Grant's Home Furnishings, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1975

218 N.L.R.B. 757 (N.L.R.B. 1975)

GRANTS HOME FURNISHINGS 757
Grant's Home Furnishings, Inc. and George W.
Roberts. Case 12-CA-6465
June 20, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On January 20, 1975, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his 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 the Respondent, Grant's Home
Furnishings, Inc., Riviera Beach, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
because he gave testimony under the Act at a Board-
conducted representation proceeding involving Respon-
dent beginning in July 1973. Said conduct is alleged to be
violative of Section 8(a)(1), (3), and-(4) of the National
Labor Relations Act, as amended. In its answer, Respon-
dent denied the commission of any unfair labor practices.
A brief has been filed by Respondent.
Upon the entire record, including my observation of the
witnesses, and after due consideration of Respondent's
brief, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges that Respondent is a Florida
corporation with a place of business in Riviera Beach,
Florida, where it is engaged in the retail sale of furniture,
and further alleges that during the 12 months preceding the
issuance of the complaint, a representative period, Respon-
dent had gross revenues in excess of $500,000, and in the
course and conduct of its business purchased and received
goods and materials valued in excess of $50,000 directly
from plants located outside the State of Florida. Respon-
dent's answer to the complaint admits the foregoing
allegations but denies the ultimate allegation, i.e., that
Respondent is and has been at all-material times herein an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. At the hearing, Respondent
stated that its answer intended to deny the legal conclusion
that the Board had jurisdiction in this case, but it conceded
that the facts admitted meet the Board's standards for
assertion of jurisdiction. Upon the facts admitted by
Respondent, I find that Respondent is engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction in
this case.
II. THE LABOR ORGANIZATION INVOLVED
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: This case
was heard before me on November 25 and 26, 1974, at
West Palm Beach, Florida, upon a complaint issued by the
General Counsel of the National Labor Relations Board.
The complaint, based upon a charge filed on August 20,
1974, alleges in substance that Respondent, Grant's Home
Furnishings, Inc., since on or about June or July 1974, has
refused to grant a wage increase to George W. Roberts, the
Charging Party in this case, based upon Roberts' member-
ship in or activities on behalf of Freight Drivers, Ware-
housemen and Helpers Local Union No. 390, an affiliate of
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and/or because
he- engaged in concerted activity for the purposes of
collective bargaining or mutual aid or protection, and/or
218 NLRB No. 118
The complaint alleges that Freight Drivers, Warehouse-
men and Helpers Local Union No. 390, an affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereinafter
"Local Union No. 390" or "the Union"), is and has been at
all times material herein a labor organization within the
meaning of Section 2(5) of the Act. In Respondent's
answer and again at the hearing, it refused to admit that
Local Union No. 390 is a labor organization within the
meaning of the Act. In a Decision and Direction of
Elections in Cases 12-RC-4396 and 12-RC-4397 issued by
the Acting Regional Director for Region 12 on November
7, 1973, of which I take, official notice, it was found that
Local Union No. 390 is a labor organization as defined in
Section 2(5) of the Act. The foregoing finding was based
upon testimony presented in the representation proceeding
referred to. At the hearing in the instant case, Respondent
presented no evidence to the contrary. Accordingly, I find
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Local Union No. 390 is a labor organization within
the meaning of Section 2(5) of the Act.'
III. THE UNFAIR LABOR PRACTICES
A. The Corporate Structure
The Respondent here, Grant's Home Furnishings, Inc.,
is a Florida corporation which owns several retail furniture
stores in the State of Florida and one or more warehouses
which service those stores. The corporation was acquired in
1971 by Aristar, Incorporated. A subsidiary of Aristar,
called Aristar Management Corporation, effectively oper-
ates all of the Grant's stores and facilities through a
division of Aristar Management called the Home Furnish-
ings Division. All told, the Home Furnishings Division of
Aristar manages about 108 retail furniture stores in North
and South Carolina, Georgia, Alabama, and Florida.
Ultimate control of personnel policies in all 108 stores,
including the Grant's stores, is exercised by the director of
personnel for the Home Furnishings Division. At all times
material herein , the director of personnel was Joseph A.
Tierney, whose office was located in Augusta, Georgia. Mr.
Tierney testified that, as personnel director, he was
"responsible for the development, implementation and
administration of all the divisions, personnel policies,
personnel procedures, programs, including wage and salary
administration , employee relations, the whole entire
personnel functions, whatever comes into that" of the
Home Furnishings Division. The complaint alleges and the
answer admits that, at all material times, Tierney was an
agent of, and a supervisor for, Respondent Grant's.
B. George Roberts' Union Activity
George W. Roberts is a tractor-trailer driver for Grant's.
At the time of the alleged discrimination, he had been
employed by Grant's for about 3 years.
Roberts played a principal role in an effort to organize
one or more bargaining units of Grant's employees
beginning in April 1973. He contacted Local Union No.
390, received and distributed approximately 100 authoriza-
tion cards to other employees, and personally got "quite a
few" cards signed. Based upon these cards, petitions were
filed with Region 12 of the National Labor Relations
Board for elections in a unit of warehouse employees in
West Palm Beach, Florida (Case 12-RC-4396), and a unit
of warehouse employees in Riviera Beach, Florida (Case
12-RC-4397).2
The Riviera Beach central warehouse was a new facility
which Grant's had gradually put into operation in the late
summer and fall of 1973. Uncertainties about the appropri-
ate unit at the Riviera Beach location occasioned delays in
the processing of the representation proceedings referred to
' I note that Respondent 's personnel director testified at the instant
hearing that another store owned by Respondent Grant's in Stewart,
Florida, is currently in a collective-bargazmng relationship with Local
Union No. 390.
2 Although the record is unclear on this point, it appears that Roberts
also was instrumental in organizing four other Grant's facilities during this
period.
3 The settlement agreement contained a nonadmission-of-guilt clause. I
above. Consequently, there were two sets of hearings in the
representation cases in July and October 1973.
Roberts attended and testified at the July hearings,
during which time he was absent from work for a total of 7
days. In October, Roberts attended 3 days of Board
hearings. The Acting Regional Director for Region 12
issued his Decision and Direction of Elections on Novem-
ber 7, 1973, and the elections were held in December 1973.
Roberts acted as an election observer for the Union. On
May 31, 1974, Roberts went to Coral Gables to watch the
counting of challenged ballots in the Riviera Beach
election, which the Union lost by a tie vote. On November
5, 1973, and on January 15, 1974, Roberts filed two sets of
unfair labor practice charges against Grant's, alleging that
Grant's had violated Section 8(a)(1) and (3),of the Act. The
latter charge resulted in a settlement agreement approved
by the Regional Director on April 5, 1974, which required
the posting of a notice and contained a provision that
Grant's would give Roberts first option for filling a certain
vacancy if the vacancy became available.3
C. The Respondent's Knowledge of, and Attitude
Toward' Roberts' Union Activity
There can be no doubt on this record that Respondent's
officials were fully aware of the prominent role played by
Roberts in the Union's organizational efforts. Carlton W.
Weeks was the manager of the new Riviera Beach
warehouse facility into which Roberts had been transferred
when the facility opened around the fall of 1973.4
Appearing as the principal witness for the General
Counsel, Weeks testified that he and Director of Personnel
Tierney "had talked about the Grant's union organizing
program hundreds and hundreds of times, and we knew
specifically that George Roberts was the organizer."
Tierney, who was Respondent's only witness, testified that
he saw Roberts at the Board hearings in July and October
1973, that he knew that Roberts was an observer at the
election, that he knew that Roberts had been present when
the challenged ballots were opened in May 1974, and that
he knew that Roberts had filed charges against the
Company.
Sometime in January 1974, according to Weeks, Tierney
instructed Weeks to reprimand Roberts whenever an
occasion arose for doing so, to put the reprimand in
writing, and to put the writing in a file. The object of the
file-building was to provide a documented basis for
terminating Roberts. At the hearing, Tierney conceded the
accuracy of Weeks' testimony in the following explanation:
I don't intend to make it look like the company loves
George Roberts. They didn't. Very frankly they did not
love George Roberts.
advert to it here only for purposes of its relevance to the proposition that
Roberts had, by the summer of 1974, become a conspicuous thorn in
Respondent's side.
4 As amended at the hearing , the answer to the complaint admits that
Weeks was an agent and supervisor for Respondent. The record shows that
Weeks supervised a large group of employees at Riviera Beach, ranging
from 50-85 in number.
GRANT'S HOME FURNISHINGS
He apparently was the union organizer. He filed unfair
labor practice charges . We were involved with these
things and there's plain no way that the company could
be in favor of being extra nice to George Roberts,
although we have bent over backwards looking at his
absenteeism record.
So I would have liked to have gotten rid of George
Roberts, but I am not going to do it in a way contrary
to company policy. The company policy says that you
have to document it, particularly when you come into a
labor situation. Everything has to be documented.5
During this period, Weeks was apparently quite willing
to play the company game. He testified that he spoke with
Tierney on a weekly basis and that he recommended
perhaps 15 times that Roberts be terminated in response to
Tierney's persistent questions with regard to the progress of
the file on Roberts.6 Tierney testified that whenever the
question of "can't we get rid of George Roberts" came up
in his conversations with Weeks, which happened on
"many occasions," he told Weeks repeatedly that Respon-
dent could not discharge Roberts without sufficient
documentation of misdeeds. Tierney thus corroborated the
frequency and essential character of these conversations
about Roberts, although his testimony implies that it was
Weeks, rather than Tierney, who kept broaching the
subject of the possibility of discharging Roberts.
Weeks apparently did not follow his instructions to build
a file on Roberts to Tierney's satisfaction. On one
occasion, when Weeks told Tierney that Roberts had been
spreading an' allegedly libelous rumor, about company
officials, Tierney told Weeks to reprimand Roberts for so
doing and to document the reprimand. Weeks did not
comply with the directive; Tierney subsequently discov-
ered this failure of compliance; and, when Tierney found
that Weeks "did not do it ... I may have said something
to Mr. Weeks, nothing formal." Despite the informal
reprimand to Weeks, the latter never did succeed in
constructing a paper case against Roberts.
D. The Background of the Alleged Discrimination
Against Roberts in June
In June 1974, after it had been finally determined in the
preceding month that, the Union had lost the election,
Respondent granted wage increases to 49 of the 50
employees at the Riviera Beach warehouse who had been
members of the appropriate unit which the election
petition had covered. The only such employee who did not
receive a raise at that time was George W. Roberts, To put
the wage increases in proper perspective, and particularly
to develop fully Respondent's explanation as to why
5 Roberts suffered a knee injury in November 1973 and requested a
second 30-day leave of absence because of such injury in December 1973.
Weeks forwarded the personnel form to Tierney, along with a recommenda-
tion that Roberts be terminated on the asserted ground that "[f]or the past 8
months Grant's Furniture Plaza has not been able to establish a work
schedule in agreement with George Roberts." Tierney approved the leave
request "without pay," and appended a ' note instructing Weeks to
reprimand Roberts for any future absenteeism and to "see to it that
reprimands are given in writing and a copy supplied to this office and the
attorneys ." In the 8 months preceding December 12, 1973, Roberts had
been absent for nearly 1 month due to a heart attack , for 1 month due to the
759
Roberts was the only employee not to receive an increase
in June, some background is necessary.
Personnel Director Tierney testified that in October 1972
he embarked upon an ambitious project to create a new
wage and salary plan and personnel classification structure
for all facilities in the Home Furnishings Division. The
program included the preparation of a manual of salary
administration and policy and procedures, which was
completed by November 1972; the development of a
uniform system of position classifications and job code
designations for all employees in the retail stores and
warehouses; the development of position descriptions
fitting those position classifications; and a uniform salary
schedule for the newly developed positions, complete with
minimum, midpoint, and maximum salary ranges for the
positions falling within the various job codes; and an area
differential system dependent upon the location of the
various facilities. It would appear from the record that all
components of this project were initiated or completed
before there was any union activity at the Grant's stores. It
had originally been contemplated that the new system
would be put into effect in the Grant's stores and
warehouses in January or February 1973. When the
scheduled time arrived, however, Tierney and his assistant
discovered that Grant's management had not performed
the necessary preparation for instituting the system at the
Grant's stores, and implementation was rescheduled for a
later date. Thereafter, Tierney put the system into effect at
all other stores in the Home Furnishings Division, and by
the time he returned to the Grant's chain, the Union's
organizational efforts were under way there. It was
consequently decided that the system should not be
installed in the Grant's stores until the organizational
activity had been resolved one way or the other.
The question of the Union's right to represent the
employees was not in fact resolved until approximately 1
year had passed. As discussed above, union activity had
begun in the spring of 1973 and the challenged ballots were
not counted until May 1974. Nonetheless, although the
new program was not put into effect in the Grant's
facilities for the employees covered by the representation
petitions until June 1974, Tierney was developing his
program with the warehouse employees in mind.
As part of the new personnel plan, all employees
throughout the Aristar system were placed into position
classifications, and the classifications were then assigned
job codes bearing numerical designations; in the case of
warehouse employees, these job code numbers ranged from
101 through 111. Each job code, in turn, had a specified
salary range attached to it. At some time before November
1, 1973, as part of his continuing program of formulating
the position classifications, Tierney created a position
knee injury, for 6 days on excused personal business , and for 10 days
attending the Board hearings.
6 "Well, I spoke with Mr. Tierney on a weekly basis practically, and we
did-he did question me about do we have sufficient grounds or what
grounds do we have on George Roberts or what violations has he made9 I
would report to him that , you know, we were pretty clean with him, and he
isn't doing anything he shouldn 't be doing.,We just weren't able to establish
or build a file on him, which he could not believe . He says it's difficult to
believe that you have a man working every day, and you can't get some
grounds or violations on him."
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Tractor Trailer Driver or Transfer Truckdriver. The
newly created classification of Tractor Trailer Driver or
Transfer Truckdriver was placed in job code 109. At the
time this was done, there were only -two warehouse
employees in the entire Aristar operation who performed
the duties of this classification. Both of them worked at the
Riviera Beach warehouse. One was George W. Roberts, the
Charging Party, and the other was a driver named -Henry
Coleman. Tierney testified that, when he created this
classification, he knew that only Roberts and Coleman fell
within it. In August 1973, a job description for the
aforementioned position classification had been drawn up
and shown to Roberts and was amended thereafter in one
particular, apparently at Roberts' request. The record is
not clear as to when the job code 109 was assigned to the
position classification, but it was at some time prior to
November 1, 1973.
Respondent's Exhibit 5, a list of position classifications
for warehouse employees dated November 1, 1973, shows
that as of that date there were a total of 15 position
classifications assigned to job code 109. Of these 15, 7 of
the classifications bear the title supervisor or manager.
Those employees who were assigned job code 109 would,
according to a salary schedule dated November 1, 1973,
but issued sometime subsequent thereto, earn a minimum
wage of $3.15 an hour, a midpoint wage of $3.65 an hour,
and a maximum wage of $4.15 an hour, if they were
working in an area which did not enjoy an area differential.
Tierney had decided, however, that Riviera Beach employ-
ees were entitled, because of their location, to a 10-percent
differential, making the minimum wage for employees in
job code 109 $3.47 an hour, the midpoint wage $4.02 an
hour, and the maximum wage $4.57 an hour. Tierney
testified that at the time he assigned the Tractor Trailer
Driver or Transfer Truckdriver classification to job code
109, he did not realize Roberts was already earning an
hourly wage of $4.75, an amount in excess of the maximum
salary for that job code.
The new wage system was put into effect sometime in
early 1974 at the Grant's stores for those employees who
were not covered by the representation petitions, such as
the clerical and retail employees. When it was formally
determined in May 1974 that the Union's effort to
represent the Riviera Beach warehouse employees had
failed, Respondent undertook to apply the new salary and
classification' system to the warehouse employees previous-
ly covered by the petition.
E. Wage Increases at the Riviera Beach
Warehouse; Roberts' Failure To Receive One
The aspect of the new system which all parties were
undoubtedly most interested in implementing immediately
was a wage increase for the warehouse employees. As
Carlton Weeks, the Riviera Beach warehouse manager,
testified "this labor union organizing drive had already
consumed a good bit of time, and we had people in the
bargaining unit? who,hadn't received raises for some time.
So I was anxious to get them expedited." The procedure for
effecting the wage increases was for Weeks to call all the
employees in one by one, interview and evaluate them, and
arrive at a recommended percentage wage increase for
each one. He conducted such interviews -with all the
petitioned. for warehouse employees except George W.
Roberts.
The record is less than clear as to why Weeks did not
initially interview Roberts. When asked on direct examina-
tion "Was there a reason for not interviewing Mr.
Roberts?" Weeks testified that the reason was, "I had
received instructions not to interview Mr. Roberts .. .
[f]rom Mr. Tierney, the personnel director . . . at the
outset of the evaluation period, which would be mid-June."
Weeks' later testimony seems to indicate, however, that the
first conversation with Tierney in which Tierney told him
not to interview Roberts for a raise occurred at a time after
Weeks had gone through the interview process with. all of
the employees except Roberts. I shall return to this matter
anon.
Upon completion of the interviews, Weeks telephoned
Tierney at his office in Augusta, Georgia, and discussed
the interviews, giving Tierney the recommended amount of
increase for each employee. Weeks was reading from a list
of all warehouse employees and, according to his testimo-
ny, "When I reached George Roberts' name, he [Tierney]
said let's pass." According to Weeks, he then told_ Tierney,
"We're going to have to tell the man something, even if it's
only to bring him into the office and tell him we aren't
going to give him a raise, but we should tell him something.
He said let's pass for the time being." Weeks testified that
in his conversation with Tierney he recommended that all
the other 49 employees be given increases ranging from 10
to 15 percent, and averaging about 12 percent. After some
suggested changes, Tierney agreed to the oral recommen-
dations. -
According to Tierney, the call he received from Weeks in
June 1974 consisted of Weeks' "recounting what he
planned to do with this one and that one and the other one,
and what the increases he wanted to get them were, and the
reason why, and on and on and on." Because he "couldn't
visualize it over the phone," Tierney told Weeks to put the
recommendations on paper and get them to him and that
they would talk about it thereafter. Tierney testified "as
best I can recall, that was the gist of the conversation." He
was not asked, and therefore did not expressly" deny,
whether, as Weeks testified, the question of a raise for
George Roberts occurred during this telephone conversa-
tion.
The normal company procedure for effecting pay
increases is to forward recommendations to Augusta for
approval by the personnel office, after which the approved
recommendations are sent to the payroll department.
Because Weeks and Tierney were anxious to expedite the
payment of the increases, Tierney told Weeks to get the
recommendations written up and Tierney would pick them
up in West Palm Beach during the next week and would
personally take them to Miami for-final processing. The
following week Tierney did appear, in West Palm Beach,
picked up the recommendation forms, and took them to
Miami. While he was in West Palm Beach, Weeks again
raised the question of increasing Roberts' wages and,
7 By "bargaining unit," Weeks meant those employees who had been
comprehended by the petition.
GRANT'S HOME FURNISHINGS 761
according to Weeks' testimony, Tierney said, "We have no
intentions of giving George Roberts an increase."
Tierney was not asked pn direct examination about the
conversation so testified to by Weeks. However, the
question was posed- on cross-examination, and Tierney
gave the following elusive testimony:
Q. You discussed Roberts at that time?
A. I don't recall specifically that we did because his
name was not on the list.
Q. No, but wasn't that when Mr. Weeks asked you
what about Roberts?
Do you recall that?
A. I don't recall that. He very well may have, and
again as he said on the phone, if he had said that on the
phone, he may have said that too, but I can't recall that
my reply was the same, exactly what he said it was.
If he had said that on the phone, r probably would
have said that he''s over maximum, because I know at
that time he was over maximum because we were
discussing salary recommendations at that time.
Q. But you don't recall what was said?
A. Not specifically, no.
The final conversation relating to an increase for Roberts
testified to by Weeks occurred -during a conversation in
Tierney's office in Augusta, where Weeks had stopped
while on vacation. Weeks recalled the time as mid-July.
According to Weeks, he and Tierney discussed the
"profitability and feasibility" of the Grant's operation.
Weeks stated that Tierney repeated his interest in "ways of
preventing additional union activities."' In this connection
they apparently discussed certain "preventive maintenance
seminars" to which the Company was sending all its
supervisors at the time : "It's merely a seminar where they
point out some of the things that,you may be doing that
brings [sic] about union activities and some of the things
that you should be doing to establish a better working
relationship with your employees." Eventually the conver-
sation came around to the subject of George Roberts and
his raise. According to weeks, Tierney said, "We have no
intentions of giving George Roberts a raise. We're going to
get rid of him," Weeks also testified, "The conversation
further developed that we would have another union
organizing campaign in all probability, and that Mr.
Roberts, whom we, affectionately called the organizer,
could not be present." Weeks specified that Tierney had
made the foregoing remark.
Tierney did testify on direct examination as to the
purported conversation with Weeks in Augusta in mid-
July. He specifically denied saying to Weeks during that
meeting that the Company had no intention of giving
Roberts a raise, that it was going to get rid of him, and that
there was going to be another union campaign during
which "the organizer" could not be around. He was certain
that he had not made any such remarks because, according
to Tierney, he knew that Weeks was going to be terminated
in a couple of weeks and that addressing such remarks to
an employee who was about to be terminated "would
surely bounce back on you."8 On cross-examination,
Tierney did concede that he was "sure [he] must have at
some time" discussed with Weeks the possibility that the
Union might start a new organizing campaign, but he
stated that he was positive it was not during the mid-July
conversation.
The increases given the other employees became effec-
tive in June, but were not actually received until August.
F. The Alleged Policy Limitation on a Raise for
Roberts
As indicated above, and in his further testimony, Tierney
took the position that he had nothing whatever directly to
do with the failure of Roberts to receive a wage increase.
The essence of his testimony was that no one had ever
recommended to him that Roberts receive or not receive an
increase, no one had discussed the matter with him, and,
accordingly, Roberts' failure to receive the increase was a
matter in which he had not participated. On this view of
the case, from Respondent's standpoint, the question
would then seem to be what had been the motivating factor
in causing Weeks to fail to appraise Roberts for an
increase. As discussed above, Weeks' testimony as to why
he failed to interview, Roberts together with the other
employees in the first place is unclear, but he stated that, in
raising the matter on several occasions thereafter with
Tierney, he was instructed that Roberts, "the organizer,"
was not to receive any consideration for an increase. Thus,
although Tierney denied playing any part in the matter,
and although Weeks did not rely at the hearing on any
legitimate prohibitive company policy as the reason for not
evaluating Roberts, Respondent, at the hearing and in its
brief, lays great stress upon certain guidelines which were
contained in its recently promulgated salary manual as the
"reasons" , (Respondent's brief) why Roberts did not
receive an increase.
We have in evidence, only a portion of the salary manual
completed by Tierney in January 1973. The excerpt of the
manual which has been entered into evidence bears the
heading "G. Salary Determinations." Under that heading
are sections entitled "1. General," "2. Basis of Salary
Adjustment Guidelines," "3. Merit Increases," and part of a
section called "4. New Hires." This excerpt, comprising
pages 15 to 19 of the manual, is obviously only a small
portion, of that document. Respondent directs our atten-
tion to the section entitled "Merit Increases." The
pertinent portions of that lengthy section, making up the
bulk of the exhibit, may be summarized as follows.
The term "merit increase" is defined as "an in-grade
adjustment in salary granted for increased proficiency and
job performance. Length of service may be given minor
consideration, however job performance and proficiency
shall be the determining factors." The document goes on to
say that "Merit reviews will be conducted annually." The
next relevant provision, subsection (d), states, "In making
the determination as to whether employees shall be granted
a merit increase, and if so, the amount thereof, considera-
tion shall be given to the date and amount of the
immediately preceding salary adjustment "'The remaining
pertinent provisions of this section are set out in full below:
s The matter of the termination of Weeks will be discussed infra.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) The Mid-point -of a salary grade represents the
normal average salary for fully qualified employees
whose performance is satisfactory in all respects.
(f) The upper half of the salary grade, from Mid-
point to Maximum, is reserved for recognizing length of
service and those employees who are giving above
average performance and who demonstrate by daily
performance and conduct for an extended period of
time that they are fully competent and maintain a high
standard of productivity performing all major duties of
the position.
(g) The following salary adjustment guidelines
govern merit increases:
(1) The average merit increase budget for an
organization unit will range from 7% to 10% of
the salaried payroll.
(2) Employees who are satisfactorily perform-
ing the majority of the duties of their position-
4% to 5% increase, not to exceed Mid-point of the
salary grade.
(3) Employees who are fully qualified and are
satisfactorily performing all the duties in their
position-7% to 9% increase, not to exceed third
quartile of the salary grade. -
(4) Employees who have been giving superior
performance for an extended period of time-9%
to 12% increase , not to exceed Maximum of the
salary grade.
(5) Employees who have been giving an
'outstanding performance, as fully demonstrated
over an extended period of time, and are clearly
promotable-12% to 14% increase, not to exceed
Maximum of the salary grade.
(h) Any recommendation for a merit increase in
excess of 8% is subject to review and approval by the
Director-Personnel, and, at his discretion, the Salary
Committee.
In the section entitled "General," the following state-
ment appears: "Any action that does not fully conform to
these policies and guidelines will require prior approval of
the Salary Committee or the Director-Personnel as
indicated in this Manual."'
As discussed above, as of June 1974, the maximum
salary grade for an employee classified in job code 109, as
Roberts was, was $4.57 per hour, which includes the 10-
percent differential assigned to Riviera Beach employees.
At the time Roberts was transferred to the new Riviera
Beach location in the fall of 1973 and as of June 1974 when
the raises were given to all the other warehouse employees,
Roberts was earning $4.75 per hour.9
It is Respondent's basic thesis that the increases given to
49 warehouse employees at Riviera Beach in June 1974
were "merit increases" within the meaning of the section
set out above; that, the above provisions governing merit
increases clearly place 'a limitation on their award, that is,
that such increases are "not to exceed Maximum of the
salary grade"; and that since Roberts was already receiving
a wage in excess of the maximum allowable for job code
9 This wage was originally given to Roberts during the time that the
Grant's facilities were setting their own wages and prior to the time that the
109, he was not entitled to receive any increase in June
1974. 'As an example of Respondent's asserted insistence
on adhering to these guidelines, it points to the case of
Mary Ellen Corn.
Although, as noted,, the employees covered by the
representation petition were not awarded increases until
June 1974, nonunit employees, such as the clericals
working at the warehouse, had received increases earlier in
1974 pursuant to the new wage program. One such nonunit
employee was Mary Ellen Corn. Corn was denied an
increase, Respondent contends, because her pay was
already above the maximum scale in her particular
classification. Weeks, who was her supervisor, testified that
he did not recall making a recommendation for a raise for
Corn. Tierney testified that her salary was in excess of the
maximum of her job code classification and that she did
not receive a wage increase when the' other nonunit
employees did, but he did not flatly testify that there was a
nexus between these two facts, nor did he state that she
had not gone through the evaluation process along with the
other clericals. Weeks offered the information that Corn at
one time was the executive secretary to the chairman of the
board at Grant's; that, when he retired, the position was no
longer available to her; and that she was then placed in a
"considerably less responsible" accounting position in the
warehouse. According to Weeks, she was maintained at her
former salary level when she was put in the less responsible
job.
DISCUSSION AND FINDINGS
The complaint charges that "since on or about June or
July, 1974, the exact date being presently unknown, when
Respondent was implementing a wage increase policy for
its employees, Respondent refused to grant, and continues
to refuse to grant, a wage increase to Charging Party" for
discriminatory reasons prohibited by the Act. At the
hearing, counsel for Respondent prodded counsel for the
General Counsel to clarify the Government's theory of the
case. Respondent was particularly interested in whether
General Counsel was alleging that Respondent had
discriminated against Roberts in the application of the new
wage program or, more comprehensively, whether the
entire wage program had been developed with the
intention of discriminating against Roberts. Initially,
counsel for the General Counsel stated that the operative
theory was discrimination in application of the program as
opposed to discrimination in the inception of the program,
but he then added, "I`think we can also prove that while
the program was being formulated you had in mind leaving
Roberts out." Counsel for Respondent replied, "Well, I
guess that [is ] where I have my problem. It's the
formulation of the program-you're attacking the program
itself. Well, perhaps this will come out during the trial." I
then commented, "I take it that Mr. DiSalvo is saying that
Mr. Roberts was somewhere in the mind of the employer
as the program was being formulated, but the program was
not initiated in order to discriminate against Mr. Roberts,"
Grant's chain came under the regimen which Tierney had begun to institute
in early 1973.
GRANT'S HOME FURNISHINGS 763
to which counsel for the General Counsel responded,
"That is my position, your honor."
By the end of the hearing, it had become clear that the
only step in the formulation of the new wage program and
personnel structure at which Respondent could have
conceivably attempted to discriminate against Roberts was
in its assignment of his position classification to job code
109 instead of one of the two higher remaining warehouse
employee job codes, 110 and 111, in existence at the time
of that assignment . General Counsel, however, rested his
case without adducing any evidence, from which an
inference of discriminatory intent could be drawn, as to the
impropriety or inherent unreasonableness of assigning the
job of tractor-trailer driver to grade 109. At the end of his
case, we knew nothing more about this than the bare fact
that Roberts was earning in excess of the maximum of his
job code in June 1974. General Counsel having offered no
such proof in his case-in-chief, it would have seemed that
this theory of latent discrimination was out of the case.
In its case, however, Respondent, by presenting certain
evidence through its witness Tierney, to some extent
revived the possibility of fording that there might have
been discrimination against Roberts by the choice of the
job code assigned to his position classification. That
evidence consisted of Tierney's explanation of how he
arrinved at the salary ranges for the various warehouse
classifications and included the introduction of a Bureau of
Labor Statistics survey for the Miami metropolitan area
issued in November 1973, on which Tierney allegedly
relied in formulating the wage scales for the warehouse
employees.
Passing the fact that General Counsel introduced no
evidence to support this notion of original sin, I note that,
under the salary schedule in effect when Roberts' job was
classified in job code 109 sometime prior to November 1,
1973 (Resp . Exh. 8), the maximum salary payable to
employees in job code 110 in the Riviera Beach area was
only $4.51, an amount below Roberts' wage of $4.75 per
hour. General Counsel's theory of a pre-1974 discrimina-
tion evidently would rest on a claim that Respondent
deliberately assigned Roberts to job code 109 in 1973
instead of a higher paying code in order to make it
impossible for him to receive an increase in the future. The
facts set out above indicate, however, that even if Roberts'
classification had been assigned to the higher paying 110
job code, he still, before November 1973, would have been
earning more than the maximum for that code . Since,
I'D
In November 1973, the salary range for job code 110 was raised so
that, in the Riviera Beach area, the maximum payable for classifications
assigned to that code was $4.95. This, however, was subsequent to the
assignment of Roberts' classification to the 109 grade several months earlier.
It could be argued that Tierney foresaw this upward revision of wages when
he designated the position in the code 109 scale, but, without more, I am
reluctant to draw that inference.
11 Under the latest salary structure (Resp. Exh. 9), employees m job code
109 receive a minimum of $3.47 an hour and a maximum of $4.57 in the
Riviera Beach area. The BLS survey shows that, in November,1973, of 352
workers employed as heavy truck-drivers in the retail trade, 264 were
earning hourly rates of between $3 80 per hour and $4.60 per hour, with
only 23 earning between $4.60 and $6.
12 As noted , the complaint alleges that "since on or about June or July,
1974 . . . when Respondent was implementing a wage increase policy for its
employees ...," it discriminated against Roberts. If the theory of the
complaint were that the basic discrimination in fact occurred sometime
before November 1973, only supervisory classifications
were assigned to the one remaining job code, 111, it seems
inconceivable that Tierney could reasonably have consid-
ered assigning Roberts' rank-and-file classification to that
code. It therefore seems to me that Respondent cannot
easily be accused of discriminating against Roberts by
virtue of the original job code assignment, since even an
assignment to the next higher code would have still left
Roberts earning more than the maximum of that grade and
would, under a strict application of the "not to exceed
maximum of salary grade" standard, still have been a
theoretical obstacle to a future merit increase.10
In addition, a close study of the BLS survey relied on by
Tierney discloses that the assignment of Roberts' position
classification to job code 109 was not radically out of line
with the wages being paid in Miami for employees
performing similar functions.11
Thus, even if I were to consider that the question of
discriminatory job classification was raised by the plead-
ings and consciously litigated at the hearing, about which I
entertain doubt,12 I would conclude that the General
Counsel has not made a case for the proposition that
Respondent laid a trap sometime in 1973 by its position
classification of Roberts' job which it contemplated
springing in 1974 in the event that the Union did not
prevail in the election. Because of Respondent's demon-
strated antipathy to Roberts, I reach this conclusion with
some misgivings, but I think the evidence is too tenuous to
support this more Machiavellian theory.13
We are thus brought to what appears to be the primary
issue in this case-whether Respondent failed to consider
Roberts for a raise in June 1974 because of his union
activities. Resolution of this issue hinges to a large extent
on the credibility of the testimony of Warehouse Manager
Weeks. It will be recalled that Weeks testified (at least
initially) that he was told by Tierney at the outset of the
interviews with the warehouse employees not to interview
Roberts; that, after the interviews were concluded, in a
telephone conversation with Tierney about the tentative
recommendations arrived at by Weeks, Weeks mentioned
the name of Roberts and Tierney said "let's pass" Roberts
(or "let's pass for the time being"); that in a meeting
between the two men a week later in Weeks' office at
Riviera Beach, . Weeks again mentioned Roberts and
Tierney said, "We have no intentions of giving George
Roberts an increase" ; and that in mid-July, in a conversa-
tion in Tierney's office in Augusta, Tierney reiterated the
prior to November 1973 , when Roberts' classification was assigned to job
code 109, and merely became operative in June 1974 , a serious question, to
winch the parties have not addressed themselves , would be raised as to the
applicability of Sec; 10(b) of the Act, since the charge in this case was not
filed until August 20, 1974.
13 I cannot, on the other hand, accept Respondent' s contention that the
fact that, in November 1973, during the period of Roberts' union activity, it
raised the salary range for job code 109 instead of freezing the range, should
give rise to an inference that it did not intend to discriminate against
Roberts. For one thing, raising the code 109 maximum to $4.57 per hour in
no wise benefited Roberts, who was already receiving more than that wage;
for another, since there were at least 14 other , position classifications,
including a number of supervisory positions, then assigned to that job code,
a decision not to increase the range for the code would have frozen the
maximum salaries of an unknown number of other employees in addition to
Roberts.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing sentiment and added, "We're going to get rid of
him," and further spoke about the prospect of another
union organizing campaign in which Roberts, "the organiz-
er," could not be allowed to be present.
Watching him testify at the hearing, I was convinced that
Weeks was telling the truth to the best of his ability. Two
arguments , however, may be advanced for the proposition
that Weeks is not a reliable witness. One is the fact that on
July 30, 1974, for reasons undisclosed in the record, Weeks
was forced to resign from Respondent's employ. At the
hearing, Weeks' sarcastic description of his termination
interview left little doubt of his rancor toward the
Company for discharging him. This inference is supported
by the fact that on the day he was discharged, he called
George Roberts into his office and informed him that
Respondent . was not going to grant Roberts an increase
and intended to get rid of him, prefacing these remarks
with "I'm going to give you some information and what
you do with it is your business ." Testimony from such a
source must be viewed with caution.
The other major factor which might be deemed to cast
doubt on the veracity of Weeks' testimony is an apparent
inconsistency in that testimony. On direct examination,
Weeks testified that he had not interviewed Roberts along
with the other employees in the unit because "I had
received instructions not to interview Mr. Roberts .. .
from Mr. Tierney, the personnel director." He stated that
these instructions had been received "at the, outset of the
evaluation period, which would be mid-June." Weeks'
testimony on cross-examination, however , seems to state
that it was only after he interviewed all the employees with
the exception of Roberts that he had a conversation with
Tierney in which Tierney told him to "pass" Roberts. In
total context, however, Weeks' testimony with regard to
this matter on cross-examination is arguably subject to a
construction consistent with his testimony on direct
examination or, in view of the precise nature of the
questions asked on cross-examination, to an inference that
the witness was somewhat confused by the questioning.
The whole of his testimony clearly indicates that Weeks
intended to testify that, at some time prior to undertaking
the interviews , he had been told by Tierney that he was not
to interview Roberts. After careful consideration of Weeks'
testimony, my original impression of his essential credibili-
ty remains undisturbed.14
I was less impressed with Tierney, both on demeanor
grounds and after an objective study of his recorded
testimony. As noted above, his testimony as to the June
telephone conversation with Weeks did not contain an
express denial of Weeks' testimony that Weeks had raised
Roberts' name ' and that Tierney had said "let's pass"
Roberts. He did not testify at all on direct examination
about the conversation occurring during his visit a week
14 The record simply does not bear out other attacks made by
Respondent on the consistency of Weeks' testimony . For example,
Respondent asserts ' that "Weeks testified that he never recommended in
writing that the Charging Party be discharged. However, Weeks recanted
when shown his written recommendation ." (Resp. Exh. 1, R-71, 72.)
(Emphasis supplied.) In fact, the transcript shows not an initial denial, but
rather the following:
Q. Did you ever recommend in writing to Mr. Tierney that
later to Weeks' West Palm Beach office. On cross-
examination , however, when asked about that meeting, the
following testimony ensued, which, while elliptical, borders
on an admission that Roberts was discussed on both
occasions:
Q. You discussed Roberts at that time?
A. I don't recall specifically that we did because his
name was not on the list.
Q. No, but wasn't that when Mr. Weeks asked you
what about Roberts? Do you recall that?
A. I don't recall that. He very well may have, and
again as he said on the phone, if he had said that on the
phone, he may have said that too, but I can't recall that
my reply was the same, exactly what he said it was.
If he had said that on the phone, I probably would
have said he's over maximum, because I know at that
time he was over maximum because we were discussing
salary recommendations at that time.
Finally, Tierney did very affirmatively deny telling Weeks
in his Augusta office in mid-July that the Company had no
intention of giving Roberts a raise, that they were going to
get rid of him, and that there was going to be another
union campaign during which "our organizer" could not
be permitted to be around. When asked how he knew that
he had not made these statements, his reply seemed to be
based more on probability than on recall: "Because I knew
Mr. Weeks was going to be terminated for one thing, and I
may be stupid, but I am not stupid enough to say
something like that to somebody that is going to be
terminated in a couple of weeks because it would surely
bounce back on you."
By an odd coincidence, Tierney, like Weeks, has also
parted ways with the Company under unpleasant circum-
stances . On September 16, 1974, he resigned from Aristar
due to a reorganization of the personnel department which
he apparently considered to be a demotion for him. His
letter of resignation states that he "deeply resents" the
treatment given him by Aristar. At the time of the hearing
he was serving as a consultant to the Company under a 6-
month severance allowance agreement, during which time
he was seeking other employment. This history would
normally tend to support the veracity of the testimony
given by Tierney, since he was testifying on behalf of a
company which he felt had treated him shabbily. On the
other hand, since Tierney was undoubtedly seeking
employment as a high level management official with some
other enterprise, he quite naturally would wish to stay in
the good graces of Respondent for purposes of the
evaluation of Tierney which inevitably would be sought by
any prospective employers.15
Roberts be discharged?
A. I don't recall putting it in writing ... I don't recall doing it.
(Emphasis supplied)
Furthermore, since, in the preceding colloquy, Weeks had dust readily
conceded that he had recommended the discharge of Roberts on "at least 15
different occasions," his failure to recall having made a written recommen-
dation to that effect is hardly a matter of serious import
15 The other side of this coin, incidentally, would seem to lend some
GRANT'S HOME FURNISHINGS 765
All told, I fmd Weeks' testimony to be persuasive, and
the testimony of Tierney to be evasive, defensive, and less
than forthright.16
Accordingly, based on the testimony given by Weeks as
to his conversations with Tierney in June and July 1974, I
fmd that Tierney told Weeks that he was not to review or
consider Roberts for any wage increase for reasons which
related to Roberts' union activity.
There is left for consideration, however, the rather
extended defense presented by Respondent based on the
salary plan newly implemented (as to the warehouse
employees covered by the petition) at the Riviera Beach
warehouse in June 1974. Simply put, it is Respondent's
position that the wage increases given to all warehouse
employees other than Roberts were merit increases; that
under Respondent's recently adopted salary guidelines,
merit increases could not be given which raised an
employee above the, maximum scale for his salary range;
that, since Roberts was already earning $4.75 per hour and
the maximum salary for his job code classification was
$4.57 an hour, it would have been inconsistent with
company policy to even consider Roberts for a raise; and
that this inconsistency was in fact the reason that Roberts
was not considered for an increase.
To rely upon this policy as a defense, however, the
Respondent must identify it as being the operative factor in
the mind of whichever of its agents concluded that Roberts
added support to the trustworthiness of Weeks' testimony . While the record
does not disclose whether Weeks had, at the time of the hearing , obtained
new employment, the normal inclination of a supervisory employee such as
Weeks, who is either seeking or has recently obtained new employment,
might well be a reluctance to align himself with the union side, which he had
nonetheless chosen to do in this proceeding.
If' See, as another example , the testimony of Tierney set out above
regarding whether or not tie talked to Weeks about Roberts in the meeting
in Weeks' West Palm Beach office . In general , as noted, this equivocal
testimony appears to be a concession that Weeks ' account of the first two
conversations might well have been accurate , at least with respect to the fact
that Roberts was discussed, and in particular, the testimony that "I know at
that time he was over maximum because we were discussing salary
recommendations at that time" seems to be a more concrete admission.
Tierney had earlier testified that he did not know, in or around November
1973, when he was drawing up Roberts ' position classification , the amount
of Roberts ' salary. He did not otherwise testify as to when he gained that
knowledge. If he "[knew] at that time that [Roberts ] was over maximum"
due to the fact that "we were discussing salary recommendations at that
time," it would appear that he must have been discussing Roberts in the
context of the proposed increases.
Another example of the slippery testimony given by Tierney related to
the original job code grade assigned to Roberts. In an effort to indicate that
Respondent had treated Roberts more than fairly in the past , Tierney gave
testimony that he assigned Roberts to job code 109 despite the existence of a
position classification in job code 107 called "shuttle truckdriver" which,
Tierney testified, "substantially comports" to the work performed by
Roberts . When asked later why he created a new position two grades higher
than that assigned to the shuttle truckdriver if the latter 's duties and those of
Roberts were substantially identical , Tierney replied , "Because basically in
the shuttle driver category we have some who drive tractor trailers and some
who drive-I don't know what you call the vans." He then went on to point
out other differences between the duties of shuttle truckdrivers and those of
tractor-trailer drivers like Roberts and concluded , "I felt just on that basis,
given the benefit of any doubt, that I would just raise [the tractor-trailer
classification ] to that area." He was then asked how many tractor-trailer
drivers there are throughout the Home Furnishings Division , and the
following examination took place:
A. Let's see, tractor trailer drivers, one , two,-three or four
outside of the two here.
Q. Outside of the two at Riviera Beach?
was not to be considered for a wage increase. If the policy
was not in fact relied on by the agent who made the
effective decision, it cannot, of course, be considered the
motivating factor behind that decision. As indicated above,
the tenor of Personnel Director Tierney's testimony was
that he played no role in Roberts' failure to receive an
increase . If that were true, ' Respondent cannot logically
contend that it was Tierney who made the decision based
on the neutral consideration of company salary policy.17
But if Tierney played no role in the determination not to
consider Roberts for an increase, as Tierney testified, then
the determination must necessarily have been made by
Weeks. The testimony discloses, however, that Weeks
expected that Roberts would indeed get a raise. Both
Weeks and Roberts credibly testified that on or about June
5, 1974, they had a conversation in the yard of the central
warehouse in the presence of two other company employ-
ees in which, inter alia, Roberts asked Weeks what the
chances were of his getting a raise and Weeks replied that
they were very good. When asked at the hearing why
Weeks told Roberts that he thought Roberts would receive
a raise if he knew the Company was trying to get rid of
him, Weeks replied, "Well, we hadn't succeeded in getting
rid of him in nine months, and there was no evidence at
that point that we were going to get rid of him. ... I felt
that we would give all employees in the bargaining unit a
A. Yes. Now, that's not shuttle drivers . That's strictly tractor
trailer.
Q. So when this position of tractor trailer drivers was created,
those people were put into this 109-
A. No sir, they were not.
Q. They were not?
A. They were not . They are still shuttle truckdnvers.
Q. Although they perform the duties of the tractor trailer drivers?
A. Because they don't do it all the time in all these cases . If they
don t have a full tractor load, then they don't take a tractor. They take
a straight van. One day they may be loading the trailer, and they'll take
the other, but I just didn't-we didn't go back and reevaluate in the
area-again those areas that they're in just didn't seem to me at that
time to justify raising them up as far as the market conditions for what
we had to pay for a shuttle driver . [Emphasis supplied.]
17 I note the curious fact that, upon two occasions during the hearing,
Tierney flatly stated that Roberts did not receive an increase in June
because he was earning in excess of the maximum for his classification. On
cross-examination, he apparently recognized that such testimony was not
easily reconcilable with the rest of his testimony, and he took the position
that he did not know of his own knowledge why Roberts was not given an
increase but had only inferred that it was because Roberts was earning
above the maximum. In this colloquy, however, Tierney appeared to me to
teeter on the brink of inconsistency with the thrust of his other testimony
denying involvement in the decision not to give Roberts a raise . When asked
who made that decision, Tierney replied:
A. It never officially got to me on a recommendation. It was
discusse4 and he was above maximum, and it would not be put in.
Q. Now that's your conclusion then . You don't know that that's a
fact.
A. I told them that I would not approve on an-in excess of
maximum , yes. I've told them that.
Q. Who did you tell?
A. I told all of the managers in a managers meeting in Augusta
when we were developing budgets. Mr. Weeks was present. [Emphasis
supplied]
I take the underscored language to be an unwitting concession that Tierney
had in fact discussed a raise for Roberts; realizing the inconsistency of such
testimony, Tierney then evidently attempted to rescue himself by placing
this "discussion" in the broader setting of a managers meeting in Augusta.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raise, and I knew that it was in excess of the wage scale.
However, I did feel that we would give him a raise."
It thus appears that, in Weeks' view, Roberts would most
likely receive a raise, despite any company policy to the
contrary. The fact ,that Weeks was willing to commit
himself publicly to that position in early June in the
presence of two other employees, neither of whom was
called to testify at the hearing, strongly suggests the
sincerity, of the statement when made. It would therefore
seem that the only factor which precluded even a review of
Roberts along with the other employees was the subse-
quent insistence of Tierney-that Roberts not be considered
for a raise. And of course, as indicated above, Weeks'
testimony discloses that the principal imperative in his
failure to review or recommend a raise for Roberts was not
the company policy relating to merit raises, but rather the
instructions he had received from Tierney.
But it may be the Respondent's contention that the
policy set out in the salary guidelines prohibiting merit
increases in excess of the maximum of a salary grade was
of such notoriously universal applicability that I must
conclude that no other considerations could conceivably
have played a part in the decision not to increase Roberts'
wages, despite Tierney's testimony that he did not
participate in the decision, and therefore could not have
relied on the policy, and Weeks' testimony that he made no
independent decision of his own.' A number of factors
militate against Respondent's contentions in this regard.
For one thing, the record clearly indicates that the
increases given to the warehouse employees were not
strictly "merit increases" within the meaning of the salary
guidelines . As discussed previously, the salary guidelines
had only been completed in January 1973, and were being
put into effect for the Riviera Beach warehouse employees
covered by the petition for the first time in June 1974.
Section 3(b) of the salary guidelines states that "Merit
reviews will be conducted annually." It further provides, in
section 3(a), that "A merit increase is an in-grade
adjustment in, salary granted for increased proficiency and
job performance. Length of service may be given minor
consideration, however, job performance and proficiency
shall be the determining factors." Section 3(g) states, "(1)
The average merit increase budget for an organization unit
will range from 7 percent to 10 percent of the salary
payroll." The ' next four subsections under section 3(g)
describe the quality of performance which entitles employ-
ees to the ranges of the merit increases described in the
subsections. Subsection (4) permits an increase of 9-12
percent for employees "who have been giving a superior
performance for an extended period of time," and
subsection (5) authorizes the highest possible increase-12
percent to 14 percent-only for "employees who have been
giving an outstanding performance, as fully demonstrated
over an extended period of time, and are clearly promota-
ble...:'
The evidence shows that 49 employees received increases
ranging from 10 to 15 percent of their salary, averaging
about 12 percent. Since it is highly unlikely that all 49 had
been "giving a - superior performance for an extended
is The testimony showed that Coleman was senior to Roberts in overall
length of service with the Respondent , but was junior to Roberts in length of
period of time" or had been "giving an outstanding
performance, as fully demonstrated over an extended
period of time, and are clearly promotable," Tierney
recognized that an explanation for the extraordinary size of
the increases was in order, and he offered the following:
The employees in the warehouse had not had a salary
increase for some time. Many of them had been well
over a year as I recall. So while they were evaluated
based on their performance and interviewed for the
performance by Mr. Weeks, an evaluation made that
way-at least this was the plan-there was an adjust-
ment factor allowed for in there because of the fact that
this really-the salaries having been low and their not
having had an increase in quite a while. Then we added
on an adjustment factor and allowed that to go higher
than normal.
Subsequently, Tierney flatly conceded that the increases
were not merely merit increases but "were a combination
of merit and adjustment." And, in summarizing the types
of increases that are-available for employees, he designated
"promotion" increases, "merit" increases, and
"adjustment" increases . As an example of an "adjustment
increase," he cited the instance of "when you are implement-
ing the plan .. ' . then you would make increases without
regard tQ a person's performance." Since the June 1974
increases were part of the initial implementation of the new
salary plan at the Riviera Beach warehouse, since the
increases were admittedly given on a basis other than
"increased proficiency and job performance," and since
the amount of the average increase was far in excess of
what ordinarily might be given to a group of 49 people as
merit increases under the salary plan, I conclude that the
increases were not "merit" increases within the spirit of the
salary guidelines, that no one truly regarded them as such,
and that, as a corollary, it was not necessarily considered
that these particular increases were subject to the stricture
in the salary policy that merit increases were "not to
exceed Maximum of the salary grade."
Further support for this conclusion,may be found in the
testimony of Tierney regarding the increase given to Henry
Coleman, the only other employee at the Riviera Beach
warehouse who drove a tractor trailer and who shared
Roberts' position classification, The increase received by
Coleman in June 1974 raised him to the highest salary in
job code 109. The reason given by Tierney for that increase
was:
... we had to raise him there because of Mr.
Roberts' salary, and this man is a black with longer
experience, the senior driver, which has been testified
to in the previous hearings. He is the senior driver, and
he is making less than Mr. Roberts. So when we
increased him, we adjusted him to the maximum level
of the range.18
Tierney's testimony makes it clear that the increase
received by Coleman was not granted because of his
"increased proficiency and job performance," but rather
experience with Respondent as a tractor-trailer driver.
GRANT'S HOME FURNISHINGS 767
because of his relative seniority with the Company. This
basis for an increase obviously was not consonant with the
provision of section 3(a) that, in evaluating merit increases,
"length of service may be given minor consideration,
however, job performance and efficiency shall be the
determining factors." It thus appears that the raises given
in June 1974 were considered to be something other than
the merit raise variety, that there was much flexibility in
determining who should receive a raise and the amount of
the raise, and that the increases cannot neatly be
pigeonholed into the merit raise classification and then
mechanically circumscribed by the provision in the merit
raise policy prohibiting increases in excess of an employ-
ee's maximum salary grade-19 Thus, I am constrained to
reject the in vacua argument that the prohibition in the
merit raise policy was so clearly and inexorably applicable
to this situation that it .perforce must have been the
controlling consideration in the decision not to review
Roberts for a possible wage increase.
Apart from the merit policy guidelines, I recognize the
superficial appeal of the argument that since Roberts'
salary exceeded by 18 cents an, hour the maximum salary
payable to an employee in his position classification, it is
unlikely that Roberts would have received any serious
consideration fora wage increase in June 1974. The fact is,
however, that Weeks testified that he thought that Roberts
would receive an increase , although he knew that Roberts
was already receiving more than the maximum of his salary
grade. The further fact is that Roberts, who evidently had
not had a wage increase any more recently than the other
employees, had been thought, more than a year before, to
be worth $4,75 per hour as an employee; had he not had
the temerity to exercise his Section 7 rights, he might well
have been a recipient of Respondent's beneficence in
deciding to add an "adjustment factor" for employees who
had gone without an increase for a long period. In
addition, although at the hearing Tierney stressed the
importance of not exceeding the maxima established under
the salary structure, citing considerations of employee
morale and the eventual erosion of the salary structure, the
record shows that only two employees in the entire Aristar
enterprise, Roberts and Coleman, were assigned to the
109.12 position classification, and that the salary scales are
considered "confidential" and not for employee eyes.
Finally, I note that despite having established $4.57 per
hour as the maximum for Roberts' classification at the
warehouse- in Riviera Beach, Respondent was not so
wedded to that figure as an absolute ceiling as to cause it to
reduce Roberts to that amount when the new salary
19 The case of Mary Ellen Corn, discussed above, hardly appears to
compel a contrary conclusion. For one thing, as pointed out previously,
there is no testimony that Corn, unlike Roberts, did not at least receive a
review along with the other clerical employees when increases for that group
were considered in 1974. All we are told is that she did not in fact receive a
wage increase. The record is thus silent on what seems to be the critical
question-whether Corn was in fact evaluated for a possible increase.
Furthermore, the facts relating to Corn suggest that her case is wholly
distinguishable from that of Roberts . As noted , Corn had previously been
secretary to the chairman of the board of Grant's. Upon his death, she was
transferred to an accounting position in the Riviera Beach warehouse, but
her' salary was maintained at her previous level'It seems reasonable to
asinine that her executive suite salary, which she continued to receive while
serving as an accounting clerical employee in a warehouse, was so
structure was put into effect in the warehouse in June. This
latter fact leads me to believe that Respondent did not
consider the salary scales to be as sacrosanct and
invariable as Tierney's testimony would have them. In any
event, as I fmd below, whether or not Roberts would have
received a wage increase is beside the question; what the
law entitled him to was a fair consideration of whether he
should have received a wage increase, unfettered by illicit
consideration of his union organizational efforts.
The record shows, and I fmd, that Roberts' efforts to
introduce the Union into the Grant's stores had incurred
Respondent's unremitting enmity. In January 1974, Tier-
ney had instructed Weeks to begin building a file against
Roberts so that a solid foundation could be laid for
discharging him. Thereafter, Weeks and Tierney discussed
on many occasions the possibility of terminating Roberts,
and Tierney expressed his dismay at the fact that no
documented basis for doing so had been compiled. When,
in June 1974, all other Riviera Beach warehouse employees
were being evaluated and reviewed for wage increases,
Tierney made it unmistakably clear to Weeks that Roberts
was not to be considered for an increase because,
anticipating a resumption of the organizational campaign
which had just ended in a narrow defeat for the Union,
Respondent intended to get rid of "the organizer."
"The policy of the Act is to insulate employees' jobs
from their organizational rights." The Radio Officers' Union
of the Commercial Telegraphers Union, A.F.L., [A. H. Bull
Steamship Company] v. N.LR.B., 347 U.S. 17,40 (1954). In
the present setting, this policy means that when the
warehouse employees were being reviewed for wage
increases in June 1974, Roberts was entitled at the very
least to "an appraisal free of discrimination, . . ." Brown &
Root-Northrop, 177 NLRB 1, 8 (1969). The fact is, however,
that Roberts not only did not receive such a neutral
appraisal, he received no appraisal at all. The Act demands
that in matters affecting employment status, an employer
must put to one side all feelings of ill will engendered by an
employee's union activity and treat the offending employee
as he does all other employees. In the instant case,
however, Tierney's instructions to Weeks clearly truncated
the normal process of evaluation for an increase which
Roberts would otherwise have received, from Weeks. And,
on the findings previously made, those instructions were
not predicated on any dictate arising from Respondent's
salary guidelines; Weeks' credited testimony shows that
Tierney did not ascribe to any supposed conflict with
company salary policy his decision not to consider Roberts
for an increase, but,' rather , made it clear that the pivotal
disproportionate to the wages ordinarily received by employees in the latter
classification that any further increase for Corn would have been clearly out
of the question.
Weeks was also asked on cross-examination about Polly Flowers, another
clerical employee not covered by the petition. He testified that he did not
recall giving her an increase and that as far as he knew no range had ever
been established for her. Respondent did not further pursue the matter of
Flowers at the hearing. On these sparse facts , I cannot conclude that the
case of Flowers contributes significantly to the question here' under
consideration.
Because of Roberts' role as the premier activist and the Respondent's
clear antipathy to him, I also accord little weight to the fact that
Respondent granted increases to three employees who testified at the
representation proceeding.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factor for denying consideration was Respondent's anti-
union policy. The record plainly supports a conclusion that
Roberts' activities on behalf of the Union cost him the
impartial review to which the Statute entitled him.20
The fact that I cannot conclude from this record that,
absent discrimination, Roberts would in fact have received
an increase is no obstacle to fording a violation of the Act.
The Board has recently reminded us, in the analogous case
of Utility and. Industrial Construction Company, 214 NLRB
No. 152 (1974), that proof of actual loss is unnecessary to
the conclusion that a violation was committed; the vice lies
in disparate treatment for reasons proscribed by the Act.
In that case, the refusal of the respondent union to register
an applicant in its hiring hall because he was a nonmember
was deemed sufficient to make out a violation, and the fact
that there-were no subsequent requests for referral from the
hall was considered irrelevant. See also Brown & Root-
Northrop, supra.
Accordingly, I fmd that Respondent's failure to afford
Roberts a fair and impartial evaluation for a prospective
wage increase, divorced from consideration of his union
activities, violated Section 8(a)(1) and (3) of the Act.21 As it
would not materially affect the remedy recommended
hereafter, I need not determine whether the conduct was
also violative of Section 8(aX4) of the Act.
Upon the basis of the foregoing findings- of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Grant's Home Furnishings, Inc., is, and at all
material times has-been, an employer within the meaning
of Section 2(2) of the Act; and has engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Freight, Drivers, Warehousemen and Helpers Local
Union No. 390, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, is, and at all material times
has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating with respect to the terms and
conditions of employment of George W. Roberts, thereby
discouraging membership in the above-named labor
organization, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce , and constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and from any like or related
conduct. At the hearing, the General Counsel requested a
remedy consisting, inter alia, of "backpay for Mr. Roberts
from the period on or about mid-June or July to the
present time for the pay raise he didn't get, and then
prospectively the increase to his wage ...: '
I find it impossible to determine at this'stage the amount
of increase, if any, which would have been granted to
Roberts had he been afforded a fair and impartial
evaluation free from consideration of his union activity. On
the one hand, as discussed, Roberts was earning 17 cents
more per hour than the nominal maximum set for his
salary grade. On the other hand, at sometime in the past his
supervisors at Grant's had thought him deserving of a rate
of $4.75 per hour, and that figure had not been increased
for a substantial period of time. Since, as previously noted,
the substantial increases given employees in June 1974
took into account the fact that the warehouse employees
had not had a wage increase for a considerable length of
time, it might well be that an unbiased employer, looking
at Roberts as a proven valuable employee rather than•as a
union activist, would have concluded that Roberts de-
served some raise in his wage. -
In the apposite case of Brown & Root-Northrop, supra, the
Board held that the question whether the discriminatee
would have received a merit increase absent discrimina-
tion, and the exact amount of such increase, should more
appropriately be ascertained at the compliance stage of the
proceeding. (177 NLRB at 9.) Accordingly, I will recom-
mend that Respondent put into effect for George W.
Roberts such merit increase as he would have received in
June 1974, absent discrimination, and make him whole for
any loss of pay he may have suffered' by reason of the
20 Respondent argues that there must be "a clear showing that an
employer's dominant motive was improper ." I fmd in fact that Respondent's
dominant motive for refusing to even consider Roberts for a raise was the
improper consideration of Roberts' union activity. I note, however, that in
N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (1967), the Court of
Appeals for the Fifth Circuit disagreed with Respondent's present
contention and stated the controlling principle as follows:
To invoke Section 8(aX3), the antiunion motive need not be dominant
(i.e., larger in size than other motives); in some cases it may be so small
as the last straw which breaks the camel 's back.
Even if I were to accept arguendo the contention that Roberts' union activity
did not provide the dominant motivation for failing fairly to evaluate him
for an increase , the statements made by Tierney to Weeks regarding an
increase for Roberts make it clear beyond peradventure that Roberts' union
activity at least broke the camel 's back.
I find no conflict between my conclusion and the Board 's holding in
Golden Nugget, Inc., 215 NLRB No. 20 (1974), cited to me by Respondent.
The Board there held , in pertinent part:
If an employee provides an employer with the sufficient cause for his
dismissal by engaging in conduct for which he would have been
terminated in any event, and the employer discharges him for that reason,
the circumstance that the employer welcomed the opportunity to
discharge does not make it discriminatory and therefore unlawful.
(Emphasis supplied.)
The emphasized words are -the critical ones. On Weeks' credited testimony, I
find here that, had it not been for Roberts' efforts on behalf of the Union,
Tierney would not have instructed Weeks to deny Roberts a fair appraisal
for a wage increase.
21 While the complaint charges that Respondent "refused to grant"
Roberts an increase because of his protected activities, I cannot definitively
conclude that he would have been "granted' an increase were it not for
those activities . I have concluded, however, that he was the victim of
discrimination by virtue of being refused fair consideration because of those
activities, and I consider such a conclusion to be well within the scope of the
pleadings. See Brown & Root-Northrop, supra.
GRANT'S HOME FURNISHINGS
discrimination against him, by paying to him a sum of
money equal to the additional amount, if any, that he
would normally have earned from the date when the June
1974 increase became effective until the time it does in fact
become effective for Roberts, with 6 percent interest per
annum, as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). It will further be recommended that the
Respondent preserve and make available to the Board or
its agents , for examination and copying, all records
necessary to determine the amount of backpay due
hereunder, and post appropriate notices.
Upon the basis of the foregoing fmdings of fact and
conclusions of law, upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER22
The Respondent, Grant's Home Furnishings, Inc.,
Riviera Beach, Florida, its officers, agents, successors, and
assigns, shall:
(1) Cease and desist from:
(a) Discriminating against its employees by failing and
refusing to fairly review and evaluate them for wage
increases without regard to their union membership,
sympathies, or activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole George W. Roberts for any loss of pay
suffered by reason of the discrimination against him, in the
manner provided above in the section entitled "The
Remedy," with interest thereon at the rate of 6 percent per
annum.
(b) If appropriate, increase the wages of George W.
Roberts to the level he would have enjoyed had he not
been discriminated against.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at the Respondent's central warehouse located
in Riviera Beach, Florida, copies of the attached notice
marked "Appendix." 23 Copies of said notice, on forms
provided by the Regional Director for Region 12, after
being duly signed by its representative, shall be posted by
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
769
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
22 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.
23 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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act, and has
ordered us to post this notice and to keep our word about
what we say in this notice.
The Act gives employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual, aid or protection
To refrain from any and all these things.
WE WILL NOT, in considering our employees for wage
increases, give any weight to the fact that they have
assisted or supported Freight Drivers, Warehousemen
and Helpers Local Union No. 390, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion.
WE wu.L reimburse George W. Roberts for any loss
of pay he may have suffered because of dur discrimina-
tion against him, with 6 percent interest.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist
the Union, to bargain collectively through representa-
tives of their own choosing, or to engage in other
mutual aid or protection, or to refrain from such
activities.
GRANt's HOME
FURN1smNGs, INC.