fired when they got back from the
Labor Board.
Kelly, Roach, Krulick, and Walker each credibly
testified that when she came back to the store from the
NLRB, she was willing to go back to work. Pughese
credibly testified, that when returning to the store, she was
Pughese had worked for Respondent for only 2 weeks and apparently never
received any keys.
20 My findings as, to the Kelly-Bentley conversation are based on the
mutually corroborative testimony of Kelly, Roach, and Krulick Bentley
testified that Kelly "threw her keys down and said Tim, since you fired us
here's our keys," to which Bentley replied, " I didn't fire anyone, you girls
walked out on me ." Smoker and Hartman gave essentially the same version
of the conversation, but both testified that all three women returned their
keys At the time of the hearing, all three of these men occupied positions in
Respondent's management; on the date of this conversation , Smoker took
over Kelly's job at the Jenkins Arcade, and Hartman replaced Smoker as
manager of the Wood Street store. On the basis of the witnesses' demeanor
and the considerations summarized infra, sec. II, E, I credit Kelly, Roach,
and Krulick, and discredit Bentley , Smoker, and Hartman
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to- go back to work. It was stipulated that Respon-
dent had not subsequently contacted any of the individuals
involved to offer them reinstatement to their substantialy
equivalent situations. Respondent received the original
charge herein on October 23, 1974, and the amended
charge herein (containing essentially the same allegations)
on November 15. On December 12, Respondent received
the second amended charge herein, which deleted the
8(a)(3) allegation but was otherwise essentially the same as
the others. On December 18, Respondent received the
complaint herein, which alleged, inter alia, that Respon-
dent had "failed and refused, and continues to fail and
refuse, to reinstate" the five women.21 Respondent's
answer, dated December 27, denied such allegations, and
asserted, "Respondent was not aware that employees
wished to be reinstated until this was proposed by a
representative of the National Labor Relations Board, Mr.
George Loveland, on or about December 9, 1974." At the
outset of the hearing on January 14, 1975, I pointed to this
assertion and to Respondent's admission'that it received
the original charge on October' 24, 1974, and then
suggested that "it's a fair inference from the charge that
they wanted their jobs back, whether or not that imposed
any liability on you is something else again, but it seems to
me a fair inference when you get a charge like this from the
employees that they want their jobs back." Respondent's
counsel replied, "Okay."
E. Reasons for Crediting the Five Claimants Over
Bentley
While denying that Bentley ever told the five claimants
that they were discharged, he testified that after they
walked out they were in effect discharged for walking out.
In view of this admission, and the admission in-Respon-
dent's answer that the five claimants were discharged on
October 21, many of the other conflicts in the testimony
have limited materiality to the General Counsel's theory of
the case. However, because such conflicts are material to
Respondent's theory of the case and (to some extent) mine,
and perhaps to considerations of advocacy, I have resolved
them as previously indicated, for reasons previously stated
and for the further reasons summarized below.
As to the events at the Jenkins Arcade store immediately
before and immediately after the five claimants' visit to the
NLRB Regional Office, the claimants gave testimony
which was for the most part mutually corroborative.
Further, their testimony that Bentley said they would be
discharged if they left the store gains support from the
undisputed evidence regarding their conduct. Thus, Walk-
er's testimony that she overheard Bentley say on the
telephone that the women were "automatically fired"
because they were walking out (a conversation denied by
Bentley) is corroborated by her action in thereupon leaving
her keys in the store. Further, the testimony of Kelly,
21 About the same date, Kelly told Hartman during a chance encounter
that "she would rather scrub floors than go back to work" for Respondent
Hartman testified that he was not in a position to offer her a job No
contention is made that this conversation affects the length of Kelly's
backpay period or the propriety of a reinstatement order as to her Heinrich
Motors, Inc, 166 NLRB 783, 785-786 (1967), enfd 403 F 2d 145, 149-150
(C A. 2, 1968)
Roach, and Krulick that Bentley told them they would be
discharged if they walked out (conversations as to which
Bentley gave different versions) is corroborated by the
action of all three, after the Labor Board visit, in physically
reentering the store to return their keys. On the other hand,
after testifying that when the women left the store there
were "too many customers in there for me to accommo-
date," 22 Bentley added the consequently improbable
-testimony that he did not close the store to additional
customers until after he had made two telephone calls - to
Smoker for help at the store, and to Respondent's home
office to advise it of the incident and that it 'would be
covered. For these reasons, because of the considerations
summarized supra (fn. 3), and in view of'the witnesses'
demeanor, I discredit Bentley's denial of the
"automatically fired" telephone conversation credibly
testified to by Walker and to some extent Krulick, and
discredit his testimony that at least 20 customers were in
the store when the women left (rather than no more than 7,
as credibly testified to by Kelly, Roach, and to some extent
Pugliese).
Moreover, although Bentley testified that Kelly told him
that the women "were going to some kind of Board" and
that she did not (as Kelly testified) specify the "Labor
Board," Bentley's prehearing affidavit stated that Kelly
said that "she and the rest of the employees were leaving to
go to the Labor Board." When shown this affidavit and
again asked whether Kelly had said the "Labor Board,"
Bentley replied, "She did not state it was. I assumed it."
When I asked Bentley, "When did you assume it?" Bentley
replied, "Well, after I got my senses together and these
fellows were here and came up to the store and then I said,
is there some type of Board, it would have to be some type
of a Labor Board. When I was talking to my boss later on
that's when I rationalized that it was the National Labor
Board." I discredit Bentley's denial of Kelly's testimony
that she told him before leaving the store that the women
were going to the "Labor Board" in view of the witnesses'
demeanor; Respondent's failure to ask its witnesses
Smoker and Hartman (who with Allegheny store manager
or Assistant Store Manager Bower came to help out at the
store after the women left) about Bentley's alleged
conversations with them about the Labor Board; Respon-
dent's unexplained failure to call Bower as a witness; and
the inconsistency as to this issue between Bentley's
testimony and his prehearing affidavit before a notary
public. I find unpersuasive Bentley's testimony on redirect
examination, given entirely in response to leading ques-
tions, that when swearing to the affidavit he saw no great
point in objecting to its reference to the "Labor Board,"
because Respondent had already been served with the
charge and Bentley knew by that time where the women
had gone.23
For the foregoing reasons and the other reasons
previously indicated, and in view of the witnesses'
22 He testified that there were "at least" 20 His prehearing statement
says "about 30-40 "
23 Respondent's counsel averred in his opening statement that one of the
parties had told Bentley when leaving that "she intended to go to the Labor
Board about her situation. Whether they were going to walk out and go to
the Labor Board at that time, no, . we didn't know that "
GENERAL NUTRITION CENTER 855
demeanor, I find that the events at Respondent's Jenkins
Arcade store on October 21, 1974, occur-red as summarized
supra, sec. II, B,2, and discredit all contrary testimony. In
addition to my previous findings with respect to Bentley's
testimony, I discredit his testimony, contrary to that of all
other witnesses, that the first time he saw Kelly that day
was about 12:15 p.m. and that she entered the store with
Walker; Bentley's version of his conversations with Kelly
that day, including his testimony that when he asked her to
talk the matter out upstairs, she unconditionally refused;
his testimony that she obscenely referred to Respondent's
alleged harassment (testimony credibly denied by Kelly)
and that she_ was boisterous and loud (testimony credibly
denied by Krulick and in effect by Roach); Bentley's
testimony (credibly denied, in effect, by Krulick) that when
she left he asked why they were doing this and she did not
reply; and `his testimony (credibly denied by Kelly, Roach,
and Krulick) that after leaving the store for the Labor
Board they stood outside the store for 10 or 15 minutes
laughing and joking. In so concluding, I have taken into
account the fact that as to Bentley's position'with respect
to the sales personnel's complaints about the cold, I have
discredited certain portions of Kelly's `testimony and
credited certain portions,of Bentley's where corroborated
by Roach.
F. Analysis and Conclusions
1. Employees Roach, Krulick, Pugliese, and
Walker
a. The discharge
The five women who worked at the Jenkins Arcade store
were dissatisfied with management because they felt cold
when complying with management's orders to "sample" in
the arcade, and because they felt that management was
unreasonably pressuring them, by what they supposed to
be implied threats of discharge, to increase sales by
exerting additional and what they regarded as awkward
sales pressures on customers. The women had complained
to management about these problems, but regarded as
insufficient such adjustments as management was willing
to make. Nor were, the women represented by any labor
organization which could speak for them. Accordingly, the
five women decided to visit the NLRB's Regional Office
together to discuss their grievances. In order to enable
Respondent to keep the 'store open during their absence,
they purposely selected a time when Bentley was present at
24 The Sixth Circuit's 1968 refusal (402 F '2d 987) to enforce this portion
of the Board's order was in effect disapproved by the Supreme Court's 1972
opinion in N L R B v Scrivener, 405 U S. 117
25 When asked on cross-examination how she first became aware of the
Labor Board, Kelly testified, "Well,-ifs a known fact that any time you have
any grievances the Labor Board is always there to state your grievances I
have known that for years "
26 For these reasons, I have grave reservations about Respondent's
contention that a complaint to the NLRB about a grievance against an
employer is statutorily protected only if the employer would have been
obligated to bargain about that grievance of there had been a statutory
bargaining representative I regard it as unrealistic to compel employees, on
pain of discharge for error in pleading, to complain to the Board about job
losses resulting from a plant shutdown rather than about the shutdown itself
(cf N L. R B v Royal Plating, and Polishing Co, Inc, 350 F 2d 191, 196
(C A 3, 1965), about racially discriminatory treatment by a foreman rather
the store. They then apprised Bentley that they intended to
go to the Labor Board with their grievances. Bentley told
them, "if you all go ... you're all done." The women
nonetheless proceeded to the NLRB's Regional Office,
where they discussed with NLRB Representative Burns
whether the Board could remedy their grievances and their
discharge. They eventually filed a charge based on their
discharge. At Burns' suggestion that they go back to the
store and make sure whether they were really fired, they
then returned to the store, which they reached about 2
hours and 15 minutes after they had walked out. Bentley
could have operated the store continuously notwithstand-
ing the walkout, but he elected to close it for 5 to 15
minutes until the arrival of personnel from other stores.
When the five women returned and (through Kelly) asked
whether they were discharged, Bentley reiterated that they
were, whereupon the three women who still had store keys
returned them.
Relevant case law makes it clear that Respondent would
have violated Section 8(a)(1) and (4) of the Act if it had
discharged the four employees for expressing an intention
to go to the NLRB about their grievances at some
unspecified time. First National Bank & Trust Co, 209
NLRB 95 (1974), enfd. 505 F.2d 729 (C.A. 3, 1974); Hoover
Design Co., 167 NLRB 461 (1967);24 Virginia-Carolina
Freight Lines, Inc., 155 NLRB 447 (1965); Redwing
Carriers, Inc., 165 NLRB 60, 78-80 (1967); Hydraflow
Valve & Manufacturing Co., 158 NLRB 730, 736 (1966);
Ertel Manufacturing Corporation, 200 NLRB 525 (1972);
Southwest Janitorial and Maintenance Corporation, 209
NLRB 402 (1974). While I do not disagree with Board
Agent Burns' statement to the employees that the agency
could do nothing about the grievances which had led them
to decide to go to the Board, this was likewise true in all 'the
cases just cited If the statute protected only meritorious
pleas to the Board, the Board's channels of information
would be dried up by fears of retaliation should the plea
prove unfounded because (for example, and as was the
case here) 25 the complaining parties have misconceived the
statute's substantive provisions. See N.L.R.B. v. Whitfield
Pickle Company, 374 F.2d 576, 582-583 (C.A. 5, 1967).26
For the foregoing reasons, I conclude that the employ-
ees' action in announcing their intention concertedly to
consult the NLRB about their grievances constituted, at
least prima facie, activity protected by Section 7 of the Act,
and their discharge for announcing this intention' violated,
at least prima facie, Section 8(a)(1) and (4). Respondent's
contention that such activity was rendered unprotected
than the employer's retention of that foreman (cf Laborers' International
Union of North America, AFL-CIO, Local 478 (International Builders of
Florida, Inc ), 204 NLRB 357 (1973), enfd 503 F 2d 192 (CA D C, 1974),
cert den Feb. 18, 1975), or about the terms of a bargaining agreement's
pension program rather than the employer's failure to pay to employees who
have already retired the pension to which the agreement entitled them (cf
Allied Chemical & Alkali Workers of America, Local Union No I v
Pittsburgh Plate Glass Co, 404 U S. 157(1971)) The Board impliedly
reserved this question in First National Bank, supra Inclusion generally of
Work-related complaints to the NLRB within the statutory protection not
only would relieve the employees of the duty to observe such pleading
niceties. but also would more nearly correspond to the kind of employee
complaints which an NLRB regional office in fact receives In any event,
the employees' grievances were in fact mandatory bargaining subjects (infra,
fn 34)
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rests largely on the fact that the proposed visit was to be
made during the employees' working hours.
Initially, Respondent relies on Bentley's testimony that
the women "were discharged because they walked out,'not
because they went to the Labor Board." On the basis of
this testimony and in the absence of evidence of any
specific intent by Respondent to chill efforts to seek the
NLRB's assistance , I conclude that Respondent would
have discharged these women, for walking off the job at the
time they did, even though they had done so for purposes
unrelated to the Act rather than in order to consult the
NLRB. Accordingly, the discharge action cannot be found
unlawful on the theory that Respondent "discriminated"
against absence to consult the NLRB as compared to
absence for other reasons.27 However, the fact remains
that, as Respondent knew, the employees did lose their
jobs in consequence of their visit to the NLRB. The natural
and foreseeable effect of their discharge was to deter them
and other employees, at least some of whom learned what
had happened, from consulting the NLRB. See N.LR.B. v.
Great Dane Trailers, Inc., 388 U.S. 26, 32 (1967). Accord-
ingly, the mere fact that Respondent's policy may have
called for discharging any personnel who walked out
during working hours, regardless of the reason for the
walkout, does not conclude the issue.28 Rather, the
question is whether the discharges' invasion of employees'
right to consult the NLRB is outweighed by the Respon-
dent's legitimate interest in keeping its store operating
during its normal business hours.29 I conclude that the
facts in the- instant case fail to provide a sufficient
justification for such invasion.
In the first place, the employees could not have been
lawfully discharged if they had merely engaged in a
concerted withholding of their services - whether or not
limited to 2-1/4 hours, and whether or not at a time
convenient to Respondent - in order to exert economic
pressure on Respondent to redress their grievances. 30 But,
the technique which they did select - a 2-hour visit to the
NLRB intentionally timed to coincide with the presence in
the store of other personnel who could operate it - was
27 Cf. N.LR B v Superior Company, Inc, 199 F 2d 39,42-43 (C.A 6);
Gale Products, Div. of Outboard Marme .Corp, 142 NLRB 1246, 1258-59,
enforcement denied 337 F.2d 390 (C.A 7, 1964); Chautauqua Hardware
Corp, 103 NLRB 723, enfd 208 F.2d 750 (C A. 2); Pacemaker Corporation,
120 NLRB 987, 990-991, enfd. 260 F.2d 880, 882-883 (C.A 7, 1968);
Stratford Furniture Corporation, 96 NLRB 1031, enfd 202 F.2d 884 (C.A 5).
28 Cf. NLR.B. v. Washington Aluminum Co, 370 U.S 9, 16-17 (1962)
29 N.L R B. v. Fleetwood Trailer Co, 389 U.S 375 (1967), and cases
cited; N L RB v. Jemco, Inc, 465 F 2d 1148, 1152, fn 7 (C A. 6, 1972), cert
denied 409 U.S 1109 (1973), Newland Knitting Mills, 165 NLRB 788, 793-
796 (1967), Lewis Lane (Darling & Co) v N.L R B, 418 F 2d 1208, 1211-12
(CA D.C., 1969)
30 First National Bank of Omaha, 171 NLRB 1145, 1151 (1968), enfd. 413
F 2d 921 (C.A 8, 1969), Downtowner of Shreveport, 175 NLRB 1106, 1111-
12 (1969).
31 See N.L R B v Kennametal, Inc., 182 F.2d 817, 819 (C.A. 3). Cf.
Robertson Industries, 216 NLRB No 62 (1975), Okla-Inn, d/b/a Holiday Inn
of Henryetta, 198 NLRB 410 (1972), enfd 488 F.2d 498 (C A. 10, 1973);
Magna Visual, 213 NLRB 16'2 (1974), Kelso Marine, Inc, 199 NLRB 7, 13
(1972).
32 Respondent errs in relying on N LR B v Ford Radio & Mica Corp.,
258 F.2d 457, 461, 463-465 (C.A 2, 1958), where (unlike here) the strikers
refused the employer's request to explain their demands . The court
distinguished , inter aha, cases where (as here) "the circumstances were such
that the management must have known the issues." The portion of Ford
less disruptive of Respondent's operations than a full-scale
strike would have been.31
Such a strike in protest against the conditions which
prompted their visit to the NLRB would have been
protected concerted activity notwithstanding Respondent's
contention that the employees had allegedly, failed suffi-
ciently to apprise Respondent of the nature of their
grievances. The employees had repeatedly complained to
Bentley about the cold hall, which had led two ofthem to
quit on the working day preceding the walkout; Pugliese
made a fruitless complaint to Bentley about the cold less
than half an hour before the walkout; Kelly had told
Bentley on her preceding working day that Respondent's
sales expectations from the employees were unreasonably
high and that the employees were complaining about the
cold hall; and, just before the walkout, Kelly told Bentley
that the women were "going up to the Labor Board with
[their] grievances." Such protests were specific enough to
meet the standards set forth in Washington Aluminum,
supra at 13-15.32 Indeed, Respondent's answer avers that
the women "were discharged because of , Respondent's
belief that they left their employment rather than comply
with Respondent's sales procedures" - an assertion which,
in context, shows that Respondent knew their walkout to
be related to their complaints about the cold hall and
about the kinds of sales pressures which were being exerted
upon them and which they were expected to exert upon
customers. Further, assuming arguendo that Respondent is
correct in urging that the Act protects concerted activity in
connection with work-related problems only where they
constitute mandatory subjects of"collective bargaining,33 I
find that both the temperature of the working environment
and the employees' work pace and work loads constitute
such subjects.34 Because the record fails to support
Respondent's contention that management could have
gone no further in satisfying the employees' complaints
without compromising its "six-way sales" policy, assertedly
a managerial prerogative,35 I need not and do not
Radio cited by Respondent was relied on by the Court of Appeals opinion
reversed by the Supreme Court in Washington Aluminum See N L.R.B v
Washington Aluminum Company, Inc., 291 F.2d 869, 877 (CA. 4, 1961)
33 Some support for this view is suggested by Holiday Inn, supra, Cleaver-
Brooks Mfg Corporation v. N.L.R.B, 264 F 2d 637,641 (CA. 7, 1959); and
Peru Associates, Inc., 170 NLRB 643 (1968); see also , G & W Electric
Specialty Company, 154 NLRB 1136 (1965), 360'F.2d 873 (C.A. 7, 1966);
N L R.B v Leslie Metal Arts Company, Inc, 509 F.2d 811 (C.A 6, 1975). Cf.
Masonic and Eastern Star Home, 206 NLRB 789 (1973). None of these cases,
however, involved consultation with the NLRB, see supra, fn 26.
34 Scofield v N L.R.B., 394 U S 423, 432-433 (1969); Brotherhood of
Painters, Decorators and Paperhangers, of,America, AFL-CIO, District
Council No. 9 (Westgate Painting), 186 NLRB 964 (1970), enfd. 453 F 2d 783
(C.A 2, 1971), cert. denied 408 U.S. 930 (1972); see also, Washington
Aluminum, supra, 370 U.S. at 16-17; Phillips Industries, Inc., 172 NLRB
2119, 2127-31 (1968), enfd sub nom. Harry Clarke, President of Western
Carolina Industries, Inc, etc ., 410 F.2d 756 (C.A. 4, 1969).
35 For example, the employees ' complaints about the cold could perhaps
have been allayed by such techniques as premium pay for winter
"sampling" in the arcade , cold weather use of prepackaged samples so
arcade "samplers" could wear gloves, or radiant heaters in the arcade.
Further, perhaps the employees' objections to the sales pressure exerted on
them could have been lessened by diminishing the store's sales quota or
devising a less awkward conversational approach to the customer
GENERAL, NUTRITION CENTER 857
determine whether such alleged irreconcilability, if estab-
lished, would render the employees' activity unprotected.36
Respondent seemed to be contending at the hearing that
management had already made as reasonable accommoda-
tions as possible to the women's complaints - a conten-
tion which would seem to render irrelevant the Respon-
dent's further contention that the women- had failed
sufficiently to apprise Respondent about what these
complaints were. However; the merits of such complaints
would not affect the employees' statutory right thus to seek
what they ,regarded as a more desirable management
response.37
Lending additional weight to the employees' cause is the
circumstances that the Jenkins Arcade store opened before
and closed after the Pittsburgh Regional Office.38 In
consequence , and because these five women constituted
Respondent's entire sales force at the Jenkins Arcade store,
at no time during the Regional Office's regular hours could
all 5 women have paid a simultaneous visit when none of
them was scheduled to work. To be sure they could likely
have visited the Regional Office individually, or perhaps in
pairs, during their off-hours.39 Further, the Board has
permitted an employer to restrict, for purposes of main-
taining operations, the number of employees permitted to
attend a Board hearing or prehearing conference during
working hours.40
However, this latter class of cases does not present
certain significant considerations which exist here. The
visit to- the NLRB office by Respondent's personnel did
not involve a proceeding already under way, where the
agency representatives and, perhaps, a knowledgeable
Union had already been alerted to a possible need by the
employees to be protected in and advised about their
rights. In such a context, the employees can rest assured
that even. though they may be at work rather than at the
Board's offices, their case is in fact being considered by the
agency, they will' likely each have a chance to tell the
agency whatever they know about the matter, and at the
very-least this information.-including knowledge peculiar
to them - will be conveyed to the appropriate authorities
by persons familiar with the Act and without any interest
36 Cf. Royal Plating, supra, 350 F.2d at 196; N.LR B. v Greensboro Coca
Cola Bottling Company, 180 F.2d 840, 846 (C.A. 4), Blue Cab Company, 156
NLRB 489, 490, fn. 4, 504 (1965), enfd 373 F 2d 661 (C A D C, 1967), cert
denied 389 U.S 837 (1967); Skaggs Drug Centers, Inc, 1.76 NLRB 737, 739
(sec III , C) (1969); Trico,Products Corporation, 195 NLRB 1053, 1060-!>l
(1972), enfd in relevant part 489 F.2d 347 (C.A 2, 1973).
,37 As the Supreme Court said in finding protected an employee walkout
in protest of what the employees regarded as an excessively cold work place,
"The fact that the company was already making every effort to repair the
furnace and bring heat into the shop that morning does not change the
nature of the controversy that caused the walkout, At the very most, the fact
might tend to indicate that the conduct of the men in leaving was
unnecessary and unwise, and it has long been settled that the reasonable-
ness of workers' decisions to engage in concerted activity is irrelevant to the
deternunation of whether a labor dispute exists or not " Washington
Aluminum, supra at 16 The Court went on to quote the following language
from N LR B v Mackay Radio & Telegraph Co., 304 US- 333, 344 "The
wisdom or unwisdoin of the men, their justification or lack of it,' in
attributing to, respondent an unreasonable or arbitrary attitude in
connection with the negotiations cannot determine whether, when they
struck, they did so as a consequence of or in connection with a current labor
dispute " Accord` Hugh H Wilson Corporation v. N.L R B, 414 F 2d 1345,
135-1, fn. 12 (CA 3, 1969), cert. den 397 U.S 935 (1970), Cusano d/b/a
American Shuffleboard Co. v N L.R B, 190 F.2d 898, 902 (C.A 3) Cf.
N.L R.B v Northern Metal Company, 440 F 2d 881, 885 (C.A 3, 1971),
in concealing information helpful to the employees ' cause.
The claimants here, however, were wholly inexperienced in
matters relating to the Act or to the NLRB ,41 and had no
experienced spokesman to assist them . Cf. N.L. R.B. 'v.'
Weingarten, Inc., 420 U.S. 251 (1975). Their conversations
preceding the walkout show that the women had the
natural human desire to hearten each other in carrying out
their unfamiliar and perhaps scary mission . Moreover,
even a qualified labor attorney familiar with presenting
claims to the NLRB might well feel more confident of a
favorable Regional response if all the involved employees
evinced by personally coming to the Board office their
genuine concern about the problem , and if they were able
mutually to assist each other in recalling and presenting to
the Board agent all the facts about the matter, including
those not known or immediately recalled by most of those
present. The considerations referred to in this paragraph
also show that the women would not likely have felt fully
assured in the protection of their rights if they had
confined themselves to making individual telephone calls
to the Board's Regional Office , as each of them could
unquestionably have done during nonworking hours.
Finally, if the four employees herein had wanted to
discuss a possible solution of their problems with a Union
or with counsel rather than with the NLRB , Respondent
would have violated Section 8(a)(1), by discharging them
for concertedly leaving the store during working hours for
this purpose 42 I regard it as inappropriate for the NLRB to
accord more weight to such conduct than to requests for its
ownassistance. -
To counter the foregoing considerations favoring statuto-
ry protection of the employees' conduct, the credible
evidence of record shows only that although Bentley could
in fact have kept the store open during the entire period of
their absence, which the women timed for 'this very
purpose, he chose to shut down the store for 5 to 15
minutes until he could get help from other stores. I do not
regard this at least partly self-inflicted injury to Respon-
dent in consequence of this short shutdown as sufficient to
outweigh its invasion of employee rights by discharging
them for seeking the Board's assistance . While Respon-
involving an employee 's efforts to obtain benefits to which he believed
himself entitled under a collective-bargaining agreement.
38 The store opens at 8 a in, Monday through Saturday , closes at 9 p.m
on Mondays, and closes no earlier than 5:30 p in the rest of the week. The
Regional Office, s open from 8.30 a .m to 5 p in. , Monday through Friday
Kelly testified that she "figured all offices opened up at approximately eight
or eight-thirty."
39 The record fails to disclose the women's complete work schedules.
Kelly did not work on Saturdays and, the Monday of the walkout, was
scheduled to begin work at 12.30 p.m Roach did not work on Fridays; she
worked from 9 to 5 . 30, Tuesdays through Thursdays , and 8 to 4.30,
Saturdays and Mondays. On the Monday of the walkout , Krulick was to
work from 9.30 to 6 Walker worked 2 days a week at Respondent's Wood
Street store , and worked at the Jenkins Arcade store on Mondays,
Wednesdays, and Fridays ; on the Monday of the walkout she was
scheduled to work there from 12 . 30 to 9 On the Monday of the walkout,
Pughese was scheduled to begin work at 10 a in.
40 Standard Packaging Corporation , 140 NLRB 628 (1963), Item
Company, 113 NLRB 67, 85-87 (1955), cf. Newland Knitting, supra at 793-
796, Walt Disney World Co ., 216 NLRB No. 35 (1975).
4i I so infer from Kelly's testimony supra, fn. 25 , and from the absence of
evidence that any of them had ever had 'anything to do with either the
NLRA or the NLRB -
42 Robertson; supra, 216 NLRB No. 62; Modern Motors, Inc, 96 NLRB
964, 966, enfd in material part 198 F 2d 925 (C A. 8)
858 DECISIONS QF NATIONAL LABOR RELATIONS BOARD
dent's counsel suggested at the hearing that the employees
could have chosen to pay their visit at 2:30 or 3 p.m.,
allegedly a less busy,time than the 12:15 to 2:30 period
they actually did choose,43 there is no reason to suppose
that by 3 p.m. Bentley, who was in charge of 15 stores,
would still have been at the Jenkins Arcade store.
For the foregoing reasons, I conclude that Respondent
violated Section 8(a)(1) and (4) of the Act by discharging
employees Roach, Krulick, Pugliese, and Walker because
they announced that they were leaving the store to take
their grievances to the NLRB.
b. The ' alleged - refusal to reinstate
For the same reasons , I conclude that Respondent
violated Section 8(a)(1) and (4).by failing and refusing to
reinstate these four employees upon their return to the
NLRB. While it is true that the women did not in terms
state that they wanted their jobs back, their conduct under
all, the circumstances conveyed this message to Bentley.
Thus, Kelly had told Bentley that the women were leaving
to go to the Labor Board with their grievances, a self-
limiting errand , and asked Bentley to man the store, a
request which was plainly for temporary coverage in view
of Bentleys responsibility for a number of stores. Further,
on the women 's return , Kelly whose status as spokes-
woman for the group was made clear by circumstances
evident to Bentley - asked him whether he had in fact
discharged them, an inquiry she would not likely have
made if all of them had intended to remain away from the
store in any event. Moreover, even though only three of the
women had keys to turn in, the other two also returned to
the store, -thereby indicating a desire to come back to work
if they could; and the three who had keys turned them in
when, but not until , Bentley again told them that they were
discharged . In addition, just before announcing the
walkout, Kelly had expressed interest in the salability of
new merchandise brought in by Bentley. Furthermore,
Bentley , who testified for Respondent, did not deny
inferring from their conduct that they wanted to return.44
That -Respondent's October 21 conduct was motivated by
43 The fact, that all five women (the store's entire sales force) were
scheduled to be working at 2.30 p in and until at least 4 30 p in, whereas
no more than three were scheduled to be working before 12:30 p in,
suggests that management believed the store's busiest period did not begin
until 12.30 or later and included 2 30 to 3 p in. (supra, fn 39) However,,
Kelly testified that lunchtime was "approximately" the busiest time of the
day, and Roach that the busiest time was about II or 11 30 to I Krulick
testified that the busiest time vaned, but lunchtime was usually busy and
sometimes the store was a little busy for an hour or so in the evening
44 Cf G o l d e n State Bottling C o v NLRB 414 U S 168 (1973),
N.LR,B v Wallick and Schwalm Company, 198 F 2d 477, 483 (C A 3)
45 The foregoing analysis is based on the credited testimony Bentley
admitted that, by the time the women returned, he had concluded that they
were visiting "some type of a Labor Board " Accordingly, I would find that
his failure to honor, their implied request for their jobs violated Section
8(a)(1) and (4) even if I believed his testimony, which for reasons previously
stated I do not credit , that at the time they walked out he knew only that
they intended to visit "some type Board." See Home Beneficial Life
Insurance Company, Inc v. N LR B, 159 F.2d 280, 284-285 (C A. 4), cert
denied 332 U.S. 758, 172 ^ F.2d 62 (C.A. 4) There is no evidence as to when
the four employees were replaced. Smoker testified that he had been the
Jenkins Arcade store manager since supervisor Kelly's "demise," but I
regard this testimony as insufficient to sustain Respondent's burden of
showing (Fleetwood, supra, 389 U.S. at 378-379, fn 4) that Respondent gave
him this job before 2 30 p.m. on October 21
an intent to preclude the women from- returning to their
jobs is further evinced by Respondent's admitted failure to
offer any of them jobs after receiving the women's charges
(the first of them - 2 days after the walkout) and the
complaint alleging that Respondent had unlawfully refused
to employ the women. The foregoing evidence, taken as a
whole, leads me' to conclude that on October 21 the women
made -an implied request for their jobs, and that Bentley
understood their conduct as constituting such a request.
See Paterson Steel & Forge Co., 96 NLRB 129. In any
event, I find that the charges, at least the first of which was
signed by Roach on behalf of all five women, constituted
applications for reinstatement.45
2. Supervisor Kelly -
I further find that Respondent violated Section 8(a)(1)
and (4) of the Act by discharging Supervisor Kelly because
she announced that all five women were going, to the
NLRB with their grievances, and by refusing to reinstate
her for this reason and because she had participated in that
visit. It is true that the protection of Section 7 does not
extend to supervisors. However, in order to assure that
employees are in fact able to obtain Board vindication of
their own Section 7 rights, the statute forbids an employer
to punish a supervisor for participating in the filing of a
charge and in the relaying of information to the NLRB
relevant to an employee charge or complaint.46 I regard as
immaterial the fact that, owing, to Board Agent Burns'
suggestion that not all the women named in the charge
need sign, Roach rather than Kelly actually signed the
-charge.47 Nor do I regard as, material the fact that most if
not all Kelly's oral statements to Board Agent Burns were
made before 'the charge was filed, and she was discharged
before the issuance of the complaint herein. See generally
Scrivener, supra at 121-125. As pointed out in the General
Counsel's helpful brief, "Just as the vindication of
employee rights requires the protection of supervisors who
testify at formal hearings and during investigations, so also
does this policy require the protection of the Board's
sources of information before the investigation begins."
46 See, e.g., Southland Paint Company, Inc, 156 NLRB 22, 37-38 (1965),
enfd 'in relevant part 394 F.2d 717, 720-721 (C.A 5, 1968) (discharge of
supervisor for giving counsel for the General Counsel affidavit used to
oppose employer's request for continuance of unfair labor practice hearing).
'King Radio Corp, Inc, 166 NLRB 180, 183-184'(1967),enfd 398 F2d 14,
21-22 (C A 10, 1968) (constructive discharge of supervisor for willingness to
testify on the General Counsel's behalf), Electro Motive Mfg Co, Inc, 158
NLRB 534 (1966). enfd. 389 F.2d 61, 62 (C A. 4. 1968) (discharge of
supervisor for giving Board agent' signed statement which admitted
commission of unfair labor practices). Shop-Rile Foods, Inc /If-E-Mar(, 205
NLRB 1076 (1973) (discharge of supervisor for refusal to reaffirm before
Board agent a truthful affidavit previously given to employer, when affiant
was employee, to support collusively procured charge against employer),
Nash v. Florida Industrial Commission, 389 U S. 235. 238 ("Congress has
made it clear that it wishes all persons with information about such practices
to be completely free from coercion ,against reporting them' to the Board
This is shown by its adoption of §8(a)(4), which makes it an unfair labor
practice for an employer to discriminate against at) employee because he
has filed charges", emphasis supplied,); Pedersen v. NLRB (Modern
Linen), 234 F 2d 417, 418, 420 (C A. 2, 1956), cited with approval, Scrivener,
supra at 124; Better Monkey Grip Company, 115 NLRB 1170, 1170-71
(1956), enfd. 243 F.2d 836 (C.A 5, 1957 ), cert 'denied 353 U S. 864 (1957).
47 Pate Manufacturing Company, 197 NLRB 793-802, (1972), Gibbs
Corp, 131 NLRB 955 (1961); enfd. 308 F 2d 247 (C.A 5,4962)
GENERAL NUTRITION CENTER 859
While not determinative of the propriety of a, reinstate-
ment and backpay order with respect to Kelly, the question
of whether her discharge violated Section 8(a)(1) because
motivated by her participation in the employees' concerted
efforts to remedy their grievances does affect the scope of
the cease-and-desist order and the wording of the notice. I
agree with the General Counsel that this question should
be answered in the affirmative. For the reasons stated by
me in Theatre Now, Inc., 211 NLRB 525 (1974), I believe
that the discharge of or other reprisals directed against a
supervisor for engaging in conduct protected in an
employee violates Section 8(a)(1) of the Act if (1) under all
the circumstances, such punishment tends to lead rank-
and-file employees reasonably to fear that the employer
will punish them for engaging in like conduct; and (2) the
employer has failed to take reasonable and timely'steps to
reassure his rank-and-file employees that they will not be
punished for such `conduct 48 These standards are plainly
met here. Thus, the women acted as a group; 49 Respon-
dent discharged them as a group and refused to reemploy
them as a group; and Respondent's personnel action
against Kelly was described to unterminated employees at
the Jenkins Arcade store and other stores operated by
Respondent as an indistinguishable part of the personnel
action against all five women. Kelly's testimony affirma-
tively discloses that she regarded herself as entitled to
NLRB protection; and there is not the slightest evidence
that any of Respondent's employees ever distinguished
between Kelly's rights and their own, or were ever given
any reason to do so by Respondent or anyone else. Indeed,
although the October 21 original charge herein (describing
Kelly as an "employee.") was accompanied by a letter
requesting Respondent "to submit promptly a complete
written account of the facts and a statement of your
position in respect to the allegations set forth in the
charge," Kelly was described as an employee in both
Roach's November 13 amended charge and her December
9 second amended' charge. Further, Bentley's November 11
pretrial affidavit ascribes certain conduct to "Kelly and
one or two other employees." The earliest reference in' the
record to Kelly's supervisory status is contained in 'the
December 17 complaint. In view of these circumstances, I
conclude that so far as both the impact of and the motives
for Respondent's personnel action are concerned, this case
is in reality precisely the same as if all five women had
been employees, instead of only four of them. Cf. Modern
Cleaners Co., 100 NLRB 37, 38-39, 55, enfd. 208 F.2d 243
(C.A. 2).
48 Thus, in finding a supervisor's discharge unlawful because really
motivated by his failure to engage in sufficiently egregious and successful
unfair labor practices, the Board relied partly on the fact that the "very
pretext which [the employer] utilized to discharge him - the charge that he
assisted the Union in winning the election - was particularly well suited to
be a signal to the employees that the most extreme measures would be
invoked to defeat their self-organizational efforts " I D. Lowe, d/b/a
Thermo-Rite Manufacturing Company, 157 NLRB 310, 322 (1966), enfd 406
F.2d 1033 (C A 6, 1969)
A different conclusion is not indicated by Beasley v Food Fair of North
Carolina, Inc, 416 U S 653 (1974), which issued after my Theatre Now
decision The Court there stated that the Act does not protect supervisors
from discharge "solely" because of union activities.
49 The private October 18 Kelly-Bentley conversation suggests that her
decision to visit the NLRB may have had somewhat different motives than
Further, this case falls generally within the scope of prior
cases finding unlawful the discharge of supervisors in
connection with the discharge of employees for concerted
activity. Thus, in Fairview Nursing Home, 202 NLRB 318,
enfd. 486 F.2d 1400 (C.A. 5, 1973), cert. denied 95 S. CtL
46, where the employer intended to and did discharge all
43 persons who had signed union cards, the Board found
unlawful the discharge of the 2 supervisors in the group as
well as the 41 employees. Krebs and King Toyota, Inc., 197
NLRB 462, 463, fn. 4 (1972), held a supervisor's discharge
unlawful because he 'spoke for the striking body shop
employees and, by his discharge, Respondent effectuated
its decision to close the body shop operation because of the
employees' union adherence . . . [His ] discharge . . . was
,an integral part of a pattern of conduct aimed at
penalizing employees for their union activities.' " Further,
the Board has held that the discharge of an alleged
supervisor violated Section 8(a)(1) because "motivated by a
desire to discourage union activities'in general among the
employees, rather than a concern that she, as an asserted
supervisor, had signed a union card." Heck's Inc., 170
NLRB 178, 184, fn. 8 (1968).50 Respondent's personnel
action against Supervisor Kelly was at least as closely
related to its action against the four employees as were the
foregoing employers' actions against these supervisors to
such employers' actions against employees who had
engaged in Section 7 activity.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent has violated Section 8(a)(1) and (4) of
the Act by discharging and by failing or refusing to
reinstate employees Florence Krulick, Phyllis Pugliese,
Patricia Roach, and Marion Walker. ,
3. Respondent has violated Section 8(a)(1) and (4) of
the Act by discharging and by failing or refusing to
reinstate supervisor Norma Kelly.
4. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist therefrom, and from like or related action,
and to take certain affirmative action to effectuate the
policies of the Act. I shall' recommend that Respondent
did the employees' decision However, there is no evidence that the
employees knew this
so In enforcing the Board 's order as to her, the court of appeals stated,
the Board 's conclusion that she was not a 'supervisor' seems
amply supported by the record. In any event .-the Company never
indicated that it was limiting its coercive tactics to supervisors , and it in fact
knew that [she ] was a union member The Company's conduct can therefore
be viewed as a violation of 8(a)(1) even if one assumes [she ] was a front-line
supervisor , simply because of the Company's awareness that she would most
likely pass on the threats made to her to her fellow union employees with
whom she had a close working relationship " Food Store Employees Union,
Local 347, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO [Heck's, Inc.] v. N L R B., 418 F 2d 1177, 1181
(C.A.D C , 1969)
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer reinstatement to all five women, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of their unlawful discharge and Respondent's
failure or refusal to reinstate them, by payment to them of
a sum of money equal to that which they normally would
have earned from the time they returned to Respondent's
store on October 21, 1974, to the date of a valid offer of
reinstatement less their net earnings during this period, to
be computed in the manner described in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
My finding as to the appropriate backpay period would
be the same even absent my finding that on their October
21 return to the store the women impliedly asked for their
jobs. Because they were discharged for their protected
walkout while engaged therein, their backpay began to run
when they evinced their availability for employment by
completing the errand which had led them to leave the
store - namely, their visit to the NLRB - and returning
to the store. Sea View Industries, Inc., 127 NLRB. 1402,
1403, 1426, 1438 (1960); Kellogg Company, 189 NLRB 948,
950, fn. 7 (1971), enfd. 457 F.2d 519 (C.A. 6, 1972), cert.
denied 409 U.S. 850 (1972); Roemer Industries, Inc., 205
NLRB 63 (1973).
I regard as unmeritorious Respondent's contention that,
because employees' Section 7 rights do not extend to
Supervisor Kelly and because my unfair labor practice
findings herein call for an order of reinstatement with
backpay of rank-and-file employees discharged for the
same reasons as she, that order alone should be regarded as
sufficient public reassurance of employee protection.
Because the personnel action against Kelly was unlawful
partly for the very reason that rank-and-file employees
would likely view it in the same light as Respondent's
identical action against their fellows,'to exclude Kelly from
the order would mislead the rank-and-file employees into
imagining limitations on their own protection against such
punishment. Indeed, the employees might conclude that it
was her leadership in the activities leading to the discharge
of all five women which caused her to be excluded from the
relief afforded to her four followers, and infer that
leadership in subsequent like activities would expose them
to discharge although mere participation would not. Such
considerations point to a reinstatement and backpay order
with respect to Kelly (as well as the employees) at least as
strongly as do those in cases affording such relief to all
discharges where the supervisors' discharge was found
unlawful because effected to provide or lend color to an
51 See Pioneer Drilling Co., Inc., 162 NLRB 918, 922-924, 927 (1967),
enfd. in relevant part 391 F.2d 961 (C.A. 10, 1968), J. B Martin Company,
164 NLRB 460, 462-465 (1967), enfd. 395 F.2d 690 (C A. 4, 1968), J. M
Fields, Inc., of Florida, 185 NLRB 222, 228-229, 231 (1970) See also, Dewey
,Brothers, Inc., 187 NLRB 137, 142 (1970), enfd. 80 LRRM 2112 (C.A 4,
1972), affording reinstatement and backpay to a supervisor discharged
partly because of his wife's union activity at a plant owned by another
employer
52 E.g., Southland Paint Co, Inc, 156 NLRB 22, 37-38 (1965), enfd. 394
F'.2d 717, 720-721 (C.A. 4, 1968); Electra Motive Mfg Co., Inc, 158 NLRB
534, 543-544 (1966), enfd. 389 F 2d 61 (C.A 4, 1968), Oil City Brass Works
v N. L. R. B., 357 F.2d 466, 470-471 (C.A. 5, 1966); Miami Coca Cola Bottling
Company, d/b/a Key West Coca Cola Bottling Company, 140 NLRB 1359,
excuse for terminating the employees for protected
activity.51
Moreover, the Board has held with some judicial
approval that an employer violates the Act by disciplining
supervisors for giving the Board information relevant to
vindication of employee rights even though the employees
themselves may be unaware of such discipline 52 Thus, to
the extent that the order as to Kelly is connected with her
action in giving information to the NLRB, that order
vindicates the rights of rank-and-file employees by, inter
aha, assuring all of Respondent's supervisors that they are
free to engage in like conduct. See Silver Bay Local Union
No. 962, International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO (Alaska Lumber & Pulp Co.,
Inc.), 215 NLRB No. 79 (1974), enfd. 510F.2d 1964 (C.A.
9, 1975). 1 note that at least three of Respondent's present
supervisors - Bentley, Smoker, and Hartfield - must
have been specifically aware of what happened, to
supervisor Kelly and why it happened.
I shall also recommend that Respondent be required to
post appropriate notices. Because the record affirmatively
shows that personnel at Respondent's Smithfield, Alleghe-
ny Center, Wood Street, North Hills, and North Side stores
were acquainted with Respondent's unfair labor practices,
and because Walker had been working part time at
Respondent's Wood Street store, notices are to be posted
at these stores as well as at the Jenkins Arcade store.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 53
Respondent General Nutrition Center, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise taking
adverse action against any supervisor under circumstances
constituting interference with, restraint or coercion of,
employees in the exercise of their rights under Section 7 of
the Act.
(b) Discharging, refusing to reinstate, or otherwise
interfering with, restraining, or coercing employees, be-
cause they have engaged in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
(c) Discharging, refusing to reinstate, or otherwise taking
adverse action against any supervisor or any employee
because he has filed charges or given testimony under the
Act.
1361 (1963), modified 341 F.2d 524 (C.A 5, 1965), cf Grand-Central
Chrysler, Inc, 155 NLRB 185, 187-188 (1965). Contra: General Engineering,
Inc & Harvey Aluminum v N. L. R B, 311 F.2d 570, 573-574 (C A 9, 1962).
Indeed, it is arguable that under some circumstances employee rights to
Board vindication would be more seriously undermined by secret than by
overt discipline of supervisors. Overt discipline might at least reveal that
relevant evidence existed and that another source should be sought.
53 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
GENERAL NUTRITION CENTER 861
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Offer Florence Krulick, Phyllis Pugliese, Patricia
Roach, Marion Walker, and Norma Kelly reinstatement to
their formerjobs, and make them whole for any loss of pay
they may have suffered by reason of Respondent's action
in discharging and refusing to reinstate them, in the
manner set forth in the section of this 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, timecards,
personnel records and reports, as well as all other records
necessary or useful in analyzing and computing the
amount of backpay due under the terms of this Order.
(c) Post at its Jenkins Arcade, Smithfield, Allegheny
Center, North Hills, North Side, and Wood Street stores
copies of the attached notice marked "Appendix." 54
Copies of said notice on forms provided by the Regional
Director for Region 6, after being duly signed by the
Respondent's representative_ shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees and
supervisors 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.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
54 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
the law by firing and refusing to reinstate employees
Florence Krulick, Phyllis Pugliese, Patricia Roach, and
Marion Walker, because of their protected concerted
activity and because they filed charges and gave testimony
under the National Labor Relations Act. It has also been
decided that we violated the law by firing and refusing to
reinstate Supervisor Norma Kelly under circumstances
which would lead employees to believe that they too would
be discharged if they engaged in concerted activity
protected in employees, and because she filed charges and
gave testimony under the Act. We have been ordered to
post this notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL NOT fire or refuse to reinstate any employee
or supervisor because he has filed charges or given
testimony under the Act.
WE WILL NOT fire or refuse to reinstate any employee
for engaging in concerted activity for mutual aid or
protection.
WE WILL NOT fire or refuse to reinstate any
supervisor under circumstances which would lead our
employees to believe that this will happen to them too
if they engage in concerted activity protected in
employees.
WE WILL offer to reinstate the following individuals
and make them whole, with interest, for loss of pay
resulting from their unlawful discharge: employees
Florence Krulick, Phyllis Pugliese, Patricia Roach, and
Marion Walker and Supervisor Norma Kelly.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of these rights.
The Act DOES NOT protect the right of supervisors to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
Our employees are free to 'engage in concerted activities
for the purposes of collective bargaining or other mutual
aid and protection.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
GENERAL NUTRITION
CENTER, INC.